[ v01 p84 ]
01:0084(4)MS
The decision of the Authority follows:
1 FLRA No. 4
U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION
Respondent
and
LOCAL 2513, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Complainant
CSC Docket No. 83
DECISION AND ORDER
ON DECEMBER 14, 1978, ADMINISTRATIVE LAW JUDGE JOHN J. MCCARTHY
ISSUED HIS RECOMMENDED DECISION AND ORDER 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. NO EXCEPTIONS WERE FILED WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER. /1/
THE FEDERAL LABOR RELATIONS AUTHORITY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER, AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CSC DOCKET NO. 83 BE, AND
IT HEREBY IS, DISMISSED.
RONALD W. HAUGHTON
CHAIRMAN
HENRY B. FRAZIER III
MEMBER
ISSUED: MARCH 5, 1979
RECOMMENDED DECISION AND ORDER
BY ADMINISTRATIVE LAW JUDGE JOHN J. MCCARTHY
WITH APPEARANCES BY:
BARTON S. WIDOM, ESQUIRE AND JEAN DAVIS, ESQUIRE FOR THE DEPARTMENT
JOSEPH GIRLANDO, ESQUIRE FOR THE COMPLAINANT
STATEMENT OF THE CASE
THIS CASE IS AN UNFAIR LABOR PRACTICE PROCEEDING BROUGHT UNDER
EXECUTIVE ORDER 11491, AS AMENDED (ORDER) AND PART 203 OF TITLE 29 OF
THE CODE OF FEDERAL REGULATIONS. /3/ BECAUSE THIS COMPLAINT INVOLVES
THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) OF THE
DEPARTMENT OF LABOR, THESE PROCEEDINGS ARE BEFORE THE CIVIL SERVICE
COMMISSION INSTEAD OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
RELATIONS (A/SLMR). /4/
COMPLAINANT, LOCAL 2513, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, ALLEGES THAT P. CHARLES SCHWENDER VIOLATED SECTION 19(A)(1),
19(A)(2), AND 19(A)(4) OF THE ORDER BY THREATENING TWO CLERICAL
EMPLOYEES, ROSALIND DIBENEDETTO AND CANDICE JANKOWSKI, IN AN ATTEMPT TO
RESTRAIN THEM FROM FILING GRIEVANCES.
PURSUANT TO NOTICE A HEARING WAS HELD IN NEW YORK, NEW YORK.
COMPLAINANT'S CASE WAS BASED ALMOST EXCLUSIVELY ON THE TESTIMONY OF
ROSALIND DIBENEDETTO, SINCE CANDICE JANKOWSKI DID NOT TESTIFY.
COMPLAINANT MOVED TO CONTINUE THE HEARING MAINTAINING THAT JANKOWSKI WAS
EXCUSABLY ABSENT AND THAT HER TESTIMONY WOULD CORROBORATE DIBENEDETTO'S
TESTIMONY AND OTHERWISE ADD TO COMPLAINANT'S CASE. A CONTINUANCE WAS
GRANTED UNTIL MAY 1, 1978. WITH THE TAKING OF JANKOWSKI'S TESTIMONY
STILL NOT ARRANGED, A MOTION FOR FURTHER CONTINUANCE WAS DENIED ON MAY
22, 1978, AND THE RECORD WAS CLOSED. A BRIEF WAS THEREAFTER FILED ON
BEHALF OF THE RESPONDENT ACTIVITY.
FINDINGS OF FACT
DURING THE PERIOD OF TIME COVERED BY THIS CASE, P. CHARLES SCHWENDER
WAS AREA DIRECTOR OF THE OSHA OFFICE IN BUFFALO, NEW YORK, COMPLAINANT
WAS THE EXCLUSIVE REPRESENTATIVE OF THE BUFFALO AREA OFFICE'S EMPLOYEES.
ROSALIND DIBENEDETTO WAS SCHWENDER'S SECRETARY, BUT THEY DID NOT HAVE A
SMOOTH WORKING RELATIONSHIP.
