Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana (Respondent) and American Federation of Government Employees, Local 3457, AFL-CIO (Charging Party)
[ v06 p600 ]
06:0600(107)CA
The decision of the Authority follows:
6 FLRA No. 107
DEPARTMENT OF THE INTERIOR
U.S. GEOLOGICAL SURVEY
CONSERVATION DIVISION
GULF OF MEXICO REGION
METAIRIE, LOUISIANA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3457, AFL-CIO
Charging Party
Case No. 6-CA-255 /1/
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE RESPONDENT FILED AN OPPOSITION TO
THE GENERAL COUNSEL'S EXCEPTIONS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-255 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
JAMES W. DEMIK, ESQUIRE
FOR THE GENERAL COUNSEL
BEATRICE G. CHESTER, ESQUIRE
SHERMAN O. BRAWNER
DONALD R. POCH
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.C.S. 7101, /3/ ET SEQ., AND THE FINAL RULES AND
REGULATIONS ISSUED PURSUANT THERETO, FED. REG. VOL. 45, NO. 12, JANUARY
17, 1980.
THE ORIGINAL CHARGE IN THIS CASE (G.C. EXH. 1(C)) WAS FILED SEPTEMBER
25, 1979, AND FIRST AMENDED CHARGES WAS FILED FEBRUARY 14, 1980. THE
CONSOLIDATED COMPLAINT AND NOTICE OF HEARING IN CASE NOS. 6-CA-209 AND
6-CA-255 ISSUED ON FEBRUARY 20, 1980, AND AN AMENDED CONSOLIDATED
COMPLAINT ISSUED ON MARCH 25, 1980, PURSUANT TO WHICH A HEARING WAS DULY
HELD ON APRIL 17 AND 18, 1980, IN NEW ORLEANS, LOUISIANA, BEFORE THE
UNDERSIGNED.
ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED. AT THE CLOSE OF THE
HEARING, MAY 19, 1980, WAS FIXED AS THE DATE FOR THE MAILING OF
POST-HEARING BRIEFS, WHICH TIME AT THE JOINT REQUEST OF THE PARTIES, AND
FOR GOOD CAUSE SHOWN, WAS SUBSEQUENTLY EXTENDED TO JUNE 2, 1980.
COUNSEL FOR EACH PARTY TIMELY FILED VERY HELPFUL BRIEFS WHICH HAVE BEEN
CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS AND CONCLUSIONS.
AS NOTED ABOVE, THE AMENDED CONSOLIDATED COMPLAINT CONSOLIDATED THIS
CASE WITH 6-CA-209 AND WAS HEARD BEFORE THE UNDERSIGNED TOGETHER WITH
CASE NO. 6-CA-209. FOR REASONS MORE FULLY STATED IN THE DECISION IN
CASE NO. 6-CA-209, INTER ALIA, THE SIGNIFICANCE OF THE LEGAL ISSUES
RAISED IN CASE NO. 6-CA-209 AND THE ABSENCE OF ANY COMMON QUESTION OF
LAW OR FACT, FOR THE PURPOSE OF DECISION I HAVE, PURSUANT TO SEC.
2423.19(K) AND (T) OF THE REGULATIONS, SEVERED THE CASES FOR THE PURPOSE
OF DECISION AND HAVE, ACCORDINGLY, ISSUED A SEPARATE DECISION IN EACH
CASE.
FINDINGS AND CONCLUSIONS
THE ISSUE IN THIS CASE IS WHETHER, AS ALLEGED, RESPONDENT VIOLATED
SEC. 16(A)(1) OF THE STATUTE BY STATING THAT A "MARGINAL" RATING HAD
BEEN GIVEN TO MS. MCCLOUD BECAUSE SHE HAD FILED A GRIEVANCE. FOR
REASONS SET FORTH HEREINAFTER, I CONCLUDE THAT THE PREPONDERANCE OF THE
EVIDENCE DOES NOT ESTABLISH THAT ANY SUCH STATEMENT WAS MADE AND,
ACCORDINGLY, RESPONDENT DID NOT VIOLATE SEC. 16(A)(1) BY ITS RATING OF
MS. MCCLOUD. IN REACHING THIS CONCLUSION, I HAVE CAREFULLY WEIGHED MS.
