[ v08 p440 ]
08:0440(95)CA
The decision of the Authority follows:
8 FLRA No. 95
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No. 5-CA-495
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED. NO EXCEPTIONS WERE FILED BY ANY PARTY.
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 THE ENTIRE RECORD, AND NOTING PARTICULARLY THE
ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS. IN THIS REGARD, THE AUTHORITY FINDS
THAT, BASED ON THE RECORD AND THE JUDGE'S CREDIBILITY FINDINGS, IT
CANNOT BE CONCLUDED THAT THE PERFORMANCE EVALUATION GIVEN EMPLOYEE
CAROL
LAFOLLETTE CONSTITUTED DISCRIMINATION AGAINST HER BECAUSE OF HER ROLE IN
THE PROCESSING OF A PREVIOUS UNFAIR LABOR PRACTICE COMPLAINT. /1/
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SEC. 16(A)(1) OF THE
STATUTE AS ALLEGED, I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-495 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C. APRIL 30, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
RESPONDENT
AND
NATIONAL TREASURY EMPLOYEES UNION
CHARGING PARTY
JOHN A. FREEMAN, ESQ.
GEORGE T. BELL, ESQ.
FOR THE RESPONDENT
SHIELA REILLY, ESQ.
FOR THE GENERAL COUNSEL
JOSEPH V. KAPLAN
FOR THE CHARGING PARTY
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
CASE NO.: 5-CA-495
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
ON JUNE 25, 1980 BASED UPON A CHARGE FILED ON APRIL 17, 1980.
THE COMPLAINT CONTAINS THE FOLLOWING ALLEGATIONS AGAINST THE INTERNAL
REVENUE SERVICE, THE RESPONDENT HEREIN:
SINCE ON OR ABOUT FEBRUARY 11, 1980 AND CONTINUING TO DATE, THE
RESPONDENT HAS IN VIOLATION
OF 5 USC 7116(A)(1) AND (4) DISCRIMINATED AGAINST CAROL LAFOLLETTE, A
BARGAINING UNIT
EMPLOYEE, BECAUSE SHE FILED A COMPLAINT AND AFFIDAVIT AND GAVE
INFORMATION AND TESTIMONY UNDER
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE BY THE FOLLOWING ACTS
AND CONDUCT:
ON OR ABOUT FEBRUARY 11, 1980, THE RESPONDENT BY ITS SUPERVISOR AND
AGENT ELLEN M. LEVERENZ
RE-EVALUATED THE PERFORMANCE OF CAROL LAFOLLETTE AND ISSUED TO HER AN
EVALUATION LOWER THAN
THAT CURRENTLY IN EFFECT. THIS ACTION WAS TAKEN BECAUSE MS.
LAFOLLETTE HAD INITIATED AN
UNFAIR LABOR PRACTICE CHARGE AGAINST THE RESPONDENT AND HAD GIVEN
STATEMENTS, INFORMATION AND
TESTIMONY INCIDENT THERETO, THE HEARING HAVING BEEN HELD ON JANUARY
16, 1980.
THUS, THE GRAVAMEN OF THE COMPLAINT CONCERNS THE FEBRUARY 11, 1980
APPRAISAL OF LAFOLLETTE BY HER SUPERVISOR, LEVERENZ. RESPONDENT DENIES
ANY VIOLATION OF THE ACT, ASSERTS THAT THE PERFORMANCE APPRAISAL WAS
BASED SOLELY ON LEGITIMATE PERFORMANCE RELATED CONSIDERATIONS, AND
CONTENDS THAT THE GENERAL COUNSEL HAS FAILED TO ESTABLISH A PRIMA FACIE
CASE.
AT THE HEARING IN INDIANAPOLIS, INDIANA ALL PARTIES WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. THEREAFTER, ALL PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER.
FINDINGS OF FACT
1. MS. CAROL LAFOLLETTE IS A GROUP CLERK IN THE REVENUE
REPRESENTATIVE SECTION OF OFFICE BRANCH, INDIANAPOLIS DISTRICT, INTERNAL
REVENUE SERVICE. HER DUTIES CONSIST PRIMARILY OF PROVIDING CLERICAL
SUPPORT TO THE SECTION CHIEF.