NEAR THE BEGINNING OF 1977, THE GRADING OF CLERICAL POSITIONS IN THE
BUFFALO AREA OFFICE AND ALL OTHER OSHA OFFICES IN REGION II WAS
SURVEYED. EACH OF THE 15 AREA DIRECTORS WAS ASKED TO PROVIDE INPUT TO
THE REGIONAL ADMINISTRATIVE AND MANAGEMENT OFFICE (RAMO). A PROPOSAL
FOR UPGRADING, IF JUSTIFIED, WAS THEN TO BE FORWARDED TO THE CIVIL
SERVICE COMMISSION (CSC) FOR APPROVAL. SCHWENDER SUBMITTED SUPPORTING
DATA ON JANUARY 1978; THE UNION AND UNIT EMPLOYEES WERE INFORMED OF
THIS ACTION.
ON MAY 6, 1977, SCHWENDER MET WITH DIBENEDETTO AND TWO OTHER
EMPLOYEES, CANDICE JANKOWSKI, AND MARY ELLEN BARGMANN, REGARDING THE
PROPOSAL. RON NEWTON, WHO WAS A UNION STEWARD AT THE TIME, WAS ALSO
PRESENT. SCHWENDER EXPLAINED THE PROCEDURE THAT WOULD LEAD TO POSSIBLE
APPROVAL OF THE PROPOSAL THROUGH RAMO AND CSC. HE ALSO EXPLAINED THAT
HE HAD NO AUTHORITY TO UPGRADE CLERICAL POSITIONS HIMSELF, BUT THAT HE
COULD GIVE A MERIT STEP PROMOTION WHERE DESERVED. AT THIS POINT, THE
CRUCIAL FACTUAL DISPUTE IN THIS CASE ARISES. COMPLAINT ALLEGES THAT ON
OR ABOUT MAY 6, 1977, SCHWENDER THREATENED DIBENEDETTO AND JANKOWSKI IN
AN ATTEMPT TO DISCOURAGE THEM FROM FILING GRIEVANCES AGAINST HIM FOR NOT
UPGRADING THE CLERICAL EMPLOYEES IN THE AREA OFFICE.
THE ONLY EVIDENCE SUPPORTING THIS ALLEGATION IS THE TESTIMONY OF
DIBENEDETTO THAT SUCH A THREAT WAS MADE AFTER MAY 6: /5/
Q WHAT OCCURRED AFTER THAT MEETING, DO YOU RECALL? ANYTHING IN THE
FOLLOWING THAT MAY HAVE
OCCURRED? WAS THERE ANOTHER DISCUSSION HELD ON THE QUESTION?
A WELL, I KNOW THAT WE WERE TOLD THAT WE SHOULD DO OUR WORK IN THERE
AND THERE WAS NOTHING
HE COULD DO ABOUT IT. THEN WE WERE TOLD THAT WE COULD PUT IN MORE
GRIEVANCES IF WE WANTED BUT
IT WOULDN'T DO US ANY GOOD, IT WOULD JUST MAKE MORE TROUBLE FOR US.
TR. 28-29
. . . .
Q DO YOU RECALL HAVING ANY FURTHER CONVERSATION WITH MR. SCHWENDER
ABOUT THIS MATTER, YOUR
GRIEVANCES?
A WELL, WE ASKED IF HE WAS GOING TO DO ANYTHING ABOUT IT, YOU KNOW,
THE FOLLOWING WEEK AND
HE SAID, NO, THERE WAS NOTHING HE COULD DO ABOUT IT. WE SAID, WELL,
IF YOU CAN'T DO ANYTHING
ABOUT IT, WE WILL SEE WHAT THE UNION CAN DO ABOUT IT AND WE WILL PUT
A GRIEVANCE IN.
HE TOLD ME THAT I COULD PUT IN AS MANY GRIEVANCES AS I WANTED, IT
WASN'T GOING TO DO ME ANY
GOOD, THAT ALL IT WOULD DO WAS BRING ME MORE TROUBLE, AND I SAID,
WELL, WHAT KIND OF TROUBLE
COULD IT BRING ME, AND HE DIDN'T ANSWER THAT. HE SAID, JUST GO AHEAD
AND SEE WHAT HAPPENS.
CANDY WAS AT HER DESK. HER DESK WAS RIGHT NEXT TO MINE AND SHE SAID
THAT SHE FELT THAT I
WAS RIGHT AND THAT SHE WOULD PUT A GRIEVANCE IN ALSO. AND HE SAID
THE SAME THING WOULD GO FOR
HER, THAT IF SHE PUT IN A GRIEVANCE SHE WOULD HAVE TROUBLE, ALSO.
Q DID CANDY HEAR THE CONVERSATION THAT SCHWENDER WAS HAVING WITH YOU?
