[ v07 p823 ]
07:0823(140)CA
The decision of the Authority follows:
7 FLRA No. 140
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Charging Party
Case Nos. 3-CA-486
3-CA-990
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
FINDING THAT RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND DESIST
THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS. THE RESPONDENT FILED
EXCEPTIONS WITH RESPECT TO THE JUDGE'S DECISION AND ORDER.
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 (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER, AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS AND CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE SOCIAL SECURITY ADMINISTRATION,
BALTIMORE MARYLAND SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO DISCHARGE EMPLOYEES BECAUSE OF THEIR ASSISTANCE TO
AND ACTIVITIES ON
BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923,
AFL-CIO.
(B) INTERFERING WITH UNION MEETINGS BETWEEN REPRESENTATIVES OF
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO, AND UNIT EMPLOYEES
CONCERNING MATTERS RELATED TO
EMPLOYEES' CONDITIONS OF EMPLOYMENT.
(C) IN ANY LIKE OR RELATED MATTER, INTERFERING WITH, RESTRAINING OR
COERCING ITS 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
PURPOSE AND POLICIES OF THE STATUTE:
(A) POST AT ITS FACILITIES LOCATED IN SOCIAL SECURITY ADMINSTRATION,
BALTIMORE, MARYLAND,
COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH
FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR, AT SAID ACTIVITY AND
SHALL BE POSTED AND
MAINTAINED BY HIM FOR SIXTY CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR OF REGION III, 1111 18TH ST., NW., WASHINGTON,
D.C., 20036, 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., JANUARY 29, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT THREATEN TO DISCHARGE EMPLOYEES BECAUSE OF THEIR
ASSISTANCE TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923,
AFL-CIO.
WE WILL NOT INTERFERE WITH MEETINGS BETWEEN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO, AND UNIT EMPLOYEES CONCERNING
MATTERS RELATED TO EMPLOYEES' CONDITIONS OF EMPLOYMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(ACTIVITY)
DATED:(13)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 WHOSE ADDRESS IS: 1111 18TH
ST., NW., WASHINGTON, D.C. 20036, AND WHOSE TELEPHONE NUMBER IS: (202)
653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MR. FRANCIS X. DIPPEL
FOR THE RESPONDENT
PATRICIA EANET AND
SUSAN SHINKMAN, ESQS,
FOR THE GENERAL COUNSEL
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS MATTER AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., HEREIN CALLED
THE STATUTE AS THE RESULT OF UNFAIR LABOR PRACTICE COMPLAINTS
CONSOLIDATED FOR HEARING ON JULY 29, 1979. THE COMPLAINTS WERE BASED
UPON CHARGES FILED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1923, AFL-CIO, HEREIN CALLED THE UNION, ON SEPTEMBER 12, 1979 AND
MARCH 3, 1980, RESPECTIVELY.
THE COMPLAINTS AND AMENDMENTS ALLEGE THAT THE SOCIAL SECURITY
ADMINISTRATION, HEREIN CALLED RESPONDENT, VIOLATED SECTION 7116(A)(1) OF
THE STATUTE BY THREATENING TO DISCHARGE EMPLOYEES BECAUSE OF THEIR
ASSISTANCE TO AND ACTIVITIES ON BEHALF OF THE UNION; BY ENGAGING IN
SURVEILLANCE OF, AND INTERFERING WITH A MEETING BETWEEN REPRESENTATIVES
OF THE UNION AND EMPLOYEES CONCERNING MATTERS RELATED TO EMPLOYEE'S
CONDITIONS OF EMPLOYMENT; AND, BY CERTAIN CONDUCT WHICH OCCURRED AT THE
ABOVE MENTIONED MEETING.
RESPONDENT'S ANSWER TO THE COMPLAINT DENIED THE COMMISSION OF ANY
UNFAIR LABOR PRACTICES.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON OCTOBER
29, 1980. ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
CROSS-EXAMINE WITNESSES.
BASED UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND ORDER.
FINDINGS OF FACT
A. PERFORMANCE APPRAISAL INTERVIEW
AT ALL TIMES MATERIAL HEREIN, RESPONDENT AND THE UNION WERE PARTIES
TO A COLLECTIVE BARGAINING AGREEMENT.
