[ v08 p471 ]
08:0471(98)CA
The decision of the Authority follows:
8 FLRA No. 98
U.S. ENVIRONMENTAL PROTECTION AGENCY
(MANAGEMENT AND INFORMATION DATA
SYSTEMS DIVISION, OPM)
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3331, AFL-CIO
Charging Party
Case No. 3-CA-1528
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1),(5) AND (8) OF
THE FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED. NO EXCEPTIONS WERE FILED
BY EITHER PARTY.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF 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 IN THE
SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-1528 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 7, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DONNA D. TULLIO, ESQUIRE
MARGARET BERKOWITZ, ESQUIRE
FOR THE GENERAL COUNSEL
NELL MINOW, ESQUIRE
WILLIAM PAUL TEDESCO, ESQUIRE
PAUL JEAN, ESQUIRE
FOR THE RESPONDENT
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S.C. CODE, 5 U.S.C.
SECTION 7101, ET SEQ, AND THE RULES AND REGULATIONS ISSUED THEREUNDER,
FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV,
PART 2411, ET SEQ.
PURSUANT TO AMENDED CHARGES FIRST FILED ON OCTOBER 6, 1980, BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3331, AFL-CIO,
(HEREINAFTER CALLED THE UNION OR AFGE), A COMPLAINT AND NOTICE OF
HEARING WAS ISSUED ON DECEMBER 31, 1980, BY THE REGIONAL DIRECTOR FOR
REGION III FEDERAL LABOR RELATIONS AUTHORITY, WASHINGTON, D.C. THE
COMPLAINT, ALLEGES, IN SUBSTANCE, THAT THE U.S. ENVIRONMENTAL PROTECTION
AGENCY (MANAGEMENT & INFORMATION DATA SYSTEMS DIVISION, OPM),
HEREINAFTER CALLED THE RESPONDENT), VIOLATED SECTIONS 7116(A)(1), (5),
AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE,
(HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN (1)
ATTEMPTING TO IMPOSE CERTAIN RESTRICTIONS UPON MS. SHIRLEY JACKSON
BECAUSE OF HER UNION ACTIVITY AND (2) HOLDING A FORMAL MEETING WITH MS.
SHIRLEY JACKSON WITHOUT AFFORDING THE UNION PRIOR NOTICE OF THE FORMAL
MEETING AND AN OPPORTUNITY TO ATTEND.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON MARCH 31, 1981, IN
WASHINGTON, D.C. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED POST
HEARING BRIEFS ON MAY 15, 1981, WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
THE UNION, THE CHARGING PARTY HEREIN, IS THE CERTIFIED EXCLUSIVE
REPRESENTATIVE OF THE RESPONDENT'S NON-SUPERVISORY, NON-PROFESSIONAL
GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES. MS. SHIRLEY JACKSON,
SECRETARY TO BRANCH CHIEF MICHAEL PLATT, WAS A MEMBER OF THE ABOVE
DESCRIBED UNIT. MS. JACKSON WHO HAD BEEN WORKING FOR RESPONDENT FOR
SOME FIVE YEARS, BECAME MR. PLATT'S SECRETARY AROUND SEPTEMBER 1979.
COMMENCING AROUND OCTOBER 1979, THROUGH SEPTEMBER 29, 1980, WHEN THE
EVENTS UNDERLYING THE INSTANT COMPLAINT OCCURRED, MR. PLATT AND MS.
JACKSON ENGAGED IN NUMEROUS DISPUTES AND/OR QUARRELS CONCERNING VARIOUS
ASPECTS OF MS. JACKSON'S WORK PERFORMANCE. BEING UNABLE TO PERSONALLY
STRAIGHTEN OUT THE MATTER, MS. JACKSON, IN OCTOBER OF 1979, SOUGHT HELP
FROM MS. MARY CUSATO, THE UNION'S CHIEF STEWARD. MS. CUSATO
SUBSEQUENTLY MET WITH MS. JACKSON AND MR. PLATT AND APPARENTLY,
SUCCESSFULLY MEDIATED THE MATTER, BECAUSE FOR APPROXIMATELY TWO MONTHS
THEREAFTER THE RELATIONSHIP BETWEEN MR. PLATT AND MS. JACKSON IMPROVED.
