[ v27 p279 ]
The decision of the Authority follows:
27 FLRA No. 40 22nd COMBAT SUPPORT GROUP (SAC), MARCH AIR FORCE BASE CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3854, AFL-CIO Charging Party Case No. 8-CA-60091 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the General Counsel. The Respondent filed an opposition to the exceptions. The issue is whether the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by appraising an employee's performance significantly lower than her previous appraisals because she sought Union assistance from the Charging Party (the Union) and filed a grievance. We conclude that the Respondent violated the Statute as alleged. II. Background The employee, Elsa Kleinfieldt, was employed by the Respondent as supply clerk for two years before being promoted to her current position. During that time, she received a number of performance awards. In September 1984, she was promoted to the position of supply technician in the Maintenance Section. On January 31, 1985, Kleinfieldt's supervisor appraised her performance as exceeding all standards and as outstanding in all appraisal factors. The overall rating was superior. As a result of a reorganization in May-June 1985, Kleinfieldt's position was transferred to the Engine Management Branch. Kleinfieldt's duties and place of work remained the same. Her new supervisor was Lieutenant Colonel Damiano, Assistant Deputy Commander for Maintenance. In August 1985, Damiano appraised Kleinfieldt's performance for the period from September 30, 1984 to June 30, 1985, as "9" or "Outstanding" in all categories. In September 1985, Kleinfieldt was informed that Master Sergeant Bowers would be Chief of the Engine Management Branch. On October 16, Colonel Spaulding, Colonel Damiano's scheduled replacement, met with Kleinfieldt and Bowers to discuss work arrangements. On November 12, Kleinfieldt met twice with management. Both meetings concerned Kleinfieldt's supervision. At the second meeting, Damiano emphasized that Bowers was Kleinfieldt's supervisor. Kleinfieldt disagreed. She argued that based on her position description she did not work for Bowers but, rather, for Damiano or whoever was Assistant Deputy Commander for Maintenance. During the meeting, Damiano told Kleinfieldt he was very pleased with her work. Kleinfieldt maintained that she would not accept Bowers as her supervisor and that if the matter was not resolved to her satisfaction she might file a grievance. Kleinfieldt subsequently sought assistance from the Union in the matter. A meeting arranged by the Union president was held on November 22, which was attended by Kleinfieldt, her Union representative and Damiano. The Union representative requested that Bowers be removed as Kleinfieldt's supervisor. Damiano stated that Bowers was the supervisor as a result of the reorganization and that arrangement would not be changed. Damiano further stated that while he had been straightforward with Kleinfieldt, she had put matters in writing and had brought the Union into the dispute. On December 6, Damiano issued a "close out" appraisal of Kleinfieldt's performance for the period from July 1, 1985 to December 6, 1985. A "close out" appraisal is accomplished by a departing supervisor to be used as an informational tool by a new supervisor in preparing an annual performance appraisal. Damiano rated Kleinfieldt's performance as "5" or "fully successful" for each appraisal category. III. Administrative Law Judge's Decision The Judge found that the unfair labor practice charge was not precluded by an earlier filed grievance under section 7116(d) of the Statute. He also found no merit to the Respondent's contention that because the performance appraisal was "informal," it could not be the basis for an unfair labor practice finding. However, the Judge declined to find that the lower performance appraisal was based on Kleinfieldt's filing a grievance or enlisting the aid of the Union. Rather, he concluded that the General Counsel had not established a prima facie case of discrimination, and recommended that the complaint be dismissed. In reaching this conclusion, the Judge noted that despite Kleinfieldt's excellent prior record, and her skills apparently remaining the same, and despite the remarks by Damiano concerning the Union and the grievance, as well as the timing involved, he considered that Kleinfieldt's refusal to abide by the selection of Bowers as her supervisor together with the breakdown in communication "could well color the appraisal which was made by Damiano in December." The Judge also found: Although in respect to the performance factors, there was no lowering of the employee's skill, Damiano testified the lack of cooperation and friction induced him to lower her ratings to "5" and consider her as "Fully Satisfactory" rather than "Outstanding." While other rating officials might not have changed Kleinfieldt's appraisal based on her conduct, Damiano's rating was a judgment call. Unless anti-union animus can be shown, or an inference of retaliation is properly drawn from the filing of a grievance, the record of Kleinfieldt's behavior during the period preceeding the December 6 appraisal does not justify labeling Damiano's judgment as unreasonable or pretextuous (sic) in nature. The Judge noted there was no evidence to indicate management's hostility to the Union or the filing of grievances, and declined to draw such an inference: While it may be argued that a refusal to accept Bowers as her supervisor and a lack of cooperation does not square with a lower appraisal of performance