A WELL, SHE WAS SITTING RIGHT THERE AT THE DESK.
Q DID SHE MAKE SOME COMMENT ABOUT THE DISCUSSION?
A WELL, SHE DIDN'T FEEL THAT MR. SCHWENDER SHOULD THREATEN ME, SAY
THAT I WOULD BE IN
TROUBLE IF I PUT IN ANY MORE GRIEVANCES AND SHE SAID SHE WOULD PUT A
GRIEVANCE IN, TOO.
Q WHAT DID MR. SCHWENDER HAVE TO SAY WHEN CANDY MADE THAT COMMENT?
DO YOU RECALL?
A WELL, HE SAID THAT SHE COULD PUT THE GRIEVANCE IN ALSO; THAT SHE
WOULD HAVE THE SAME
TROUBLE I COULD HAVE. WE DIDN'T KNOW WHAT HE MEANT BY "TROUBLE." TR.
31-32
THE MATERIAL ATTACHED TO THE COMPLAINT DOES NOT COINCIDE WITH
DIBENEDETTO'S TESTIMONY THAT MRS. JANKOWSKI PARTICIPATED IN THAT
CONVERSATION AND THAT SCHWENDER MADE AN IDENTICAL THREAT TO JANKOWSKI ON
THE SAME OCCASION. A STATEMENT GIVEN BY MRS. JANKOWSKI ON JULY 6, 1977
IS TO THE EFFECT THAT SHE LEARNED ABOUT MR. SCHWENDER'S ALLEGED
THREATENING REMARKS TO MRS. DIBENEDETTO ONLY BECAUSE DIBENEDETTO TOLD
HER ABOUT THE CONVERSATION. MOREOVER, JANKOWSKI'S REPORT OF HER OWN
CONVERSATION WITH MR. SCHWENDER AFTER MAY 6, 1977 CONCERNING GRIEVANCES
DOES NOT IN ANY WAY INDICATE THAT DIBENEDETTO WAS PRESENT. /6/
SIMILARLY, A DIBENEDETTO STATEMENT DATED JULY 7, 1977, ATTACHED TO THE
COMPLAINT, DOES NOT MENTION THAT JANKOWSKI WAS PRESENT TO HEAR WHAT
SCHWENDER SAID TO DIBENEDETTO ABOUT GRIEVANCES. IN FACT, DIBENEDETTO
DECLARES IN HER STATEMENT: "I'M NOT SURE IF ANYONE ELSE HEARD HIM."
SCHWENDER, THE ONLY OTHER WITNESS WITH PERSONAL KNOWLEDGE OF THESE
ALLEGED EVENTS, /7/ FLATLY DENIES THESE ALLEGATIONS:
Q WHAT IF ANY COMMENTS DID YOU MAKE (AT THE MAY 6 MEETING) REGARDING
THE FILING OF
GRIEVANCES WITH RESPECT TO THE UPGRADING?
A I EXPLAINED THE FACT THAT UNDER THE CIRCUMSTANCES, I HAD SUBMITTED
ALL THAT I WAS CAPABLE
OF SUBMITTING AND THAT ANY DISSATISFACTION FROM THE EMPLOYEES IN
REGARD TO THIS SUBJECT WOULD
HAVE TO FOLLOW THROUGH THE APPEALS AVENUE AND NOT THE GRIEVANCE
PROCEDURE BECAUSE THIS WAS
STRICTLY UP TO THE RAMO OR CIVIL SERVICE COMMISSION AT THIS POINT.
(TR. 100
. . . .
Q WHAT, IF ANY, COMMENTS DID MS. DIBENEDETTO MAKE AT THIS MEETING
ABOUT THE UNION OR FILED
GRIEVANCES?
A I SINCERELY FEEL THAT SHE THOUGH I HAD THE AUTHORITY TO PROMOTE FOR
EXAMPLE FROM HER
POSITION WHICH WAS SECRETARY/STENO 5, TO A 6, WHICH I EXPLAINED I DID
NOT AND THAT PERHAPS YOU
FELT THAT SHE WOULD GAIN SATISFACTION THROUGH FILING A GRIEVANCE,
WHICH I ATTEMPTED TO EXPLAIN
TO HER THAT WAS NOT MY PREROGATIVE TO PROMOTE BEYOND MY STAFFING
PATTERN, AS I MENTIONED
PREVIOUSLY, THAT THIS WOULD BE AN APPEALS PROCEEDING, THAT WOULD BE A
DIFFERENT AVENUE.