MCCLOUD'S TESTIMONY, THAT MR. STRICKLAND MADE SUCH STATEMENT, BUT,
CONSIDERING ALL THE EVIDENCE AND TESTIMONY, FIND HER TESTIMONY HIGHLY
IMPROBABLE; THE OVERWHELMING WEIGHT OF THE EVIDENCE AND TESTIMONY IS TO
THE CONTRARY, AND, ACCORDINGLY, I DO NOT CREDIT MS. MCCLOUD'S
TESTIMONY.
1. MS. RUTH MCCLOUD BEGAN HER EMPLOYMENT WITH RESPONDENT IN JULY,
1977, AS A GS-4 CASH DISBURSEMENT CLERK IN THE GENERAL ACCOUNTING
SECTION. /4/ HER IMMEDIATE SUPERVISOR WAS MR. JOSEPH HOLLARD; HOWEVER,
HE WAS NOT ON DUTY, BECAUSE OF MEDICAL SURGERY, UNTIL NOVEMBER, 1977.
MR. HOLLARD REMAINED AS SUPERVISOR OF THE GENERAL ACCOUNTING SECTION
UNTIL SEPTEMBER, 1978, WHEN, DUE TO A REORGANIZATION, HE WAS TRANSFERRED
TO THE PRODUCT VALUE SECTION AND MR. GLYN STRICKLAND WAS MADE ACTING
SUPERVISOR OF GENERAL ACCOUNTING. IN JANUARY, 1979, MR. STRICKLAND WAS
SELECTED AS SUPERVISOR OF THE ROYALTY IN KIND SECTION; HOWEVER, HE
CONTINUED TO FUNCTION AS ACTING SUPERVISOR OF GENERAL ACCOUNTING UNTIL
THE END OF MAY, 1979.
2. WHILE UNDER THE SUPERVISION OF MR. HOLLARD, MS. MCCLOUD WAS
PROMOTED TO GS-5.
3. SHORTLY AFTER MR. STRICKLAND BECAME ACTING SUPERVISOR, HE
RECEIVED A FORM REQUIRING HIM TO STATE IF HE WOULD RECOMMEND MS. MCCLOUD
FOR A PROMOTION. BECAUSE HE WAS NOT TOO FAMILIAR WITH HER WORK AT THAT
TIME, MR. STRICKLAND CONSULTED WITH MR. HOLLARD, HER PRIOR SUPERVISOR,
AND MR. HOLLARD CONCURRED WITH MR. STRICKLAND'S EVALUATION THAT SHE WAS
NOT THEN READY FOR A PROMOTION.
4. ON JANUARY 9, 1979, MR. STRICKLAND GAVE MS. MCCLOUD A WRITTEN
STATEMENT OF WHAT SHE NEEDED TO IMPROVE HER WORK AND ADVISED HER THAT HE
WOULD REVIEW HER WORK IN 90 DAYS FOR RECONSIDERATION OF HER PROMOTION.
THEREAFTER, MR. STRICKLAND BEGAN TO REVIEW MS. MCCLOUD'S WORK MORE
CLOSELY AND DISCUSSED HER WORK WITH HER.
5. ON FEBRUARY 26, 1979, MR. STRICKLAND RECOMMENDED MS. MCCLOUD FOR
PROMOTION TO GS-6; HOWEVER, BECAUSE THE 90 DAY RECONSIDERATION PERIOD
HAD NOT EXPIRED, THE RECOMMENDATION WAS DENIED.
