SOCIAL SECURITY ADMINISTRATION . LINDA VISTA BRANCH OFFICE . SAN DIEGO, CALIFORNIA . Respondent . and . Case No. 98-CA-10434 AMERICAN FEDERATION OF . GOVERNMENT EMPLOYEES, AFL-CIO . Charging Party .
Mr. Wilson G. Schuerholz Mr. William Acosta For the Respondent Ms. Barbara Lawson For the Charging Party
Lisa Lerner Miller, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, etseq., concerns two allegations: first, whether
Respondent issued a memorandum critical of a Union representative
because the employee exercised rights protected under the Statute,
in violation of §§ 16(a)(1) and (2) of the Statute, and second,
whether Respondent was required by § 14(b)(4) of the Statute to
furnish certain data, in particular, personal notes of a
supervisor, called "memory joggers", and the names of employees who
were witnesses to the incident involving the Union representative,
in violation of §§ 16(a)(1), (5) and (8) of the Statute.
This case was initiated by a charge filed on July 17, 1991
(G.C. Exh. 1(a)); the Complaint and Notice of Hearing issued on
October 31, 1991 (G.C. Exh. 1(b)) and set the hearing for January
28, 1992; and by Order dated January 22, 1992, the hearing was
rescheduled for March 10, 1992, pursuant to which a hearing was
duly held on March 10, 1992, in San Diego, California, before the
undersigned. All parties were represented at the hearing, were
afforded full opportunity to be heard, to introduce evidence
bearing on the issues involved, and were afforded the opportunity
to present oral argument which each party waived. At the conclusion
of the hearing, April 10, 1992, was fixed as the date for mailing
post-hearing briefs which time was subsequently extended, on motion
of Respondent, to which Charging Party opposed, for good cause
shown, to May 15, 1992. Respondent and General Counsel each timely
mailed an excellent brief, received on, or before, May 21, 1992,
which have been carefully considered. Upon the basis of the entire
record, including my observation of the witnesses and their
demeanor, I make the following findings and conclusions:
1. The American Federation of Government Employees, AFL-CIO (hereinafter, "Union") is the exclusive representative of a nationwide consolidated unit of employees appropriate for collective bargaining, including employees at the Social Security Administration's Linda Vista Branch Office, San Diego, California (hereinafter, "Respondent").
2. Ms. Carolyn L. Hilton-Boy (hereinafter, "Ms. Boy")
was appointed a Union representative in 1988 and held the position
through October 1991, when her employment with Respondent was
terminated, and since August 1991, has been Secretary-Treasurer of
the Union (Tr. 15-16).
3. In order to obtain official time for the performance
of her representational activities, Ms. Boy was required to
complete a Form 75, indicating the date and time for which the
official time was requested, and to submit the completed form to
her supervisor for signature (Tr. 17).
4. On May 23, 1991, at approximately 0830, Ms. Boy, with
a completed Form 75 in hand (G.C. Exh. 2), approached her
supervisor, Ms. Sheri Kidder, to have the form signed. Ms. Kidder
was engaged in a procedure known as "work sampling"(2) and Ms. Boy stated, "So, I waited until she
finished with one employee, and I intercepted her in between two
employees' desks so as not to interrupt." (Tr. 20-21). However, Ms.
Kidder stated that Ms. Boy, in fact, interrupted her activity (Tr.
116) which was fully confirmed by Ms. Michelle Michaels, with whom
Ms. Kidder was then conducting work sampling, who stated, ". . .
Sheri was at my desk during work sampling, Carolyn [Ms. Boy] came
up to her and wanted some paper signed right away . . . Sheri . . .
was in the process of asking me what type of work I was doing, for
the work sampling." (Tr. 67). In any event, there is no dispute
that Ms. Kidder looked at the form (Tr. 23, 116) and told Ms. Boy
". . . she would get back to me on it." (Tr. 23, 116) or "you'll
have to wait." (Tr. 67, 68).
Ms. Boy stated, "She accepted the form and glanced at it,
and stuck it below her clipboard, and said she would get back to me
on it." Ms. Kidder stated, ". . . I took a look at it, and two
things came into play for me. Number one, I needed to get my work
sampling done. Number two, the time that she had requested was
8:45, which was about, at this point in time, seven minutes away .
. . I said to her, 'I'll get right back to you on this.' I took it
off the top of my clipboard so I could see what I had been doing,
and put it at the bottom of the clipboard, between the clipboard
and my hand, and continued to question the claims representative
about what she was doing." (Tr. 116).
