[ v03 p18 ]
03:0018(3)CA
The decision of the Authority follows:
3 FLRA No. 3
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE AND
IRS RICHMOND DISTRICT OFFICE
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 48
Complainants
Assistant Secretary
Case No. 22-09522(CA)
DECISION AND ORDER
ON OCTOBER 16, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANTS
FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER.
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
(45 F.R. 3482, JANUARY 17, 1980). 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 COMPLAINANTS' EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATION
EXCEPT AS MODIFIED HEREIN. /0/ IN REACHING HIS CONCLUSION THAT THE
RESPONDENTS HAD NOT VIOLATED SECTION 19(A)(6) OF THE EXECUTIVE ORDER,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENTS HAD NOT
"INTENDED TO ESTABLISH A NEW CONDITION OF EMPLOYMENT AND CHANGE ITS
POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS . . . " AS
INTENT IS NOT AN ELEMENT OF A SECTION 19(A)(6) VIOLATION, THE AUTHORITY
DOES NOT RELY ON THIS PORTION OF THE ADMINISTRATIVE LAW JUDGE'S
REASONING IN ADOPTING HIS RECOMMENDATION TO DISMISS THE COMPLAINT.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 22-09522(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., APRIL 4, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
GEORGE T. BELL, ESQUIRE
ASSISTANT REGIONAL COUNSEL
GENERAL LEGAL SERVICES
INTERNAL REVENUE SERVICE
2 PENN CENTER PLAZA
PHILADELPHIA, PA 19102
FOR THE RESPONDENTS
MICHAEL MAUER, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
FOR THE COMPLAINANTS
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE NATIONAL
TREASURY EMPLOYEES UNION (NTEU) AND NTEU CHAPTER 48 (HEREINAFTER CALLED
THE COMPLAINANT OR UNION), AGAINST THE INTERNAL REVENUE SERVICE (IRS)
AND IRS RICHMOND DISTRICT OFFICE (HEREINAFTER CALLED THE RESPONDENTS).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENTS MONITORED
THE TELEPHONE CALLS OF WILLIAM GROGAN, AN ASSISTANT STEWARD, WHO HAD
PREVIOUSLY WON AN ARBITRATION DECISION, AND USED SUCH INFORMATION AS THE
BASIS FOR A NEGATIVE RECORDATION CONCERNING MR. GROGAN. THE COMPLAINT
ALLEGED THAT SUCH ACTIONS INTERFERED WITH EMPLOYEES IN THE EXERCISE OF
RIGHTS ASSURED BY THE ORDER, IN VIOLATION OF SECTION 19(A)(1),
DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
REGARD TO CONDITIONS OF EMPLOYMENT, IN VIOLATION OF SECTION 19(A)(2),
AND CHANGED PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS WITHOUT PRIOR NOTIFICATION AND NEGOTIATION WITH THE
UNION, IN VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER. /1/
RESPONDENT DENIED THE ALLEGATIONS AND ASSERTED THAT THE COMPLAINT WAS
NOT TIMELY FILED.
PURSUANT TO A NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR,
WASHINGTON REGION, FEDERAL LABOR RELATIONS AUTHORITY, A HEARING WAS HELD
IN THIS MATTER BEFORE THE UNDERSIGNED IN RICHMOND, VIRGINIA. BOTH
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND CROSS-EXAMINE
WITNESSES AND FILE BRIEFS.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS, STIPULATIONS, AND OTHER
RELEVANT EVIDENCE ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. COMPLAINANT IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
EMPLOYEES WORKING IN RESPONDENT'S RICHMOND, VIRGINIA DISTRICT OFFICE AND
IS A PARTY TO "MULTI DISTRICT AGREEMENT NUMBER THREE" COVERING SOME 57
IRS DISTRICTS THROUGHOUT THE UNITED STATES.