6. ON MARCH 14, 1979, MS. MCCLOUD FILED A GRIEVANCE IN WHICH SHE
ASSERTED THAT SHE HAD NOT BEEN GIVEN PROPER SUPERVISION AND TRAINING
WHEN SHE BECAME AN ACCOUNTING TECHNICIAN IN APRIL, 1978, AT WHICH TIME
HER SUPERVISOR WAS MR. HOLLARD, AND FURTHER ASSERTED A LACK OF
SUPERVISION IN THE GENERAL ACCOUNTING SECTION UNDER BOTH MESSRS. HOLLARD
AND STRICKLAND.
7. ON APRIL 5, 1979, MR. STRICKLAND AGAIN RECOMMENDED MS. MCCLOUD
FOR PROMOTION TO GS-6, AND THE RECOMMENDATION WAS APPROVED.
8. IN EARLY 1979, RESPONDENT INTRODUCED A NEW EMPLOYEE PERFORMANCE
RATING FORM. EMPLOYEES AND SUPERVISORS WERE GIVEN A BOOKLET WHICH
EXPLAINED EACH RATING ITEM AND ABOUT TWO WEEKS BEFORE THE RATINGS WERE
TO BE MADE, EACH EMPLOYEE WAS GIVEN A BLANK FORM WITH INSTRUCTIONS TO
INSERT HIS, OR HER, OPINION OF THE ORDER OF IMPORTANCE OF EACH RATING
ELEMENT FOR THE EMPLOYEE'S PARTICULAR JOB, THE MOST IMPORTANT TO BE
NUMBERED 1 AND THOSE OF LESSER IMPORTANCE BEING NUMBERED, IN ORDER OF
IMPORTANCE, THROUGH 12. EACH EMPLOYEE RETURNED THE FORM TO THE
SUPERVISOR WHO MET WITH EACH EMPLOYEE TO ATTEMPT TO AGREE ON A RANKING
ORDER. ELEMENTS 1 TO 5 WERE CONSIDERED THE MOST CRITICAL ELEMENTS OF
THE JOB.
9. WHEN MR. STRICKLAND MET WITH MS. MCCLOUD TO DISCUSS HER RANKING
ORDER, HE ACCEPTED HER RANKING ORDER EVEN THOUGH SHE HAD RANKED
"PLANNING ORGANIZING" AS NUMBER 1, RATHER THAN "QUALITY OF WORK"-- A
RATHER STRANGE ABERRATION FOR AN ACCOUNTING TECHNICIAN-- WHILE MR.
STRICKLAND FELT THAT "QUALITY OF WORK" SHOULD HAVE BEEN MADE NUMBER 1
FOR THE POSITION AND THAT "PLANNING ORGANIZING" SHOULD HAVE BEEN NUMBER
2. BOTH FULLY AGREED, HOWEVER, THAT FOR THE RATING PERIOD ENDING MARCH
31, 1979, THE ELEMENT "GETTING ALONG WITH OTHER WORKERS" RATED NO MORE
THAN A RANKING OF 10 AND FOR THE NEXT RATING PERIOD AN EVEN LOWER
RANKING OF 12.
10. AFTER AGREEING ON THE RANKING ORDER, MR. STRICKLAND COMPLETED
MS. MCCLOUD'S PERFORMANCE RATING ON MARY 22, 1979, AND MET WITH MS.
MCCLOUD ON MAY 23, 1979, TO DISCUSS THE RATING. THEY MET IN THE
CONFERENCE ROOM WITH NO ONE ELSE PRESENT. MR. STRICKLAND HAD RATED MS.
MCCLOUD "MARGINAL" ON THE ELEMENT OF "GETTING ALONG WITH OTHER WORKERS."
HE HAD RATED MS. MCCLOUD "SATISFACTORY" OVERALL AND WITH OR WITHOUT THE
"MARGINAL" RATING ON THIS ELEMENT HER OVERALL RATING WOULD HAVE NOT BEEN
AFFECTED. MS. MCCLOUD SIGNED THE FORM.
11. MR. STRICKLAND TESTIFIED AS FOLLOWS:
"THE WITNESS: AS WELL AS I REMEMBER, I TOLD MS. MCCLOUD THAT I HAD
HER RANKING FORM. I
THOUGHT SHE WAS WEAK IN ONE CATEGORY AND THOUGHT IT WAS THE LEAST
IMPORTANT OF ALL THE
ELEMENTS, AND SHE LOOKED IT OVER AND SIGNED IT AND THAT WAS IT.