ALTHOUGH NOT CLEAR FROM THE RECORD, IT APPEARS THAT SOME TWO MONTHS
AFTER THE OCTOBER 1979 MEETING, THE WORK RELATIONSHIP BETWEEN MR. PLATT
AND MS. JACKSON BEGAN TO DETERIORATE WHEN MS. JACKSON, WHO WAS THE
OFFICE'S OFFICIAL TIME KEEPER, QUESTIONED MR. PLATT'S USE OF
COMPENSATORY TIME. NOT BEING SATISFIED WITH MR. PLATT'S POSITION ON THE
MATTER, MS. JACKSON THEN WENT TO SEE MR. BUD STRINGER, MR. PLATT'S
IMMEDIATE SUPERVISOR, AND COMPLAINED ABOUT MR. PLATT'S USE OF
COMPENSATORY TIME. MR. STRINGER AGREED WITH MS. JACKSON'S POSITION
WITH RESPECT TO MR. PLATT'S USE OF COMPENSATORY TIME, AND SUBSEQUENTLY
ISSUED A MEMORANDUM SUPPORTING MS. JACKSON. ACCORDING TO MS. JACKSON,
WHOSE TESTIMONY IN THIS RESPECT IS UNCONTRADICTED, MR. STRINGER INFORMED
HER DURING THE DISCUSSION RELATIVE TO PLATTS' USE OF COMPENSATORY TIME
"THAT HE WOULD APPRECIATE IT IF (SHE) WOULD COME TO HIM WHEN (SHE) WAS
HAVING A PROBLEMS WITH MR. PLATT INSTEAD OF GOING TO THE UNION, BECAUSE
IN ALL HIS YEARS OF GOVERNMENT HE HAD NOT HAD ANY EXPERIENCE WITH THE
UNION". ACCORDING TO MS. JACKSON, MR. STRINGER WAS AWARE OF THE FACT
THAT SHE HAD BEEN HAVING PROBLEMS WITH MR. PLATT AND THAT SHE HAD BEEN
SEEING THE UNION ABOUT SUCH PROBLEMS.
FOLLOWING THE ABOVE INCIDENT, ACCORDING TO MS. JACKSON, SHE HAD
CONTINUAL PROBLEMS WITH MR. PLATT WHICH CAUSED HER TO VISIT THE UNION ON
THE AVERAGE OF ONCE EVERY TWO WEEKS. PRIOR TO GOING TO THE UNION FOR
ADVICE ON HER PROBLEMS, MS. JACKSON WOULD INFORM SOMEONE IN THE OFFICE,
INCLUDING MR. PLATT, OF HER DESTINATION.
ON AUGUST 8, 1980, MR. PLATT PRESENTED A MEMORANDUM TO MS. JACKSON
DETAILING VARIOUS WORK RELATED PROBLEMS. THE PROBLEMS CITED IN THE
MEMORANDUM DEALT WITH TARDINESS, ABUSE OF LUNCH PERIOD,
UNCOOPERATIVENESS AND FAILURE TO PERFORM WORK AFTER 5:15 P.M. IN THE
EVENING. AFTER DESCRIBING THE PROBLEMS IN THE MEMORANDUM, MR. PLATT
MADE IT CLEAR THAT THE MEMORANDUM WAS NOT TO BE CONSIDERED AN OFFICIAL
REPRIMAND AND THAT HE WOULD BE HAPPY TO COUNSEL HER OR MEET WITH HER
UNION TO DISCUSS THE MATTER. ACCORDING TO MS. JACKSON, UPON ADVICE FROM
THE UNION, SHE PREPARED A REPLY TO THE AUGUST 8, 1980, MEMORANDUM ON
AUGUST 22, 1980. MS. JACKSON'S MEMORANDUM REBUTTED OR EXPLAINED SOME OF
THE ALLEGATIONS CONTAINED IN MR. PLATT'S MEMORANDUM AND REQUESTED A
MEETING WITH MR. PLATT, MR. STRINGER AND MS. JACKSON'S UNION
REPRESENTATIVE. MR. PLATT DENIED RECEIVING MS. JACKSON'S MEMORANDUM AND
THE RECORD INDICATES THAT THE REQUESTED MEETING WITH MS. JACKSON'S UNION
REPRESENTATIVE NEVER TOOK PLACE.