2. WILLIAM K. GROGAN WAS EMPLOYED BY THE RICHMOND DISTRICT OFFICE,
IRS, FROM JUNE 30, 1972 TO JANUARY 3, 1979. DURING THE PERIOD JUNE 1975
TO JANUARY 1979 MR. GROGAN SERVED AS AN ATTORNEY IN THE ESTATE AND GIFT
TAX DIVISION.
3. BEGINNING IN 1975 AND CONTINUING DURING THE PERIOD ENCOMPASSED BY
THE COMPLAINT, MR. GROGAN OCCASIONALLY SERVED AS AN NTEU ALTERNATE AND
ACTING UNION STEWARD.
ON REPORTS PREPARED BY MR. GROGAN, HE RECORDED THE FOLLOWING AMOUNT
OF TIME DEVOTED TO STEWARD ACTIVITIES:
MONTH INDIVIDUAL BANK TIME CHAPTER BANK TIME
JAN. 1978 0 HOURS 0
FEB. 1978 3 HOURS 0
MARCH 1978 0 HOURS 0
APRIL 1978 1 HOUR 30 MINUTES 0
MAY 1978 0 HOURS 0
JUNE 1978 4 HOURS 4 HOURS
JULY 1978 8 HOURS & 15 MINUTES 0 HOUR
AUGUST 1978 3 HOURS & 45 MINUTES 0 HOUR
4. IN MARCH 1976 MR. GROGAN, THROUGH THE UNION, FILED THREE
GRIEVANCES WITH MR. RUSSELL JOHNSON, HIS SUPERVISOR, CONCERNING MR.
GROGAN'S PERFORMANCE EVALUATION. THE ACTIVITY DENIED THESE GRIEVANCES.
AN ARBITRATION HEARING ARISING OUT OF THE GRIEVANCES WAS HELD ON APRIL
29, 1977. AN ARBITRATION AWARD IN MR. GROGAN'S FAVOR WAS ISSUED ON
SEPTEMBER 22, 1977.
5. IN APRIL 1977 MR. JOHNSON RECOMMENDED MR. GROGAN FOR A SPECIAL
ACHIEVEMENT AWARD IN RECOGNITION OF THE QUALITY OF HIS PERFORMANCE
DURING THE PERIOD MAY 1, 1976 TO APRIL 30, 1977. MR. GROGAN RECEIVED
THE AWARD ON AUGUST 8, 1977.
6. ON OCTOBER 12, 1977 MR. JOHNSON RECOMMENDED MR. GROGAN FOR THE
POSITION OF SPECIAL AGENT, A POSITION FOR WHICH MR. GROGAN HAD APPLIED.
7. ON NOVEMBER 11, 1977 MR. JOHNSON RENDERED A PERFORMANCE
EVALUATION ON MR. GROGAN WHICH RATED MR. GROGAN ABOVE AVERAGE IN SEVEN
AREAS, AND GAVE HIM AN OVERALL ABOVE AVERAGE RATING. IN FEBRUARY 1977
MR. JOHNSON HAD RECEIVED AN ABOVE AVERAGE RATING IN ONLY FIVE AREAS AND
AN OVERALL PERFORMANCE RATING OF AVERAGE. IN BOTH RATINGS MR. GROGAN
WAS RATED AVERAGE IN UTILIZATION OF TIME.
8. DURING THE PERIOD ENCOMPASSED BY THE COMPLAINT IT WAS THE
PRACTICE OF IRS EMPLOYEES TO RECEIVE AND MAKE PERSONAL TELEPHONE CALLS
ON IRS TELEPHONES; HOWEVER, IT WAS UNDERSTOOD THAT OFFICIAL TELEPHONES
COULD NOT BE USED UNREASONABLY FOR PERSONAL BUSINESS AND THAT PERSONAL
CALLS WERE TO BE LIMITED.