2. ON SEPTEMBER 21, 1979, LAFOLLETTE FILED AN UNFAIR LABOR PRACTICE
CHARGE IN CASE NO. 5-CA-230 (NOT THE PRESENT CASE) ALLEGING THAT
RESPONDENT VIOLATED SECTION 7116(A)(1) AND (2) BY ITS FAILURE TO SELECT
HER FOR PROMOTIONS TO SEVERAL POSITIONS FOR WHICH SHE HAD APPLIED.
3. ON OR ABOUT OCTOBER 6, 1979 MS. ELLEN LEVERENZ WAS ASSIGNED AS
SECTION CHIEF OF THE SECTION IN WHICH LAFOLLETTE WORKED. /1/ THERE IS
NO DIRECT EVIDENCE THAT LEVERENZ KNEW ABOUT THE PENDING UNFAIR LABOR
PRACTICE CHARGE.
4. ON OCTOBER 16, 1979, LAFOLLETTE MET WITH AN ATTORNEY OF THE
AUTHORITY INVESTIGATING THE CHARGE. SINCE LAFOLLETTE USED OFFICIAL
TIME, FOR THIS PURPOSE, IT MAY BE INFERRED THAT SOME MANAGEMENT OFFICIAL
KNEW ABOUT IT. HOWEVER, THE RECORD DOES NOT ESTABLISH THAT LEVERENZ HAD
SUCH KNOWLEDGE OR, INDEED, WHETHER SHE WAS WORKING HER REGULAR JOB THAT
DAY, WORKING ELSEWHERE IN THE ORGANIZATION, OR ON LEAVE.
5. ON NOVEMBER 8, 1979, LAFOLLETTE FILED AN AMENDED CHARGE IN THE
CASE THEN UNDER INVESTIGATION.
6. ON NOVEMBER 13, 1 COMPLAINT AND NOTICE OF HEARING WAS ISSUED IN
CASE NO. 5-CA-230 ALLEGING A VIOLATION OF SECTION 7116(A)(1) AND (2)
BASED UPON THE NON-SELECTION OF LAFOLLETTE FOR PROMOTION TO GS-5. IN
THAT PROCEEDING IT WAS ALLEGED THAT LAFOLLETTE, WHO HAD FILED A
GRIEVANCE BACK IN EARLY 1978, HAD BEEN THE VICTIM OF A "CONTINUING
COURSE OF DISCRIMINATION" SINCE FEBRUARY, 1979.
7. ON NOVEMBER 20, 1978, ELLEN LEVERENZ COMPLETED A PERFORMANCE
APPRAISAL OF LAFOLLETTE. NORMALLY AN APPRAISAL WOULD NOT HAVE BEEN
"DUE" AT THIS TIME, /2/ BUT APPARENTLY LAFOLLETTE HAD APPLIED FOR SOME
POSITION, AND THE PERSONNEL OFFICE REQUESTED LEVERENZ TO PREPARE A
CURRENT APPRAISAL AND SPECIFIED THE FORM TO BE USED.
8. THE NARRATIVE PORTION OF THE APPRAISAL CONSISTED OF TWO AND
ONE-HALF SINGLE-SPACED TYPEWRITTEN COMMENTS CONCERNING SIX FACTORS. IT
BEGAN WITH THE FOLLOWING STATEMENT:
I HAVE BEEN CAROL'S MANAGER FOR A PERIOD OF SIX WEEKS. HER
PERFORMANCE DURING THE PERIOD
COVERED WAS DISCUSSED AT LENGTH WITH HER PRIOR MANAGER AND ACTING
MANAGER. THIS APPRAISAL NOT
ONLY REFLECTS MY EVALUATION OF HER PERFORMANCE DURING THE SHOWN
PERIOD OF TIME I HAVE BEEN HER
MANAGER BUT ALSO THAT OF STATEMENTS MADE BY HER PREVIOUS MANAGERS AND
A CAREFUL REVIEW OF
CAROL'S PERFORMANCE FILE.