MRS. ANNA MORTON, A PERIPHERAL EQUIPMENT OPERATOR, HAD BEEN EMPLOYED
BY RESPONDENT SINCE APPROXIMATELY 1970. AT THE TIME OF THE INCIDENTS
ALLEGED TO HAVE OCCURRED HEREIN, MR. MORTON WAS UNDER THE DIRECT
SUPERVISION OF MR. PATRICK FINNERTY, A SUPERVISORY COMPUTER OPERATOR.
MRS. MORTON FIRST BECAME A UNION STEWARD IN OCTOBER 1978, SHORTLY
THEREAFTER MRS. MORTON'S TESTIFIED THAT MR. FINNERTY ASKED HER, "WHO
WERE ALL THE UNION REPRESENTATIVES WN THE UNIT." MRS. MORTON FURTHER
TESTIFIED THAT MR. FINNERTY TOLD HER, "I DIDN'T NEED THE HASSLE, THAT
THE UNION JUST MADE PROBLEMS FOR PEOPLE, I SHOULD BE AT HOME WITH MY KID
AND NOT BEING WORRIED WITH EVERYBODY ELSE'S PROBLEMS." ACCORDING TO MRS.
MORTON HE ALSO TOLD HER THAT, "YOU'RE NOT GOING TO BE ON THE SYSTEM.
THAT MEANS THAT YOUR RATING IS GOING TO GO DOWN AND YOU WON'T BE ABLE TO
BE AVAILABLE TO US IN THE COMPUTER SYSTEMS ROOMS."
IN MARCH 1979, MR. FINNERTY GAVE MRS. MORTON HER FIRST INFORMAL
PERFORMANCE APPRAISAL INTERVIEW. AT THE CONCLUSION OF THAT MEETING MRS.
MORTON TESTIFIED THAT MR. FINNERTY GAVE HER A MEMORANDUM FROM MR. HERB
DOGGETTE, ASSOCIATE COMMISSIONER AND ASKED HER TO READ THE UNDERLINED
PORTION, WHICH STATED:
IN THE MEANTIME, IN ORDER TO TAKE ACTION BASED ON NEW REGULATIONS,
SUPERVISORS SHOULD
DEVELOP INTERIM CRITICAL ELEMENTS ON AN AS-NEEDED BASIS TO IMPLEMENT
THE UNACCEPTABLE
PERFORMANCE PROVISION OF THE LAW. ONCE THESE CRITICAL ELEMENTS HAVE
BEEN ESTABLISHED (AND
REVIEWED BY A HIGHER LEVEL OF MANAGEMENT) THE EMPLOYEE MUST RECEIVE
THE REQUIRED 30-DAY NOTICE
TO IMPROVE BEFORE TAKING ADVERSE ACTION.
MR. FINNERTY ASKED HER IF SHE UNDERSTOOD THE MEMORANDUM AND ADDED:
WELL, IT JUST SHOWS YOU HERB DOGGETTE PAVED THE WAY FOR US TO GET YOU
OUT OF GOVERNMENT
SERVICE. WE'RE GOING TO GET RID OF YOU ANYWAY. NOW SEE WHAT THE
UNION CAN DO ABOUT THIS.
MR. FINNERTY DID NOT RECALL ANY CONVERSATION CENTERED AROUND THE
PERFORMANCE APPRAISAL INTERVIEW. MR. FINNERTY ALSO DENIED THAT HE EVER
ADDRESSED MRS. MORTON'S UNION MEMBERSHIP, PARTICIPATION OR THE FACT
THAT SHE WAS A STEWARD DURING HER ENTIRE STAY IN HER UNIT.
RESPONDENT CONTENDS THAT MRS. MORTON WAS AN UNSATISFACTORY EMPLOYEE
FROM THE OUTSET. MR. BART BLAIR, WHO WAS MRS. MORTON'S SUPERVISOR FROM
1972 UNTIL 1978 TESTIFIED FOR RESPONDENT THAT WHILE MRS. MORTON WAS A
GOOD EMPLOYEE AND "KNEW WHAT SHE WAS DOING AND DIT IT VERY WELL", THERE
WAS A PERSONALITY CONFLICT BETWEEN THE TWO OF THEM. MR. BLAIR'S CHIEF
COMPLAINT WAS THAT MRS. MORTON WAS ABSENT FROM HER WORK TOO OFTEN. HE
ALSO TESTIFIED THAT, "(W)HEN WE PUT HER IN PLACES, THERE WAS TROUBLE."
