[ v02 p389 ]
02:0389(52)CA
The decision of the Authority follows:
2 FLRA No. 52
SOCIAL SECURITY ADMINISTRATION,
MID-AMERICA PROGRAM SERVICE CENTER,
BRSI, KANSAS CITY, MISSOURI
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
SOCIAL SECURITY LOCAL 1336
Complainant
Assistant Secretary
Case No. 60-5757(CA)
DECISION AND ORDER
On July 3, 1979, Administrative Law Judge Edwin S. Bernstein Issued
His Recommended Decision and Order in the Above-entitled Proceeding,
Finding That the Respondent Violated Section 19(a)(1) of Executive Order
11491, as Amended, When it Placed in an Employee's File Remarks
Disparaging a Union Steward's Performance of His Duty in Representing
The Employee, and Recommending That it Cease and Desist Therefrom and
Take Certain Affirmative Action as Set Forth in the Attached
Administrative Law Judge's Recommended Decision and Order. The
Administrative Law Judge Found Further That the Respondent Had Not
Violated Section 19(a)(1) and (2) of the Order When it Lowered an
Employee's Performance Rating, and Therefore Recommended That the
Remainder of the Complaint, Relating Thereto, Be Dismissed. Thereafter,
The Respondent Filed Exceptions with Respect to That Portion of the
Administrative Law Judge's Recommended Decision and Order Finding a
Violation.
The Functions of the Assistant Secretary of Labor for
Labor-management Relations under Executive Order 11491, as Amended, Were
Transferred to the Authority under Section 304 of Reorganization Plan
No. 2 of 1978(43 F.r. 36040), Which Transfer of Functions Is Implemented
By Section 2400.2 of the Authority's Rules and Regulations(44 F.r.
44741, July 30, 1979). The Authority Continues to Be Responsible for
The Performance of These Functions as Provided in Section 7135(b) of the
Federal Service Labor-management Relations Statute(92 Stat. 1215).
Therefore, Pursuant to Section 2400.2 of the Authority's Rules and
Regulations and Section 7135(b) of the Statute, the Authority Has
Reviewed the Rulings of the Administrative Law Judge Made at the Hearing
And Finds That No Prejudicial Error Was Committed. The Rulings Are
Hereby Affirmed. Upon Consideration of the Administrative Law Judge's
Recommended Decision and Order and the Entire Record in this Case,
Including the Respondent's Exceptions, /1/ the Authority Hereby Adopts
The Administrative Law Judge's Findings, Conclusions and
Recommendations. /2/
Order
Pursuant to Section 2400.2 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7135 of the Federal
Service Labor-management Relations Statute, the Authority Hereby Orders
That the Social Security Administration, Bureau of Retirement and
Survivors Insurance, Mid-america Program Service Center, Shall:
1. Cease and Desist From:
(A) Publishing Memoranda Disparaging and Deprecating the
Representation of Employees by Union Representatives.
(B) in Any like or Related Manner Interfering With, Restraining, or
Coercing Employees in the Exercise of Their Rights Assured by Executive
Order 11491, as Amended.
2. Take the Following Affirmative Action in Order to Effectuate the
Purposes and Policies of the Order:
(A) Post at its Facilities at the Mid-america Program Service Center,
Kansas City, Missouri, Copies of the Attached Notice Marked "Appendix"
On Forms to Be Furnished by the Federal Labor Relations Authority. Upon
Receipt of Such Forms, They Shall Be Signed by the Director of the
Mid-america Program Service Center, and They Shall Be Posted and
Maintained by Him for 60 Consecutive Days Thereafter, in Conspicuous
Places, Including All Places Where Notices to Employees Are Customarily
Posted. The Social Security Administration, Bureau of Retirement and
Survivors Insurance, Mid-america Program Service Center Shall Take
Reasonable Steps to Insure That Such Notices Are Not Altered, Defaced or
Covered by Any Other Material.
(B) Notify the Federal Labor Relations Authority, in Writing, Within
30 Days from the Date of this Order as to What Steps Have Been Taken to
Comply Herewith.