9. DURING THE PERIOD FROM THE FALL OF 1977 TO AUGUST 1978 MR.
GROGAN RECEIVED AND MADE A LARGE NUMBER OF TELEPHONE CALLS. SOME OF THE
TELEPHONE CALLS WERE DIRECTLY RELATED TO MR. GROGAN'S UNION
RESPONSIBILITIES. HOWEVER, THE MAJORITY OF THE CALLS WERE PERSONAL IN
NATURE AND NOT RELATED TO IRS OR UNION BUSINESS. A LARGE PORTION OF MR.
GROGAN'S WORK DAY WAS SPENT RECEIVING AND PLACING PERSONAL TELEPHONE
CALLS. SINCE MR. GROGAN DID NOT HAVE A TELEPHONE IN HIS OWN OFFICE, HE
USUALLY USED TELEPHONES NEAR THE DESKS OF CATHERINE VINES AND WALTER P.
JONES. MR. GROGAN DISTURBED THE WORK OF THESE EMPLOYEES AS WELL AS HIS
OWN WORK WITH HIS PERSONAL TELEPHONE CONVERSATIONS.
10. MR. GROGAN USED THE TELEPHONE MORE FREQUENTLY THAN OTHER
EMPLOYEES AND RECEIVED AND MADE APPROXIMATELY THREE TIMES THE NUMBER OF
PERSONAL TELEPHONE CALLS RECEIVED AND MADE BY OTHER ATTORNEYS IN THE
UNIT.
11. IN LATE JANUARY OR EARLY FEBRUARY 1978, CATHERINE VINES, AN
EVALUATION CLERK, COMPLAINED TO MR. JOHNSON THAT MR. GROGAN WAS USING
THE TELEPHONE NEAR HER DESK FOR PERSONAL CALLS TO THE EXTENT THAT SHE
COULD NOT DO HER WORK.
12. DURING JANUARY OR EARLY FEBRUARY, 1978, MR. JOHNSON DISCUSSED
WITH MR. GROGAN WHAT MR. JOHNSON BELIEVED WAS AN EXCESSIVE AMOUNT OF
INCOMING TELEPHONE CALLS RECEIVED BY MR. GROGAN. MR. JOHNSON INDICATED
TO MR. GROGAN THAT HE WAS CONCERNED ABOUT THE NUMBER OF TIMES MR. GROGAN
WAS ON THE PHONE, THE LENGTH OF HIS CONVERSATIONS, AND THE FACT THAT HE
WAS DISTURBING HIS OWN WORK AND THE WORK OF OTHERS.
13. ON OR BEFORE FEBRUARY 17, 1978, MR. JOHNSON DIRECTED GROUP
CLERKS OF THE ESTATE AND GIFT TAX GROUP TO PREPARE FOR HIM A COPY OF ALL
INCOMING TELEPHONE MESSAGES LEFT FOR MR. GROGAN. MR. JOHNSON CONCLUDED
THAT SUCH DOCUMENTATION MIGHT BE NECESSARY FOR DISCIPLINARY ACTION SINCE
MR. GROGAN HAD NOT IMPROVED HIS TELEPHONE HABITS FOR ANY SUSTAINED
PERIOD OF TIME AS A RESULT OF THE CONFERENCES.
14. ON OR ABOUT MARCH 15, 1978, MR. GROGAN OBSERVED A DUPLICATE COPY
OF ONE OF HIS TELEPHONE MESSAGES ON THE DESK OF A GROUP CLERK AND
EXPRESSED HIS OBJECTIONS TO MR. JOHNSON. THIS WAS THE FIRST MR. GROGAN
KNEW THAT COPIES OF HIS INCOMING MESSAGES WERE BEING RETAINED. MR.
JOHNSON ADVISED MR. GROGAN THAT HE CONSIDERED THIS PROCEDURE A NECESSARY
STEP TO CONTROL WHAT WAS A MISUSE OF THE TELEPHONE.
15. IN APRIL 1978 MR. JOHNSON NOTICED THAT THE NUMBER OF INCOMING
MESSAGES FOR MR. GROGAN BEGAN TO DECREASE. HE FOUND THAT THE NUMBER OF
INCOMING CALLS HAD NOT CHANGED, BUT THE CALLERS, UPON FINDING THAT MR.