MR. LOUIS J. RUZICKA, WHO WAS MRS. MORTON'S SUPERVISOR, AFTER HER
TRANSFER FROM MR. FINNERTY'S SUPERVISION, TESTIFIED THAT MRS. MORTON WAS
OFTEN MISSING FROM HER ASSIGNED AREA. HE ALSO TESTIFIED AS TO SOME
PERSONAL DIFFICULTIES BETWEEN MRS. MORTON AND ANOTHER EMPLOYEE. HIS
ASSESSMENT OF MRS. MORTON'S EMPLOYMENT WAS THAT SHE WAS "A DISRUPTIVE
INFLUENCE ON THE UNIT."
RESPONDENT ALSO PRESENTED DOCUMENTARY EVIDENCE CONCERNING EMPLOYMENT
DIFFICULTIES OF MRS. MORTON. HOWEVER, ALL OF THE DOCUMENTARY EVIDENCE
CONCERNED EVENTS WHICH OCCURRED SUBSEQUENT TO THE INCIDENT GIVING RISE
TO THE INITIAL UNFAIR LABOR PRACTICE CHARGE FILED IN THIS MATTER.
WITH REGARD TO MRS. MORTON'S USE OF TIME FOR UNION FUNCTIONS THE
PERFORMANCE APPRAISAL FORM DATED MARCH 15, 1979 INDICATED A CONCERN WITH
MRS. MORTON'S USE OF HER "UNION" TIME. THE FORM STATED:
I WOULD LIKE TO DISCUSS WITH YOU AND YOUR REPRESENTATIVE THE
PROCEDURES FOR REPORTING TIME
SPENT ON "UNION" ACTIVITY. I WOULD LIKE TO HAVE THE MEETING ON
WEDNESDAY, MARCH 21, 1979.
THE RECORD DOES NOT INDICATE WHETHER OR NOT SUCH A MEETING WAS EVER
HELD. HOWEVER, MR. FINNERTY TESTIFIED THAT HE THOUGHT THAT THERE WAS A
COMMENT CONCERNING A MEETING TO CLARIFY "TIME FRAMES FOR UNION
ACTIVITY". MR. FINNERTY ALSO TESTIFIED TO AN ONGOING PROBLEM WITH MRS.
MORTON CONCERNING HER SIGNING IN AND OUT ON A REGULAR BASIS WHEN ON
UNION ACTIVITY. /2/ MR. FINNERTY STATES THAT HE HAD ESTABLISHED A
FORMULA WITH MR. CHRISTIAN, THE SECOND UNION REPRESENTATIVE IN HIS UNIT,
WHICH DICTATED THAT HE WOULD BE TOLD WHEN MR. CHRISTIAN WAS GOING ON
UNION BUSINESS OR THAT MR. CHRISTIAN WOULD PLACE THE TIME FRAMES ON
FINNERTY'S CALENDAR. ACCORDING TO MR. FINNERTY, MRS. MORTON DECLINED
TO DO THIS. HOWEVER, MRS. MORTON TESTIFIED THAT SHE HAD AGREED TO
INFORM HIM THROUGH HIS CALENDAR OR SECRETARY WHEN SHE WAS GOING ON OR
RETURNING FROM UNION BUSINESS. HOWEVER, SHE DID NOT FOLLOW THIS
PROCEDURE TOO OFTEN.
B. MARCH 6, 1980 INCIDENT
ABOUT MARCH 6, 1980, MRS. MORTON MET WITH AN EMPLOYEE, DORTHEA
PARKER, AT THE UNION OFFICE TO DISCUSS A LEAVE PROBLEM. ALTHOUGH
RESPONDENT WOULD CHARACTERIZE THE MEETING AS A LUNCH IT IS FOUND THAT
THE MEETING WAS FOR LEGITIMATE UNION DUTIES. THE UNION OFFICE IS A
PARTITIONED OFF AREA ON THE WORK FLOOR. SOMETIME DURING THE DISCUSSION
BETWEEN MORTON AND PARKER, MR. FINNERTY ENTERED THE UNION OFFICE AND
STATED THAT HE WANTED TO SEE MR. MORTON. ACCORDING TO MRS. MORTON, SHE
TOLD FINNERTY THAT SHE WAS BUSY AND WOULD SEE HIM LATER. HOWEVER, MR.