It Is Hereby Further Ordered That the Portion of the Complaint in
Assistant Secretary Case No. 60-5757(ca) Found Not Violative of the
Executive Order Be, and it Hereby Is, Dismissed.
Issued, Washington, D.c., December 31, 1979
Ronald W. Haughton, Chairman
Henry B. Frazier Iii, Member
Leon B. Applewhaite, Member
Federal Labor Relations Authority
Appendix
Notice to All Employees Pursuant to a Decision and Order of
The Federal Labor Relations Authority and in Order to
Effectuate the Policies of Chapter 71 of Title 5 of the
United States Code Federal Service Labor-management
Relations We Hereby Notify Our Employees That:
We Will Not Publish Memoranda Disparaging or Deprecating the
Representation of Employees by Their Union Representatives.
We Will Not in Any like or Related Manner Interfere With, Restrain,
Or Coerce Our Employees in the Exercise of Their Rights Assured by
Executive Order 11491, as Amended.
(Agency or Activity)
Dated: By:
(Signature)
This Notice must Remain Posted for 60 Consecutive Days from the Date
Of Posting and must Not Be Altered, Defaced, or Covered by Any Other
Material.
If Employees Have Any Questions Concerning this Notice or Compliance
With Any of its Provisions, They May Communicate Directly with the
Regional Director, Federal Labor Relations Authority, Whose Address Is:
City Center Square, Suite 680, 1100 Main Street, Kansas City, Missouri
64105: and Whose Telephone Number Is: (816) 374-2199.
Francis X. Dippel
Management Representative
Mid-america Program Service Center
Social Security Administration
1220 High Rise Building
6401 Security Boulevard
Baltimore, Maryland 21325
For the Respondent
Barbara M. Vache, Esq.
905 North Seventh Street
Kansas City, Kansas
For the Complainant
Before: Edwin S. Bernstein
Administrative Law Judge
Recommended Decision and Order
On June 15, 1978, American Federation of Government Employees,
Afl-cio, Social Security Local 1336 (The Union) Filed a Complaint
Against Social Security Administration, Mid-america Program Service
Center, Brsi (The Activity) the Complaint, as Amended on October 6, 1978
Alleged That the Activity Violated Subsections 19(a)(1) and (2) of
Executive Order 11491, as Amended (The Executive Order) in That Ms.
Barbara Reed, the Assistant Manager of Module 34, (1) Defamed in Writing
Mr. Carl Harper, Head Steward of Section Vi and (2) Lowered Mr. James
Scott's Performance Rating for the Period from October 1, 1976 Through
September 30, 1977 as a Reprisal Because He Obtained Union
Representation.
Pursuant to a Notice of Hearing Dated October 13, 1978, a Hearing Was
Held Before Me in Kansas City, Missouri on December 14, 1978. Both
Parties Were Represented by Counsel, Examined and Cross-examined
Witnesses, Presented Evidence, and Filed Post-hearing Briefs. Upon the
Entire Record, I Make the Following Findings of Fact, Conclusions of
Law, and Recommended Order.
Findings of Fact
Following a Meeting on September 19, 1977 with James H. Scott and His
Head Steward, Carl E. Harper, Mr. Scott's Supervisor, Barbara Ann Reed
Issued a Lowered Performance Appraisal for Mr. Scott and Issued a
Memorandum Criticizing Mr. Harper's Conduct at the Meeting. The Issues
Are Whether the Lowered Performance Appraisal And/or the Criticisms of
Mr. Harper Violated Subsections 19(a)(1) or (2) of the Executive Order.
Following a February 10, 1977 Meeting in Which She Discussed Mr.
Scott's Job Performance, Ms. Reed Summarized Her Comments in a
Memorandum to Mr. Scott, Stating:
"I Told You That I Have No Particular Criticisms of Your Work at this
Time. I Feel That
You Have Maintained the High Level of Performance Indicated by Your
Current Appraisal. You
Have the Experience and Knowledge to Be Competent in All Aspects of
Your Job and Carry out All
Assignments and Case Work Independently and Efficiently: You Rarely
Receive a Qa Error and
Have Need of Few Consultations with Ta or Other Technicians."
