---

 5 FLRA No. 44
 
 DEPARTMENT OF THE TREASURY
 INTERNAL REVENUE SERVICE
 DETROIT, MICHIGAN
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 24
 Charging Party
 
                                            Case No. 5-CA-81
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT
 ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE
 LAW JUDGE'S RECOMMENDED DECISION AND ORDER ACCOMPANIED BY A BRIEF, AND
 THE RESPONDENT FILED A BRIEF IN OPPOSITION TO EXCEPTIONS FILED BY THE
 GENERAL COUNSEL.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29), AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE 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 INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND BRIEF, AND
 THE RESPONDENT'S BRIEF IN OPPOSITION THERETO, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  IN VIEW OF THE AUTHORITY'S ADOPTION OF THE
 ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT A PREPONDERANCE OF THE
 EVIDENCE DOES NOT SUPPORT ALLEGATIONS THAT THE RESPONDENT VIOLATED
 SECTIONS 7116(A)(1) AND (2) OF THE STATUTE, THE AUTHORITY FINDS IT
 UNNECESSARY TO PASS UPON, AND DOES NOT ADOPT, THE DICTA CONCERNING
 "MIXED MOTIVE" SITUATIONS WHICH APPEARS IN THE FIRST FULL PARAGRAPH OF
 PAGE 5 OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-81 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MARCH 19, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    SHEILA A. REILLY, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    MICHAEL MAUER, ESQUIRE
    FOR THE CHARGING PARTY
 
    JAMES E. ROGERS, JR., ESQUIRE
    FOR THE RESPONDENT
 
    BEFORE:  LOUIS SCALZO
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
 PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
 STAT. 1191, 5 U.S.C.  7101 ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
 AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
 
    ON NOVEMBER 4, 1978, A COMPLAINT WAS FILED BY THE REGIONAL DIRECTOR,
 REGION V, FEDERAL LABOR RELATIONS AUTHORITY, CHICAGO, ILLINOIS, AGAINST
 THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, DETROIT
 DISTRICT OFFICE, DETROIT, MICHIGAN (RESPONDENT), ON BEHALF OF THE
 NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 24 (UNION).
 
    THE COMPLAINT ALLEGED THAT ON OR ABOUT OCTOBER 24, 1978 THE
 RESPONDENT, THROUGH ITS AGENT, MR. JOHN C. MILLER, RETURNS PROGRAM
 MANAGER, IN THE DETROIT DISTRICT OFFICE, CHANGED A PROMOTION APPRAISAL
 OF MS. BERNICE MARTIN, A BARGAINING UNIT MEMBER, BECAUSE MS.  MARTIN
 ANNOUNCED AN INTENT TO FILE A GRIEVANCE;  THAT ON OR ABOUT OCTOBER 30,
 1978, MR. MILLER CHANGED PREVIOUSLY APPROVED ANNUAL LEAVE TAKEN BY MS.
 MARTIN, TO ABSENCE WITHOUT LEAVE FOR THE SAME REASON;  AND THAT THESE
 ACTS CONSTITUTED VIOLATIONS OF SECTION 7116(A)(2) OF THE STATUTE.  IT
 WAS ALSO ALLEGED THAT MR. MILLER PRECIPITATED VIOLATIONS OF SECTION
 7116(A)(1) OF THE STATUTE BY THE FOREGOING CONDUCT AND BY WARNING MS.
 MARTIN ON OCTOBER 30, 1978 THAT SHE WOULD BE PLACED IN AN ABSENT WITHOUT
 LEAVE STATUS AND SUFFER OTHER UNSPECIFIED REPRISALS IF SHE FAILED TO
 ARRIVE AT WORK ON TIME, BECAUSE MS. MARTIN HAD ANNOUNCED AN INTENTION TO
 FILE A GRIEVANCE.
 
    ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
 CROSS-EXAMINE WITNESSES.  POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
 FOR THE GENERAL COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY, AND THE
 RESPONDENT.  THESE HAVE BEEN DULY CONSIDERED.  BASED UPON THE ENTIRE
 RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
 HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATION:
 
                             FINDINGS OF FACT
 
    IN OCTOBER OF 1978, MR. MILLER WAS ASKED TO PREPARE A PERFORMANCE
 APPRAISAL (FORM 3861) FOR MS. MARTIN (TR. 52, 100).  /1/ THE APPRAISAL
 WAS REQUESTED BECAUSE SHE WAS SEEKING A NEW POSITION AND A CURRENT
 EVALUATION WAS NEEDED (TR. 100).  MR. MILLER COMPLETED A TENTATIVE
 EVALUATION BASED ON INFORMATION THAT HE HAD RETAINED IN MS. MARTIN'S
 EVALUATION FILE (TR.  102).
 