factors, such a conclusion calls for substituting one's judgment for that of the rating official. IV. Positions of the Parties The General Counsel argues that it had been established that Kleinfieldt was engaged in protected activity and that her protected activity was a motivating factor in the Respondent's conduct. Thus, the General Counsel argued that the Respondent's attitude towards Kleinfieldt changed when she went to the Union for help. In addition to arguing that a prima facie case was established, the General Counsel argues that the reasons given by the Respondent were pretextual. The Respondent's brief supports the findings of the Judge. V. Analysis and Conclusions Noting particularly the absence of exceptions, we adopt the Judge's conclusions that the unfair labor practice proceeding is not barred by section 7116(d) and that the performance appraisal at issue had an impact on Kleinfieldt's tenure and employment within the meaning of section 7116(a)(2). The central issue in this case is whether the lowering of Kleinfieldt's performance appraisal, in all categories, shortly after filing a grievance, was a result of her engaging in the protected activity of seeking the Union's help and filing a grievance, or whether it resulted from her lack of cooperation and inability to get along with her supervisors and coworkers as asserted by the Respondent. Contrary to the Judge, we conclude that the alleged reasons for the lowered appraisal were pretextual. To establish a prima facie case of discrimination in violation of section 7116(a)(2), it must be shown that the employee engaged in protected activity and that such activity was a motivating factor in the Respondent's treatment of the employee in connection with hiring, tenure promotion, or other conditions of employment. The Judge in this case declined to draw an inference that the protected activity was a motivating factor in the treatment complained of by Kleinfieldt. We find not only that such an inference is proper, but on careful consideration we conclude that the protected activity alone was the motivating factor, because the asserted performance-related reasons have not been established. With a background of performance awards and commendations going back to 1982, Kleinfieldt was promoted to her current position in September 1984. After a reorganization in May-June 1985, her new supervisor, Damiano, rated her performance as "9" or "Outstanding" in all performance categories for the period from September 30, 1984 to June 30, 1985. In October 1985, Kleinfieldt was told that Bowers would be her new supervisor. Kleinfieldt's problems with being supervised by Bowers were discussed at two meetings on November 12. At the second meeting, Kleinfieldt mentioned that she might file a grievance over the matter of her supervision. Shortly thereafter, Kleinfieldt went to the Union president who arranged a meeting on November 22, including Kleinfieldt, her Union representative and Damiano. A document entitled "grievance" was produced, which, among other things, requested that Bowers be removed as Kleinfieldt's supervisor. Damiano stated that while he had been straightforward with Kleinfieldt, she had put things in writing against him, had brought the Union into the matter, and had filed a grievance. Two weeks later, on December 6, Damiano gave Kleinfieldt the appraisal for the period from July 1 to December 6, 1985, which is the basis of the complaint. Damiano testified without contradiction that Kleinfieldt's work performance in November was "great," and that she was a very good worker. Further, with respect to the performance elements listed in her appraisal, the Judge found that Damiano's testimony "reflects that her level of performance remained the same between August and December." In view of Kleinfieldt's prior excellent record, her admittedly continued high level of performance, Damiano's remarks about the filing of the grievance and calling in the Union and the timing shortly thereafter of the lowered evaluation, we are persuaded that the evaluation was a result of Kleinfieldt's calling upon the Union and filing the grievance. Further, on its face, the lowered evaluation is inconsistent with the asserted performance-related reasons. This is not a matter of substituting our judgment for that of the rating official, as suggested by the Judge. Kleinfieldt was given a "5" or "Fully Satisfactory" rating in every one of nine categories after receiving a "9" or "Outstanding" 5 months before, and for a time during which the rating official, as found by the Judge, said her performance remained the same as at the end of the prior rating period. The only reason given for the lower ratings was that Kleinfieldt's failure to cooperate and accept supervision warranted only a "Fully Successful" rating. There has been no showing that any of the factors, let alone all of them, could have been adversely affected by the cited failure to cooperate. /1/ In fact, performance of at least some of the factors apparently could not have been affected by the problems alleged to be the cause of a lowered rating. In view of the foregoing, we find that the General Counsel established that Kleinfieldt engaged in protected activity, that she received a lowered performance appraisal soon after the Respondent knew of that activity and made remarks about it just after telling her what a good worker she was, and that the asserted performance-related reasons for the lowered appraisal were pretextual. Therefore, we conclude that the Resondent violated section 7116(a)(1) and (2) of the Statute, as alleged. /2/ ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the 22nd Combat Support Group (SAC), March Air Force Base, California, shall: Cease and desist from: (a) Discriminating against Elsa Kleinfieldt by taking into consideration in appraising her performance her exercise of her protected rights of seeking assistance from American Federation of Government Employees, Interdepartmental Local 3854, AFL-CIO, the exclusive representative of its employees, and filing a grievance under the negotiated grievance procedure. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Rescind the December 6, 1985 appraisal and reappraise Elsa Kleinfieldt without taking into considertion her exercise of protected rights. (b) Post at its facility copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, 22nd Combat Support Group (SAC), March Air Force Base, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, Los Angeles, California, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., May 29, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /2/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT: WE WILL NOT discriminate against Elsa Kleinfieldt by taking into consideration in appraising her performance her exercise of her protected rights of seeking assistance from American Federation of Government Employees, Interdepartmental Local 3854, AFL-CIO, the exclusive representative of our employees, and filing a grievance under the negotiated grievance procedure. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind the December 6, 1985 appraisal and reappraise Elsa Kleinfieldt without taking into consideration her exercise of protected rights. ... (Activity) Dated: ... By: ... (Signature) ... (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California, 90071 and whose telephone number is: (213) 894-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 8-CA-60091 22ND COMBAT SUPPORT GROUP (SAC), MARCH AIR FORCE BASE, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3854, AFL-CIO Charging Party Lt. Colonel Wade B. Morrison For the Respondent Jonathan S. Levine, Esq. For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on February 27, 1986, by the Acting Regional Director for the Federal Labor Relations Authority, Los Angeles, California, a hearing was held before the undersigned at Los Angeles, California on May 15, 1986. This case arose under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based on a charge filed on December 18, 1985 by American Federation of Government Employees, Interdepartmental Local 3854, AFL-CIO (herein called the Union) against 22nd Combat Support Group (SAC), March Air Force Base, California (herein called Respondent). The Complaint alleged, in substance, that on or about December 6, 1985, Respondent issued employee Elsa Kleinfieldt a lower Civilian Performance and Promotion Appraisal for the period, July 1, 1985 - December 6, 1985 because she sought the assistance of the Union and/or because she filed a grievance -- all in violation of Section 7116(a)(1) and (2) of the Statute. Respondent's Answer, dated March 6, 1986, denied the essential allegations of the complaint, as aforesaid, as well as 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. Briefs 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 the Union has been the exclusive representative of all Respondent's employees paid from appropriated funds and located at March Air Force Base, California, with specified exclusions from said unit. 2. At all times since about 1982 the Union and Respondent have been parties to a collective bargaining agreement covering the employees of Respondent in the above-described unit. 3. Since 1982 Elsa Kleinfieldt has been employed by Respondent herein. Prior to September 1984 she was employed as supply clerk in the Supply Squadron. During this two year period several awards of distinction were bestowed upon this employee, including the following: /3/ (a) Special Achievement Award for Superior Performance (April 19, 1982 - September 30, 1982) (b) Superior Service Award (November 22, 1982) (c) Quality Step Increase for Sustained High Quality Performance (May 1, 1984) (d) Outstanding Performance Award (September 21, 1984) 4. On September 30, 1984 Kleinfieldt was promoted and she became a Supply Technician in the Maintenance Section. Her function was to serve as base engineer manager. The duties which she assumed included maintaining inventory of engines, reporting on them, receipting and shipping engines coming to or leaving the base, monitoring parts on order, planning ahead for the needs of new engines, and shipping out engines not repairable. 5. Master Sergeant Scales supervised Kleinfieldt when she assumed her new position. Scales was Chief of the Propulsion Branch. 6. A Performance and Promotion Appraisal of Kleinfieldt was made by Scales on January 31, 1985. The supervisor was under the mistaken impression that a rating was then due. He rated her as exceeding all performance standards and outstanding in all appraisal factors. The overall rating was "Superior." /4/ 7. A reorganization was effected in May-June, 1985 /5/ at Respondent's facility. The position of base engine manager became part of the Engine Management Branch and was removed from FMS Propulsion Branch. A change of supervision resulted, and Kleinfieldt was put under the supervision of Lieutenant Colonel Michael R. Damiano, Assistant Deputy Commander for Maintenance at March Air Force Base. The job duties of Kleinfieldt remained the same and her work location continued to be in the Propulsion Branch. 