ON OR ABOUT SEPTEMBER 16, 1980, MS. JACKSON AGAIN CONTACTED THE UNION
AND INFORMED MR. HAROLD DODSON, UNION PRESIDENT, THAT A CO-WORKER HAD
TOLD HER THAT MR. PLATT HAD DISTRIBUTED CASH AWARDS TO EVERY MEMBER OF
THE BRANCH EXCEPT HER. THEREAFTER, MR. DODSON AND MS. CUSATO MET ON
SEPTEMBER 25, 1980, WITH MR. STRINGER TO DISCUSS THE MATTER OF THE
EXCLUSION OF MS. JACKSON FROM THE CASH AWARDS. /1/
ON SEPTEMBER 25, 1980, MS. JACKSON RECEIVED A TELEPHONE CALL FROM THE
WHITE HOUSE PERSONNEL OFFICE INQUIRING AS TO WHETHER SHE WOULD BE
AMENDABLE TO BEING INTERVIEWED FOR A POSSIBLE TEMPORARY DETAIL. THE
FOLLOWING DAY MS. JACKSON WAS INTERVIEWED AND OFFERED A DETAIL TO THE
OFFICE OF MANAGEMENT AND BUDGET. THE DETAIL WAS TO COMMENCE ON MONDAY,
SEPTEMBER 29, 1980. MS. JACKSON INFORMED THE PERSONNEL OFFICE THAT SHE
COULD NOT ACCEPT THE DETAIL WITHOUT FIRST CHECKING WITH HER SUPERVISOR
WHO WAS THEN AWAY FROM THE OFFICE.
ON FRIDAY, SEPTEMBER 26, 1980, MS. JACKSON APPROACHED MS. BETTY
MINGO, THE ADMINISTRATIVE OFFICE FOR THE DIVISION, AND INFORMED HER OF
THE OFFER FROM OMB AND HER DESIRE TO ACCEPT THE DETAIL. MS. MINGO
CONTACTED MR. STRINGER AND INFORMED HIM OF THE OFFER TO MS. JACKSON.
MR. STRINGER TOLD MS. MINGO THAT HE COULD NOT MAKE ANY DECISION WITH
REGARD TO THE DETAIL UNTIL HE HAD DISCUSSED THE MATTER WITH MR. PLATT,
WHO WAS NOT EXPECTED BACK FROM NORTH CAROLINA UNTIL MONDAY, SEPTEMBER
29, 1980. ACCORDING TO MS. MINGO, MS. JACKSON INDICATED TO HER THAT
THERE WAS A CHANCE THAT THE DETAIL COULD RESULT IN A PERMANENT POSITION
AT OMB.
ON MONDAY SEPTEMBER 29, 1980, MS. JACKSON APPROACHED MS. MINGO AROUND
NOONTIME AND INQUIRED AS TO THE STATUS OF THE DETAIL. MS. MINGO
INFORMED HER THAT A DECISION WOULD BE MADE SHORTLY. MS. JACKSON THEN
WENT TO SEE MR. DODSON, THE UNION PRESIDENT, AND TOLD HIM THAT SHE WAS
CONCERNED THAT THE DETAIL WOULD NOT BE APPROVED. MR. DODSON THEN CALLED
MR. EDWARD HANLEY, ONE OF MR. PLATT'S SUPERVISORS, AND DISCUSSED THE
DETAIL. MR. HANLEY ASSURED MR. DODSON THAT HE WOULD LOOK INTO THE
MATTER.