    ON OR ABOUT OCTOBER 27, 1978, MR. MILLER MET WITH MS. MARTIN TO
 DISCUSS THE COMPLETED TENTATIVE EVALUATION.  THIS MEETING LASTED
 APPROXIMATELY ONE AND ONE HALF TO TWO HOURS, DURING WHICH TIME EACH
 EVALUATIVE FACTOR WAS DISCUSSED FREELY BY MS. MARTIN AND MR. MILLER (TR.
 102, 160-161).  MS. MARTIN EXPRESSED HER DISAGREEMENT WITH MR. MILLER'S
 RATING OF "3" FOR EACH OF THE GENERAL FACTORS LISTED ON THE APPRAISAL
 FORM (TR. 53, 102).  SHE SUGGESTED THAT THE EVALUATION SHOULD HAVE
 CONSISTED OF "4'S" AND "5'S" (TR. 103).  /2/
 
    BECAUSE OF THE OBJECTIONS RAISED BY MS. MARTIN, MR. MILLER PROVIDED
 MS. MARTIN WITH AN OPPORTUNITY TO PRODUCE EXAMPLES OF HER PERFORMANCE
 WHICH WOULD JUSTIFY A HIGHER RATING (TR. 103).  FOR THIS PURPOSE HE GAVE
 HER A BLANK COPY OF AN APPRAISAL FORM TOGETHER WITH A COPY OF AN
 EXPLANATION OF THE RATING PROCESS (TR. 103).  MR. MILLER ALSO ADVISED
 MS. MARTIN THAT HE WOULD REEVALUATE MATERIAL IN HER EVALUATION FOLDER TO
 MAKE CERTAIN THAT HE WAS PROPERLY RATING HER PERFORMANCE (TR. 105).  HE
 TESTIFIED THAT THE UNION WAS NOT DISCUSSED DURING THIS MEETING, AND
 FURTHER THAT THERE WAS NO MENTION OF A GRIEVANCE PROCEEDING BY MS.
 MARTIN (TR. 104, 160-161, 166, 178).  MS. MARTIN TESTIFIED IN VAGUE
 TERMS THAT SHE TOLD MR. MILLER THAT SHE WOULD SEEK UNION ASSISTANCE (TR.
 56-57), AND FURTHER THAT AFTER MENTION OF THE UNION, MR. MILLER BECAME
 ANGRY.  THE TESTIMONY OF MS. MARTIN AND MR. MILLER ESTABLISH THAT MR.
 MILLER FULLY AGREED TO RECONSIDER THE EVALUATION WITHOUT RESERVATION,
 AND TO PROVIDE MS. MARTIN WITH AN OPPORTUNITY TO SUPPORT HER POSITION.
 MS. MARTIN'S TESTIMONY CORROBORATES MR. MILLER IN SIGNIFICANT PART IN
 THAT SHE STATED THAT MR. MILLER DID NOT ADVISE HER NOT TO CONSULT WITH
 THE UNION (TR.  76), NOR DID HE SUGGEST THAT SHE SHOULD NOT MEET WITH
 HER UNION STEWARD (TR. 77).  THE CONCLUSION MUST BE REACHED THAT IF MS.
 MARTIN REFERRED TO THE POSSIBILITY OF GOING TO THE UNION THE REFERENCE
 EVOKED NO ANGER OR HOSTILITY FROM MR. MILLER.  THIS VIEW IS SUPPORTED BY
 AN ACCOUNT OF THE CONVERSATION GIVEN TO ROBERT L. GARDNER A UNION
 STEWARD, BY MS. MARTIN, AFTER THE MEETING IN QUESTION (TR. 13).
 