8. In August, Damiano filled out a Performance Appraisal for Kleinfieldt covering the period from September 30, 1984 - June 30, 1985. He rated her a "9" which signifies "Outstanding" in the performance categories just as she was rated and appraised by Scales, her former supervisor. 9. In or about September, Scales told Kleinfieldt that Master Sgt. Janet G. Bowers was going to be made Branch Chief of the Engine Management Branch. Sometime in late September or early October, Bowers moved into the same office with Kleinfieldt. Record facts show that on October 16, Colonel Spaulding, OMS Commander and the scheduled replacement for Damiano, met with Kleinfieldt and Bowers. As the individual to be in charge of the Engine Management Branch, Spaulding explained the new hierarchy and that Kleinfieldt would work under Bowers. /6/ 10. On October 28, Kleinfieldt went on annual leave and remained away until November 12. She testified that notice was given by her to Master Sgt. Whitman, who was to replace Scales, and also to Bowers; that both were rumored to become Chief of the Engine Management Branch, and since she could not find Damiano, she left a message with the latter's secretary of her planned leave. 11. On October 29 Damiano telephoned Kleinfieldt at home and inquired as to her being on unauthorized leave. /7/ The employee explained that her leave had been coordinated through Scales, Whitman, Bowers and Staff Sgt. Causer, and that word had been left with Damiano's secretary. Damiano said he would allow Kleinfieldt to continue her leave but would hold her responsible for anything that went wrong re correspondence, suspenses, letters and such items. He affirmed that she never did anything like this before, never left work behind, and was a good employee. /8/ 12. A meeting was held on November 12, which was attended by Kleinfieldt, and by Spaulding and Bowers on behalf of management. Spaulding asked Bowers if he had trouble supervising Kleinfieldt. Responding to the question, Bowers replied there was a communication problem; that when he asked her a question, Kleinfieldt just answered it. Spaulding then inquired of Kleinfieldt whether she had trouble working for Bowers. /9/ The employee answered by saying she had just returned from leave, had much work to do, didn't want to comment then re that matter, and wanted to talk to some people about it. Spaulding stated he heard a rumor that Kleinfieldt wanted to become Engine Management Chief and was upset at not getting the position. The employee said the rumor was not true. 13. Another meeting, called by Damiano, was attended in the afternoon of November 12. Also in attendance were Spaulding, Bowers and Kleinfieldt. Damiano opened the meeting by stating it was called to clear up the issue of Kleinfieldt's supervision; that it should be understood Bowers was her supervisor and she worked for him. Kleinfieldt interjected that she did not work for Bowers; that, based on her position description, she worked for Damiano or whoever is the Assistant Deputy Commander for Maintenance. Upon being questioned, Bowers mentioned he had a communication problem with Kleinfieldt. When the employee was asked if she had difficulty working for Bowers, she requested a discussion with just Damiano and Spaulding. Whereupon Bowers left the room. Kleinfieldt asked Damiano if anything new had come down from Headquarters SAC and whether he was pleased with her work. Damiano stated that there was nothing new and that he was very pleased with her work as indicated in the performance rating given her. Kleinfieldt inquired why, in view of such satisfaction, he was imposing another level of supervision over her. He replied that she couldn't do what she wanted; that he thought she had her heart set on being Branch Chief and it accounts for her not accepting Bowers as her supervisor. Kleinfieldt denied this, saying that according to her position description Damiano was her supervisor; that she would not accept Bowers as her supervisor and she had seen nothing to indicate to the contrary. Further, she mentioned that if it didn't stop, she may have to file a grievance. Damiano retorted Kleinfieldt could do anything she wanted to do, he did not care. Kleinfieldt stated she didn't want to file a grievance, but merely wanted to do her job. She asked to be left alone to do it. Spaulding asked what type of grievance would the employee file, and he also inquired whether she would grieve if the sueprvisory issue was cleared. Kleinfieldt said she would not file in that event. 14. Because of the issue concerning her supervisor, Kleinfieldt went to the Union for assistance. She talked to the Union President, Tom Carraway, and he arranged a meeting by calling Damiano. A meeting was held on November 22, which was attended by Kleinfieldt, her Union representative Socrates Delianedis, and Damiano. At the outset Delianedis pulled out a paper which was in the form of a letter addressed to Damiano from Kleinfieldt. He remarked it was only an informal letter in order to clarify the issues in the discussion. It was entitled "Grievance" and recited that the employee was submitting it based on (a) the assignment to her of an additional supervisor in violation of Public Law and Air Force Regulations; (b) Damiano's calling her at home and making threats; (c) violating Kleinfieldt's privacy by distributing her records to unauthorized persons; (d) unauthorized persons have had access to a security code for which she was responsible. In addition to requesting that Bowers be removed as her supervisor, Kleinfieldt requested that Damiano establish who her rating official would be, as well as cease and desist from the alleged conduct outlined in the letter. (G.C. Exhibit 14). 