GROGAN WAS UNAVAILABLE, WERE DECLINING TO LEAVE MESSAGES.
16. ON APPROXIMATELY MAY 1, 1978, MR. JOHNSON DIRECTED GROUP CLERKS
IN THE ESTATE AND GIFT TAX GROUP TO KEEP A TALLY OF THE NUMBER OF
INCOMING TELEPHONE CALLS RECEIVED BY MR. GROGAN. THIS TALLY WAS
ACCOMPLISHED BY PLACING A TICK MARK ON THE CLERKS' DESK CALENDARS.
BETWEEN MAY 1 AND AUGUST 4, 1978, MR. GROGAN RECEIVED APPROXIMATELY 220
TELEPHONE CALLS. IN JUNE, 1978, MR. GROGAN FIRST BECAME AWARE THAT THIS
TALLY OF THE NUMBER OF INCOMING TELEPHONE CALLS WAS BEING KEPT.
17. WITH THE EXCEPTION OF MR. GROGAN, MR. JOHNSON PREVIOUSLY HAD
NEVER EITHER KEPT COPIES OF PHONE MESSAGES RECEIVED BY AN EMPLOYEE OR
KEPT A TALLY OF THE NUMBER OF PHONE CALLS RECEIVED BY ANY EMPLOYEE IN
HIS GROUP.
18. MANAGEMENT PROVIDED NO NOTIFICATION TO THE NTEU OF ITS KEEPING A
TALLY OF THE NUMBER OF PHONE CALLS RECEIVED BY MR. GROGAN, OR OF ITS
COPYING PHONE MESSAGES LEFT FOR MR. GROGAN.
19. ON AUGUST 9, 1978 MR. JOHNSON SENT MR. GROGAN A MEMORANDUM
CONCERNING HIS PERFORMANCE RATING. MR. JOHNSON STATED THAT ALTHOUGH MR.
GROGAN'S PERFORMANCE FOR THE PAST TWELVE MONTHS HAD BEEN RATED AS
SATISFACTORY, HIS PERFORMANCE IN THE AREAS OF EXAMINATION PLANNING,
SCHEDULING, AND TIME UTILIZATION SINCE OCTOBER 1, 1977 HAD BECOME AN
INCREASING CONCERN. MR. JOHNSON SET FORTH FIVE EXAMPLES TO ILLUSTRATE
THE PROBLEM. ONE OF THESE EXAMPLES, AS AMENDED ON OCTOBER 3, 1978, WAS
AS FOLLOWS:
(1) PERSONAL PHONE CALLS-- YOU AND I HAVE HAD SEVERAL COUNSELLING
SESSIONS CONCERNING THIS
PROBLEM. ACCORDING TO THE GROUP CLERK'S RECORD YOU HAD OVER 220
PHONE CALLS FROM MAY 1, 1978,
TO AUGUST 4, 1978. WHILE SOME OF THE CALLS WERE BUSINESS RELATED,
MANY OF THEM MUST HAVE BEEN
PERSONAL IN NATURE. RECEIVING AN AVERAGE OF 73 CALLS PER MONTH IS A
SERIOUS DISRUPTION TO YOU
AND TO THE CLERICAL STAFF HAVING TO ANSWER THE CALLS.
20. DURING THE PERIOD JULY 1977 THROUGH AUGUST 1978, THERE WERE 13
GRIEVANCES FILED IN THE RICHMOND DISTRICT. MR. GROGAN REPRESENTED ONE
GRIEVANT DURING THIS TIME PERIOD IN A GRIEVANCE WHICH WAS FILED ON JULY
7, 1978. THE AGENCY DENIED THE GRIEVANCE AS BEING UNTIMELY FILED, AND
ALTHOUGH IT PROCEEDED THROUGH FOUR STEPS OF THE NEGOTIATED GRIEVANCE
PROCEDURE, IT WAS NEVER APPEALED TO ARBITRATION.