    MS. MARTIN DID RATE HERSELF DURING THE WEEKEND OF OCTOBER 28, AND 29,
 1978.  SHE PROPOSED A RATING OF "4" OR "5" FOR EACH FACTOR.  "JOB
 KNOWLEDGE" WAS ASSIGNED A RATING OF "5" (TR. 92-94).  MR. MILLER ALSO
 REEVALUATED MS. MARTIN DURING THE WEEKEND PERIOD (TR. 105).  ON THE
 FOLLOWING MONDAY MORNING, OCTOBER 30, 1978, MR. MILLER CALLED MS.
 MARTIN INTO HIS OFFICE TO DISCUSS HER EVALUATION A SECOND TIME (TR. 55,
 77).  THE MEETING LASTED APPROXIMATELY TWO TO THREE HOURS (TR. 166-177).
  MS. MARTIN LISTED SOME EXAMPLES OF HER JOB PERFORMANCE, AND EACH FACTOR
 COMPRISING THE EVALUATION WAS AGAIN DISCUSSED IN DETAIL FROM THEIR
 RESPECTIVE POSITIONS (TR. 104-106, 162).  BASED UPON EVIDENCE SUPPLIED
 BY MS. MARTIN, MR.  MILLER RAISED THE "JOB KNOWLEDGE" FACTOR FROM A "3"
 TO A "4" (TR. 149, 162), AND BASED UPON A REEVALUATION OF MEMORANDA IN
 MS. MARTIN'S EVALUATION FILED, HE ALSO DOWNGRADED THE "DEPENDABILITY"
 FACTOR FROM A "3" TO A "2" (TR. 106, 149-151).  /3/ THE DOCUMENTS RELIED
 UPON FOR THE DOWNGRADING REFLECTED THAT MS. MARTIN HAD ARRIVED LATE FOR
 WORK ON MANY OCCASIONS, AND FURTHER THAT MS. MARTIN HAD BEEN
 UNSUCCESSFUL IN EFFORTS TO CORRECT THIS PROBLEM (TR. 106, 109, 149-151,
 RESPONDENT EXHIBITS 2 AND 4).
 
    THE REEVALUATION OF THE "DEPENDABILITY" FACTOR WAS ALSO BASED UPON
 THE NATURE OF PERFORMANCE REQUIRED FOR A "3" RATING.  SINCE "3" WAS
 INDICATIVE OF A SUCCESSFUL EFFORT, MR. MILLER CONCLUDED, UPON
 RECONSIDERATION, THAT HE COULD NOT JUSTIFY HIS PERFORMANCE AS A MANAGER
 BY RATING MS. MARTIN AS A "3" WHEN SHE REPEATEDLY REPORTED LATE FOR WORK
 WITHOUT FURNISHING AN ACCEPTABLE EXCUSE (TR. 163).  /4/
 
    MS. MARTIN TESTIFIED THAT SHE TOLD MR. MILLER, "I AM GOING TO THE
 UNION. . .I HAVE GOT TO GO" (TR. 60).  SHE RELATED THAT MR. MILLER
 BECAME ANGRY WITH HER, AND THAT SHE THEN RETURNED TO HER DESK (TR.
 60-61).  MR. MILLER DISPUTES THIS VERSION OF EVENTS IN SIGNIFICANT PART,
 ALTHOUGH HE ACKNOWLEDGED THAT MS. MARTIN MAY HAVE MENTIONED THAT A
 GRIEVANCE WOULD BE FILED (TR. 177).  HE DENIED MAKING ANY THREATS BASED
 ON UNION RELATED ACTIVITY, AND ALSO DENIED ANY DISCUSSION OF THE FILING
 OF A GRIEVANCE (TR. 125, 166).
 