15. During a discussion of the issues at the aforesaid meeting, Damiano stated that Bowers was Kleinfieldt's supervisor; that it had been explained to her; that it was in accord with the reorganization; that he was not able to, nor would he, change her supervision. The other issues were discussed, and Damiano said he wanted someone else in the room when it was requested that he stop threatening Kleinfieldt and calling her at home. Damiano stated he had been straight forward with the employee; that she had put things in writing; that she had brought the Union into this, fabricated her time card, and had other devious purposes in mind. Damiano summoned Spaulding to the meeting. He told Spaulding of the allegations by Kleinfieldt, and stated that the employee had filed a grievance. /10/ The parties discussed the issues re Kleinfieldt's supervisor and the phone calls to her house. When the employee stated the issues were not resolved to her satisfaction, Delianedis remarked he was then filing the grievance on Kleinfieldt's behalf. 16. Upon being called on December 6, 1985 to come and receive some papers, Kleinfieldt appeared at Damiano's office with Union representative Delianedis. When they arrived Damiano told the employee she could not have the Union representative present since the subject concerned a change of supervision appraisal. Delianedis left the room and Kleinfieldt met with Damiano and Steven Ortega, Respondent's Employee Relation Specialist. Damiano then gave the employee a Civilian Performance and Promotion Appraisal (G.C. Exhibit 19). The appraisal, which covered the period July 1, 1985 - December 6, 1985, stated the reason for said appraisal to be: "Change of Reporting Official." /11/ The said appraisal's rating official was Damiano, and Kleinfieldt was rated a "5" for each of the nine appraisal factors, which signified she was rated "Fully Successful". 17. Record facts reflect that the December 6 appraisal of Kleinfieldt is a close out performance appraisal -- an informational tool to be used by the employee's new supervisor when he prepares her annual performance appraisal. Thus, Damiano used the close out appraisal of Kleinfieldt, which Scales made upon his retirement, when he rated Kleinfieldt in her August appraisal. In rating her as superior, Damiano also relied upon his own observations. 18. Damiano acknowledged that Kleinfieldt's work performance in November was "great"; that she was a very good worker. He testified that the employee, however, showed a lack of cooperation and inability to get along with her supervisors and coworkers. Damiano insists there was a change in her ability to solve problems, which was due to an inability to separate a function which was hers as Base Engine Manager and hers as a member of the SIMS Branch. Further, Damiano testified that Bowers and Scales complained about Kleinfieldt's uncooperativeness. While her skills remained the same, Damiano felt that the employee should not be rated a "9" for the Appraisal factors ("Outstanding") nor a "Superior"; that her failure to cooperate and accept supervision warranted the rating of a "5" for the Appraisal factors ("Fully Successful") and the same for the overall rating. /12/ As an example of the difficulty he encountered with Kleinfieldt after her return from vacation, Damiano testified that each time he made an attempt to make a call he was greeted with a "I'll have to wait", or "I'll have to come back" -- "I'll have to bring my representative, Mr. Delianedis with me." 17. Respondent's response to Kleinfieldt's grievance of November 22 was a written denial dated December 6 and handed to her on that date. 18. Another grievance dated December 6, was submitted by Kleinfieldt pursuant to the negotiated grievance procedure. It alleged that Damiano, via Bowers, violated Article 32, Section 2 of the bargaining agreement in that Bowers had been holding up her incoming mail. 19. On the same date, December 6, Kleinfieldt raised her November 22 grievance to Step 2, and submitted it to Colonel David R. Logue. /13/ 20. Under date of December 17 Damiano returned to Kleinfieldt her December 6 grievance in a letter addressed to the employee. Damiano suggested she talk to her immediate supervisor, pointing out that, under Article 32, Section 10 of the bargaining agreement, a Step 1 grievance must first be submitted to the first level supervisor. 21. Another grievance, dated December 12, was presented by the Union on behalf of Kleinfieldt. It alleged, in substance, that Damiano and Bowers had violated Article 32, Section 2, and Article 30, Section 5 of the bargaining agreement by harassing and intimidating Kleinfieldt. The grievance requested appropriate cessation thereof, restitution to the employee, and proper notification to employees thereof. 