THIS PARTICULAR APPRAISAL FORM INVOLVED 12 FACTORS, 10 OF WHICH WERE
THE SAME AS CONTAINED IN PRIOR AND SUBSEQUENT APPRAISAL FORMS. THE
NUMERICAL RATING (ON A SCALE OF 1 TO 5) ASSIGNED TO THE 10 FACTORS WAS
DIFFERENT FROM THE LAST PRIOR APPRAISAL IN THE FOLLOWING RESPECTS:
JUDGMENT WAS LOWERED FROM 4 TO 3; LEARNING ABILITY WAS LOWERED FROM 4
TO 3; AND DEPENDABILITY WAS LOWERED FROM 5 TO 4. THE INSTRUCTIONS ON
THE FORM REQUIRE THE SUPERVISOR TO DESCRIBE REPRESENTATIVE EXAMPLES IN
ORDER TO JUSTIFY ANY RATING OTHER THAN A 3. /3/ ACCORDINGLY, THE
NARRATIVE DEALT WITH THE 6 FACTORS IN WHICH LA FOLLETTE RECEIVED A "4"
RATING.
9. ELLEN LEVERENZ WAS A HIGHLY CREDIBLE AND PERSUASIVE WITNESS. I
WAS IMPRESSED WITH HER OBJECTIVITY. DURING HER FIRST SIX WEEKS AS
LAFOLLETTE'S SUPERVISOR SHE IMMEDIATELY NOTICED THAT THE QUALITY OF HER
TYPING WAS LESS THAN SATISFACTORY. ON OCTOBER 18, SHE RETURNED A
MEMORANDUM THREE TIMES FOR RETYPING DUE TO TOO MANY ERRORS (G.C. EXH.
NO. 3). IN VIEW OF HER LIMITED OPPORTUNITY TO EVALUATE LA FOLLETTE'S
PERFORMANCE, AND SINCE SHE HAD SOME QUESTIONS CONCERNING THE PRIOR
APPRAISAL, SHE CALLED FORMER SUPERVISORS PHILLIP BLIGHTON AND NANCY
DURHAM. SHE DISCUSSED EACH FACTOR ON THE FORM WITH THEM AND ASKED FOR
SPECIFIC EXAMPLES TO SUPPORT ABOVE AVERAGE PERFORMANCE. NOTES OF HER
CONVERSATION WITH BLIGHTON WERE PLACED IN EVIDENCE AS RESP. EXH. NO. 3.
/4/ BLIGHTON WAS CALLED AS A WITNESS AND HE CONFIRMED HIS CONVERSATION
WITH LEVERENZ. HIS TESTIMONY CORROBORATED THAT OF LEVERENZ. THUS, IT
IS CLEAR THAT LEVERENZ NOT ONLY CONTACTED BLIGHTON BUT ALSO RELIED ON
THE INFORMATION PROVIDED BY HIM. (BLIGHTON WAS NOT INVOLVED IN THE
PENDING UNFAIR LABOR PRACTICE CASE). BLIGHTON ADMITTED THAT HE TOLD
LEVERENZ HE PROBABLY HAD BEEN OVERLY GENEROUS IN RATING LAFOLLETTE BUT
THAT HE FELT PRESSURED BY LAFOLLETTE WHO PERSISTED IN INQUIRING ABOUT
HER EVALUATION. WHETHER BLIGHTON WAS A STRONG OR WEAK SUPERVISOR IS NOT
FOR ME TO DECIDE. WHAT IS IMPORTANT IS WHETHER HE WAS TELLING THE TRUTH
IN PROVIDING HIS EVALUATION TO LEVERENZ AND WHETHER HE HAD AN ANTI-UNION
MOTIVE IN SO DOING. I CONCLUDE THAT HIS TESTIMONY SHOULD BE CREDITED.
FURTHER, I FIND NO EVIDENCE WITH RESPECT TO UNION ANIMUS ON THE PART OF
RESPONDENT, OR ITS WITNESSES IN THIS PROCEEDING. ACCORDING TO LEVERENZ,
NANCY OLDHAM RECONFIRMED HER OWN OBSERVATION OF LAFOLLETTE.