    FOLLOWING THE DISCUSSION OUTLINED, MR. MILLER REVIEWED TIME RECORDS
 WITH HIS SECRETARY AND DISCOVERED THAT MS. MARTIN HAD BEEN ALLOWED ONE
 HOUR OF ANNUAL LEAVE ON OCTOBER 23, 1978, AND ONE HOUR OF ANNUAL LEAVE
 ON OCTOBER 24, 1978, AFTER ARRIVING LATE FOR WORK ON THESE TWO DAYS.
 MR. MILLER WAS NOT AVAILABLE ON THESE DATES, AND ALTHOUGH HIS SECRETARY
 WAS NOT AUTHORIZED TO APPROVE ANNUAL LEAVE, SHE ACCEDED TO A REQUEST
 FROM MS. MARTIN THAT ANNUAL LEAVE BE UTILIZED TO COVER THESE PERIODS OF
 TARDINESS (TR. 127-128, 132).  FOLLOWING THIS REVIEW WHICH OCCURRED
 AFTER THE DISCUSSION OF MS. MARTIN'S WORK APPRAISAL, MR. MILLER
 QUESTIONED MS.  MARTIN AND DETERMINED THAT SHE DID NOT HAVE ACCEPTABLE
 EXCUSES FOR TARDINESS ON THE TWO DAYS IN QUESTION.  HE THEN ADVISED HER
 THAT HE WAS CHANGING THE TWO HOURS PREVIOUSLY CHARGED TO ANNUAL LEAVE,
 TO ABSENCE WITHOUT LEAVE, AND HANDED HER A WRITTEN BUCKSLIP INDICATIVE
 OF THIS ACTION (TR. 132-133, 168, GENERAL COUNSEL EXHIBIT 1-A).  /5/
 LATER ON THE SAME DATE MR. MILLER HANDED MS. MARTIN A MEMORANDUM DATED
 OCTOBER 30, 1978, WHICH REAFFIRMED LEAVE RESTRICTION PREVIOUSLY PLACED
 ON MS. MARTIN BECAUSE OF REPEATED TARDINESS (GENERAL COUNSEL EXHIBIT
 1-A, TR. 126-127, 154-155, 167).
 
    THE RECORD DISCLOSED THAT THE HOURS OF WORK IN THE DETROIT DISTRICT
 OFFICE DURING THE PERIODS INVOLVED HEREIN AND THEREAFTER, WERE 8:00 A.M.
 TO 4:30 P.M.  HOWEVER, AS EARLY AS AUGUST 18, 1975, MS. MARTIN WAS
 ADMONISHED BY MEMORANDUM, AND THREATENED WITH DISCIPLINARY ACTION FOR
 HABITUAL TARDINESS (RESPONDENT'S EXHIBIT 1).  SHE WAS SIMILARLY
 ADMONISHED FOR A SERIES OF SUCH INFRACTIONS ON FEBRUARY 7, 1977
 (RESPONDENT EXHIBIT 10);  AND ON MARCH 23, 1977 (RESPONDENT EXHIBIT 1).
 MR. MILLER CONTINUED EFFORTS TO CORRECT THIS PROBLEM BY ISSUING TO MS.
 MARTIN, MEMORANDUMS DATED DECEMBER 15, 1977 AND APRIL 20, 1978, NOTING
 IN BOTH A PATTERN OF ABUSE OF DUTY HOURS (RESPONDENT EXHIBITS 2 AND 4).
 MS. MARTIN ACKNOWLEDGED THAT SHE HAD PREVIOUSLY BEEN THREATENED WITH
 DISCIPLINARY ACTION FOR THIS CONDUCT BY MR. MILLER AND HIS PREDECESSOR
 (TR. 79-81);  AND THAT SHE WAS WILLING TO "HAVE THE SHORT CHECKS" IN
 ORDER TO CONTINUE THE PRACTICE (TR. 81).  IT WAS CLEARLY AN ISSUE OF
 SOME IMPORTANCE TO MANAGEMENT AND A SOURCE OF CONSIDERABLE FRICTION
 BETWEEN MS. MARTIN AND MANAGEMENT.  MR. MILLER CONSIDERED THE MATTER OF
 SUFFICIENT IMPORTANCE TO BRING THE PROBLEM TO THE ATTENTION OF HIS
 DIVISION CHIEF IN THE DETROIT DISTRICT OFFICE, WHO THEREAFTER DISCUSSED
 THE SUBJECT WITH MS. MARTIN (TR. 79, 120-121).  MS. MARTIN'S TESTIMONY
 ESTABLISHED THAT SHE WAS OF THE OPINION THAT HER TARDINESS CONSTITUTED
 NO BASIS FOR DRAWING CONCLUSIONS CONCERNING HER DEPENDABILITY ON THE JOB
 (TR. 86-87).
 