FINNERTY WANTED TO KNOW WHETHER SHE WAS ON UNION CODE OR BUSINESS. MRS.
MORTON REPLIED THAT HE SHOULD CHECK HIS CALENDAR AND CHECK WITH HIS
SECRETARY, SINCE, IN ACCORDANCE WITH PAST PRACTICE, SHE HAD RECORDED HER
TIME ON HIS CALENDAR AND TOLD HIS SECRETARY WHERE SHE WOULD BE. MR.
FINNERTY THEN WALKED OUT OF THE OFFICE, BUT RETURNED IN A FEW MINUTES.
UPON RETURNING MR. FINNERTY STATED THAT HE WANTED TO SEE HER RIGHT AWAY,
TO WHICH MRS. MORTON AGAIN RESPONDED THAT SHE WAS ON UNION CODE AND HE
COULD CHECK WITH THE CALENDAR AND WITH THE SECRETARY. FINNERTY THEN
TOLD MORTON THAT SHE DID NOT WORK FOR HIS SECRETARY, THAT SHE WORKED FOR
HIM. MRS. MORTON REPLIED THAT SHE WORKED FOR THE GOVERNMENT. FINNERTY
RESTATED HIS REQUEST THAT MORTON SPEAK WITH HIM AND SHE AGAIN REFUSED,
ASKING HIM TO LEAVE THE UNION OFFICE. AT THIS POINT, THE CONVERSATION
HAD BECOME RATHER HEATED, AND CLEARLY MRS. MORTON ASKED MR. FINNERTY TO
LEAVE BECAUSE HE WAS UPSETTING HER, AS WELL AS, MRS. PARKER. MR.
FINNERTY BEGAN SHAKING HIS FINGER AT MRS. MORTON. MRS. PARKER BECAME
FRIGHTENED AND GATHERED HER BELONGINGS, PREPARING TO LEAVE. MRS. MORTON
AT SOME POINT PICKED UP A FLOOR MODEL ASH TRAY WHEN MR. FINNERTY MOVED
TOWARDS HER, STILL DEMANDING THAT MORTON LEAVE THE UNION OFFICE.
MORTON'S ACCOUNT IS SUBSTANTIALLY CORROBORATED BY MRS. PARKER. WHILE
MRS. MORTON AND MR. FINNERTY RECALL A CONSIDERABLE AMOUNT OF PROFANITY
BEING USED DURING THIS CONVERSATION, MRS. PARKER RECALLS ONLY THAT MRS.
MORTON USED PROFANITY. FURTHERMORE, MR. CHARLES WILLIAMS, WHO WAS
WORKING IN CLOSE PROXIMITY TO THE UNION OFFICE OVERHEARD THE SAME
STATEMENT ATTRIBUTED TO MRS. MORTON BY MRS. PARKER. WHILE BOTH MRS.
MORTON AND MR. FINNERTY STATE THAT THE EXCHANGE WAS MUCH MORE HEATED, I
CREDIT PARKER AND WILLIAMS THAT MRS. MORTON DID INDEED TELL MR. FINNERTY
TO, "KISS MY ASS AND GET OUT OF THIS OFFICE." FINALLY, I CREDIT THE
TESTIMONY OF MR. BLAIR, THAT MRS. MORTON HAD NOT USED PROFANITY IN HIS
PRESENCE DURING AN APPROXIMATE SIX YEAR PERIOD THAT SHE HAD WORKED UNDER
HIS SUPERVISION.
DISCUSSION AND CONCLUSIONS
A. PERFORMANCE APPRAISAL INTERVIEW
THE TESTIMONY OF MRS. MORTON CONCERNING THE MARCH 16, 1979
PERFORMANCE APPRAISAL INTERVIEW STANDS UNCONTRADICTED ON THE RECORD.
FURTHERMORE, MR. FINNERTY HAD ALREADY TOLD MORTON THAT HER RATINGS WOULD
GO DOWN BECAUSE SHE WOULD NOT BE ON THE COMPUTER. MR. FINNERTY DOES NOT
RECALL NOR DID HE DENY THAT SUCH A STATEMENT WAS MADE. THUS, IT IS
CONCLUDED THAT MR. FINNERTY'S STATEMENT DURING THE INTERVIEW THAT HERB
DOGGETTE HAS "PAVED THE WAY FOR US TO GET YOU OUT OF GOVERNMENT SERVICE.