10. BY MEMORANDA DATED NOVEMBER 23, (RESPONDENT'S EXH. NO. 1),
LAFOLLETTE TOOK ADVANTAGE OF HER CONTRACTUAL RIGHT TO SUBMIT A REBUTTAL
TO THE NOVEMBER APPRAISAL. HER REBUTTAL DISCUSSED FOUR JOB FACTORS,
ONLY ONE OF WHICH-- LEARNING ABILITY-- HAD BEEN LOWERED FROM THE
PREVIOUS APPRAISAL. SINCE HER REBUTTAL DID NOT TAKE ISSUE WITH THE
LOWER RATING WITH RESPECT TO DEPENDABILITY AND JUDGMENT, RESPONDENT
POINTS OUT THAT LAFOLLETTE "DID NOT OBJECT AT THE TIME TO THE LOWERED
RATINGS." TO THIS I WOULD ALSO MAKE THE OBSERVATION THAT SHE DID NOT
FILE AN AMENDED UNFAIR LABOR PRACTICE CHARGE SO THAT THE GENERAL COUNSEL
COULD CONSIDER-- AFTER APPROPRIATE INVESTIGATION-- AMENDING THE
OUTSTANDING COMPLAINT AGAINST RESPONDENT. LOGICALLY, THIS ALLEGED ACT
OF DISCRIMINATION PROPERLY BELONGED IN CASE NO. 5-CA-230 IN WHICH THE
GENERAL COUNSEL WAS ALLEGING A CONTINUING COURSE OF DISCRIMINATION
AGAINST LAFOLLETTE. AGAIN, IT MUST BE STRESSED THAT IT WAS THIS
APPRAISAL DATED NOVEMBER 20, 1979 WHICH CONTAINED A LOWERING OF PAST
NUMERICAL RATINGS.
11. ON JANUARY 16, 1980, LAFOLLETTE TESTIFIED AT THE HEARING IN CASE
NO. 5-CA-230. LEVERENZ WAS NOT A WITNESS IN THAT PROCEEDING.
12. ON FEBRUARY 11, 1980, BECAUSE LAFOLLETTE HAD FILED AN
APPLICATION FOR ANOTHER POSITION, LEVERENZ AGAIN COMPLETED AN APPRAISAL,
THIS TIME USING FORM 3861A. NO CHARGES WERE MADE FROM THE NOVEMBER 20,
1979 APPRAISAL WITH RESPECT TO NUMERICAL RATINGS AND NARRATIVE COMMENTS.
/5/
13. LAFOLLETTE TESTIFIED THAT SHE "FELT" LIKE SHE WAS BEING
DISCRIMINATED AGAINST (TR. 47, LINE 14, TR. 48, LINE 14) BUT THE
EXAMPLES CITED ARE UNIMPRESSIVE. INDEED, THERE'S NO WAY OF TELLING FROM
HER TESTIMONY WHETHER THESE EXAMPLES OCCURRED BEFORE THE NOVEMBER 20
APPRAISAL, BETWEEN NOVEMBER 20 AND FEBRUARY 11, OR AFTER FEBRUARY 11.
IT SEEMS TO ME, BASED UPON MY OBSERVATION OF LAFOLLETTE-- A VOLATILE AND
FLIGHTY INDIVIDUAL-- THAT SHE SEEMS TO EQUATE ANY CRITICISM OF HER
PERFORMANCE WITH DISCRIMINATION. TO THE EXTENT THAT LAFOLLETTE'S
TESTIMONY IS NOT IN CONFLICT WITE LEVERENZ, IT CAN BE CREDITED.
HOWEVER, IT SIMPLY DOES NOT ADD UP TO PROOF OF DISPARATE TREATMENT OR
PROOF OF DISCRIMINATORY MOTIVATION.