22. Under date of January 13, 1986 Respondent responded to the grievance, pointing out that Bowers was Kleinfieldt's supervisor; that Damiano passed on her record to Bowers; and that the rating by Damiano of Kleinfieldt was a close out report, which was not a rating of record but was intended to serve only as information for the new supervisor. /14/ Conclusions There are three primary issues for determination herein: (1) whether the submission of the grievance by the Union, on behalf of Kleinfieldt, on December 12, 1985 bars the instant complaint under Section 7116(d) of the Statute; (2) whether the fact that the appraisal of Kleinfieldt on December 6, 1985 constitutes an informal rating, which is merely an opinion of a supervisor for use by a new supervisor, precludes a finding that the appraisal may be considered an action in respect to hiring, tenure, promotion, or other conditions of employment under 7116(a)(|2) of the Statute; (3) whether the December 6, 1985 appraisal of Kleinfieldt, which lowered her prior rating, was due to a grievance filed on her behalf on November 22, 1985 as well as her seeking union assistance in violation of 7116(a)(2) of the Statute. (1) In an attempt to avoid duplicity of actions, legislative enactment in the public sector is set forth to that effect under Section 7116(d) of the Statute. The statutory language in that respect is as follows: "Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this Section. Except for matters wherein, under section 7121 (e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the direction 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 takes the position that 7116(d) has been flouted by the Union's filing of the instant charge on December 18 after having submitted the grievance on December 12. It contends that the Union is alleging the same wrong in both instances; that while the words may be different in the grievance and the charge, the Union is complaining of the same conduct by management, i.e. the December 6 appraisal of Kleinfieldt. Thus it insists the issue raised in the grievance cannot be the subject of the unfair labor practice charge, and accordingly the latter must be dismissed under 7116(d). The text of the December 12 grievance recites that Respondent's officials, Damiano and Bowers, took actions "to harass and intimidate a bargaining unit employee (Ms. Elsa Kleinfieldt)." The grievance requested that these officials cease and desist such treatment; that they make written restitution "to affected bargaining unit employee(s) within the organization"; and that these officials communicate their commitment to fair employment practices to unit employees. The unfair labor practice charge alleged that Respondent took disciplinary action against a unit employee because the employee used the negotiated grievance procedure. /15/ Respondent's contention that the issues raised by the December 12 grievance and the unfair labor practice charge are identical is rejected. An allegation of harassment and intimidation, as set forth in the December 12 grievance, could be referable to various types of conduct. The record did not amplify or explain the harassing actions taken by the two management officials, and there is no evidence to support the conclusions that it was intended to refer to the lower appraisal issued to Kleinfieldt. In fact, a grievance filed on December 6 complained that Bowers had been holding up Kleinfieldt's incoming mail. In addition, the November 22 grievance, which is alleged to be a basis for Respondent's retaliatory action, dealt with Kleinfieldt's grieving about (a) the assignment of Bowers to supervise her; (b) improper distribution of her records and security code; (c) making threatening telephone calls to her house. It does not appear to the undersigned that the December 12 grievance and the unfair labor practice allegations that Respondent gave a lower appraisal to Kleinfieldt due to her protected activity clearly raise the same issues. The said grievance is too general in nature, and without more evidence to indicate that it was intended to, and did, relate to the December 6 appraisal, it cannot be said that the same issue was raised in such proceeding. Accordingly, I conclude that the Complaint herein was not barred by the filing of the grievance on December 12. See Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 16 FLRA No. 1083; Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 10 FLRA 88. (2) It is also urged by Respondent that no "act" of discrimination may be deemed to have taken place since the appraisal of December 6 -- which is the conduct alleged to be discriminatorily motivated -- was informal and just an expression of opinion. It is argued that such appraisal was not part of Kleinfieldt's personnel record, and therefore would have no effect upon hiring, tenure, promotion or other conditions of employment. This contention is without merit. A performance appraisal of an employee which is utilized by a supervisor must necessarily affect the status of such individual. Where it is furnished to a new supervisor for his guidance and review, one can scarcely conclude it is of no moment. The appraisal, albeit not part of the personnel record of Kleinfieldt, is a rating by management of the employee's performance. It is an existent appraisal of the individual which may, at any time in the future, be relied upon by a new supervisor in supporting his evaluation of the employee. The December 6 "Civilian Performance and Promotion Appraisal" of Kleinfieldt, although intended as an advisory rating only is on the same official appraisal form as all others. It recites the period of the appraisal and includes the signatures of the rating and reviewing officials. Accordingly, I conclude the December 6 appraisal does bear upon the tenure and employment of Kleinfieldt. (3) General Counsel insists that, based on the entire record herein, it is reasonable to conclude that Kleinfieldt was given a lower Civilian Performance and Promotion Appraisal on December 6 because she sought the assistance of the Union and filed a grievance. It is argued that the reasons advanced by management for the lower appraisal, i.e. lack of cooperation and inability to get along with supervision, were pretexts. In