[ v22 p420 ]
The decision of the Authority follows:
22 FLRA No. 41 SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1501, AFL-CIO Charging Party Case No. 9-CA-40003 DECISION AND ORDER The Administrative Law Judge issued the attached Decision 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 General Counsel filed exceptions to the Judge's Decision and a supporting brief. Pursuant to section 2423.29 of the Authority's Rules and Regulations 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 Decision and the entire record, the Authority adopts the Judge's findings, conclusions and recommendation that the complaint be dismissed. The Authority concludes that the General Counsel has not met the burden of proving that a unit employee, John Mack, was denied overtime because of his protected union activities. In adopting the Judge's conclusion that the complaint should be dismissed, the Authority notes particularly his findings that overtime for Title 2 claims employees was granted to those employees who had unmanageable backlogged cases, and that the Activity determined employee Mack's backlog of cases in relation to other employees' backlogs was insufficient to warrant assigning him overtime. While there was some indication of union animus toward Mack, we conclude, in agreement with the Judge, that the record indicates the denial of overtime would have occurred even in the absence of such animus. /1/ Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981). See also American Federation of Government Employees v. FLRA, 716 F.2d 47 (D.C. Cir. 1983), enforcing Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA 73 (1982). Accordingly, the complaint must be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 9-CA-40003 be, and it hereby is, dismissed. Issued, Washington, D.C. July 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 9-CA-40003 /2/ SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1501, AFL-CIO Charging Party Wilson Schuerholz For the Respondent Josanna Berkow, Esq. For the General Counsel Michael A. Teefy For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on January 6, 1984, by the Regional Director for the Federal Labor Relations Authority, Region IX, a hearing was held before the undersigned on March 22, and 21, 1984 at Seattle, Washington. This is a proceeding which arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (here called the Statute). It is based on a charge filed on January 3, 1984, by American Federation of Government Employees, Local 1501, AFL-CIO (herein called the Union) against Social Security Administration, Baltimore, Maryland (herein called Respondent). The Complaint alleged, in substance, that in August and/or September, 1983 Respondent denied John C. Mack, an employee, the opportunity to work overtime; that said John Mack was the alternate local union representative for Respondent's South Seattle Branch office, Seattle, Washington, as well as Technical advisor for employees and Union officials in the Puget Sound area; that the denial of Mack of an opportunity to work overtime was because of the aforesaid activity engaged in by Mack on behalf of the Union -- all in violation of Section 7116(a)(1) and (2) of the Statute. Respondent's Answer, dated January 23, 1984, denied that Mack was not afforded an opportunity to work overtime; that it did so based on Mack's union activities. It also denied the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs /3/ were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. At all times material herein American Federation of Government Employees, AFL-CIO, was the certified bargaining representative of Respondent Social Security Administration's employees in a specified unit. Included within said unit, at all times material herein, have been the claims representatives as well as other employees, who are employed at Respondent's South Seattle Branch office, Seattle, Washington. 2. At all times material herein American Federation of Government Employees, Local 1501, AFL-CIO, was the designated and authorized agent, on behalf of American Federation of Government Employees, AFLO-CIO, to represent and act for the unit employees of Respondent's South Seattle Branch office, Seattle, Washington. /4/ 3. Respondent and American Federation of Government Employees, AFL-CIO, are parties to a National Collective Bargaining Agreement which, by its terms, became effective in June 11, 1982 for a three year period. Said agreement is, and has been at all times material herein, applicable to the unit employees at Respondent's South Seattle Branch, Washington, D.C. 4. The said collective bargaining agreement provides inter alia, that: /5/ (a) The Administration shall not interfere with, or coerce Union representatives in the exercise of their rights under 5 U.S.C. 71 and this agreement, (Article 2, Section 1B); (b) Each employee has the right to join or assist the Union, to be protected in the exercise of these rights, and to act for a labor organization as a representative when dealing with an agency. (Article 3, Section 1); overtime should not be distributed or withheld as a reward or penalty. (Article 10, Section 2B); employees may, when approved by management, accrue and use compensatory time. When feasible, the employer shall grant a request for such time rather than payment for overtime. (Article 10, Section 2E); when the Administration decides to use overtime, qualified volunteers shall be used before non-volunteers. (Article 10, Section 4A); all qualified employees whose performance is at least fully satisfactory will be notified of the availability of overtime. (Article 10, Section 4B); overtime will be assigned fairly and equitably. (Article 11, Section 4C). 