THE RECORD FURTHER REVEALS THAT DURING THE MORNING OF SEPTEMBER 29,
1980, MR. STRINGER AND MR. PLATT MET FOR PURPOSES OF DISCUSSING MR.
PLATT'S TRIP TO NORTH CAROLINA THE WEEK BEFORE. DURING THE COURSE OF
THE MEETING MR. STRINGER INFORMED MR. PLATT OF THE REQUEST OF MS.
JACKSON WITH RESPECT TO THE OMB DETAIL. MR. STRINGER ALSO INFORMED MR.
PLATT THAT HE WAS INCLINED TO APPROVE THE DETAIL. THE MEETING ENDED
WITH THE UNDERSTANDING THAT MR. PLATT WOULD CHECK OUT THE DETAIL FURTHER
AND GET BACK IN TOUCH WITH MR. STRINGER.
AT APPROXIMATELY, 2:15 P.M. ON THE AFTERNOON OF SEPTEMBER 29, 1980,
MR. PLATT WENT INTO MS. MINGO'S OFFICE FOR PURPOSES OF GETTING ALL THE
FACTS OF THE DETAIL. ALTHOUGH NOT ENTIRELY CLEAR FORM THE RECORD, IT
APPEARS THAT SOME DISCUSSION TOOK PLACE WITH RESPECT TO THE POSSIBILITY
OF ACQUIRING SOME SORT OF WRITTEN ASSURANCE FROM MS. JACKSON THAT SHE
WOULD ACCEPT A PERMANENT POSITION WITH OMB IF INDEED SUCH A POSITION WAS
OFFERED. MS. MINGO, INFORMED MR. PLATT THAT SHE DID NOT KNOW IF THE
RESPONDENT COULD REQUIRE SUCH A STATEMENT OR WHO HE, MR. PLATT, COULD
TALK TO CONCERNING THE LEGALITY OF REQUIRING SUCH A STATEMENT.
WHILE THE DISCUSSION WAS GOING ON, IT APPEARS THAT EITHER MS. MINGO,
OR MS. MARY BUCHMAN, AN EMPLOYEE WHO SITS EITHER IN OR ADJACENT TO MS.
MINGO'S OFFICE CALLED MS. JACKSON INTO MS. MINGO'S OFFICE. /2/
ACCORDING, TO MS. JACKSON, MR. PLATT INFORMED HER THAT HE WOULD APPROVE
THE DETAIL IF SHE SIGNED A STATEMENT THAT SHE WOULD ACCEPT A PERMANENT
POSITION WITH OMB IF ONE WAS OFFERED. MS. JACKSON REPLIED THAT SHE HAD
JUST SPOKEN TO MS. CUSATO WHO HAD NOT MENTIONED ANYTHING ABOUT HER
HAVING TO SIGN SUCH A STATEMENT IN ORDER FOR HER TO ACCEPT THE DETAIL.
MS. JACKSON DECLINED TO SIGN ANY TYPE OF STATEMENT AND INFORMED MR.
PLATT THAT SHE WAS GOING TO TALK TO MS. CUSATO, HER UNION STEWARD.
ACCORDING TO MR. PLATT AND MS. MINGO, MS. JACKSON DECLINED TO ENTER THE
OFFICE AND DISCUSS ANYTHING WITH MR. PLATT AND TOLD HIM TO CALL HER
UNION REPRESENTATIVE. FURTHER, ACCORDING TO MR. PLATT AND MS. MINGO,
SHORTLY THEREAFTER MS. JACKSON DID VOLUNTARILY ENTER MS. MINGO'S OFFICE,
AND IT WAS AT THIS TIME THAT THE REQUEST FOR THE WRITTEN STATEMENT WAS
MADE BY MR. PLATT.