support of this contention, General Counsel adverts to the splendid record established by Kleinfieldt, the awards and ratings accorded her in the past, and the remarks by Damiano concerning the Union and the grievance filed by the employee. It is urged that an inference of discrimination may be properly drawn. Under Section 7116(a)(2) of the Statute, it is clear that an agency may not discriminate against an employee for his having engaged in protected activity. Such protection attaches to the filing of a grievance under a negotiated collective bargaining agreement. See Department of Treasury, Internal Revenue Service, Louisville District, 20 FLRA 660. Further, an employee is protected to the extent that he may not be the victim of discrimination for union activity, which includes seeking union assistance in regard to his employment. United States Customs Service, Region IV, Miami, Florida, 8 FLRA 561. After careful consideration I am persuaded that General Counsel has not established a prima facie case of discrimination herein. Due note is taken of the excellent ratings, awards and commendations bestowed upon Kleinfieldt prior to 1985. Nevertheless, the record reflects that after the reorganization Kleinfieldt opposed management in respect to the assignment of her supervisor, and she continued to rebel against the appointment of Bowers. At the meeting on November 12 Kleinfieldt insisted that Damiano was her supervisor. Moreover, Kleinfieldt said at the meeting she would not accept Bowers as a supervisor. Apparently the reorganization and appointment of Bowers as Branch Chief resulted in noticeable dissatisfaction and resentment on the part of Kleinfieldt. Record facts show a certain lack of communication on her part toward management, and this was imparted to Damiano by Powers and Scales. While the skills of the said employee may have remained the same, the lack of harmony between Kleinfieldt and her supervisor was self-evident, and the friction was a source of irritation at the worksite. The conduct of Kleinfieldt constituted, or may be characterized as, insubordination. Her refusal to abide by the selection of Bowers as her supervisor, together with the breakdown in communication, could well color the appraisal which was made by Damiano in December. Although in respect to the performance factors, there was no lowering of the employee's skill, Damiano testified the lack of cooperation and friction induced him to lower her ratings to"5" and consider her as "Fully Satisfactory" rather than "Outstanding". While other rating officials might not have changed Kleinfieldt's appraisal based on her conduct, Damiano's rating was a judgment call. Unless anti-union animus can be shown, or an inference of retaliation is properly drawn from the filing of a grievance, the record of Kleinfieldt's behavior during the period preceding the December 6 appraisal does not justify labeling Damiano's judgment as unreasonable or pretextuous in nature. To counteract any justification for the December appraisal, and to support its position that this rating was discriminatorily motivated, General Counsel relies upon several factors. Apart from the excellence in Kleinfieldt's past record and the awards given her, attention is directed to the comments by Damiano re the employee's seeking union assistance as well as filing a grievance. These factors, together with the timing thereof and the appraisal itself, are stressed as warranting an inference of discrimination. Note is taken that at the November 22 meeting Damiano did reply to Kleinfieldt's complaints by stating he had been straight forward with the employee, that she had put things in writing and brought the Union into the matter. While standing alone and not in context with other factors these statements might otherwise be deemed indicia of discriminatory motivation, I am not convinced they justify such an inference under present circumstances. Following Kleinfieldt's accusations, these remarks seem to reflect Damiano's exasperation at not being able to deal satisfactorily with the employee and her complaints. No evidence exists of hostility to the Union on the part of management, and I do not conclude that the comment of Damiano, which refers to Kleinfieldt's bringing the Union into the picture, supports an inference of anti-union animus. See Community Services Administration, 6 FLRA 616 (where the supervisor remarked that the alleged discriminator "always runs to the union"). Likewise, I do not view Damiano's statement to Spaulding that the employee filed a grievance warrants the conclusion that such conduct motivated the lower appraisal rating of Kleinfieldt. There is no showing that grievances presented problems in the past or precipitated resentment and retaliatory action by management. Reference to Kleinfieldt's grievance does not warrant concluding that a grievant was likely to suffer as a result thereof. Thus the record herein supports a basis for Damiano's lowering the Civilian Performance and Promotion Appraisal of Kleinfieldt. A determination that such appraisal and new rating was, in truth, founded on her filing a grievance or enlisting the aid of the Union requires an inference that the reasons adduced by Damiano were pretextual. In light of the fact that no evidence was adduced to indicate management's hostility to the Union or the filing of grievances, I am not prepared to draw such inference. While it may be argued that a refusal to accept Bowers as her supervisor and a lack of cooperation does not square with a lower appraisal of performance factors, such a conclusion