Following Another Meeting with Mr. Scott on June 6, 1977, Ms. Reed
Complained That Mr. Scott and Others Had Been Engaging in Excessive
Talking and Non-productive, Bad Habits. She Suggested That He Might
Find it Useful to Keep His Own Private Tally of Cases Worked and
Non-productive Conversations Each Day. She Stated That Three Weeks
Earlier the Module Manager Attempted to Rearrange Desks of Persons in
The Module to Alleviate the Excessive Talking and Non-productive
Activities but since it Was Met with Vigorous Opposition it Was Dropped
With the Alternative Suggestion Made by Members of the Module of
Allowing for a Period of Improvement. She Further Indicated That since
The Trial Period Had Ended, Interviews Were Being Conducted with
Persons, Including Him, Who Presumably Had Not Improved During the Trial
Period.
Following Another Meeting with Mr. Scott on July 26, 1977, Ms. Reed
Noted a "Very Definite Decline from Your Level of Efficiency at the End
Of the Last Rating Period." She Indicated That She Found 12 Errors in 53
Of His Cases That Were Reviewed, That the Errors Seemed to Be Due
Primarily to Carelessness Rather than to Lack of Knowledge, That Others
Needed to Assist Him in Keeping up with the Backlog, That His Output Had
Declined, and That He Seemed to Have Suffered a Loss of Enthusiasm and
Motivation Regarding His Work.
Following an August 26, 1977 Meeting with Mr. Scott, Ms. Reed Again
Advised Him That She Did Not Feel That He Was Performing at the Level of
His Current Appraisal. She Complained That Occasionally He Did Not
Honor Dispatch Times, That Recently Numerous Non-moving Folders Were
Located on His Desk. She Indicated Specifically How She Planned to Rate
Him for the Current Period in Each of the Various Rating Categories.
Mr. Scott Then Discussed the Proposed Lowered Rating with His Union
Head Steward, Mr. Carl Harper Who by Note to Ms Reed Dated September 19,
1977 Requested a Meeting. The Note Contained the Following Language:
"The Nature of the Problem Is Performance Related and Deals Primarily
With a Performance
Interview Wherein You (Illegible) You Are Contemplating a Overall
Lowering of Mr. Scott's
Appraisal in Every Item. Your Decision to Do So Is Arbitrary and
Capricious in Light of the
Supervisory Guidelines and Current Policy and Practice as Established
By Our Section Chief,
Mr. Copeland."
Ms. Reed Met with Mr. Scott and Mr. Harper Later That Day. Mr.
Scott Testified That the Meeting Was Heated and He Thought That Ms. Reed
Believed That Mr. Harper Threatened to File a Grievance If Mr. Scott's
Appraisal Was Not Changed. Mr. Harper Testified That the Meeting Was
Harmonious and That Ms. Reed Listened, Took Notes, but Did Not Provide
Much Feedback.
Ms. Reed Prepared a 3 Page Memorandum in Which She Set Forth Her
Recollection of What Transpired at and Her Views Regarding the September
19, 1977 Meeting. The Memorandum Indicated That Mr. Harper Threatened
That a Grievance Would Be Filed Unless She Changed Mr. Scott's Proposed
Ratings. Her Summarized Views Included Opinions That Mr. Scott Had a
Poor Knowledge of the Facts, Was Poorly Prepared for the Meeting, and
Lied; That the Sole Purpose of the Meeting Was to Embarrass, Intimidate
And Threaten Her; and That Mr. Harper Did a Poor Job of Representing
Mr. Scott.
Ms. Reed Prepared the Memorandum on September 19 and Gave a Copy to
Her Supervisor, Kathleen A. Gorman. On September 21, at Ms. Gorman's
Direction, Ms. Reed Signed and Dated the Memorandum and Placed a Copy in
Mr. Scott's 7b Extension File.
On November 4, 1977, Mr. Scott Received His Performance Ratings for
The Year from October 1, 1976 Through September 30, 1977. The Ratings
Were Identical to the Ratings That Ms. Reed Showed to Mr. Scott at the
August 26, 1977 Meeting.
The Union Filed an Informal Charge in this Matter on March 17, 1978.