"JUDGE DEVANEY" DID SHE MAKE ANY COMMENT AT ALL AT THIS TIME?
"THE WITNESS: I DO NOT REMEMBER ANY COMMENT AT THAT TIME." (TR. 291;
SEE, ALSO TR. 272).
12. THE FOLLOWING DAY, MAY 24, 1979, MS. MCCLOUD ASKED MR.
STRICKLAND TO RETURN HER PERFORMANCE RATING FORM, WHICH HE DID, AND SHE
TYPED ON THE FORM THE FOLLOWING STATEMENT:
"SUPERVISOR STATED THAT IT WAS NOT THAT I DID NOT GET ALONG WITH
CO-WORKERS BUT RATING WAS
BECAUSE OF GRIEVANCE FILED BY ME IN APRIL OF THIS YEAR WHILE GLYN WAS
SUPERVISOR." (G.C. EXH. 12).
13. WHEN MR. STRICKLAND SAW THE STATEMENT MS. MCCLOUD HAD TYPED ON
THE PERFORMANCE RATING FORM, HE ADDED THE FOLLOWING STATEMENT:
"IT IS MY OPINION THAT THE INCUMBENT, DURING THE RATING PERIOD, GAVE
THE IMPRESSION OF
BEING OVER-BURDENED, IMPATIENT WITH OTHER WORKERS AT TIMES, AND
AGGRAVATED SOME WORKERS AT
TIMES. ALTHOUGH THIS IS POSSIBLY THE LESS (SIC) IMPORTANT OF ALL THE
RATING ELEMENTS, I
BELIEVE THE INCUMBENT TO BE MARGINAL IN THIS CATEGORY." (G.C. EXH.
12).
14. MS. MCCLOUD TESTIFIED THAT SHE DID NOT KNOW WHEN MR.
STRICKLAND'S STATEMENT HAD BEEN PUT ON THE FORM (TR. 244); BUT IN THE
ORIGINAL CHARGE, IT WAS STATED THAT ON MAY 25, 1979, MS. MCCLOUD FOUND A
COPY OF THE FORM ON HER DESK WITH MR. STRICKLAND'S STATEMENT. THIS WAS
WHOLLY CONSISTENT WITH MR. STRICKLAND'S TESTIMONY.
15. MS. MCCLOUD TESTIFIED THAT ON MAY 23RD, MR. STRICKLAND HAD MADE
THE STATEMENT SHE TYPED ON THE FORM THE FOLLOWING DAY. SHE TESTIFIED
THAT SHE MADE NO COMMENT TO MR. STRICKLAND AND ADMITTED, OF COURSE, AS
SHOWN BY THE FORM, THAT SHE HAD SIGNED THE FORM.
CONCLUSIONS
MS. MCCLOUD'S GRIEVANCE WAS FILED AFTER MR. STRICKLAND'S
RECOMMENDATION THAT SHE BE PROMOTED HAD BEEN DENIED. ALTHOUGH THE
PRINCIPAL THRUST OF HER GRIEVANCE CONCERNED THE ASSERTED LACK OF PROPER
SUPERVISION BEFORE MR. STRICKLAND BECAME ACTING SUPERVISOR OF THE
GENERAL ACCOUNTING SECTION, IT IS CONCEIVABLE THAT HE MIGHT HAVE
RESENTED THE GRIEVANCE; BUT ANY SUCH INFERENCE WAS NEGATED BY HIS
FURTHER RECOMMENDATION, ON APRIL 5, 1979, THAT SHE BE PROMOTED, WHICH
RECOMMENDATION WAS APPROVED. IT IS WHOLLY, IMPLAUSIBLE THAT, HAD MR.