IN ANY EVENT, SHORTLY AFTER MS. JACKSON REFUSED TO SIGN A WRITTEN
STATEMENT, MR. PLATT SET UP A MEETING WITH MS. CUSATO FOR PURPOSES OF
RESOLVING THE OMB DETAIL. DURING THE MEETING THE PARTIES AGREED THAT
MS. JACKSON COULD ACCEPT THE DETAIL AND THAT SHE WOULD NOT HAVE TO SIGN
A STATEMENT OBLIGATING HER TO ACCEPT A PERMANENT ASSIGNMENT IF OFFERED.
ACCORDING TO MR. PLATT, HE WAS OPPOSED TO THE DETAIL SINCE HE DID NOT
BELIEVE THAT MS. JACKSON'S PRIOR WORK PERFORMANCE WARRANTED THE DETAIL
AND BECAUSE THE DETAIL WOULD LEAVE HIS OFFICE SHORT HANDED. WHEN HE WAS
INFORMED BY MS. MINGO THAT THE DETAIL COULD POSSIBLY TURN INTO AN OFFER
OF A PERMANENT POSITION AT OMB FOR MS. JACKSON, HE WANTED TO HAVE AN
UNDERSTANDING THAT MS. JACKSON WOULD ACCEPT THE PERMANENT POSITION IF
OFFERED. IT WAS FOR THIS REASON THAT HE REQUESTED THE WRITTEN STATEMENT
FROM MS. JACKSON. MR. PLATT DENIED THAT MS. JACKSON'S UNION ACTIVITY,
I.E. CONSTANTLY SEEKING UNION REPRESENTATION IN DISPUTES WITH
MANAGEMENT, PLAYED ANY PART IN HIS DECISION TO SEEK A WRITTEN ASSURANCE
FORM MS. JACKSON THAT SHE WOULD ACCEPT AN OFFER OF A PERMANENT POSITION
AT OMB. MR. PLATT FURTHER TESTIFIED THAT HIS RELUCTANCE TO GRANT THE
DETAIL, SHORT OF THE WRITTEN ASSURANCE, WAS PREDICATED SOLELY ON MR.
JACKSON'S JOB PERFORMANCE /3/ AND NOT HER ACTIONS IN CONSTANTLY SEEKING
UNION REPRESENTATION.
DISCUSSION AND CONCLUSIONS
THE GENERAL COUNSEL TAKES THE POSITION THAT THE RESPONDENT, BY VIRTUE
OF MR. PLATT'S ACTIONS WITH RESPECT TO SEEKING A WRITTEN ASSURANCE FROM
MS. JACKSON THAT SHE WOULD ACCEPT A PERMANENT POSITION AT OMB, IF
OFFERED, VIOLATED SECTION 7116(A)(1) SINCE MR. PLATT'S ACTION WAS BASED,
AT LEAST IN PART, UPON MS. JACKSON'S UNION ACTIVITY, I.E. CONSTANTLY
SEEKING THE UNION'S ASSISTANCE IN HER WORK RELATED DISPUTES WITH MR.
PLATT. THE ALLEGED SECTION 7116(A)(5) AND (8) VIOLATION IS PREDICATED
UPON THE SEPTEMBER 29, 1980, ENCOUNTER BETWEEN MR. PLATT, MS. MINGO AND
MS. JACKSON. IN THIS LATTER CONTEXT, THE GENERAL COUNSEL TAKES THE
POSITION THAT THE ENCOUNTER WAS FORMAL MEETING WHICH THE UNION, PURSUANT
TO SECTION 7114(A)(2)(A), WAS ENTITLED TO ATTEND.