5. The South Seattle Branch office, in its Title 2 unit, is responsible for handling retirement and survivors benefits (RSI cases) and disability claims (DIB cases). Its title 16 unit administered social security claims which are designated as SSI cases. 6. John Mack, who has been employed at the South Seattle Branch since July, 1976, is a claims representative in the Title 2 unit. As such, Mack handles RSI and DIB claims which originate from either direct interviews (about 95%), or by way of mail and telephone (about 5%). 7. At all times material herein Mack has been an alternate representative of the local union at the South Seattle Branch. In that capacity he steps in when the local representative is unable to handle a grievance, complaint, an EEO matter, or during negotiations with management. Mack also functions as advisor to union representatives in most Puget Sound area offices, helping them directly or by means of telephone calls made by the representatives to him at his office. In addition, Mack is contacted regarding grievances or unfair labor practices and he is the formal step 3 grievance official. In the past twelve months Mack has handled at least 46 grievances and 39 unfair labor practice charges against Respondent. About 39 of the grievances involved the South Seattle Branch, while all unfair labor practice cases concerned this branch. 8. The subject of official time is dealt with in Respondent's Manual Circular -- Labor Relations Handbook. Part VI entitled "Administering the Agreement -- Use of Time and Facilities" -- sets forth guidelines for managers concerning official time usage. Provision is made therein for granting such time to union representatives for union related functions. The guidelines also provide that, except for incoming phone calls, official time must be requested by the representative and approved in advance. Further, it is deemed reasonable to allow a union representative to accept an incoming call and complete same if it doesn't last over five minutes. If it will last beyond that time, the representative should contact the supervisor and seek official time. (G.C. Exhibit 2, page 2). 9. In March, 1983, all but one of the Title 2 claims representatives submitted a written request for overtime to supervisor Frank Allard. Mack testified that he needed overtime since his work as a claims representative backlogged badly by the end of February. In the few months prior to March, Mack had been involved in 18-20 grievances, which took away much of his time from case handling. Allard denied the request. 10. Under date of April 8, 1983 Mack and Zee Williams filed a grievance /6/ as a result of the denial by Allard of the March request for overtime. In the grievance Mack alleged that management violated Articles 2, 3, and 10, heretofore referred to, by denying his request. He stated that his work was backlogged; that he submitted a detailed list of such items; that the overtime or compensatory time was necessary to complete the work; that overtime was being granted to others for backlogged workloads. 11. Allard denied the aforesaid grievance in a letter dated July 5, 1983, /7/ addressed to Mary OMalley, AFGE Local Representative. He stated, inter alia, that the request for overtime was not justified at the time; that overtime had not been accorded title 2 claims activities; that if and when it becomes available, all qualified employees will be notified, and that it will be assigned equally and fairly. 12. Mack made an informal oral request for overtime in May or June to clean up his backlog before going on leave. /8/ He went on leave from June 20 until July 10. Between July 11 and July 31, Mack was engaged in labor-management relations activities for 18 of 80 hours. On July 26 he made a second written request for overtime. His statement to Allard recited that there were over 46 files backlogged upon his return from leave; that he had not received overtime or extra adjudication time despite his requests; that he had been on official time for 16 hours since July 11 and was scheduled for another 11 hours within the next few days; that he had at least 34 files /9/ on his desk, of which some were high priority; that he needed at least 3-4 hours overtime to clear the highest priority ones. 13. In a memo dated July 27, Allard denied the request and stated that he reviewed the statistical date for the weeks of 7/15/83 and 7/22/83; that during those 10 work days the unit took in 110 claims in DOWR categories 1, 2 and 4; that Mack had 9 receipts, or 8.2% of all claims receipts; that the other 4 claims representatives had 17, 29, 24 and 21 claims respectively. Further, Allard noted that during this period the claims unit took 175 RSHDI interviews, of which Mack took 32 or 18.3%, that another claims representative had 23 interviews and receipted 21 claims whereas Mack had only receipted 9 claims. The supervisor stated that, even taking into account Mack's official time usage and annual leave, the employee's claims production is not competitive. Allard commented that the backlog consists of actions Mack should have taken previously; that the 3 hours of adjudication time scheduled for Friday is sufficient to handle backlog. He concluded by stating Mack's problem is one of time management and concentration. Allard also requested a status report from the employee. 