[ v02 p389 ]
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.