21. FROM THE DATE OF MR. GROGAN'S GRIEVANCE (MARCH 1976) UNTIL THE
FILING OF THE UNFAIR LABOR PRACTICE (SEPTEMBER 6, 1978), MR. GROGAN'S
ARBITRATION WAS THE ONLY ONE IN THE RICHMOND DISTRICT.
22. THERE ARE A TOTAL OF 15 STEWARD POSITIONS IN THE RICHMOND
DISTRICT, INCLUDING THE CHIEF STEWARD, STEWARDS AND ALTERNATE STEWARDS.
23. MR. GEORGE B. COUSINS, WHO WAS THE PRESIDENT OF NTEU CHAPTER 48
FROM NOVEMBER 1976 UNTIL MAY 1977 AND FROM OCTOBER 1978 TO PRESENT,
RECEIVED A HIGH QUALITY INCREASE AWARD ON AUGUST 27, 1978 FOR THE PERIOD
AUGUST 10, 1977 TO AUGUST 10, 1978. HE WAS ALSO CHIEF STEWARD FROM 1972
UNTIL OCTOBER 1978.
MR. ROBERT M. SPENCER, WHO WAS PRESIDENT FROM MAY 1977 TO SEPTEMBER
1978 AND EXECUTIVE VICE PRESIDENT FROM OCTOBER 1978 TO PRESENT, RECEIVED
A HIGH QUALITY INCREASE AWARD ON DECEMBER 3, 1978 FOR THE PERIOD
NOVEMBER 1, 1977 TO NOVEMBER 1, 1978. MR. CHARLES S. BAILEY, WHO WAS A
SHOP STEWARD FROM 1974 UNTIL OCTOBER 1978 WHEN HE BECAME CHIEF STEWARD
AND WAS UNDER MR. RUSSELL JOHNSON'S SUPERVISION SINCE JUNE 1975 TO
PRESENT, RECEIVED A SUGGESTION AWARD ON JUNE 2, 1977. MR. JOHNSON HAS A
CORDIAL RELATIONSHIP WITH MR. BAILEY.
24. IN FEBRUARY 1978 MR. GROGAN APPLIED FOR ADMINISTRATIVE LEAVE TO
ATTEND A FEDERAL BAR ASSOCIATION MEETING ON TAXATION IN WASHINGTON, D.C.
AT WHICH THE COMMISSIONER, IRS WOULD SPEAK. MR. GROGAN'S IMMEDIATE
SUPERVISOR, MR. JOHNSON, AS WELL AS THE SECOND-LINE SUPERVISOR AND
TRAINING OFFICER APPROVED ADMINISTRATIVE LEAVE, BUT THE DISTRICT
DIRECTOR DISAPPROVED THE REQUEST FOR THE REASON THAT IT WAS NOT IRS
POLICY TO APPROVE TRAINING IN ORDER TO ATTEND A MEETING WHERE AN IRS
OFFICER IS THE SPEAKER. MR. GROGAN DISAGREED WITH THIS INTERPRETATION
OF THE POLICY. THERE IS NO EVIDENCE THAT OTHER IRS EMPLOYEES SIMILARLY
SITUATED WERE ALLOWED ADMINISTRATIVE LEAVE FOR ATTENDANCE AT THE
MEETING.
25. IN MAY 1978 MR. GROGAN APPLIED FOR ADMINISTRATIVE LEAVE FOR 3
DAYS TO ATTEND ANOTHER TRAINING SESSION. IRS PAID THE REGISTRATION FEE
AND GRANTED MR. GROGAN ADMINISTRATIVE LEAVE FOR ONE DAY TO ATTEND A
SESSION PERTAINING TO HIS PRIMARY DUTIES. IRS GRANTED ADMINISTRATIVE
LEAVE TO ANOTHER EMPLOYEE FOR SUBSEQUENT DAYS SO THAT THE EMPLOYEE COULD
ALSO ATTEND MEETINGS DEALING WITH HIS DUTIES. THERE IS NO EVIDENCE THAT
ANY OTHER EMPLOYEE WAS ALLOWED ADMINISTRATIVE LEAVE FOR THREE DAYS TO
ATTEND THE ENTIRE MEETING.