                DISCUSSION, CONCLUSIONS AND RECOMMENDATION
 
    SECTION 7102 OF THE STATUTE PROVIDES IN PART THAT EMPLOYEES (AS
 DEFINED) "SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
 ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT
 FEAR OF PENALTY OR REPRISAL, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE
 EXERCISE OF SUCH RIGHT." SECTIONS 7116(A)(1) AND (2) OF THE STATUTE
 PROVIDE FURTHER:
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR ANY AGENCY--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;
 
    (2) TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION
 BY DISCRIMINATION IN
 
    CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF
 EMPLOYMENT;
 
    IN ORDER TO FIND A SECTION 7116(A)(2) VIOLATION THE EVIDENCE MUST
 SHOW THAT AGENCY MANAGEMENT DISCRIMINATIVELY AFFECTED EMPLOYEE TERMS
 AND
 CONDITIONS OF EMPLOYMENT BASED ON UNION CONSIDERATIONS.  FURTHER, SUCH A
 VIOLATION WILL BE FOUND IN "MIXED MOTIVE" SITUATIONS, I.E., WHERE A
 LEGITIMATE BASIS FOR THE MANAGEMENT ACTION EXISTS, BUT WHERE UNION
 CONSIDERATIONS ALSO ARE SHOWN TO HAVE PLAYED A PART.  DIRECTORATE OF
 SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, HEADQUARTERS, DEFENSE
 LOGISTICS AGENCY, ASSISTANT SECRETARY CASE NO. 22-08768(CA), 2 FLRA NO.
 118 (MARCH 21, 1980);  DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
 SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER,
 CHICAGO, ILLINOIS, ASSISTANT SECRETARY CASE NO. 50-17077(CA), 2 FLRA NO.
 12 (NOVEMBER 29, 1919), REPORT NO. 21;  VETERANS ADMINISTRATION CENTER,
 LEAVENWORTH, KANSAS, ASSISTANT SECRETARY CASE NO. 60-5847(CA), 1 FLRA
 NO. 111 (SEPTEMBER 20, 1979), REPORT NO. 17;  DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, SAN JUAN, PUERTO
 RICO, A/SLMR NO. 1127 (1978).
 
    THUS, WITHIN THE CONTEXT OF THIS CASE, THE BASIC ISSUES POSED ARE
 WHETHER THE RESPONDENT INTERFERED WITH, RESTRAINED, OR COERCED MS.
 MARTIN IN THE EXERCISE OF PROTECTED RIGHTS;  AND/OR WHETHER RESPONDENT
 DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION.  UNDER THE PROVISIONS OF
 SECTION 7118(A)(7) OF THE STATUTE, AND SECTION 2423.18 OF THE
 REGULATIONS, 5 C.F.R. 2423.18, COUNSEL FOR THE GENERAL COUNSEL HAS THE
 BURDEN OF ESTABLISHING THE UNFAIR LABOR PRACTICES CHARGED BY A
 PREPONDERANCE OF THE EVIDENCE.  A CAREFUL EXAMINATION OF THE RECORD HERE
 DISCLOSES THAT THIS BURDEN HAS NOT BEEN MET.  THE ONLY EVIDENCE THAT
 COULD BE CONCEIVED OF AS SHOWING UNION ACTIVITY IS THAT RELATING TO AN
 INTENT ON MS. MARTIN'S PART TO CONSULT WITH THE UNION WITH RESPECT TO
 HER DISSATISFACTION OVER MR. MILLER'S APPRAISAL.  ASSUMING THAT SUCH
 INFORMATION WAS IN FACT MADE KNOWN TO MR. MILLER, THERE IS NO SHOWING
 WHATSOEVER THAT THIS INFORMATION, WHOLLY OR IN PART, PRECIPITATED
 ADMINISTRATIVE ACTION ON HIS PART WITH RESPECT TO THE CHANGING OF ANNUAL
 LEAVE TO ABSENCE WITHOUT LEAVE, WITH RESPECT TO THE DOWNGRADING OF HIS
 APPRAISAL OF MS. MARTIN'S DEPENDABILITY, AND WITH RESPECT TO THE
 ISSUANCE OF ANY WARNINGS OR THREATS TO MS. MARTIN.
 