NOW SEE WHAT THE UNION CAN DO ABOUT THIS", STANDING ALONE CLEARLY AND
UNMISTAKENLY CONSTITUTED A THREAT AND INTERFERED WITH, RESTRAINED AND
COERCED MRS. MORTON IN THE EXERCISE OF HER RIGHTS ASSURED BY THE STATUTE
VIOLATIVE OF SECTION 7116(A)(1).
B. THE MARCH 6, 1980 INCIDENT
RESPONDENT CONTENDS THAT MRS. MORTON WAS A DISRUPTIVE INFLUENCE ON
UNIT EMPLOYEES. ALTHOUGH THE EVIDENCE ESTABLISHED THAT MRS. MORTON WAS
NOT A MODEL EMPLOYEE, IT DOES NOT SHOW THAT HER ACTIONS WERE DIRECTED AT
MANAGEMENT PER SE BUT HER DIFFICULTIES WERE WITH OTHER EMPLOYEES. THUS,
THE EXAMPLES PRESENTED BY RESPONDENT TO ILLUSTRATE THAT SHE WAS A
DISRUPTIVE EMPLOYEE INDICATED ONLY THAT SHE HAD PERSONAL PROBLEMS WITH
OTHER EMPLOYEES AND NTO THAT SHE WAS A PROFANE OR CONTENTIOUS PERSON.
WHILE I DO NOT AGREE WITH THE GENERAL COUNSEL THAT MR. FINNERTY'S
ACTIONS CONSTITUTED SURVEILLANCE OF UNION ACTIVITY, I FIND THAT MR.
FINNERTY'S PRESENCE IN THE UNION OFFICE WHILE REPRESENTATIONAL FUNCTIONS
WERE BEING CONDUCTED, ONCE HE WAS INFORMED THAT MRS. MORTON WAS ON UNION
CODE, WAS THREATENING AND HAD A CHILLING EFFECT ON EMPLOYEES OF THE
UNIT.
THE NEGOTIATED AGREEMENT REQUIRES UNION REPRESENTATIVES TO REPORT TO
THEIR VARIOUS SUPERVISORS WHEN LEAVING WORK TO PERFORM UNION FUNCTIONS.
FURTHER, THE RECORD SHOWS THAT MRS. MORTON HAD SOME PROBLEMS WITH TIME
AND REPORTING ALTHOUGH IT IS NOT CLEAR THAT SHE ACTUALLY ABUSED THE SIGN
IN - SIGN OUT REQUIREMENTS OF MR. FINNERTY. /3/ IT IS MY VIEW, HOWEVER,
THAT MR. FINNERTY COULD LAWFULLY INQUIRE INTO MORTON'S STATUS EVEN
THOUGH SHE WAS IN THE UNION OFFICE ON UNION BUSINESS. HOWEVER, MORTON
TESTIFIED THAT SHE HAD FOLLOWED FINNERTY'S PROCEDURE ON MARCH 6, 1980
AND THAT SHE TOLD FINNERTY THAT SHE HAD SIGNED HIS CALENDAR AND TOLD HIS
SECRETARY OF HER WHEREABOUTS. ONCE HAVING TOLD FINNERTY THAT SHE HAD
FOLLOWED THE STANDARD PROCEDURE, I BELIEVE THAT THE MATTER SOULD HAVE
BEEN RESOLVED.