DISCUSSION AND CONCLUSIONS OF LAW
SECTION 2423.16 OF THE RULES AND REGULATIONS CLEARLY STATE, "THE
BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF
THE EVIDENCE" RESTS WITH THE COUNSEL FOR THE GENERAL COUNSEL. IN THE
INSTANT CASE, IT IS ALLEGED IN THE COMPLAINT THAT SINCE ON OR ABOUT
FEBRUARY 11, 1980 AND CONTINUING TO DATE THE RESPONDENT HAS VIOLATED
SECTION 7116(A)(1) AND (4) OF THE STATUTE BY DISCRIMINATING AGAINST
CAROL LAFOLLETTE BECAUSE SHE PARTICIPATED IN A PREVIOUS UNFAIR LABOR
PRACTICE CASE. SPECIFICALLY, IT IS ALLEGED THAT THIS VIOLATION OCCURRED
THROUGH THE RE-EVALUATION OF MS. LAFOLLETTE'S PERFORMANCE ON OR ABOUT
FEBRUARY 11, 1980 AND ISSUANCE TO HER OF AN EVALUATION "LOWER THAN THAT
CURRENTLY IN EFFECT." AS THE COMPLAINT STATES, "THIS ACTION WAS TAKEN
BECAUSE MS. LAFOLLETTE HAD INITIATED AN UNFAIR LABOR CHARGE AGAINST THE
RESPONDENT AND HAD GIVEN STATEMENTS, INFORMATION, AND TESTIMONY INCIDENT
THERETO, THE HEARING HAVING BEEN HELD ON JANUARY 16, 1980."
SECTION 7116(A)(1) OF THE STATUTE STATES THAT IT SHALL BE AN UNFAIR
LABOR PRACTICE FOR AN AGENCY "TO INTERFERE WITH, RESTRAIN, OR COERCE ANY
EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS
CHAPTER." SECTION 7116(A)(4) STATES THAT IT IS AN UNFAIR LABOR PRACTICE
FOR AN AGENCY "TO DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN
EMPLOYEE BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT, AFFIDAVIT, OR
PETITION, OR HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THIS CHAPTER."
IT IS ACKNOWLEDGED THAT THE ALLEGED DISCRIMINATEE IN THE INSTANT CASE,
MS. CAROL LAFOLLETTE, WAS ALSO THE ALLEGED DISCRIMINATEE IN A PREVIOUS
UNFAIR LABOR PRACTICE COMPLAINT, A HEARING ON WHICH WAS HELD ON JANUARY
16, 1980, AND THAT SHE PROVIDED INFORMATION AND TESTIMONY IN THAT CASE.
IN VIEW OF THE ABSENCE OF DECISIONS INTERPRETING THE STATUTE, SIMILAR
PROVISIONS CONTAINED IN ITS PREDECESSOR, EXECUTIVE ORDER 11491, AS
AMENDED, MUST BE LOOKED TO TO DETERMINE THE PROPER ELEMENTS OF PROOF
REQUIRED TO ESTABLISH STATUTORY VIOLATIONS. THE COMPANION REQUIREMENT
TO SECTION 7116(A)(4) WAS SECTION 19(A)(4) OF THE EXECUTIVE ORDER.
DECISIONS INTERPRETING SECTION 19(A)(4) CLEARLY STATE THAT VIOLATIONS
THEREOF MUST BE BASED UPON SOME DISCRIMINATORY MOTIVATION IN THE
EMPLOYER'S CONDUCT. FEDERAL MEDIATION AND CONCILIATION SERVICE, 1 FLRA
NO. 36 (1979); NLRB REGION 17 AND NLRB, A/SLMR NO. 1015, (1978).
VIOLATIONS OF SECTION 19(A)(4) ARE ALSO ANALOGOUS TO VIOLATIONS OF
SECTION 19(A)(2) WHICH STATED THAT AGENCY MANAGEMENT SHALL NOT
"ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT." (THE CORRESPONDING STATUTORY SECTION IS FOUND
AT SECTION 7116(A)(2) WHICH CONTAINS SUBSTANTIVELY THE SAME
PROHIBITION.) A VIOLATION OF SECTION 19(A)(2) REQUIRED THE ESTABLISHMENT
OF THREE SPECIFIC ELEMENTS: (1) THAT THE EMPLOYEE ENGAGED IN SOME FORM
OF PROTECTED ACTIVITY; (2) THAT THE EMPLOYER HAD KNOWLEDGE OF SUCH
ACTIVITY; AND (3) THAT THE EMPLOYEE SUFFERED DISPARATE TREATMENT AS A
RESULT OF HIS PROTECTED ACTIVITY. /6/ THE THIRD ELEMENT IS SOMETIMES
DESCRIBED IN TERMS OF AN EMPLOYER'S "DISCRIMINATORY MOTIVE," A FINDING
WHICH IS EASIER TO INFER WHERE THERE IS EVIDENCE OF UNION ANIMUS. THE
RECORD IN THIS CASE WILL BE REVIEWED WITH THESE ELEMENTS IN MIND.