The Activity's Labor Management Relations Bulletin Dated May 1, 1978
Contained the Following Notice to Supervisors:
During the past Month, the Psc Received an Unfair Labor Practice
Charge That Claimed
Management Violated Section 19(a)(1), (2), (4), and (5) of Executive
Order 11491 as
Amended. Regarding this Charge, We Would like to Remind Managers
That the Disparagement or
The Exhibition of Disdain for a Union Official or Representative
While He or She Is Performing
Authorized Representational Activities and in the Presence of One or
More Bargaining Unit
Employees May Be an Act Which Is a Violation of Section 19(a) (1) of
The Executive
Order. Such Action Is Held to Have a Chilling Effect upon an
Employee's Exercise of His or
Her Section 1(a) Rights to Form, Join, or Assist a Labor
Organization. Although You Can
Express Your Opinions Candidly in a Private Conversation Between
Yourself and a Union
Representative Acting in an Official Capacity, You Should Not in Any
Case Disparage or Show
Disdain for a Union Official or Representative Acting in an Official
Capacity and in the
Presence of a Bargaining Unit Employee.
On June 29, 1978, the Activity Sent the Following Letter to the
Complainant:
Despite the Fact That You Have Not Indicated Any Intention to Accept
Any of Management's
Offers for Informal Settlement of this Charge, We Have Decided to
Remove the Written Summary
Of Ms. Reed's September 19, 1977, Meeting with Mr. James Scott and
Mr. Carl Harper from
Mr. Scott's Sf-7b Extension File. By So Doing, We Are Not, Even by
Implication, Admitting to
Any Violation of the Executive Order. However, We Do Feel That this
Summary Does Not Add
Useful Information to the Employee's File, and since it Is the
Alleged Basis of Your Unfair
Labor Practice Complaint, We Wish to Hereby Demonstrate Further Our
Good Faith in Attempting
To Resolve That Complaint.
On November 16, 1977, Mr. Scott Filed a Grievance in Which He
Questioned and Sought Revision of His Recent Performance Appraisals.
After a Hearing, the Grievance Examiner Found That the Evaluations Were
Just and Fair and Denied Relief to the Grievant.
Mr. Harper and the Activity's Management Had Previously Disagreed in
June 1977 When Ms. Gorman Wished to Rearrange Desks in the Module and
Because of Employee Opposition, in Which Ms. Harper Represented the
Employees, the Activity Dropped the Plan.
In the Summer of 1977, Ms. Reed Considered Lowering the Ratings of
Two Other Employees, Richard Gutierrez and Shirley Shaw but after
Meeting with These Employees, Ms. Reed Was Persuaded Not to Lower Their
Ratings and These Individuals Were Subsequently Promoted. These
Employees Were Assisted by the Union Although Not Represented at
Meetings by the Union in These Matters. It Is Not Clear Whether or Not
The Activity Knew That the Union Assisted the Employees.
Conclusions of Law
There Is No Evidence That Mr. Scott Received a Lower Performance
Rating Because of His Union Activities or Because He Obtained Union
Assistance. The Rating That He Received Was Identical in All Categories
To the Rating That His Supervisor Advised Him of Before the September
19, 1977 Meeting and Was Consistent with Warnings That He Received in
June, July and August. Furthermore, since the Issue of the Propriety of
The Performance Ratings Was Raised in a Grievance Procedure, Section
19(d) of the Executive Order Bars Consideration of the Issue under
Unfair Labor Practice Procedures. Equal Employment Opportunity
Commission, A/slmr 707(1976); Department of the Navy, Mare Island Naval
Shipyard, Vallejo, California, A/slmr 570(1975).
