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) 


[ v02 p389 ]
The decision of the Authority follows:

 2 FLRA No. 52
                            		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
    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/
    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
        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:
    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
    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
    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
    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
    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 th