Q DO YOU REMEMBER HER EXACT WORDS, WHAT SHE SAID?
A I DON'T RECALL HER EXACT WORDS AT THE TIME, NO.
Q DO YOU RECALL YOUR WORDS?
A YES, IN THE SENSE THAT I WAS EXPRESSING THE FACT THAT A GRIEVANCE
WOULD NOT BE THE
APPROPRIATE PROCEDURE UNDER THE CIRCUMSTANCES. HOWEVER, I DID NOT
MAKE ANY ATTEMPT TO
DISCOURAGE HER FROM FILING A GRIEVANCE BUT SIMPLY TO EXPLAIN THE
DIFFERENCE BETWEEN A NORMAL
GRIEVANCE AND THE ACCOMPLISHMENT AND THIS SITUATION, HOW A GRIEVANCE
WOULD NOT ACCOMPLISH HER
OBJECTIVE IN THIS PARTICULAR INSTANCE.
Q DID YOU MAKE A STATEMENT THAT IT WOULD CAUSE HER TROUBLE IF SHE
FILED A GRIEVANCE?
A NO, MA'AM.
Q DID YOU MAKE ANY STATEMENT LIKE THAT, THAT MIGHT BE INTERPRETED AS
THAT?
A NO.
Q WAS ANYTHING ELSE SAID REGARDING THE FILING OF GRIEVANCES WITH THE
UNION AT THAT MEETING?
A A REMARK WAS MADE BY MS. JANKOWSKI AND MS. DIBENEDETTO THAT THEY
HAD A DESIRE TO PURSUE
THIS ENDEAVOR FURTHER AND AN INFERENCE WAS MADE TO A GRIEVANCE
POSSIBILITY.
Q WHAT DID YOU SAY TO THAT? WHAT WERE YOUR COMMENTS?
A AS I MENTIONED PREVIOUSLY, AGAIN, I EXPLAINED THE CIRCUMSTANCES,
THAT THIS WOULD NOT BE
APPROPRIATE UNDER THE CONDITIONS. HOWEVER, THIS WOULD BE THEIR
PREROGATIVE.
Q DID YOU STATE THAT THIS WOULD BE HER PREROGATIVE TO DO SO?
A YES. AS I EXPLAIN TO ANY EMPLOYEE, THAT IS THEIR PREROGATIVE TO
FILE A GRIEVANCE, IF
THEY SO DESIRE. TR. 102-103
THIS PORTION OF SCHWENDER'S TESTIMONY COULD BE READ AS ONLY DENYING A
THREAT ON MAY 6, AND NOT THE LATER THREAT ALLEGED BY DIBENEDETTO.
HOWEVER, IT IS CLEAR FROM SCHWENDER'S TESTIMONY THAT HE DID NOT "MAKE
ANY STATEMENT LIKE THAT" WAS MEANT TO INCLUDE STATEMENTS ALLEGEDLY MADE
AFTER MAY 6. THUS, THE GRAVAMEN OF THIS COMPLAINT RAISES THE QUESTION
OF WHOSE RECOLLECTION OF THESE EVENTS IS MORE RELIABLE.
COMPLAINANT HAS THE BURDEN OF PROVING THE ALLEGED THREAT BY A
PREPONDERANCE OF THE EVIDENCE. 29 C.F.R. 203.15. COMPLAINANT HAS NOT
MET THIS BURDEN; THE DEMEANOR OF THE WITNESSES AND OTHER FACTORS CAUSE
ME TO CREDIT SCHWENDER'S DENIAL RATHER THAN DIBENEDETTO'S ACCUSATIONS.
ALTHOUGH HE WAS AT TIMES FRUSTRATED BY THE NUMBER OF GRIEVANCE FILED,
THERE IS CONSIDERABLE EVIDENCE THAT SCHWENDER COOPERATED WITH THE UNION
AND RESOLVED GRIEVANCES FREQUENTLY. MOREOVER, HAVING FAVORED THE
UPGRADING PROPOSAL, IT IS DIFFICULT TO SEE WHY SCHWENDER WOULD FEAR A
GRIEVANCE REGARDING IT, SINCE HE WOULD OBVIOUSLY BE BLAMELESS IF
UPGRADING DID NOT OCCUR. IN GENERAL, THE THREATS ATTRIBUTED TO
SCHWENDER ARE NOT CONSISTENT WITH THE REST OF THE EVIDENCE REGARDING
THIS OPERATION OF THE BUFFALO AREA OFFICE AND HIS TREATMENT OF
EMPLOYEES.