WHEN FINNERTY RETURNED TO THE UNION OFFICE FOR THE SECOND TIME THE
CONVERSATION BETWEEN THE TWO BECAME VERY HEATED AND BOTH ACTED IN AN
INDECOROUS FASHION. I NOTE THAT MORTON'S PREVIOUS SUPERVISOR MR. BLAIR
TESTIFIED THAT MORTON HAD NOT USED PROFANITY IN HIS PRESENCE DURING THE
SIX OR SO YEARS THAT SHE WORKED UNDER HIS SUPERVISION. I MUST
THEREFORE, ATTRIBUTE MORTON'S HOSTILE BEHAVIOR, AT LEAST IN PART, TO
FINNERTY'S RETURN TO THE UNION OFFICE. IN ANY EVENT, I FIND THAT ONCE
FINNERTY WAS INFORMED THAT MORTON WAS ON UNION CODE, THERE WAS A SIMPLE
WAY TO ESTABLISH WHETHER OR NOT SHE WAS, AND THAT HIS RETURN TO THE
OFFICE TO PURSUE THE ISSUE SHOWED DISDAIN FOR THE PROCESS. WITHOUT
QUESTION, FINNERTY HAD BECOME FRUSTRATED WITH MORTON AND THIS
FRUSTRATION APPARENTLY PROMPTED HIS RETURN TO THE OFFICE AND EFFECTIVELY
ENDED THE MEETING BETWEEN MORTON AND PARKER. IN MY VIEW, THE
CONTROVERSY COULD VERY EASILY HAVE BEEN RESOLVED BY MEANS OTHER THAN
THOSE EMPLOYED BY FINNERTY. FURTHERMORE, FRUSTRATIONS CANNOT EXCUSE
CONDUCT WHICH INTERFERES WITH, RESTRAINS OR COERCES A STEWARD WHILE
ENGAGED IN ACTIVITY PROTECTED BY THE STATUTE.
I, THEREFORE, FIND THAT FINNERTY'S ACTIONS IN THE PRESENCE OF OTHER
EMPLOYEES CONSTITUTED INTERFERENCE WITH THE MEETING OF A UNION
REPRESENTATIVE AN EMPLOYEE AND SINCE IT HAD A CHILLING EFFECT ON UNIT
EMPLOYEES WAS IN VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE, AND
SHALL RECOMMEND THE FOLLOWING ORDER.
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS U.S.FED.REG. 3482(1980) IT IS HEREBY ORDERED THAT
THE SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND, SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO DISCHARGE EMPLOYEES BECAUSE OF THEIR ASSISTANCE TO
AND ACTIVITIES ON
BEHALF OF AMERICAN FEDERATION GOVERNMENT EMPLOYEES, LOCAL 1923,
AFL-CIO.
(B) INTERFERING WITH MEETINGS BETWEEN REPRESENTATIVES OF AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO AND EMPLOYEES CONCERNING MATTERS
RELATED TO
EMPLOYEES' CONDITIONS OF EMPLOYMENT.
(C) 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:
(A) POST AT ITS FACILITIES IN SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT
OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR, AND SHALL BE
POSTED AND MAINTAINED BY HIM
FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING
ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
45, FED.REG. 3511,
NOTIFY THE REGIONAL DIRECTOR OF REGION III, 1133 15TH STREET, N.W.,
SUITE 300, WASHINGTON,
D.C., IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN
TO COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 26, 1981
WASHINGTON, D.C.
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT THREATEN TO DISCHARGE EMPLOYEES BECAUSE OF THEIR
ASSISTANCE TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923,
AFL-CIO.
WE WILL NOT INTERFERE WITH MEETINGS BETWEEN REPRESENTATIVES OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO AND
UNIT EMPLOYEES CONCERNING MATTERS RELATED TO EMPLOYEES CONDITIONS OF
EMPLOYMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
THE STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE
ADDRESS IS: 1133 15TH STREET, N.W., SUITE 300, WASHINGTON, D.C. 20005.
--------------- FOOTNOTES: ---------------
/1/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
RESOLUTION WAS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD
CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
FINDINGS.
/2/ ARTICLE 6, SECTION F, OF THE AGREEMENT BETWEEN THE PARTIES
STATES, IN PERTINENT PART:
UNION REPRESENTATIVES WILL BE PERMITTED TO LEAVE THE WORKSITE TO
DISCHARGE THEIR FUNCTIONS
AS DESCRIBED IN THIS AGREEMENT AFTER REPORTING TO THEIR RESPECTIVE
SUPERVISORS AND IDENTIFYING
THE PURPOSE OF THEIR ACTIVITY . . .
/3/ STEWARD CHRISTIAN WAS ALLOWED BY FINNERTY TO USE THE CALENDAR TO
SIGN OUT ON UNION BUSINESS WHEN HE COULD NOT LOCATE FINNERTY. ALTHOUGH
FINNERTY STATED THAT MORTON HAD DECLINED TO USE THE SAME PROCEDURE AS
CHRISTIAN, I CREDIT MORTON THAT SHE USED THE CALENDAR, AT LEAST ON MARCH
6.