5. There is no dispute that Ms. Boy refused to be put
off and persisted in insisting that the Form 75 be signed
immediately. Ms. Boy stated, ". . . I said, if she didn't have time
to sign the form that I would be more than happy to take it in and
ask the manager, Gary Twait, to sign it . . . She then asked me to
step over here, and turned and walked away. So, I followed her,
walking behind her; and she walked straight into Mr. Twait's
office." (Tr. 24).
Ms. Michaels stated that, after Ms. Kidder told Ms. Boy,
"you'll have to wait", ". . . then, Carolyn insisted that she had
to have it signed right away, in so many words, and Sheri again
told her, 'you'd have to wait.' At that point, they were moving
away from my desk. They continued moving away. I know they kept
talking. I don't remember any specifics about the rest of the
conversation or what finally happened to end it, or where it
ended." (Tr. 67). And again, "Well, she told her once she'd have to
wait and, when Carolyn persisted in trying to get this paper signed
right away, Sheri again told her she'd have to wait. After that,
other than knowing that they kept talking, I don't remember any of
the specifics of what they said." (Tr. 68). Later she stated, ". .
. once they moved away from my desk over towards the personal
computer area, other than remembering that they were still talking
to one another, I don't know where they ended up." (Tr. 70). (She
also said, "I don't remember seeing them going in the office [Mr.
Twait's office]" Tr. 70).
Ms. Kidder stated that, after she had told Ms. Boy she would
get right back to her, "Carolyn continued to stand there; and I
thought perhaps she hadn't heard me, so I turned to her and I said,
'Carolyn, I'll get right back to you on this.' And she became very
agitated and said to me, 'Well, if you won't sign it, I'll get Gary
to sign it.' . . . So, I said to Carolyn, I said, 'Let's step away.
Let's walk over here.' And I headed towards the administrative
aid's desk, which was outside the claims unit. I couldn't seem to
get her to settle down. At one point in time, she said, again,
something about, 'Well, I'll get Gary to sign it.' I said,
'Carolyn, let . . .' - - she said, 'Let's go to Gary's office.' I
said, 'fine.' And we walked into the branch manager's office." (Tr.
6. There is no dispute, of course, that they went to
Branch Manager Twait's office. Ms. Boy stated, "In the manager's
office, Sheri Kidder began to explain to the manager what had
occurred out on the floor and, becoming very frustrated, I did
interrupt at that point; and I explained to the manager that I
needed some official time for polling, I was told that she would
get back to me as far as signing the Form 75, and that I had told
her that, if she didn't have time to take care of it right then, I
would be happy to have him take care of the matter . . . He
[manager Twait] indicated that he would allow the supervisor to get
back to me regarding the 75 form . . . Well, I was very frustrated
at that point, and I did point out to him that it would take a
matter of seconds to sign a form, and there had already been
approximately five minutes taken for these conversations, which I
felt was very wasteful especially since there was work sampling to
have been conducted at the time by the supervisor. . . . The
conversation was concluded, and the supervisor, Sheri Kidder,
returned to the floor to complete the work sampling. . . ." (Tr.
Ms. Kidder stated, "I opened my mouth to explain to him
[manager Twait] what the situation was. Carolyn blurted out, 'Sheri
refuses to sign the 75.' I said, 'That's not what's happening here.
I'm in the middle of work sampling. The request is for seven
minutes away or so. I need to finish my work sampling and check the
operational happenings in the SR unit, and I told her I'd get right
back to her.' Gary handed me back the 75, and I went back to the
unit to continue the work sampling, assuming that he would continue
to try to defuse the situation because she was still quite
agitated. So, I walked back with the 75 and the clipboard, and back
into the unit, and started to resume the work sampling." (Tr.
Mr. Twait stated, ". . . At approximately 8:40, Carolyn and
Sheri came into my office. Sheri started to explain to me why they
were in my office, and Carolyn interrupted Sheri and said, 'Sheri
refuses to sign my 75.' And, then, Sheri started talking again and
said, 'You know, that's not true. I was doing work sampling, and
Carolyn came up to me, gave me the 75. I looked at it, and looked
at the start time, and told her that I would get back -- right back
to her after work sampling.' And Sheri continued to say that . . .