DISCUSSION, CONCLUSIONS, AND RECOMMENDATION
IN MAKING THE FOREGOING FINDINGS, I GAVE GREATER WEIGHT TO THE
TESTIMONY OF RESPONDENTS' WITNESSES, INCLUDING MR. GROGAN'S SUPERVISOR
AND THREE CO-WORKERS, THAN TO THAT OF COMPLAINANTS' ONLY WITNESS, MR.
GROGAN. I FOUND THE TESTIMONY OF RESPONDENTS' WITNESSES TO BE
CONSISTENT ON ESSENTIAL ASPECTS, FORTHRIGHT, AND CONVINCING.
RESPONDENTS CONTEND THAT THE ALLEGATION THAT MR. GROGAN'S TELEPHONE
MESSAGES WERE COPIED, AS OPPOSED TO TALLIED, IN VIOLATION OF SECTION
19(A)(1) OF THE ORDER, IS UNTIMELY. 29 C.F.R. 203.2(A)(2) REQUIRES THAT
A PARTY DESIRING TO FILE A COMPLAINT MUST FIRST FILE A CHARGE "WITHIN
SIX (6) MONTHS OF THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE."
RESPONDENTS POINT OUT THAT CLERKS BEGAN MAKING COPIES OF MR. GROGAN'S
MESSAGES ON APPROXIMATELY FEBRUARY 17, 1978, BUT THE CHARGE WAS NOT
FILED UNTIL SEPTEMBER 6, 1978, OVER SIX MONTHS LATER.
THE CHARGE, FILED ON SEPTEMBER 6, 1978, ALLEGES, IN PART, THAT THE
SUPERVISOR "KEPT A FILE OF ALL INCOMING TELEPHONE CALLS AND ALSO A COPY
OF ALL MESSAGES LEFT . . . " THE RECORD REFLECTS THAT THE COPYING OF
MESSAGES CONTINUED FOR SOME TIME, INCLUDING A MESSAGE COPIED ON MARCH
15, 1978, WHICH WAS WITHIN SIX MONTHS PERIOD PRIOR TO THE FILING OF THE
CHARGE. THUS, I CONCLUDE THAT THE CHARGE ALLEGED A CONTINUING VIOLATION
AND WAS TIMELY WITHIN THE REQUIREMENTS OF SECTION 203.2(A)(2) OF THE
REGULATIONS. VETERANS ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL,
MUSKOGEE, OKLAHOMA, 3 A/SLMR 491, A/SLMR NO. 301(1973).
29 C.F.R. 203.15 REQUIRES THAT, "A COMPLAINANT IN ASSERTING A
VIOLATION OF THE ORDER SHALL HAVE THE BURDEN OF PROVING THE ALLEGATIONS
OF THE COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE." COMPLAINANTS HAVE
NOT MET THIS BURDEN.
COMPLAINANTS CONTEND THAT RESPONDENTS' ACTION IN KEEPING A TALLY OF
THE NUMBER OF INCOMING CALLS RECEIVED BY MR. GROGAN AND MAKING COPIES OF
TELEPHONE MESSAGES LEFT FOR MR. GROGAN VIOLATED SECTION 19(A)(1) OF THE
ORDER. /1A/ COMPLAINANTS ASSERT THAT SUCH ACTION INTERFERED WITH MR.
GROGAN'S RIGHT TO PRESENT A GRIEVANCE, ASSIST AND BE AN ALTERNATE
STEWARD OF A LABOR ORGANIZATION, AND THAT IT CHILLED OTHER EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS.