14. In his status report dated July 29 Mack again set forth a report of cases on hand and work to be done. He recited that 20 backlogged files have been resolved and moved to the next stage; that 12 of original 34 files remain and though 11 of the 12 have low priority, he has received 12 new files to be reviewed. /10/ Mack repeated that it was not physically possible to clear a backlog of 40 files, take a full share of interviews, and be out of the unit for 18 of 80 hours Allard testified. 15. Record facts show that between July and September the claims representatives in Title 2 unit were John Mack, Tiny Briscoe, Barbara Larson, Sharon Mirante, Dave Rokowski, who left at the end of August, and Fran Zacher, who replaced Rokowski. 16. Record facts show that Briscoe requested overtime in June or July but was not permitted to work overtime. She requested it again in August and her supervisor, Frank Allard, suggested she submit a memo stating why she needed overtime. Based on her backlog of pending cases, she was given overtime to perform adjudication duties. 17. In late June, or early July, Mirante gave Allard a written statement indicating she was very backlogged in her work. She had been interviewing non-stop for a long period of time, and there was little adjudication time available. Mirante does not recall that she asked for overtime-just that she wanted Allard to know the situation. Allard told her he would take it up with Ruth Saunders, the Branch Manager of the South Seattle office. A week later Allard informed her overtime would be available. In August Allard approached Mirante and told her overtime was available; that if she needed it, Mirante should advise Allard and he would see if it could be arranged. 18. Mirante also testified that on one occasion in September she was asked by Allard to work on some of Mack's old RSI cases because nothing had been done on them. She worked on them one afternoon and was finishing up one morning on one particular case. At that time Mack was out of the office on labor matters. 19. Based on a stipulation entered into by the parties at the hearing, the record reflects that: (a) Tiny Briscoe worked overtime for 5 1/2 hours in August and 9 hours in September. Of this amount, 1/4 hour was on late interviews and 14 hours on adjudication of RSI and DIB claims. (b) Sharon Mirante worked overtime for 4 hours in July, 2 1/2 hours in August, and 7 1/4 hours in September. Of this amount, 3/4 hours was on late interviews and 13 hours were worked on RSI and DIB claims. (c) Barbara Larson worked overtime for 7 1/2 hours in July and 5 1/4 hours in September. All except 1/4 hours were worked on RSI and DIB cases. (d) Dave Rokowski worked overtime for 1/4 hour in July and 35 minutes in August -- all on late interviews. (e) Fran Zacher worked no overtime in August or September. 20. A 2nd step grievance meeting, involving the April 8 grievance, was held on July 27. Carl Rabun, Assistant Deputy Manager for Respondent's downtown office, presided for management. Mack and O'Malley were present, but Zee had retired and did not attend. The employees told Rabun that Title 2 was short-staffed as much as Title 16 but that different conditions prevailed. Thus, the supervisor in Title 16 approached employees for overtime, and the employees did not have to ask for it. Rabun was informed that Williams and Mack were told overtime wasn't necessarily for Title 2 employees. The union representatives also stated that both Mack and Williams were fearful that Allard's memorandum of July 27 regarding their request for overtime would be kept in the file and utilized for appraisal purposes. There was no attempt to amend the grievance to indicate the denial by management of the July request by Mack for overtime. Neither was there any mention of said denial being prompted by Mack's union activities. The relief sought includes granting all future employee's rights for compensatory time and removing Allard's July 27 memo from Mack's file. 21. The 2nd step grievance was denied by Rabun in his decision dated August 12 (Resp. Exh. 1). He stated that management must decide, on a case by case basis, when compensatory time is appropriate; that management decided, in regard to Mack, neither compensatory nor overtime was warranted as his caseload was not unreasonable or unbalanced; that the memo of July 27 must remain to support Allard's decision. 22. In early September Mack told Allard his backlog was very big and he would be going out again on official time. Allard advised Mack to do his best in handling his work. 23. On September 21 Mack was interviewing a claimant at his desk. He was interrupted by several phone calls, most of which were from the public regarding claims Mack worked on for them. About 11 A.M., as he was concluding a phone call, Allard came to the desk. The supervisor asked the seated claimant if the call concerned him. Upon being told it did not, Allard stated to Mack that he wanted to speak with him after the interview. About 20 minutes later Allard approached the desk again. The claimant had left the interview. Mack testified that Allard spoke to Mack, saying: "If you ever take another union call while you're interviewing, the next time you do it you'll be reprimanded. And the next time you do it after that, you'll be suspended, and the next time you do it after that, you'll be fired." /11/ Mack had never been spoken to regarding receipt of phone calls theretofore. 24. The April 28 grievance reached its 3rd step presentation at a meeting held on September 30. Both O'Malley and Mack attended and management's representative was Dennis Rainey, Respondent's Area Director. In addition to repeating the same contentions made at the 2nd step meeting, Mack also mentioned that some claims representatives had heard it said that union officials would be denied overtime based on their union activities. O'Malley told Rainey she had not checked that out; that she would do so and if it were true, an unfair labor practice charge would be filed. In the presentation of the grievance neither Mack nor O'Malley raised anti-union animus as part of the grievance. /12/ Both Mack and Rainey testified, and I find, that the Union representatives consented to Rainey's writing one decision covering the April 8 grievance and the matters to be included in the October 7 grievance. Rainey also testified that it was common for the Union, at a 3rd step grievance session, to raise matters of LMR /13/ concerns which are not part of a pending grievance. The Union representatives, however, did not consider the April 8 and October 7 grievance as merged. 25. Rainey's administrative assistant, June Riston, reported back to her supervisor that she had conducted an investigation and found no support for the contention that overtime was denied to union members or union activists. 26. A grievance dated October 7 was filed by Mack and O'Malley alleging that on September 9 management scheduled overtime for the following Saturday and violated the National Agreement, Article 10, Section 2B, 4A, 4B and 4C. It was also alleged that in September 9 the Union became aware that management's failure to abide by the contract had been ongoing and continues. Both employees sought, as relief, back pay for overtime where it was scheduled in violation of the contract; and that management cease its discriminatory scheduling of overtime. 27. Rainey rendered his written decision regarding the 3rd step grievance session on October 24. He stated therein, inter alia, that: (a) an investigation showed no discriminatory assignment of overtime; (b) he began reducing overtime in 1980 for Area I due to its excessive use thereof, and in 1982 and 1983 he required that managers request specific hours of needed overtime and justify its requirement; (c) concerning Mack's request for overtime on March 25, Rainey ascertained that during the first quarter of the year Mack's claims receipt averaged 7 2/3 per week which was not a particularly heavy load -- it was about 1/2 the receipt per claims representatives for another D O in the Seattle area, and in most offices would be considered an average or below average workload. Rainey concluded by stating that he agreed with the management staff, which reviewed Mack's caseload, that overtime for him was not justified and be denied the grievance. 28. Respondent issued a program report for Mack covering the period from 10/29/82 to 9/31/83. His performance was characterized as fully satisfactory as of 2/23/83 and also as of 8/3/83. /14/ The narrative, which is dated 2/23/83, put forth goals which Mack should strive to meet. /15/ The comments dated 8/3/83 by supervisor Allard were as follows: Your performance continues to be fully satisfactory overall. My opinion takes into account the variables that require you to be away from your desk: LMR activities and use of leave. 29. On October 10, Mack was assigned to handle post-entitlement claims. This was effected since the initial claims, which Mack handled theretofore, required quick action which could not be accomplished when Mack was out on official time. Thus, by this reassignment, Mack would not be stuck in short time frames. 30. Supervisor Allard testified that, in evaluating Mack's request for overtime, the employee's union activities were not considered. In respect to appraising Mack's work, Allard stated he subtracts the union time from the amount of time Mack is on the job to determine whether the employee has handled the proper volume of work and whether it is timely or not. 31. Branch Manager Ruth Saunders testified that no overtime was necessary for Title 2 claims representatives prior to July. This differed from the situation in the Title 16 unit where the number of claims representatives had been reduced but the case load had not diminished. The situation changed in July since employees in Title 2 were going on vacation. Allard asked her for overtime for the RSI unit, stating that several claims representatives were backlogged and had requested overtime. Saunders inquired as to why adjudication time /16/ wouldn't suffice. Allard said the employees were interviewing constantly and not getting adjudication time. Whereupon Saunders approached Manager Barnes and asked for overtime for the Title 2 unit. Justification for the request was the vacation schedules of the employees. She obtained 15 hours per month for July, August and September. 32. Further testimony by Saunders reflects that claims representative Briscoe asked for overtime due to backlog and was denied by Allard. Then the employee came to Saunders stating she had heavy interviewing and no adjudication time. Saunders arranged for her to work adjudication time. Briscoe came to her again in mid-July and asked for overtime, and thereafter Saunders approached Barnes for overtime for Title 2 people. 33. In July Allard told Saunders that Mack had wanted to work overtime. Saunders looked at the workload reports which showed Mack had two high priority cases (retirement survivor). /17/ She told Allard there didn't seem to be a need for overtime at this point, and Mack had adjudication time scheduled for later that week. Saunders did not check Mack's desk after July 11. 34. Mack testified he told Allard on September 6 that he would be leaving again for official time and working on arbitration cases. He further advised the supervisor that he had about 60 files; that Allard said he wanted Mack to review and prioritize that week. When Mack indicated he doesn't have time, Allard told the employee to ask for one hour's overtime. 35. Saunders testified that Mack requested overtime orally on September 7; that she looked at the work and concluded it was the first time his request was justified. Accordingly, Saunders told Allard to approve it. Saunders further testified she was surprised to note that the overtime slip showed that Mack had reviewed and prioritized his cases rather than working them. She approved one hour for overtime and 5 1/2 hours of compensatory time. /18/ Saunders stated that Mack is entitled to receive overtime if he should need it. Conclusions The principal issues for determination herein are as follows: (1) whether the Complaint is barred by section 7116(d) of the Statute in view of the April 8 and October 7 1983 grievances regarding the denial of overtime to Mack by Respondent; (2) assuming arguendo, the Complaint is not so based, whether Mack was denied overtime in July, August and September 1983 based on his union activities and thus discriminated against in violation of section 7116(a)(1) and (2) of the Statute. (1) The pertinent part of section 7116(d) of the Statute provides that: . . . issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. Respondent contends that the April 8 grievance was escalated to cover, at the 2nd and 3rd step grievance presentations, t e same demand of overtime to Mack as set forth in the Complaint. Further, it is maintained that the October 7 grievance referenced denials of overtime in September to Mack based on violations of the contract preserving the right of employees to union activity. The undersigned is not persuaded that 7116(d) of the Statute does operate to bar the instant complaint. The April 8 grievance concerns the denial of overtime to Mack prior to that date. While it does refer to specific sections of the master agreement which assure employees the right to engage in union activities, that grievance does not relate to the denial of overtime in July, August and September, as alleged in the complaint. Moreover, I am not convinced that the discussion at the 2nd and 3rd step grievance meetings were intended to include the denial of overtime during those said months as part of the April 8 grievance. At the 2nd step meeting O'Malley told Assistant District Manager Rabun that the union wanted Allard's July 27 memo removed from the file; that employees Mack and Williams were afraid it might be used in an appraisal rating against them. While some discussion may have ensued concerning Mack's being denied overtime at that stage, there was no attempt to amend the April 8 grievance to cover later denials. Neither was any mention made thereat regarding Mack's being denied overtime by reason of union activities. At the 3rd step grievance session reference was made by Mack to the fact that some employees heard comments that overtime would be denied to officers of the union. However, O'Malley stated she had not heard those remarks and would file a charge if they were proven true. While she did make mention of union animus, it was done after the grievance meeting was finished. In respect to the October 7 grievance, that was an attempt to grieve management's scheduling overtime on September 9 in contravention of the right assured employees under the master agreement. The grievance does not purport to cover any other period, nor does it contain any specifics in regard to any alleged discrimination. In order to bar an unfair labor practice complaint based upon a prior or pending grievance, it must be shown that the said complaint raises the same issues as are involved in the grievance procedure. Social Security Administration, 16 FLRA 434; Department of Health and Human Services, etc. 5 FLRA 504. The issue raised in the April 8 grievance, as well as that posed in the October 7 grievance, is not identical to the issue raised in the instant complaint, and those grievances do not cover the same period of alleged discriminations. Accordingly, I conclude that the complaint herein is not barred by Section 7116(d) of the Statute. (2) General Counsel insists that Mack was denied overtime by reason of his activities as a union representative. While conceding that no