STRICKLAND MADE THE STATEMENT, IN EFFECT, THAT HE RATED HER "MARGINAL"
AS TO "GETTING ALONG WITH OTHER WORKERS" BECAUSE SHE HAD FILED A
GRIEVANCE, THAT MS. MCCLOUD WOULD HAVE SAID NOTHING, MUCH LESS THAT SHE
WOULD HAVE SIGNED THE FORM ON MAY 23. IT IS EQUALLY IMPLAUSABLE THAT
MR. STRICKLAND WOULD HAVE MADE SUCH A STATEMENT SINCE HE HAD, ON APRIL
5, AFTER HER GRIEVANCE HAD BEEN FILED, AGAIN RECOMMENDED HER FOR
PROMOTION. NOR DID I FIND MS. MCCLOUD'S TESTIMONY PERSUASIVE FOR OTHER
REASONS, INCLUDING HER TESTIMONY THAT SHE DID NOT KNOW WHEN MR.
STRICKLAND ADDED HIS STATEMENT TO THE RATING FORM INASMUCH AS THE
ORIGINAL CHARGE STATED THAT SHE FOUND IT ON HER DESK ON MAY 25.
ON THE OTHER HAND, I FOUND MR. STRICKLAND'S TESTIMONY WHOLLY CREDIBLE
AND CONSISTENT. HAVING OBSERVED MS. MCCLOUD'S DEMEANOR, I FIND BOTH
CREDIBLE AND CONVINCING MR. STRICKLAND'S TESTIMONY, FULLY CORROBORATED
BY THE TESTIMONY OF MR. HOLLAND, THAT MS. MCCLOUD DID HAVE DIFFICULTY IN
GETTING ALONG WITH OTHER WORKERS. FOR ALL THE FOREGOING REASONS, I
FULLY CREDIT MR. STRICKLAND'S TESTIMONY, INCLUDING HIS CATEGORICAL
DENIAL THAT HE MADE ANY REFERENCE TO MS. MCCLOUD'S HAVING FILED A
GRIEVANCE, AND FIND THAT HE SIMPLY TOLD MS. MCCLOUD THAT SHE WAS WEAK IN
ONE CATEGORY, NAMELY, GETTING ALONG WITH OTHER WORKERS, ALTHOUGH HE
THOUGHT IT WAS THE LEAST IMPORTANT OF ALL THE RATING ELEMENTS.
AS A PREPONDERANCE OF THE CREDITED TESTIMONY DOES NOT ESTABLISH THAT
RESPONDENT VIOLATED SEC. 16(A)(1) OF THE STATUTE, AS ALLEGED IN THE
COMPLAINT, I RECOMMEND THAT THE AUTHORITY DISMISS THE COMPLAINT IN CASE
NO. 6-CA-255, IN ITS ENTIRETY.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 7, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ ALTHOUGH THE INSTANT CASE WAS INITIALLY CONSOLIDATED FOR THE
PURPOSE OF HEARING WITH CASE NO. 6-CA-209, PURSUANT TO SECTION
2423.19(K) AND (T) OF THE AUTHORITY'S RULES AND REGULATIONS, THE JUDGE,
WITHOUT OBJECTION FROM THE PARTIES, SEVERED THE TWO CASES FOR DECISION.
/2/ THE GENERAL COUNSEL EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE
BY THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES SUCH RESOLUTION
WAS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD CAREFULLY, AND
FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY FINDINGS.
/3/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE ARE ALSO
REFERRED TO HEREINAFTER WITHOUT INCLUSION OF THE INITIAL "71" OF THE
STATUTORY REFERENCE, I.E. SECTION 7116(A)(1) SIMPLY AS "16(A)(1);"
HOWEVER, UNLESS OTHERWISE SPECIFICALLY STATED, ALL SUCH REFERENCES ARE
TO CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE.
/4/ PREVIOUSLY, SHE HAD WORKED FOR VARIOUS OTHER GOVERNMENT AGENCIES,
THE LAST ONE PRIOR TO EMPLOYMENT WITH RESPONDENT HAVING BEEN THE
INTERNAL REVENUE SERVICE.