THE TESTIMONY OF THE WITNESSES PERSUADES ME TO CONCLUDE THAT MRS.
DIBENEDETTO, WHOSE INTER-PERSONAL RELATIONSHIPS WITH MR. SCHWENDER WERE
STRAINED, FOCUSSED ON THE NEGATIVE PORTION OF HIS REMARKS, PARTICULARLY
HIS EXPLANATION OF THE FUTILITY OF RELYING ON GRIEVANCES AS A MEANS OF
UPGRADING THE CLERICAL STAFF. THIS WAS TAKEN OUT OF THE CONTEXT OF HIS
TOTAL EXPLANATION; SHE MISINTERPRETED AND EXAGGERATED HIS REMARKS ABOUT
FILING MORE GRIEVANCES. HER INTERPRETATION OF HIS REMARKS IS
INCONSISTENT WITH HIS STATEMENTS THAT SHE WAS ENTITLED TO FILE AS MANY
GRIEVANCES AS SHE WISHED, THAT HE SUPPORTED THE UPGRADING, THAT HE DID
NOT HAVE THE AUTHORITY TO TAKE THE ACTION ON HIS OWN.
THE ANIMOSITY BETWEEN SCHWENDER AND DIBENEDETTO MAY ALSO ACCOUNT FOR
THE DIFFERENT VERSIONS OF ANOTHER STATEMENT HE MADE, CONCERNING THE
POSSIBILITY OF MERIT PAY INCREASES AS AN INTERIM ALTERNATIVE TO
RECLASSIFICATION OF THE CLERICAL POSITIONS. MR. SCHWENDER TESTIFIED HE
STATED THAT "(T)HIS WAS POSSIBLE AND IT WOULD BE GRANTED TO ANY EMPLOYEE
WHO WAS DESERVING OF SUCH A MERIT PROMOTION OR AWARD." TR. 100. A
SIGNIFICANTLY DIFFERENT VERSION OF MR. SCHWENDER'S STATEMENT IS GIVEN IN
MRS. DIBENEDETTO'S TESTIMONY: "HE COULDN'T EVEN GIVE US A MERIT STEP
WHICH WE WERE TOLD THE DIRECTOR COULD, IF HE WANTED TO. AND HE SAID
THAT HE FELT THAT WE DIDN'T DESERVE IT BECAUSE QUOTE, "WE DON'T
PERFORM." TR. 27. IF SCHWENDER HAD EVALUATED HIS CLERICAL EMPLOYEES IN
THAT MANNER AT THE MAY 6 MEETING ATTENDED BY UNION REPRESENTATIVE SMITH
AND OTHER EMPLOYEES, IT WOULD PROBABLY HAVE PROVOKED SOME RESPONSE FROM
THE UNION. IN FACT, THE NOTES OF THE MEETING (ATTACHED TO THE
COMPLAINT) ARE MORE IN HARMONY WITH MR. SCHWENDER'S ACCOUNT THAN THE
ADVERSE INFERENCE IMPLICIT IN MRS. DIBENEDETTO'S VERSION:
A QUESTION WAS ALSO RAISED AS TO THE POSSIBILITY OF PROMOTING PEOPLE
ON A MERIT PERFORMANCE
BASIS ON A STEP IN SIX MONTHS RATHER THAN THE USUAL YEAR. MR.
SCHWENDER AGREED THAT THE
POSSIBILITY EXISTS, BUT IT IS NOT TO ABUSED. WHEN ASKED HOW ONE
MERITS SUCH A SEMI-ANNUAL
INCREASE, THE CLERICALS WERE TOLD TO "PERFORM."
(SUPERIOR PERFORMANCE IS IN FACT THE PRIMARY BASIS FOR A "MERIT" PAY
INCREASE.) IN THIS INSTANCE, AS IN THE CASE OF THE ALLEGED THREATS WHICH
TRIGGERED THE COMPLAINT, THE EVIDENCE OFFERED BY THE COMPLAINANT IS NOT
CONVINCING.