IN SUPPORT OF HIS POSITION WITH RESPECT TO THE SECTION 7116(A)(1)
VIOLATION, THE GENERAL COUNSEL RELIES PRIMARILY ON THE RECORD EVIDENCE
INDICATING THAT MS. JACKSON CONTINUALLY UTILIZED THE SERVICES OF THE
UNION ON JUST ABOUT EVERY OCCASION THAT SHE HAD AN EMPLOYMENT CONFLICT
WITH MR. PLATT, AND THE FACT THAT MR. PLATT IN A PRE-TRIAL STATEMENT
LISTED AMONG HIS COMPLAINTS AGAINST MS. JACKSON A THREAT BY UNION
PRESIDENT DODSON TO FILE A LAW SUIT AGAINST MR. PLATT FOR FAILURE TO
INCLUDE MS. JACKSON AMONG THE RECIPIENTS OF THE CASH AWARDS.
CONTRARY TO THE GENERAL COUNSEL, I CAN NOT INTERPRET MR. PLATT'S
PRE-TRIAL REFERENCE TO THE THREAT OF MR. DODSON TO FILE A LAW SUIT OVER
THE CASH AWARDS AS ONE OF THE REASONS HE DECIDED TO REQUEST THE WRITTEN
ASSURANCE FORM MS. JACKSON. RATHER, I FIND THAT IT WAS NOT THE THREAT
OF THE LAW SUIT WHICH IRRITATED MR. PLATT BUT THE FACT THAT MS. JACKSON
COMPLAINED ABOUT NOT BEING INCLUDED IN THE CASH AWARDS. ACCORDINGLY,
HAVING DISCOUNTED THE ABOVE REFERENCE TO MR. DODSON, THE UNION
PRESIDENT, AND IN THE ABSENCE OF ANY OTHER PROBATIVE EVIDENCE INDICATING
UNION ANIMUS, I CAN NOT CONCLUDE AS URGED BY THE GENERAL COUNSEL THAT
MR. PLATT'S REQUEST TO MR. JACKSON FOR WRITTEN ASSURANCE THAT SHE WOULD
ACCEPT A PERMANENT JOB AT OMB, IF OFFERED, WAS PREDICATED IN PART OF HER
ACTIONS IN SEEKING UNION ASSISTANCE WITH RESPECT TO HER ONGOING PROBLEMS
WITH MR. PLATT. IN FACT, I FIND THAT THE RECORD EQUALLY SUPPORTS THE
CONCLUSION THAT MR. PLATT'S ACTIONS WERE DESIGNED, RIGHTLY OR NOT, TO
RID HIMSELF OF AN EMPLOYEE WHOM HE CONSIDERED TO BE UNDESIRABLE. IN
VIEW OF THE FOREGOING, AND HAVING FOUND THAT THE GENERAL COUNSEL HAS NOT
ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT MR. PLATT'S REQUEST
WAS BASED, AT LEAST IN PART, ON MS. JACKSON'S UNION AND/OR PROTECTED
ACTIVITY, I SHALL RECOMMEND THAT THIS ASPECT OF THE COMPLAINT BE
DISMISSED.
WITH RESPECT TO THE 7116(A)(5) AND (8) ASPECT OF THE COMPLAINT
PREDICATED UPON MR. PLATT'S ACTION IN SPEAKING WITH MS. JACKSON ON
SEPTEMBER 19, 1980, WITHOUT FIRST PROVIDING THE UNION WITH THE
OPPORTUNITY TO BE PRESENT, I CAN NOT AGREE WITH THE GENERAL COUNSEL THAT
RESPONDENT'S ACTION IN THIS REGARD WAS VIOLATIVE OF THE STATUTE. IN
REACHING THIS CONCLUSION, I FIND THAT THE CONFRONTATION FALLS SHORT OF
THE "FORMAL DISCUSSION" ENVISIONED BY SECTION 7114(A)(2)(A) OF THE
STATUTE. THUS IT IS NOTED THAT MS. JACKSON'S PARTICIPATION AT THE
SEPTEMBER 29, 1980 MEETING OR DISCUSSION WAS NOT PREARRANGED AND THAT
SUCH PARTICIPATION WAS BASED UPON A SPUR OF THE MOMENT REQUEST TO MS.