calls for substituting one's judgment for that of the rating official. It might give rise to suspicion -- but it falls short of requiring the conclusion that Respondent was discriminatorily motivated in the ratings accorded Kleinfieldt in view of her conduct beforehand. Accordingly, I conclude that General Counsel has not established a prima facie case of discrimination toward Kleinfieldt and that Respondent did not violate Section 7116(a)(1) and (2) of the Statute as alleged. It is therefore recommended that the Authority issue the following: ORDER It is hereby Ordered that the Complaint in Case No. 8-CA-60091 be, and the same hereby is, dismissed. /s/ William Naimark Administrative Law Judge Dated: December 23, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) The rating factors are as follows: 1. WORK EFFORT Exerts effort and shows initiative in starting, carrying out and completing tasks; spends time effectively performing work. 2. ADAPTABILITY TO WORK Picks up new ideas and procedures quickly, is easy to instruct; can adapt to the demands of new situations; understands and carries out oral or written instructions. 3. PROBLEM SOLVING Devises effective solutions to problems; or identifies effective methods and procedures for accomplishing objectives. 4. WORKING RELATIONSHIPS Sensitive to the behavior of fellow workers, supervisors and subordinates; maintains effective working relationships with others. 5. COMMUNICATION Communicates clearly and effectively, whether orally or in writing. 6. WORK PRODUCTIVITY Productive during work time; completes his/her work projects, duties, and tasks in a timely manner. 7. SELF-SUFFICIENCY Works independently with little need for additional supervision or help; follows through well; accomplishes all tasks required to complete a job on his/her own. 8. SKILL IN WORK Performs jobs-associated tasks well, whether they require physical, technical, professional, supervisory or managerial skills; is considered very skillful on the job. 9. WORK MANAGEMENT Effectively plans and organizes work; properly follows or implements management procedures, directives, regulations or technical orders; ability to direct or evaluate others, or substitute for absent supervisor. (2) Since we find that the asserted reason for the Respondent's action was pretextual, this is not a case where both legitimate and improper motives are found which would require us to consider whether the Respondent would have acted as it did even absent the improper motive. In other words, this is not a "mixed motive" case, subject to the analysis outlined in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). See Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981). (3) In addition to these awards, several other encomiums were received by Kleinfieldt. She received a Letter of Commendation on October 18, 1982; a Letter of Appreciation on January 20, 1983 from the Director of Supply for a presentation made by her; and a Superior Performance Appraisal from her supervisor on October 1, 1982. (4) Scales testified he inflated the appraisal a bit because the employee was a trainee, had a poor trainer, and the work situation changed between the time she was hired and the date of the rating. (5) Unless otherwise indicated, all dates hereinafter mentioned occur in 1985. (6) While Kleinfieldt denies being told in October that Bowers would be her supervisor as Chief of this Branch, the testimony given by Bowers as to the October 16 meeting was unrefuted. Accordingly, I find the facts as related by Bowers in respect to the said meeting. (7) The parties are in conflict as to whether Kleinfieldt's leave was, in fact, authorized by management or whether she took unauthorized leave. Since the issue of alleged discrimination neither turns on, nor is affected by, a determination of this conflict, the undersigned makes no resolution thereof. (8) The findings in regard to this conversation represents the credited testimony of Kleinfieldt. (9) According to her testimony, this was the first time Kleinfieldt heard that Bowers was to be her supervisor. It may be that Kleinfieldt was not under the impressiqon beforehand, based on prior conversations with management, that she was to be supervised by Bowers. The ultimate conclusions herein do not rest on whether Kleinfieldt understood this fact in October -- before she went on leave -- or upon her return to work in November. (10) While there is little dispute as to the matters discussed in the presence of Spaulding, the record reflects a conflict in the testimony as to whether Spaulding did appear at the meeting. I credit Kleinfieldt in this regard. (11) No discussiqon ensued re the appraisal. When asked by Damiano if she had any questions, Kleinfieldt replied she did not. (12) With respect to the performance elements listed in the appraisal, Damiano's testimony reflects that her level of performance remained the same between August and December. However, as indicated, her work behaviors (Appraisal Factors) were not indicative of an "Outstanding" rating, which was due to her lack of communication and cooperation with the staff. (13) The grievance was denied at the Step 2 level by Logue on December 19. (14) While not so expressed, this response was deemed by Respondent to be a denial of the December 12 grievance. (15) As particularized by the Complaint, it was alleged that the disciplinary action involved issuing a lower performance appraisal for Elsa Kleinfieldt on December 6, for the appraisal period July 1 - December 6, because she sought the assistance of the Union and filed a grievance.