    IN ORDER TO SHOW ANTI-UNION ANIMUS HEAVY RELIANCE WAS PLACED UPON AN
 APRIL 20, 1978 MEMORANDUM WHEREIN MR. MILLER REPRIMANDED MS. MARTIN FOR
 FAILING TO FOLLOW INSTRUCTIONS PROPERLY, AND FOR BEING INSUBORDINATE
 (GENERAL COUNSEL EXHIBIT 4-A).  A GRIEVANCE WAS FILED BY MS. MARTIN AND
 AN EFFORT WAS MADE TO HAVE THE MEMORANDUM REMOVED FROM HER EVALUATION
 FILE.  FOLLOWING A REFUSAL BY MR. MILLER TO EFFECT REMOVAL OF THE
 MEMORANDUM, AND APPEAL WAS MADE TO THE AUDIT DIVISION OF THE DETROIT
 DISTRICT OFFICE.  THE CHIEF OF THE AUDIT DIVISION CONCLUDED THAT MS.
 MARTIN HAD MISUNDERSTOOD THE DIRECTION GIVEN TO HER BY MR. MILLER, AND
 THAT MR. MILLER SHOULD PROVIDE SPECIFIC INSTRUCTIONS IN THE FUTURE
 (GENERAL COUNSEL EXHIBIT 4-G).  HOWEVER, THERE WAS NO SHOWING IN THE
 RECORD THAT THIS PRIOR GRIEVANCE CONSTITUTED ANY BASIS FOR RESENTMENT,
 OR THAT IT GENERATED ANY ANTI-UNION ANIMUS.
 
    RELIANCE WAS ALSO PLACED ON TESTIMONY FROM MS. MARTIN TO THE EFFECT
 THAT "AROUND JANUARY OR FEBRUARY" OF 1979, AFTER MR. MILLER HAD BEEN
 TRANSFERRED TO ANOTHER JOB, MR. MILLER RETURNED TO MS. MARTIN'S WORK
 AREA ON DIFFERENT OCCASIONS TO SEE THE SUPERVISOR IN CHARGE, AND THAT
 FROM A DISTANCE OF ABOUT FIFTEEN FEET SHE OVERHEARD MR. MILLER SPEAK TO
 HER SUPERVISOR AND OTHERS IN A MANNER WHICH TENDED TO RIDICULE THOSE WHO
 MIGHT WISH TO SEEK UNION ASSISTANCE (TR. 67-70).
 
    IT WAS CLEAR FROM THE RECORD THAT ANY CONVERSATIONS OVERHEARD
 OCCURRED LONG AFTER THE KEY DATES ON WHICH DISCRIMINATORY ACTS WERE
 ALLEGED TO HAVE OCCURRED;  THAT THE EXACT MEANING TO BE ATTRIBUTED TO
 ANY WORDS OVERHEARD IS NOT CERTAIN SINCE MS. MARTIN ADMITTED THAT SHE
 WAS NOT A PARTICIPANT IN ANY CONVERSATION;  THAT SHE WAS AT LEAST
 FIFTEEN FEET AWAY FROM THE GROUP DEPICTED AS HAVING HAD SUCH
 CONVERSATIONS;  AND THERE WAS NO CLEAR SHOWING THAT ANY REMARKS WERE IN
 FACT ADDRESSED TO MS. MARTIN.  ALTHOUGH PROOF OF SUCH CONDUCT, WOULD BE
 EVIDENCE OF ANTI-UNION ANIMUS ON MR. MILLER'S PART, SUCH EVIDENCE WITHIN
 THE CONTEXT OF THIS CASE WOULD, WITHOUT MUCH MORE, BE INADEQUATE TO
 ESTABLISH THAT ADMINISTRATIVE ACTIONS TAKEN BY MR. MILLER WERE PROVOKED
 BY AN EXPRESSED INTENTION ON MS. MARTIN'S PART TO SEEK UNION ASSISTANCE.
 