Carolyn became agitated and upset and refused to leave the area
where Sheri was conducting the work sampling. So, Sheri suggested
that they move out of that area because they were becoming . . . a
disruption to the other employees. So, they -- they moved over
towards the administrative area, and Sheri was continuing to try to
talk to Carolyn about it, and Carolyn said, 'If you won't sign it,
then I'll have Gary sign it.' And Sheri then suggested that they
both come into my office and talk over the situation. . . . Well,
after Sheri related that information to me, I asked to see the 75
form and, so, Sheri handed -- handed the form to me. When I looked
at the time that was requested on there, it was a two-hour period,
which started at 8:45 and continued to 10:45. I looked at my watch
and it was 8:40 and, so, I said to Carolyn, I said, 'It will only
take Sheri a couple of minutes to finish her work sampling
activity, and she'll get back to you before the time you've
requested on the form.' So, I handed the 75 form back to Sheri, who
then left my office; and Carolyn stayed in my office. Now, after
Sheri had left, I again assured Carolyn, I said, 'She will get back
to you before the time that you requested.' And, then, I continued
with -- talking with Carolyn, and I said that, 'You know, we've
asked you to let us know as soon as you can when you're going to
need official time, and to submit the 75 at the earliest point you
know you're going to need the time.' And she became very upset at
me then, and said, 'Something just came up. I don't have to get
your permission. I don't have to get anybody's permission'. She
stormed out of my office. . . ." (Tr. 167-169).
7. Nor is there any dispute that after leaving Mr.
Twait's office Ms. Boy proceeded to where Ms. Kidder had resumed
her work sampling and pulled the Form 75 from Ms. Kidder's hand and
changed the times to 0840 (beginning) and 1040 (ending) (G.C. Exh.
2). Ms. Boy admitted she pulled the form from Ms. Kidder's hand
(Tr. 38) after first asserting a more gentle retrieval (Tr. 26).
Ms. Kidder stated, ". . . Carolyn rushed up to the side of me and
-- and grabbed the 75 out of where I had it in between the back of
the clipboard and my hand, and said, 'Well, I'll just change the
time', and put it down on the desk and changed the time from 8:45
to read 8:40 and, then, threw it back on the top of the clipboard
that I had in my hand and stormed off to her desk." (Tr. 118).
Mr. Twait stated that after Ms. Boy stormed out of his
office, ". . . I got up to follow her out of the office, and she
went up to where Sheri was taking work sampling from another
employee in the unit, and I saw her grab the 75 from -- from
Sheri, and take it and put it down on the employee's desk and --
and write on it and, then she just tossed it back at Sheri and,
then, took off for her desk, which is in another part of the
office." (Tr. 169). Mr. Twait stated that Ms. Boy was, ". . . very
agitated and -- and angry. I mean, she was very loud when she was
in the office just with me. Then, she was, like, storming out of my
office and rushing up to Sheri, and she didn't -- she didn't say
anything to Sheri. She just grabbed it from her and -- and -- took
it and I don't know at that point if she -- if she said any words
to Sheri or not, but I just saw her grab the form and -- and take
it, place it down on the desk and write something on it and, then,
toss it back to her and, then, take off." (Tr. 169-170). Mr. Twait
also said that Ms. Boy had a history in the office of rude and
disruptive behavior (Tr. 171) and he followed her out because he,
". . . felt that she did have potential for violent behavior." (Tr.
Ms. Kathleen M. Ring, in May 1991, a claims representa- tive
(KR on G.C. Exh. 2; Tr. 158) described Ms. Boy's behavior as
violent (Tr. 155, 160) stating, ". . . Well, I -- I would consider
that violent when someone uses that, to me, aggres- sive behavior
in -- in grabbing something from another person that they're not
offering." (Tr. 163). When asked if she had considered herself in
any personal danger, Ms. Ring responded, ". . . I gave that a lot
of thought, and I -- I felt, at times, yes, I was -- I was
concerned about -- about my safety and also the safety of my
coworkers, very concerned about that . . . Because the behavior
that has been displayed by Carolyn Boy is not rational, and people
that are irrational, you can't -- they don't behave in the manner
that you would expect and, so, you have to almost brace yourself
for the unexpected." (Tr. 163).(3)
8. Ms. Boy sought to project a sense of urgency to the
polling for which she wanted the official time, but the record
showed nothing that might have required immediate action. Thus, Ms.
Boy at the outset of her testimony stated that she became aware of
the presence of state disability employees in the office, "right
after 8:30" on May 23 (Tr. 18-19) when she saw them in Mr. Twait's
office (Tr. 43), then conceded that they were not in Mr. Twait's
office when she and Ms. Kidder entered and further conceded that
she might have seen them on another morning (Tr. 43). Ms. Michaels
stated that there were no state disability (DDS) employees present
on the morning of May 23 (Tr. 74), and, in fact, that they were not
coming until the afternoon (Tr. 74). Ms. Michaels further stated
that sometime before May 23, the Office Manager, at a staff meeting
in the lunchroom, had explained that DDS employees would sit in on
our interviews to learn how we took disability claims. Ms. Michaels
said she did not know whether everyone attended this staff meeting,
but that, certainly, most were present as the lunchroom was fairly
full (Tr. 73). DDS is a California agency contracted to make the
medical decision on Social Security claims (Tr. 75), and the
objective of their sitting in on interviews and SS employees
visiting their office was that, by each party, i.e. DDS and SS, understanding what the other party
does, disability claims processing would be improved (Tr.