PROTECTED ACTIVITY OF CAROL LAFOLLETTE.
1. LAFOLLETTE FILED AN UNFAIR LABOR CHARGE, GAVE AN AFFIDAVIT TO THE
AUTHORITY AGENT, WAS INTERVIEWED DURING PRETRIAL PREPARATION, AND GAVE
TESTIMONY AT AN UNFAIR LABOR PRACTICE HEARING. THERE IS NO DISPUTE, AND
I FIND, THAT SHE WAS ENGAGED IN PROTECTED ACTIVITY.
KNOWLEDGE OF LAFOLLETTE'S PROTECTED ACTIVITY.
1. WHEN LAFOLLETTE FILED THE UNFAIR LABOR PRACTICE CHARGE IN CASE
NO. 5-CA-230, HER SUPERVISOR WAS NANCY DURHAM, NOT ELLEN LEVERENZ.
HOWEVER, BY THE TIME THAT LEVERENZ COMPLETED HER FIRST APPRAISAL OF
LAFOLLETTE ON NOVEMBER 20, AFTER CONSULTATION WITH DURHAM, LAFOLLETTE
HAD FILED AN AMENDED CHARGE AND THE REGIONAL DIRECTOR HAS ISSUED A
COMPLAINT. FROM THE FOREGOING, I INFER THAT LEVERENZ HAD KNOWLEDGE OF
LAFOLLETTE'S INVOLVEMENT IN CASE NO. 5-CA-230 AS OF NOVEMBER 20.
ACCORDINGLY, I FIND IT UNNECESSARY TO DECIDE WHETHER LAFOLLETTE'S BEING
ON "OFFICIAL TIME" ON OCTOBER 16 TO MEET WITH A REPRESENTATIVE OF THE
GENERAL COUNSEL IS SUFFICIENT EVIDENCE FROM WHICH TO DRAW AN INFERENCE
THAT LEVERENZ KNEW ANYTHING ABOUT IT. LAFOLLETTE WAS NOT ASKED TO
EXPLAIN WHETHER SHE RECEIVED PERMISSION FOR OFFICIAL TIME FROM LEVERENZ
OR FROM SOME OTHER MANAGEMENT OFFICIAL. NOR DOES THE RECORD REFLECT
WHETHER LEVERENZ WAS ON DUTY THAT PARTICULAR DAY. ON THIS ASPECT OF THE
CASE, IT WAS INCUMBENT UPON THE GENERAL COUNSEL TO PRESENT ADDITIONAL
EVIDENCE.
2. IN JANUARY, LAFOLLETTE TESTIFIED AT THE HEARING IN CASE NO.
5-CA-230. THE HEARING INVOLVED THE TESTIMONY OF NUMEROUS MANAGEMENT
WITNESSES; LAFOLLETTE WORKS IN A RELATIVELY SMALL OFFICE AND DOESN'T
STRIKE ME AS THE KIND OF PERSON WHO COULD OR WOULD REMAIN SILENT ABOUT
HER PARTICIPATION IN THE HEARING. IN THESE CIRCUMSTANCES, I AM
COMPELLED TO INFER THAT LEVERENZ HAD KNOWLEDGE OF LAFOLLETTE'S PROTECTED
ACTIVITY. RESPONDENT'S CONTENTION TO THE CONTRARY IS ACCORDINGLY
REJECTED.
ALLEGED DISCRIMINATION AGAINST LAFOLLETTE.
1. THE TESTIMONY OF LAFOLLETTE IS NOT HELPFUL IN ESTABLISHING
DISPARATE TREATMENT. THE MERE FACT THAT SHE "FELT" LIKE SHE WAS BEING
TREATED DIFFERENTLY IS INSUFFICIENT TO ESTABLISH DISCRIMINATION.
2. THE NOVEMBER 20 APPRAISAL IS NOT ALLEGED IN THE COMPLAINT AS AN
ACT OF DISCRIMINATION AGAINST LAFOLLETTE AND IT IS FRUITLESS TO ENGAGE
IN IDLE CONJECTURE AS TO WHY THIS INCIDENT WAS NOT MADE PART OF CASE NO.