IN CONCLUSION I FIND THAT THE ALLEGATION THAT SCHWENDER THREATENED
EMPLOYEES IS NOT PROVEN AND THAT THE EMPLOYEES ACTUALLY OVERREACTED AND
UNREASONABLY MISUNDERSTOOD SCHWENDER'S REMARKS. I FIND THAT SCHWENDER
MADE NO THREATS AND THAT HE ONLY EXPLAINED THE USELESSNESS OF GRIEVING
TO DIBENEDETTO AND JANKOWSKI.
CONCLUSIONS OF LAW
IN CONSIDERATION OF THE FINDINGS OF FACT, THE QUESTION TO BE DECIDED
IS WHETHER SCHWENDER'S EXPLANATION OF UPGRADING PROCEDURES CONSTITUTED
A
VIOLATION OF SECTION 19(A)(1), 19(A)(2) OR 19(A)(4) OF THE ORDER. THERE
IS NO PROVEN VIOLATION OF SECTION 19(A)(1) OR SECTION 19(A)(2) WITHOUT
PROOF OF ANTI-UNION ANIMUS. E.G., PUGET SOUND NAVAL SHIPYARD, A/SLMR
768(1976); PUGET SOUND NAVAL SHIPYARD, A/SLMR 710(1976). CERTAINLY,
SCHWENDER'S EXPLANATION IS NOT EVIDENCE OF ANTI-UNION ANIMUS. THERE IS
EVIDENCE THAT SCHWENDER WAS FRUSTRATED WITH GRIEVANCES. HOWEVER, EVEN
IF THAT WERE EVIDENCE OF ANTI-UNION ANIMUS, IT IS OVERCOME BY THE
EVIDENCE OF HIS COOPERATION WITH THE UNION. SECTION 19(A)(2) REQUIRES
DISCRIMINATION, AND SECTION 19(A)(4) REQUIRES DISCRIMINATORY OR
DISCIPLINARY ACTION AGAINST AN EMPLOYEE. EXPLAINING PROMOTION
PROCEDURES AND ADVISING EMPLOYEES AS TO PROPER MEANS OF PROTEST CANNOT
BE CONSIDERED TO BE DISCIPLINING OR DISCRIMINATING AGAINST THOSE
EMPLOYEES. FOR THESE REASONS, IT MUST BE CONCLUDED THAT CHARLES
SCHWENDER DID NOT COMMIT AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE
COMPLAINT.
RECOMMENDED ACTION
I RECOMMEND THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DECEMBER 14, 1978
DATE JOHN J. MCCARTHY
ADMINISTRATIVE LAW JUDGE
/1/ SINCE THIS CASE INVOLVES THE U.S. DEPARTMENT OF LABOR, IT WAS
INITIATED AND PROCESSED PURSUANT TO SECTION 6(E) OF EXECUTIVE ORDER
11491, AND WAS PENDING BEFORE THE VICE CHAIRMAN OF THE CIVIL SERVICE
COMMISSION THEREUNDER ON DECEMBER 31, 1978. CONSISTENT WITH SECTION
2400.2 OF THE AUTHORITY'S TRANSITION RULES AND REGULATIONS (44 F.R. 7)
AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215), THIS CASE HAS BEEN TRANSFERRED TO THE FEDERAL
LABOR RELATIONS AUTHORITY FOR CONSIDERATION.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE LABOR
MANAGEMENT RELATIONS STATUTE HAD NOT BEEN ENACTED (92 STAT. 1191). THE
DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.
/3/ 29 C.F.R. 203.1-203.27(1978)
/4/ ORDER, SECTION 6(E)
/5/ NOTES OF THE EMPLOYEE STAFF INCLUDING DIBENEDETTO WHO
PARTICIPATED IN THE MAY 6 MEETING MENTION NO THREATS. ATTACHMENT TO
COMPLAINT AND EX. C-1.
/6/ THE JANKOWSKI STATEMENT WAS NOT RECEIVED IN EVIDENCE. HOWEVER,
SINCE IT WAS PART OF THE DOCUMENTATION SUPPORTING THE COMPLAINT, IT IS
TANTAMOUNT TO AN ALLEGATION INCORPORATED INTO THE COMPLAINT AND IS
THEREFORE BINDING ON THE COMPLAINANT.
/7/ AS EXPLAINED, SUPRA, JANKOWSKI DID NOT TESTIFY.