9. Ms. Kidder made it clear that before approving the
Form 75 she had to "check the operational happenings in the SR
unit" (Tr. 117) which meant seeing that the front counter would be
covered when the office opened to the public at 9:00 a.m. inasmuch
as, ". . . one of Carolyn's [Boy's] important component's of her
job is to work the front counter and to help the public when they
come in . . . So, not knowing right off the top of my head at that
particular point in time who was scheduled to be up front, there
were operational needs that I needed to check before I could just .
. . say, "'Okay, two hours right now is just fine.'" (Tr. 119; see,
also, Tr. 149-150).(4)
After completing the work sampling and checking on front
counter coverage, Ms. Kidder, sometime before 9:00 a.m. signed the
Form 75 and gave it to Ms. Boy (Tr. 121). Ms. Boy said that the
Form 75 had been left on her desk while she was away (Tr. 27);
however, I do not credit her testimony that the Form 75 was left on
her desk in her absence. She also insisted that she returned to her
desk, "to official duties . . . official agency duties" (Tr.
40-41); but I find, based on the entire record, that she did not
return to official agency duties. Rather, she called for Ms. Sandy
Matthis, President of the Union, talked to Ms. Barbara Lawson,
Chief Steward, then talked to Ms. Matthis, and then, as she stated,
began her polling at about 8:45 or 8:50 a.m. The time sequence
alone precludes Ms. Boy having returned "to official duties"; Ms.
Boy's testimony in other regards, e.g.,
presence of DDS employees on May 23, etc.,
was discredited; and I found Ms. Kidder to have been a wholly
10. On June 12, 1991, Ms. Kidder issued a memorandum to
Ms. Boy, entitled, "Rude and Disruptive Conduct" which reviewed the
events of the morning of May 23, 1991, and concluded as
"I had just begun questioning an employee when you rushed up to me, grabbed
the SSA-75 from my hand and yelled that you were changing the start time to
8:40. After altering the form, you shoved it back at me and stormed off to your
"Within minutes, the Branch Manager received a telephone call from Mrs. Sandra
Matthis, AFGE local president, asking what the problem was with your official
time request. He assured Mrs. Matthis that there was no problem with your
request, contrary to what you had told her, but that there was a problem with
"Your rudeness to co-workers and the disruption you caused in the office are not
the first instances of this type of misconduct. Carolyn, this type of behavior will not
be tolerated." (G.C. Exh. 4).
11. By letter dated June 14, 1991, the Union made an
information request, pursuant to § 14 of the Statute, for,
"1. The names of employees who had startled looks upon their faces during the
incident of May 23, 1991,
"2. Any memory joggers relied upon in composing the memo entitled 'Rude and
. . ." (G.C. Exh. 8)
The remainder of the request, numbers 3-14, concern questions or
data not in issue herein.
12. After she had authorized the official time, and had
given the approved Form 75 to Ms. Boy, which would have been, by
Ms. Boy's reckoning not later than 8:50 a.m., Ms. Kidder returned
to her desk and "made some notes about the incident" (Tr. 120).
These notes, also referred to as "memory joggers" (Tr. 142, 146),
were Ms. Kidder's personal notes (Tr. 94) which, as was her custom,
she kept in a brown folder in the front of her desk (Tr. 147).
Periodically, such notes were thrown away (Tr. 147). Ms. Kidder
used these notes in preparing her memorandum of June 12, 1991, to
Ms. Boy (paragraph 10, above); Ms. Kidder had the notes when she
prepared her response to the Union's information request on June
26, 1991, (Tr. 134)(5), infra; but, shortly after writing her response, the
notes were thrown away (Tr. 134, 147).
13. By memorandum dated June 26, 1991,(6) Ms. Kidder responded to the Union's
information request, as material herein, as follows:
"1. [The request for the names of employees]
Several Title II CRs.
2. My memory joggers are notes to myself. The memo entitled 'Rude and
Disruptive Conduct' accurately describes the
event . . . ." (G.C. Exh. 9).
Respondent responded to each request, numbers 3-14, none of
which is in issue herein.
14. Rather than discuss Respondent's June 26, 1991, response with Ms. Kidder, Ms. Lawson, who had made the information request and to whom Ms. Kidder had responded, contacted Mr. John Olexi on July 9 (Tr. 93) and Mr. Olexi on July 11, 1991, told Ms. Lawson, ". . . that the memory joggers were the private, personal property of Supervisor Kidder; that they existed, but that I could not have them." (Tr. 94).