5-CA-230. SUFFICE TO SAY, LAFOLLETTE'S REBUTTAL TO THE APPRAISAL ONLY
TOOK ISSUE WITH ONE FACTOR WHICH HAD BEEN LOWERED AND SHE APPARENTLY WAS
NOT SUFFICIENTLY UPSET ABOUT THE MATTER TO FILE A CHARGE AT THAT TIME.
IN ANY EVENT, I CONCLUDE THAT THIS APPRAISAL WAS SIMPLY AN HONEST
EVALUATION OF LAFOLLETTE'S PERFORMANCE BY LEVERENZ, BASED UPON HER OWN
SUBJECTIVE EVALUATION AS SUPPLEMENTED BY THE COMMENTS OF PRIOR
SUPERVISORS BLIGHTON AND DURHAM. /7/
3. THE COMPLAINT ALLEGES THAT THE DISCRIMINATION AGAINST LAFOLLETTE
BEGAN ON FEBRUARY 11, 1980 WHEN "ELLEN M. LEVERENZ RE-EVALUATED THE
PERFORMANCE OF CAROL LAFOLLETTE AND ISSUED TO HER AN EVALUATION LOWER
THAN THAT CURRENTLY IN EFFECT." /8/ THIS ALLEGATION OF THE COMPLAINT IS
NOT SUBSTANTIATED BY THE EVIDENCE. AS PREVIOUSLY FOUND, THE FEBRUARY 11
APPRAISAL MADE NO CHANGES IN THE NUMERICAL RATINGS PREVIOUSLY MADE IN
THE NOVEMBER 20 APPRAISAL. EXCEPT FOR THE USE OF A DIFFERENT FORM, THE
TWO APPRAISALS WERE IDENTICAL. THERFORE, NOTWITHSTANDING LAFOLLETTE'S
POST-NOVEMBER 20 PARTICIPATION IN PRE-TRAIL PREPARATION AND THE UNFAIR
LABOR PRACTICE HEARING ITSELF, ALL THAT LEVERENZ DID ON FEBRUARY 11 WAS
TO ISSUE A DUPLICATE OF A PRIOR APPRAISAL BECAUSE LAFOLLETTE HAD APPLIED
FOR ANOTHER POSITION. CLEARLY, THERE WAS NO DISPARATE TREATMENT HERE,
AND THE MAIN ELEMENT UPON WHICH THE COMPLAINT IS BASED MUST FALL. /9/
SUMMARY
HAVING FOUND THAT THE GENERAL COUNSEL HAS NOT SUSTAINED HIS BURDEN OF
PROOF IN ESTABLISHING A VIOLATION OF SECTIONS 7116(A)(1) AND (4), I
RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ADOPT THE
FOLLOWING:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
DISMISSED IN ITS ENTIRETY.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 10, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ MS. LEVERENZ, WHO WAS NAMED IN THE COMPLAINT AS A SUPERVISOR OR
AGENT OF RESPONDENT, APPEARED AS A WITNESS IN RESPONSE TO A SUBPOENA
ISSUED BY THE REGIONAL DIRECTOR. RESPONDENT'S COUNSEL MOVED AT THE
HEARING TO QUASH THE SUBPOENA ON THE GROUND THAT NEITHER RESPONDENT NOR
ITS COUNSEL WAS SERVED WITH A COPY OF THE SUBPOENA. THE MOTION WAS
DENIED AND THAT RULING IS REAFFIRMED. ASSUMING, ARGUENDO, THAT THE
RULES AND REGULATIONS REQUIRE SERVICE ON A PARTY AND ITS COUNSEL,
RESPONDENT HAS FAILED TO SHOW ANY PREJUDICE BY THE REGIONAL DIRECTOR'S
ACTION OR BY MY DENIAL OF THE MOTION TO QUASH. ACCORDINGLY, I FIND IT
UNNECESSARY TO DECIDE WHETHER SECTION 2429.7 OF THE RULES AND
REGULATIONS, WHEN READ TOGETHER WITH SECTION 2429.27 AND/OR 2429.12,
REQUIRE SERVICE ON A PARTY AND ITS REPRESENTATIVE.