However, I Find That in Placing Ms. Reed's September 21, 1977
Summarization Memorandum in Mr. Scott's 7b Extension File, the Activity
Violated Section 19(a)(1) of the Executive Order. Although Ms. Reed Was
Obviously Provoked by Mr. Harper and Felt Threatened and Intimidated,
Her Statements to the Effect That Mr. Harper Did a Poor Job of
Representing Mr. Scott Are Remarks Disparaging a Union Representative in
The Performance of His Duty Which Interfere With, Restrain, or Coerce an
Employee in the Exercise of Rights Assured by the Executive Order. See:
National Labor Relations Board, Region 17, and National Labor Relations
Board, A/slmr 671(1976); Internal Revenue Service Center, Philadelphia
Service Center, Philadelphia, Pennsylvania, A/slmr No. 771(1976);
Department of Transportation, Federal Aviation Administration, Airway
Facilities Sector, Tampa, Florida, A/slmr 725(1976). Ms. Reed Had Every
Right to Prepare the Summarization and Show it to Her Supervisors but
When the Summarization, Which Deprecated the Union Steward's
Representation of Mr. Scott, Was Placed in the Employee's File, it
Constituted Publication, at Least to the Employee, and Then Violated
Section 19(a)(1).
I Do Not Agree with the Activity That Their Removal of the
Summarization and the Issuance of a Notice in Their Bulletin to
Supervisors Rendered the Violation De Minimus or Moot. In Support of
This Argument, the Activity Cites Department of the Navy, Norfolk Naval
Shipyard, Portsmouth, Virginia, A/slmr 967(1977). However, in That Case
The Violation Was Found to Be De Minimus Because the Offending Material
Was Removed Immediately. 'In the Case at Hand, the Activity Waited over
9 Months Before Removing the Summarization. Although That Removal
Provided Part of the Remedy, it Did Not Cure the Violation or Render it
De Minimus.
Recommendation
Having Found That Respondent Has Engaged in Conduct Prohibited by
Section 19(a)(1) of Executive Order 11491, as Amended, I Recommend That
The Federal Labor Relations Authority (The Authority) Adopt the
Following Order Designed to Effectuate the Purposes and Policies of the
Executive Order.
Recommended Order
Pursuant to Section 6(b) of Executive Order 11491, as Amended, and
Section 203.26 of the Regulations Thereunder, the Authority Hereby
Orders That Social Security Administration, Mid-america Program Service
Center, Brsi, Kansas City, Missouri Shall:
1. Cease and Desist From:
(A) Publishing Memoranda Disparaging and Deprecating the
Representation of Employees by Union Representatives.
(B) in Any like Manner, Interfering With, Restraining, or Coercing
Employees in the Exercise of Their Rights Assured by the Executive
Order.
2. Take the Following Affirmative Actions to Effectuate the Purposes
And Policies of the Executive Order:
(A) Post at its Facilities Copies of the Attached Notice Marked
"Appendix" on Forms to Be Furnished by the Authority. Upon Receipt of
Such Forms, They Shall Be Signed by the Official in Charge of the
Activity and Posted and Maintained by Him for 60 Consecutive Days
Thereafter, in Conspicuous Places, Including All Bulletin Boards and
Other Places Where Notices to Employees Are Customarily Posted. The
Official in Charge of the Activity Shall Take Reasonable Steps to Insure
That Such Notices Are Not Altered, Defaced, or Covered by Any Other
Material.
(B) Pursuant to 29 C.f.r. 203.27 and Section 2400.2 of the Transition
Rules and Regulations, Notify the Authority in Writing Within 30 Days
From the Date of this Order as to What Steps Have Been Taken to Comply
Herewith.
Edwin S. Bernstein
Administrative Law Judge
Dated: July 3, 1979
Washington, D.c.
/1/ the Respondent Excepted to the Administrative Law Judge's Finding
That Placing in an Employee's File a Summary Disparaging the Union
Representative's Performance of His Representational Duty Constituted
Publication. The Authority Agrees with the Administrative Law Judge's
Conclusion in That Respect, and Notes in Addition That Uncontradicted
Evidence Establishes That the Respondent Also Gave a Copy of the Summary
Directly to the Employee.
/2/ in Conformity with Section 902(b) of the Civil Service Reform Act
Of 1978(92 Stat. 1224), the Present Case Is Decided Solely on the Basis
Of E.o. 11491, as Amended, and as If the New Federal Service
Labor-management Relations Statute (92 Stat. 1191) Had Not Been Enacted.
The Decision and Order Does Not Prejudge in Any Manner Either the
Meaning or Application of Related Provisions in the New Statute or the
Result Which Would Be Reached by the Authority If the Case Had Arisen
Under the Statute Rather than the Executive Order.