Ms. Lawson said that she had forgotten to ask about the names of
the claims representatives; but on July 15 she remembered to ask
him and, ". . . He said he wouldn't tell me." (Tr. 94).
15. Ms. Kidder had been a Union representative from 1982
to about 1986 (Tr. 111, 112) and considers herself "very pro-Union"
(Tr. 112). She had never denied Ms. Boy use of official time (Tr.
111), as Ms. Boy admitted (Tr. 40), and had never delayed Ms. Boy's
use of official time although on one or two occasions she had asked
Ms. Boy whether, because of operational considerations, she could
wait until later in the afternoon when there would be less traffic
in the reception area (Tr. 111). Ms. Michaels and Ms. Ring
testified that they had never heard Ms. Kidder or Mr. Twait say
anything that was anti-union in nature (Tr. 80, 156-157).
1. The alleged 16(a)(1) and (2)
(a) Protected Activity Not A Motivating
The Complaint alleges that Respondent issued the June 12,
1991, memorandum to Ms. Boy critical of her conduct because she
exercised rights protected under the Statute. For reasons set forth
hereinafter, I find that the memorandum of June 12, 1991, was
issued solely because of Ms. Boy's conduct on May 23, 1991; and
that Ms. Boy's engagement in protected activity was not a
Plainly, Ms. Boy acted irresponsibly and irrationally on May
23, 1991, and created a disruptive incident in the work
area.(7) Without going into all
details, the record, in brief, shows that at about 0830 on May 23,
1991, Ms. Boy presented a request for official time to her
supervisor, Ms. Kidder, for approval. The request was for official
time for two hours beginning at 0845. Ms. Kidder was then, as Ms.
Boy well knew, engaged in work sampling and, after looking at the
request, Ms. Kidder told Ms. Boy she would get right back to her.
Work sampling, a timed activity to ascertain what the employees
throughout the Agency are doing at a particular time, requires only
a very few minutes to complete (Tr. 118-119, 168), and, but for Ms.
Boy's interruption, would have been completed and Ms. Kidder could
have attended to Ms. Boy's request well before 0845, the time
requested. But Ms. Boy impetuously demanded that her request be
acted upon immediately; could not be calmed by Ms. Kidder;
proceeded to the Branch Manager's office where, she conceded, she
interrupted Ms. Kidder and asserted to the Branch Manager, Mr.
Twait, that "Sheri refuses to sign the 75", which was not
true(8); when Ms. Kidder left Ms.
Twait's office to resume her work sampling, Ms. Boy remained
momentarily in Mr. Twait's office and continued to talk to him in a
loud voice, then stormed out of his office, rushed to where Ms.
Kidder was conducting her work sampling and violently pulled the
Form 75 from Ms. Kidder's hand, wrote on the form and threw it back
at Ms. Kidder.
Although Ms. Michaels did not remember Ms. Boy shouting, she
said Ms. Boy's voice was in the high range of normal (Tr. 68), said
Ms. Boy "bustled up", "I mean she was walking faster than . . . a
normal pace" (Tr. 79), and she said Ms. Boy's voice sounded like
there was a sense of urgency (Tr. 80). The incident clearly
disrupted Ms. Michaels' work (Tr. 80). Ms. Ring described Ms. Boy's
behavior as violent (Tr. 155, 160) and loud (Tr. 161). Mr. Twait
said Ms. Boy was agitated and angry and had been very loud when she
was in the office with him alone (Tr. 169) and that he felt she had
a potential for violent behavior (Tr. 172).
As Ms. Kidder credibly stated, such conduct demanded that it
be addressed without regard to whether the employee had been
seeking official time, or leave, or otherwise (Tr. 127-128),
i.e., that the cause of the employee coming
to her was immaterial, it was the behavior of Ms. Boy which was
unacceptable and necessary to address. The record is devoid of
evidence of union animus. To the contrary, the record shows that
Ms. Kidder had been a Union representative and considered herself
very pro-union; Ms. Boy had never been denied official time; and
Ms. Boy's request for official time on this occasion was timely
approved. Accordingly, I conclude that Ms. Boy's protected
activity, i.e., requesting official time,
was not a motivating factor in the issuance of Ms. Kidder's June
12, 1991, memorandum; rather, that her unwarranted conduct was the
sole reason for the memorandum which was directed wholly to "Your
rudeness to co-workers and the disruption you caused in the office.
. . ." (G.C. Exh. 4). As Respondent did not issue the memorandum of
June 12, 1991, because Ms. Boy exercised rights protected under the
Statute, the issuance of the memorandum did not viOlate § 16(a)(1)
or (2) of the Statute. United States Department of
Interior, Office of the Secretary, U.S. Government Comptroller for
the Virgin Island, 11 FLRA 521, 531-532 (1983).