THE RECORD ESTABLISHED THAT MR. GROGAN'S TELEPHONE CALLS WERE
MONITORED IN THE ABOVE MANNER BECAUSE MANAGEMENT HAD REASONABLE CAUSE
TO
BELIEVE THAT MR. GROGAN WAS MISUSING OFFICIAL TELEPHONES FOR PERSONAL
BUSINESS. THE RECORD DOES NOT INDICATE THAT THE INFORMATION GAINED WAS
USED BY MANAGEMENT IN ANY MANNER EXCEPT TO COMPILE STATISTICS WITH
REGARD TO MR. GROGAN'S POSSIBLE MISUSE OF GOVERNMENT TELEPHONES. THESE
STATISTICS WERE NOT OTHERWISE BROKEN DOWN IN ANY MANNER BY CALLER OR
SUBJECT MATTER, AND THERE IS NO EVIDENCE THAT MR. GROGAN'S SUPERVISOR
DISSEMINATED SUCH INFORMATION OUTSIDE HIS OFFICE. THE RECORD DOES NOT
ESTABLISH THAT THIS ACTIVITY INTERFERED WITH, RESTRAINED, OR COERCED MR.
GROGAN IN ANY MANNER WITH RESPECT TO HIS REPRESENTATIONAL DUTIES OR IN
THE EXERCISE OF OTHER RIGHTS ASSURED BY THE ORDER.
THE RECORD REFLECTS THAT MR. GROGAN'S USE OF THE TELEPHONE FOR
PERSONAL BUSINESS WAS WELL KNOWN IN HIS OFFICE. WHILE THE MONITORING OF
AN ALTERNATE STEWARD'S TELEPHONE CALLS RAISES IMMEDIATE AND SERIOUS
QUESTIONS CONCERNING THE POSSIBLE SCREENING OF CALLS TO UNION OFFICIALS
AND INTERFERENCE WITH THE UNION'S EFFECTIVE MEANS OF COMMUNICATION, I DO
NOT FIND THAT SUCH ACTIVITY, CONDUCTED FOR THE REASONS AND IN THE MANNER
SET FORTH IN THIS RECORD, WAS INHERENTLY DESTRUCTIVE OF BASIC RIGHTS
ASSURED BY THE ORDER, OR THAT IT HAD A CHILLING EFFECT ON THE EXERCISE
OF SUCH RIGHTS BY OTHER EMPLOYEES. COMPARE U.S. DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, ET. AL, A/SLMR NO. 1080(1978).
COMPLAINANTS CONTEND THAT RESPONDENTS ACTIVITY VIOLATED SECTION
19(A)(2) OF THE ORDER /2/ BECAUSE IT WAS RETALIATION FROM MR. GROGAN'S
HAVING WON A GRIEVANCE THROUGH ARBITRATION AND BEING AN ALTERNATE
STEWARD. A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT THE
ALLEGATION.
THERE WAS NO SHOWING OF DISCRIMINATORY MOTIVATION OR DISPARITY OF
TREATMENT BASED ON UNION MEMBERSHIP. THE RECORD DEMONSTRATES THAT MR.
GROGAN WAS THE ONLY EMPLOYEE IN THE OFFICE WHO USED THE TELEPHONE FOR
PERSONAL USE TO SUCH AN EXTENT. PRIOR TO THIS PROBLEM, BUT FOLLOWING
MR. GROGAN'S FILING OF A GRIEVANCE INVOLVING MR. JOHNSON, MR. JOHNSON
HAD RECOMMENDED MR. GROGAN FOR A SPECIAL ACHIEVEMENT AWARD,
RECOMMENDED
HIM FOR ANOTHER POSITION, AND GAVE HIM A MORE FAVORABLE PERFORMANCE
RATING IN NOVEMBER 1977 THAN PREVIOUSLY. THE RECORD DOES NOT SHOW THAT
MR. GROGAN WAS SUBJECTED TO DIFFERENT STANDARDS THAN OTHER EMPLOYEES IN
THE GRANTING OF ADMINISTRATIVE LEAVE. THERE WAS NO EVIDENCE OF
ANTI-UNION ANIMUS AND THE RECORD REFLECTS THAT MR. JOHNSON'S RELATIONS
WITH OTHER UNION OFFICIALS ARE CORDIAL AND COOPERATIVE.
ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENTS' ACTIONS AS ALLEGED IN
THE COMPLAINT DID NOT CONSTITUTE DISPARATE TREATMENT AND DISCRIMINATION
IN REPRISAL FOR MR. GROGAN HAVING EXERCISED HIS RIGHTS UNDER THE
EXECUTIVE ORDER, AND WERE NOT MOTIVATED, EVEN IN PART, BY ANTI-UNION
ANIMUS.
COMPLAINANTS CONTEND THAT RESPONDENTS, BY KEEPING A TALLY OF THE
NUMBER OF INCOMING CALLS RECEIVED BY MR. GROGAN AND MAKING COPIES OF
TELEPHONE MESSAGES LEFT FOR MR. GROGAN, UNILATERALLY CHANGED PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS IN
VIOLATION OF SECTION 19(A)(6) OF THE ORDER. I DO NOT AGREE.
WHILE SUCH ACTION MAY BE AN INDICATION OF DISCRIMINATION, IT FALLS
SHORT OF A UNILATERAL CHANGE IN EMPLOYMENT CONDITIONS. I AM NOT
CONVINCED THAT RESPONDENTS INTENDED TO ESTABLISH A NEW CONDITION OF
EMPLOYMENT AND CHANGE ITS POLICIES, PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS, OR, ASSUMING SUCH A CHANGE, THAT IT MATERIALLY
AFFECTED, OR HAD A SUBSTANTIAL IMPACT ON PERSONNEL POLICIES, PRACTICES,
AND GENERAL WORKING CONDITIONS. CF. U.S. CUSTOMS SERVICE, REGION IV,
MIAMI, FLORIDA, A/SLMR NO. 1118(1978). THE POLICY AND PRACTICE WAS FOR
EMPLOYEES TO LIMIT PERSONAL TELEPHONE CALLS AND NOT TO USE GOVERNMENT
TELEPHONES UNREASONABLY FOR PERSONAL BUSINESS. THE RECORDS OF MR.
GROGAN'S CALLS WERE MADE IN ORDER TO ENFORCE THIS POLICY AND DETERMINE
IF HE WAS ADHERING TO IT.
RECOMMENDATION
HAVING FOUND THAT RESPONDENTS HAVE NOT ENGAGED IN CONDUCT PROHIBITED
BY SECTIONS 19(A)(1), (2), AND (6) OF THE EXECUTIVE ORDER, IT IS HEREBY
RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 16, 1979
WASHINGTON, D.C.
/0/ 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.
/1/ PRIOR TO THE HEARING, BY LETTER DATED AUGUST 10, 1979, THE
COMPLAINANT REQUESTED TO WITHDRAW AN ALLEGATION IN THE COMPLAINT DEALING
WITH THE INITIATION OF AN INVESTIGATION OF MR. GROGAN.
/1A/ SECTION 19(A)(1) OF THE ORDER PROVIDES THAT AGENCY MANAGEMENT
SHALL NOT "INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE
EXERCISE OF THE RIGHTS ASSURED BY THIS ORDER." SECTION 1(A) OF THE ORDER
GUARANTEES TO EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL
GOVERNMENT THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO
FORM, JOIN, AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN FROM ANY SUCH
ACTIVITY. THE RIGHT TO ASSIST A LABOR ORGANIZATION EXTENDS TO
PARTICIPATION IN THE MANAGEMENT OF THE ORGANIZATION.
/2/ SECTION 19(A)(2) PROVIDES THAT AGENCY MANAGEMENT SHALL NOT
"ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT".