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U.S. Federal Labor Relations Authority

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22:0420(41)CA - SSA, Baltimore, MD and AFGE Local 1501 -- 1986 FLRAdec CA

[ v22 p420 ]
The decision of the Authority follows:

 22 FLRA No. 41
 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
    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.
    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/
    Charging Party
    Wilson Schuerholz
    For the Respondent
    Josanna Berkow, Esq.
    For the General Counsel
    Michael A. Teefy
    For the Charging Party
    Administrative Law Judge
                           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,
    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
    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
    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
    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.
    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
          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
    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.
    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
          . . . 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
    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
    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
    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
    (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.