direct evidence upholds that conclusion, it is argued that discrimination may be inferred from the circumstances. In support of such inference General Counsel contends that the record reflects disparate treatment between Mack and the other claims representatives in Title 2; that union animus is apparent from the statements made by Allard to Mack on September 21; and that the pretextual nature of the denial of overtime to Mack can be seen from the unwarranted assertions by management regarding Mack's performance problems, as well as the failure to grant him such time in the face of his backlog of work. As correctly stated by General Counsel, an employee engaged in protected activity may not, under the statute, be discriminated against because of such activity. Thus, an employee who is active on behalf of a union may not be treated adversely by reasons thereof without management running afoul of Section 7116(a)(1) and (2) of the Statute. Directorate of Supply Operations, Defense Logistics Agency, Headquarters, Defense Logistics Agency, 2 FLRA 937. It is also true that discriminatory conduct on the part of an employer may be inferred on the basis of the circumstances which exist in a particular special case. See Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 15 FLRA 867. While it may be argued that Respondent herein denied overtime to Mack during July, August and September because of his union activities, I am constrained to conclude that the record does not warrant that inference. The factors recited by General Counsel do not establish, in my opinion, a prima facie case of discriminatory conduct toward Mack. They do not justify concluding that an illegal motive was the predicate for the fact that this individual did not receive similar overtime during said months. It is argued that disparate treatment of Mack by Respondent is one factor reflecting discrimination. General Counsel adverts to the fact that overtime was accorded the other claims representatives in Title 2, while it was denied to Mack. The record shows that none of these individuals received overtime prior to July, 1983. Claims representative Briscoe was also denied overtime in June and July although she requested it, and Fran Zacher worked no overtime. It is true that, as stipulated, Briscoe worked overtime in August and September; Mirante did so in all three months; Larson worked overtime in July and September; and Rokowski worked for a short overtime period in July and August. Note is taken, however, that 80% of the work for the claims representative arises from the interviews taken by each individual. Thus, since Mack was out of the office a good deal attending to labor relations matters, the remaining four claims representatives were taking most of the interviews. Accordingly, these individuals were responsible for handling most of the cases or claims in Title 2. The record does not contain the exact amount of case backlog for each of the other claims representatives. It is however, reasonably inferable that their backlog would be high and supportive of overtime to handle their cases. Moreover, manager Saunders worked Mack's desk in his absence, and she concluded that since he only had two priority cases there was no justification for overtime being granted to him. Further, the record indicates Mack did not seek overtime in August, and that around that time, in September, he was 'in pretty good shape'. Although I recognize that Mack had a considerable amount of work to be completed -- much of which did not necessarily involve processing of initial claims, one must recognize that management may exercise its own discretion in the allotment of overtime. The assignment of overtime is a judgment call, and it would be difficult, at best, to substitute another judgment for that of management in such an instance. In the event that other considerations prevail which clearly demonstrate that the disparate allotment was predicated on an employee's unionism, then management's decision in this respect may well be deemed pretextual. However, I am not persuaded that such was the case in so far as Mack was concerned. As a predicate for establishing illegal motivation in not granting overtime to Mack, it is contended that the statements of Allard to Mack on September 21, evince discriminatory intent by Respondent. The comments by Allard on that date may well, in my opinion, show union animus on the part of the supervisor. /19/ Nevertheless, I am not convinced that a nexus exists between those remarks and the failure to allot overtime to Mack by Respondent during July, August and September. While these remarks demonstrate annoyance on the part of Allard with Mack's receiving union related phone calls, it does not follow that the failure to grant overtime was due to his activity as a union representative. The final approval of overtime, or denial thereof, was in the hands of Saunders, who displayed no animus in that regard. Moreover, Allard rated Mack as "fully satisfactory" in the appraisals of the employee for July, August and September. Those ratings go a long way toward dispelling any inference of discrimination which General Counsel contends is manifest from the Progress Reports concerning Mack's performance. Finally, it is difficult to conclude that the September 21 statements constitute union animus which demonstrate illegal