/2/ SHE HAD BEEN EVALUATED ON MARCH 16, 1978 BY HER FORMER
SUPERVISOR, PHILLIP BLIGHTON, AND THIS EVALUATION HAD BEEN RECERTIFIED
FOUR AND ONE-HALF MONTHS LATE BY MR. LARSON ON AUGUST 1, 1979. BY
"RECERTIFYING" THE OLD APPRAISAL, IT WAS NOT NECESSARY TO COMPLETE A NEW
ONE.
/3/ APPARENTLY, A RATING OF 3 SIGNIFIES SATISFACTORY PERFORMANCE,
WHILE A 4 RATING IS ABOVE AVERAGE.
/4/ FOR EXAMPLE, THE NOTES STATE THAT LAFOLLETTE WAS "ALWAYS PUMPING
EMPLOYEES TO FIND OUT THEIR TEST SCORES AND HOW WELL THEY DID ON THEIR
PANEL INTERVIEWS." LEVERENZ WAS NOT AWARE OF THE FOREGOING BUT, AFTER
BECOMING LAFOLLETTE'S SUPERVISOR, SHE DID LEARN THAT LAFOLLETTE "WAVED
AN EVALUATION OF A FELLOW EMPLOYEE IN THE WORK AREA AND MADE A
STATEMENT-- HAVE YOU EVER SEEN AN EVALUATION WITH STRAIGHT 5'S?"
BLIGHTON ALSO TOLD LEVERENZ THAT HE SOMETIMES TYPED SENSITIVE PERSONNEL
ACTIONS AND EVALUATIONS HERSELF BECAUSE HE DID NOT TRUST LAFOLLETTE TO
KEEP THE MATTER CONFIDENTIAL. I HAVE NOT RECITED IN DETAIL THE PROBLEMS
WITH LAFOLLETTE BECAUSE IT DOESN'T APPEAR TO BE NECESSARY TO THIS
DECISION.
/5/ THE FORM ITSELF CONTAINED TWO LESS FACTORS TO BE EVALUATED,
NEITHER OF WHICH ARE PERTINENT HEREIN. ALSO OMITTED WAS THE REFERENCE
TO CONSULTATION WITH PRIOR SUPERVISORS (QUOTED ELSEWHERE IN THIS
DECISION).
/6/ CF. VETERANS ADMINISTRATION CANTEEN SERVICE, 7 A/SLMR 674.
/7/ "THE MERE FACT THAT . . . PRIOR APPRAISALS . . . WERE NUMERICALLY
HIGHER . . . DOES NOT, IN THE ABSENCE OF ANTIPATHY TOWARD HER BECAUSE OF
UNION ACTIVITIES, INDICATE THAT THE APPRAISAL WAS DISCRIMINATORILY
MOTIVATED." DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA, 7 A/SLMR 844, 881.
/8/ I AM CONSTRAINED TO OBSERVE THAT THE GENERAL COUNSEL'S BRIEF
INTENTIONALLY GLOSSES OVER THE FACT THAT THE COMPLAINT ALLEGES FEBRUARY
11 AS THE COMMENCEMENT OF THE ALLEGED DISCRIMINATION AND ARGUES QUITE
STRONGLY THAT THE NOVEMBER 20 APPRAISAL WAS DISCRIMINATORILY MOTIVATED.
THE GENERAL COUNSEL WOULD HAVE IT BOTH WAYS FOR IF NOVEMBER 20 IS THE
CRITICAL DATE THEN IT HARDLY COULD BE CLAIMED THAT LAFOLLETTE WAS BEING
DISCRIMINATED AGAINST BECAUSE OF HER TESTIMONY IN THE JANUARY 1980
HEARING.
/9/ ASSUMING, ARGUENDO, THAT A FINDING OF DISPARATE TREATMENT COULD
BE MADE ON THIS RECORD, I WOULD NEVERTHELESS CONCLUDE THAT THE GENERAL
COUNSEL HAS NOT PROVEN IT WAS MOTIVATED BY ANTI-UNION CONSIDERATIONS.
CLEARLY, MERE SUSPICION IS NOT ENOUGH TO SUPPORT A FINDING. NLRB V
MONTGOMERY WARD & CO., INC. 157 F.2D 486, 491 (8TH CIR. 1946).