In an effort to lend credence to the asserted violation,
General Counsel has sought to "float" two red herrings. First, that
Ms. Boy had an urgent need for immediate official time. However,
the record wholly destroyed any claim of urgency. At the outset,
Ms. Boy presented the request at about 0830 for official time to
begin at 0845. Moreover, the urgency claimed by Ms. Boy - the
presence, at that time, of DDS employees in the office - did not
exist. Second, that Respondent unreasonably delayed approving Ms.
Boy's request for official time. But there was no unreasonable
delay. The request was approved and was delivered to Ms. Boy before
she left to begin her polling, at about 0845 to 0850 by her
recollection, and any delay beyond 0845, the time originally
requested, if any, was attributable wholly to Ms. Boy's irrational
conduct. The record firmly establishes that Ms. Kidder acted
promptly and responsibly in approving the request, and delivering
it to Ms. Boy, immediately after completion of her work sampling,
which Ms. Boy had interrupted, and after checking front desk
coverage during the period of Ms. Boy's requested absence.
(b) Respondent Would Have Taken The Same
If, contrary to my conclusion that protected activity was
not a motivating factor, it were deemed that Ms. Boy's protected
activity was a motivating factor, nevertheless, I conclude that
Respondent's issuance of the June 12, 1991, memorandum did not
violate § 16(a)(1) or (2) of the Statute because the preponderance
of evidence adduced at the hearing establishes that Respondent
would have taken the same action in the absence of Ms. Boy's
protected activity. Internal Revenue Service,
Washington, D.C., 6 FLRA 96 (1981); Letterkenny Army Depot, 35 FLRA 113 (1990).
(c) Ms. Boy's Behavior Constituted Flagrant
Alternatively, I conclude that Ms. Boy's conduct on May 23,
1991, in creating a disruptive incident in the workplace, as the
result of which the Branch Manager felt she had a potential for
violent behavior and an employee, present when she violently pulled
a paper from her supervisor's grasp, was concerned about her safety
and the safety of her co-workers because of Ms. Boy's irrational
behavior, constituted flagrant misconduct which was beyond the
ambit of protected activity and, accordingly, the issuance of the
June 12, 1991, memorandum addressing that conduct did not violate §
16(a)(1) or (2) of the Statute. Defense Logistics
Agency, Defense Depot Tracy, Tracy California, 16 FLRA 703
Accordingly, the portions of the Complaint alleging a §
16(a)(1) and (2) violation should be dismissed.
2. Alleged failure to supply
Paragraph 14 of the Complaint states, and Respondent
". . . Union requested that Respondent furnish information consisting of memory joggers . . . and
the names of employees who were witnesses to the incident." (G.C. Exh. 1(b), Par 14; 1(c)
Because the nature of the two data requests is different and the
obligation under § 14(b)(4) to supply each is different, the
requests will be treated separately.
(a) "Memory Joggers".
Ms. Kidder made personal notes about the May 23, 1991,
incident which she used in preparing her June 12, 1991, memorandum.
These notes were jotted down on a pad of paper and kept in a brown
folder in Ms. Kidder's desk. She referred to her notes when writing
a memorandum or to talk to an employee and when a note had served
its purpose, here, when she had written the memorandum of June 12,
it was her practice to throw it out and in accordance with that
practice, shortly after writing her reply of June 26, 1991, her
notes, a/k/a memory joggers, concerning the May 23 incident were
thrown away. Ms. Kidder's notes were not kept pursuant to any
instruction, were not part of any system of records of Respondent,
were for her personal use and were disposed of as she saw fit.
Because they were not data normally maintained by Respondent in the
regular course of business, § 14(b)(4) did not require their
production for, in truth, they were not Respondent's records but
the personal, private property of Ms. Kidder. Accordingly, because
the notes were not normally maintained by Respondent in the regular
course of business, Respondent did not violate §§ 16(a)(1), (5) or
(8) of the Statute by its refusal to furnish them.
I am aware of, and have given careful consideration to the
Authority's decision, in Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland
and Social Security Administration, New Bedford District Office,
New Bedford, Massachusetts, (hereinafter, "SSA, New Bedford") 37 FLRA 1277 (1990), which found
that data, also referred to as "memory joggers", were normally
maintained in the regular course of business; and I find that case
and that determination wholly distinqushable from the present case.