motivation in the treatment of this employee, when it is seen that Mack was later transferred to Title 16 so as not to be stuck in work with short time frames. Apart from the fact that the Branch Manager never thwarted Mack in respect to his union activities or disapproved official time for such duties, there is no evidence that Saunders' decision regarding overtime was influenced by Mack's representational duties. Despite the confusion in regard to the overtime granted Mack on September 7 for one hour, Saunders understood the overtime was for processing cases as needed at that time. In sum, while the record discloses that Mack received significantly less overtime than three of the other five claims representatives employed during the July-September, 1983 period, I conclude it does not appear that this was due to his union activities. Thus, I also conclude Respondent did not violate Section 7116(a)(1) and (2) of the Statute. Accordingly, it is recommended that the Complaint herein be dismissed in its entirety. /s/ WILLIAM NAIMARK Administrative Law Judge Date: February 26, 1985 Washington, DC.C. --------------- FOOTNOTES$ --------------- (1) Chairman Calhoun concludes, in agreement with the General Counsel, that the Judge erred in refusing to take administrative notice of another administrative law judge's factual findings establishing union animus in a related case. In view of the outcome of this case, that error is not prejudicial. Member Frazier finds it unnecessary in the circumstances of this case to pass upon the General Counsel's exceptions in this regard. (2) Under date of February 27, 1984, an Order was issued by the Regional Director, Federal Labor Relations Authority, Region IX, consolidating Case No. 9-CA-40003 and Case No. 9-CA-40108, as well as a Complaint and Notice of Hearing involving Case No. 9-CA-40108. Thereafter, under date of March 16, 1984, the same Regional Director issued an Order severing these cases and withdrawing the Complaint and Notice of Hearing in Case No. 9-CA-40108. (3) General Counsel's brief contains a Motion to Correct Hearing Transcript. No objections having been filed thereto, the said motion is granted and the transcript is corrected as requested. (4) American Federation of Government Employees, Local 3937, AFL-CIO, which was formerly a part of Local 1501, is the current representative at this branch office. (5) The undersigned has set forth, in substance, the particular contractual provisions referred to by the Union in its grievances concerning a denial of overtime. (6) Article 24 of the National Agreement provides for a Grievance Procedure which may be utilized by the parties or an employee in the event of a complaint. It includes a three step procedure for grievance presentation. (7) Unless otherwise indicated, all dates hereinafter referred to occurred in 1983. (8) Though it does not appear in the record, this request was presumably denied. (9) Listed in his status report was the type of work to be done in each file. It involves such tasks as review, memo to write, hearings, etc. Eleven files were designated as "miscellaneous." (G.C. Exhibit 6). (10) Mack testified that of the approximate 45-50 cases that were on his desk after he returned from leave in July, none was RSI or DIB cases. They pertained to reconsiderations, hearings, H-memo's, impacting benefits and miscellaneous. (11) Allard did not controvert having made these statements. (12) Mack testified that, after the grievance closed, O'Malley did mention that they were becoming aware of a pattern of anti-union animus; that the Union may be filing charges based on such a pattern. (13) Labor Management Relations. (14) Mack was rated as fully satisfactory for months of July, August and September. (15) This Progress review Report was involved in another case, 9-CA-30242, which went to hearing before Judge Oliver. General Counsel requested the undersigned to take administrative notes of Administrative Law Judge Oliver's findings based on credibility resolutions regarding Mack's February 23 Progress Report, as well as alleged anti-union statements directed to Mack in that case. The undersigned denies that request. It is not deemed proper to take such notice of factual findings by another administrative law judge made in connection with another case. As of this writing, the Authority has not issued its decision in 9-CA-30242. (16) Respondent gave 3 hours per week to each claims representative to adjudicate claims. This involves actual case work -- processing cases toward completion. (17) Saunders claimed she worked Mack's desk while he was on vacation; that he had, in addition to those two cases, two DIS cases to be handled. (18) Respondent's Exhibit 4 is the overtime for which Mack filled out to report the time granted beforehand. This form is submitted by the employee after the individual has worked the overtime. This exhibit shows Mack worked one hour overtime in September 7 in reviewing and prioritizing cases. Saunders testified she understood the request by Mack was to work overtime on his caselod -- not to prioritize his backlog -- and she believed that the approval of one hour overtime was granted to handle his caseload. The exhibit showed he worked otherwise. (19) The Complaint does not, however, allege that said statements were violative of Section 7116(a)(1) of the Statute.