    MR. MILLER'S OCTOBER 30, 1978 REAFFIRMATION OF A PRIOR LEAVE
 RESTRICTION POLICY APPLICABLE TO MS. MARTIN WAS NOT UNUSUAL.  THE
 APPRAISAL OF HER WORK WAS BROUGHT ABOUT BY HER EFFORT TO OBTAIN OTHER
 EMPLOYMENT.  THE DISCUSSIONS REGARDING HER WORK BROUGHT UP THE SENSITIVE
 SUBJECT OF HER TARDINESS, PROVOKED A PROLONGED DISCUSSION OF THE REASONS
 FOR HER TARDINESS, AND CLEARLY BROUGHT THE QUESTION OF REAFFIRMATION OF
 THE LEAVE RESTRICTION POLICY TO THE ATTENTION OF MANAGEMENT FOR
 CONSIDERATION.  MOREOVER, IT WAS ESTABLISHED THAT MR. MILLER HAD
 INTENDED TO REAFFIRM THE LEAVE RESTRICTION POLICY AT AN EARLIER DATE BUT
 HAD NEGLECTED TO DO SO (TR.  157).  THE SAME RATIONALE IS APPLICABLE TO
 THE CHANGING OF PREVIOUSLY APPROVED ANNUAL LEAVE TO ABSENCE WITHOUT
 LEAVE, AND TO ADMONITIONS MADE BY MR. MILLER REGARDING THE NEED FOR MS.
 MARTIN TO OBSERVE NORMAL DUTY HOURS.  THESE CLEARLY AROSE AS FACETS OF
 MR. MILLER'S REAFFIRMATION OF POLICY INITIATED PREVIOUSLY BECAUSE OF MS.
 MARTIN'S TENDENCY TO ARRIVE LATE FOR WORK WITHOUT AN ACCEPTABLE EXCUSE.
 /6/
 
    THE LENGTHY OCTOBER 27, 1978 DISCUSSION OF MS. MARTIN'S WORK RESULTED
 IN A PLAN TO COMPLETELY REVIEW HER WORK APPRAISAL.  THIS REEVALUATION
 WAS SOUGHT BY MS.  MARTIN, AND THERE IS NO EVIDENCE OF BAD FAITH OR
 UNFAIRNESS ON MR. MILLER'S PART IN HIS SUBSEQUENT UPGRADING OF THE "JOB
 KNOWLEDGE" FACTOR AND THE DOWNGRADING OF THE "DEPENDABILITY" FACTOR.
 CONSIDERING THE RECORD, INCLUDING MR. MILLER'S INTENT TO BE AS OBJECTIVE
 AS POSSIBLE WITH RESPECT TO EACH ELEMENT RATED, AND THE ABSENCE OF ANY
 EVIDENCE WHICH WOULD INDICATE THAT THE DOWNGRADING WAS EFFECTUATED
 BECAUSE OF AN EXPRESSED INTENTION ON MS. MARTIN'S PART TO CONSULT WITH
 THE UNION, THERE IS NO BASIS FOR A FINDING THAT THE DOWNGRADING EMANATED
 FROM CONSIDERATIONS RELATING TO THE PROSPECT OF MS. MARTIN FILING A
 GRIEVANCE.
 
    THE CASE PRESENTED BY COUNSEL FOR THE GENERAL COUNSEL RESTS ALMOST
 ENTIRELY UPON THE TESTIMONY OF MS. MARTIN.  HOWEVER, IT MUST BE
 CONCLUDED THAT SHE WAS NOT A CREDIBLE WITNESS.  THIS CONCLUSION IS
 DERIVED FROM HER DEMEANOR ON THE WITNESS STAND, AND FROM AN EXAMINATION
 OF HER TESTIMONY.  ALTHOUGH MS. MARTIN ACKNOWLEDGED THAT MR. MILLER WAS
 HER IMMEDIATE SUPERVISOR DURING 1978 (TR. 44-45), AND ALTHOUGH IT WAS
 ESTABLISHED THAT HE HAD BEEN HER IMMEDIATE SUPERVISOR SINCE OCTOBER OF
 1977 (TR. 137), SHE STILL NEVERTHELESS QUESTIONED HIS AUTHORITY TO
 APPRAISE HER WORK (TR. 71-73).  THE RECORD REFLECTED THAT MR. MILLER WAS
 THE PROPER PERSON TO EVALUATE HER PERFORMANCE.  OTHER ELEMENTS OF HER
 TESTIMONY ALSO LED TO THE CONCLUSION THAT MS. MARTIN'S TESTIMONY WAS NOT
 CREDIBLE.  SHE ERRONEOUSLY CONCLUDED THAT SHE WAS NOT REQUIRED TO WORK
 FOR MR. MILLER AND THAT MR. MILLER HAD NO RESPONSIBILITY FOR INSTRUCTING
 HER (TR. 73).  HER TESTIMONY WAS VAGUE AND MISLEADING CONCERNING THE
 PERIOD OF HIS SUPERVISION OF HER WORK (TR. 72), AND CONCERNING PRIOR
 ADMONITIONS FOR TARDINESS RECEIVED FROM MR. MILLER'S PREDECESSOR (TR.
 83-85).  LASTLY, COUNSEL FOR THE GENERAL COUNSEL RELIED UPON A HEARSAY
 STATEMENT REPORTEDLY MADE TO UNION STEWARD JOHN L.  GARDNER BY MS.
 MARTIN, TO THE EFFECT THAT AFTER THE OCTOBER 30, 1978 DISCUSSION
 CONCERNING MS.  MARTIN'S WORK APPRAISAL, MR. MILLER TOLD HER THAT IF IT
 WAS THE LAST THING HE WAS GOING TO DO, HE WOULD GET RID OF HER (TR. 19);
  HOWEVER, MS. MARTIN'S TESTIMONY DOES NOT INCLUDE ANY REFERENCE TO THIS
 SIGNIFICANT UTTERANCE.  CONTRASTED WITH THE FOREGOING, MR. MILLER
 TESTIFIED IN A CANDID, STRAIGHT FORWARD MANNER WITHOUT AMBIGUITY OR
 HESITATION.  ACCORDINGLY, HIS TESTIMONY, RATHER THAN MS. MARTIN'S MUST
 BE CREDITED ON FACTUAL ISSUES PRESENTED.
 
    IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
 ALLEGATIONS THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (2) OF
 THE STATUTE.  UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS,
 IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT
 TO 5 C.F.R. 2423.29(C):
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-81, BE, AND
 HEREBY IS, DISMISSED.
 
                         LOUIS SCALZO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 16, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE FORM 3861 REQUIRES THE RATING OF THE FOLLOWING TWELVE
 FACTORS:
 
    1.  JOB KNOWLEDGE, 2. UTILIZATION OF TIME, 3. JOB ATTITUDE, 4.
 LEARNING ABILITY, 5. DEPENDABILITY, 6. INITIATIVE, 7. JUDGMENT, 8. ORAL
 EXPRESSION, 9.  WRITING ABILITY, 10. INDEPENDENCE, 11. QUALITY OF WORK,
 12. COOPERATION (GENERAL COUNSEL EXHIBIT 1-A).
 
    /2/ A NUMERICAL RATING OF "5" WAS THE HIGHEST RATING THAT COULD HAVE
 BEEN ASSIGNED.
 
    /3/ FOR ALL RATINGS OTHER THAN "3" THE RATER IS REQUIRED TO DESCRIBE
 REPRESENTATIVE EXAMPLES WHICH SUMMARIZE AND SUPPORT THE RATING.  SUCH
 DETAILED JUSTIFICATION WAS SUPPLIED BY MR. MILLER ON THE APPRAISAL FORM
 (GENERAL COUNSEL EXHIBIT 1-A).
 
    /4/ MS. MARTIN ADMITTED THAT MR. MILLER EXPLAINED THE PROBLEMS THAT
 HE HAD WITH RESPECT TO HER ARRIVING LATE FOR WORK;  THAT HE DID NOT FEEL
 HE COULD IN GOOD CONSCIENCE JUSTIFY A "3" RATING IN LIGHT OF HIS
 RECONSIDERATION OF THE DETAILS SET FORTH IN THE EVALUATION FILE;  AND
 THAT HIS PRIOR RATING OF "3" WAS AN ERROR.
 
    /5/ AT THE REQUEST OF THE UNION, MR. MILLER SUBSEQUENTLY CHANGED
 THESE PERIODS OF ABSENCE WITHOUT LEAVE BACK TO ANNUAL LEAVE BECAUSE OF A
 CONCLUSION ON MR.  MILLER'S PART THAT HIS REVIEW OF LEAVE ON OCTOBER 30,
 1978, WAS NOT TIMELY (TR. 134-135).
 
    /6/ MS. MARTIN ENDEAVORED TO EXCUSE HER TARDINESS BY RAISING PERSONAL
 REASONS RELATING TO HER HAVING TO TRANSPORT A MENTALLY RETARDED BROTHER
 A PLACE WHERE HE COULD BE CARED FOR DURING THE DAY.  THIS REASON HAD
 BEEN REPEATEDLY REJECTED BY MANAGEMENT OVER A LENGTHY PERIOD OF TIME,
 BUT WAS AGAIN REINTRODUCED BY MS. MARTIN DURING DISCUSSIONS AS A BASIS
 FOR HER FAILURE TO ARRIVE AT HER JOB ON TIME. 
 
 
 

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