Thus, in SSA, New Bedford, the Authority
". . . Respondent's District Manager made a notation on his calendar log regarding what
transpired at the awards ceremony . . . the District Manager requested that the Branch
Manager and Operations Supervisor prepare and furnish him with their written recollection of
the events which occurred at the awards ceremony. Further, the Respondent acknowledges that
the notes from the Branch Manager and the Operations Supervisor were maintained by the
Respondent's District Manager." (37 FLRA at 1284-1285).
Accordingly, the Authority held, ". . . that the 'memory
joggers' were notes prepared by the supervisors, in their official
capacity, for the purpose of making a contemporaneous record "and"
were normally maintained by the Respondent in the regular course of
business within the meaning of section 7114(b)(4) of the Statute."
(37 FLRA at 1285). In actuality, the so called notes or "memory
joggers", were, more properly, reports prepared by the Branch
Manager and the Operations Supervisor at the direction of the
District Manager; were received and maintained by the Respondent in
the regular course of business; and the District Manager's notation
was made on a record maintained in the regular course of business.
Significantly, the Authority did not make any reference whatever to
any personal note, or "memory jogger", that either the Branch
Manager or the Operations Supervisor may have made and used in
making their written reports to the District Manager. Here, of
course, Ms. Kidder's notes were wholly personal reminders to
herself for her assistance in preparing the memorandum of June 12,
1991. The memorandum was the equivalent of the reports in
SSA, New Bedford, not Ms. Kidder's personal
notes, which were not data maintained by Respondent in the regular
course of business. U.S. Food and Drug
Administration and U.S. Food and Drug Administration, Region VII,
Kansas City, Missouri, 19 FLRA 555, 557 (1985).
Moreover, Ms. Kidder's personal notes were not "necessary"
within the meaning of § 14(b)(4)(B) of the Statute. Ms. Kidder set
forth her recollection of the May 23, 1991, incident in her
memorandum of June 12, 1991. The May 23, 1991, incident concerned
Ms. Boy's conduct. If she disagreed with Ms. Kidder's statement of
her conduct, resolution was dependent on the testimony of other
witnesses because Ms. Kidder had responded that, "The memo . . .
accurately describes the event." (G.C. Exh. 9, Par. 2) and Ms.
Kidder's notes not only were not necessary but would not have
assisted in resolving disagreement between Ms. Kidder and Ms. Boy
any more than Ms. Boy's own notes (G.C. Exh. 10). Although Ms.
Kidder's notes may have been interesting, or useful, they certainly
were not necessary within the meaning of § 14(b)(4)(B).
United States Department of Justice, Bureau of
Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v.
FLRA, et al., 988 F.2d 1267, 1270, 1271 (D.C. Cir. 1993).
Accordingly, because the personal notes were not data normally
maintained by Respondent in the regular course of business within
its meaning of 14(b)(4)(A) and because the personal notes were not
"necessary" within the meaning of 14(b)(4)(B), Respondent's failure
to furnish them did not violate §§ 16(a)(1), (5) or (8) of the
(b) Names of Witnesses
Unlike the Complaint, which states that the Union on June
14, 1991, "requested that Respondent furnish . . . the names of
employees who were witnesses to the incident" (G.C. Exh. 1(b), Par.
14), the Union on June 14, 1991, actually requested only, "The
names of employees who had startled looks upon their faces during
the incident. . . ." (G.C. Exh. 8; see, also, Tr. 92, 94, 95);
nevertheless, Respondent admitted the allegations of Paragraph 14
(G.C. Exh. 1(c), Par. 14). Accordingly, in view of Respondent's
admission the request will be treated as for the names of witness
to the May 23, 1991, incident.
In its response of June 26, 1991, to the Union's request,
Respondent had replied:
"1. Several Title II CRs." (G.C. Exh. 9).
On July 15, 1991, Respondent told the Union it wouldn't tell it
the names of the claims representatives who witnessed the May 23,
1991, incident (Tr. 94).
Disclosure of names of employees who are witnesses to an
event certainly is not prohibited by law, does not constitute
guidance, advice, counsel, or training within the meaning of §
14(b)(4)(C), and is patently necessary in connection with any
grievance, or related proceeding, relating to the event. Respondent
violated §§ 16(a)(1), (5) and (8) of the Statute by refusing to
furnish the names of employees who were witnesses to the May 23,
Having found that Respondent violated §§ 16(a)(1), (5) and
(8) of the Statute, it is recommended that the Authority adopt the
Pursuant to § 18(a)(7) of the Statute, 5 U.S.C. § 7118(a)(7), and § 2423.29 of the Regulations, 5 C.F.R.
§ 2423.29, it is hereby ordered that the Social Security
Administration's Linda Vista Branch Office, San Diego, California,
1. Cease and desist from:
(a) Failing and refusing to furnish the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, with requested names of employees
witness to events concerning bargaining unit
(b) In any like or related manner, interfering
with, restraining, or coercing its employees in the exercise of
their rights assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request, furnish the American
Federation of Government Employees, AFL-CIO, the names of employees
witness to events concerning bargaining unit employees.
(b) Post at its facilities, 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 Branch Manager 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 insure that
such Notices are not altered, defaced, or covered by any other
(c) Pursuant to section 2423.30 of the
Authority's Rules and Regulations, 5 C.F.R. § 2423.30, notify the
Regional Director of the San Francisco Region, Federal Labor
Relations Authority, 901 Market Street, Suite 220, San Francisco,
California 94103, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
FURTHER ORDERED, that all other allegations of the
Complaint, including the alleged § 16(a)(1) and (2), 5 U.S.C. §
7116(a)(1) and (2), violation and the request for "memory joggers",
be, and same are hereby, dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: July 19, 1993
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 fail or refuse to provide to the American Federation
of Government Employees, AFL-CIO, the exclusive representative of
our employees, the names of employees witness to events concerning
bargaining unit employees.
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
WE WILL, upon request, furnish the American Federation of
Government Employees, AFL-CIO, the exclusive representative of our
employee, with the names of employees witness to events concerning
bargaining unit employees.
Dated: __________________ By: ______________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
If employees have any questions concerning this Notice or
compliance with its provision, they may communicate directly with
the Regional Director of the Federal Labor Relations Authority, San
Francisco Region, whose address is: Suite 220, 901 Market Street,
San Francisco, California 94103, and whose telephone number is:
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(2) will be referred to, simply, as "§ 16(a)(2)".
3. Ms. Ring stated that after Ms. Boy grabbed the piece of paper from Ms. Kidder's hand she then went to Mr. Twait's office (Tr. 155, 156, 160). As this is contrary to all other testimony, I do not credit her testimony in this regard; however, her testimony concerning Ms. Boy's behavior was convincing, was consistent with the testimony of Ms. Michaels (Tr. 80), was confirmed by the testimony of Ms. Kidder and
Mr. Twait and is fully credited.
General Counsel's statement in her Brief, at n.3, p. 4, that Ms.
Ring, ". . . did not identify that employee as Michelle Michaels"
is correct; but not for the reason General Counsel implies. She did
not identify Michelle Michaels for the reason that she said the "grabbing" incident occurred at the desk of
"MF" (Tr. 158) not at the desk of "MM" (Michelle
General Counsel's statement in her Brief, at n.4, p. 4, that, "Ring offered no testimony on any aspect of this conversation." (i.e., Ms. Boy's initial confrontation with Ms. Kidder), although technically correct, is so, because neither General Counsel nor Respondent asked. By the same token, Ms. Michaels, called by General Counsel, "offered no testimony" on the "grabbing" incident for the reason that she was not asked. I do not profess to know why each counsel avoided inquiring of these two witness concerning a second incident which each witness could have observed because of their proximity; but it would be wholly improper to fault either witness.
4. Ms. Boy did not recall whether she had been scheduled to be at the front desk at 9:00 a.m. on May 23, but conceded that if she had been, Respondent would have had to get someone else to replace her (Tr. 39-40).
5. Later, during cross examination, she was asked if they were in her possession on June 14 and Ms. Kidder answered, "No, I don't think so." (Tr. 146); however, she then stated, when asked when they were "tossed out", "My best guess is shortly after I wrote this memo. Barring that, it would have been 4th of July week, probably. I was getting ready to go on vacation, to leave the office, to report to a new assignment
. . . ." (Tr. 147). It would appear that Ms. Kidder was confused about the June 14 date, which was the date of the information request, and her memorandum of June 26, 1991, in response. In any event, I find, as Ms. Kidder stated, that she had the notes on June 26, 1991.
7. Except as noted, I credit the testimony of Ms. Michaels, Ms. Ring, Ms. Kidder and Mr. Twait concerning Ms. Boy's conduct on May 23, 1991, because I found their testimony credible. On the other hand, Ms. Boy was prone to confuse reality, was evasive, was discredited and was not a convincing or credible witness as to her conduct and actions.
8. Ms. Boy stated that Ms. Kidder told her she would get back to her on the request. Nevertheless she told Mr. Twait that Ms. Kidder would not sign the request form and later falsely represented to Ms. Lawson (Tr. 89) and to Ms. Matthis (G.C. Exh. 4) that she was having difficulty obtaining official time.
9. Inasmuch as the identity of the employees who witnessed the incident of May 23, 1991, has already been fully explored, and those immediately involved have testified herein, the Union's request of June 14, 1991, for names of those employees has been rendered moot.