JACKSON BY MS. MINGO TO ENTER HER OFFICE. IN FACT HER ONLY
PARTICIPATION INVOLVED A REQUEST, WHILE SHE WAS STANDING IN THE DOORWAY,
TO SIGN A WRITTEN ASSURANCE CONCERNING THE ACCEPTANCE OF A PERMANENT JOB
AT OMB, IF OFFERED. UPON HER REFUSAL TO COMPLY OR DISCUSS THE MATTER,
RESPONDENT, ALBEIT AT MS. JACKSON'S SUGGESTION, IMMEDIATELY ARRANGED A
MEETING TO DISCUSS THE NATURE OF THE OMB DETAIL WITH HER DESIGNATED
UNION STEWARD.
TO HOLD SUCH A SPUR OF THE MOMENT ENCOUNTER WITH AN EMPLOYEE, WHOSE
OWN REQUEST HAD BEEN THE CATALYST FOR THE ENCOUNTER, TO BE A "FORMAL
DISCUSSION" WITHIN THE MEANING OF THE STATUTE WOULD MAKE IT IMPOSSIBLE
FOR AN AGENCY AND AN EMPLOYEE TO RESOLVE ANY PERSONAL PROBLEMS AND/OR
REQUESTS OF AN EMPLOYEE WITHOUT THE PARTICIPATION OF THE UNION,
IRRESPECTIVE OF THE LIMITED IMPACT, IF ANY, THE PROBLEM MIGHT HAVE ON
UNIT WORKING CONDITIONS. MOREOVER, I FIND IT DIFFICULT TO EQUATE A
REQUEST FOR WORKING CONDITIONS. MOREOVER, I FIND IT DIFFICULT TO EQUATE
A REQUEST FOR INFORMATION, I.E. WOULD YOU SIGN A WRITTEN ASSURANCE THAT
YOU WOULD ACCEPT A PERMANENT POSITION, TO A DISCUSSION, SINCE A
DISCUSSION IS GENERALLY DEFINED AS A "DEBATE".
FINALLY, AND IN ANY EVENT, EVEN ASSUMING THAT THE INSTANT ENCOUNTER
ROSE TO THE LEVEL OF A "FORMAL DISCUSSION" WITHIN THE MEANING OF THE
STATUTE, I FIND THAT ANY POSSIBLE VIOLATION WAS IMMEDIATELY REMEDIED
WHEN THE RESPONDENT SOUGHT OUT, AND MET WITH THE UNION TO DISCUSS THE
DETAIL TO OMB. CF. NORFOLK NAVAL SHIPYARD, NORFOLK, VA. 4 FLRA NO. 91.
ACCORDINGLY, I SHALL RECOMMEND THAT THIS ASPECT OF THE COMPLAINT BE
DISMISSED.
HAVING FOUND THAT THE RESPONDENT DID NOT VIOLATE SECTIONS 7116(A)(1),
(5) AND (8) OF THE STATUTE, IT IS HEREBY RECOMMENDED THAT THE FEDERAL
LABOR RELATIONS AUTHORITY ISSUE THE FOLLOWING:
ORDER
IT IS HERE BY ORDERED THAT THE COMPLAINT HEREIN, SHOULD BE, AND
HEREBY IS DISMISSED IN ITS ENTIRETY.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 11, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ ACCORDING TO MS. JACKSON, A CO-WORKER HAD INFORMED HER THAT WHEN
AN EMPLOYEE QUESTIONED THE FAILURE OF MS. JACKSON TO RECEIVE A CASH
AWARD, MR. PLATT INFORMED THE EMPLOYEES IN ATTENDANCE AT THE MEETING OF
MS. JACKSON'S ALLEGED SHORTCOMINGS WHICH WERE SET FORTH IN THE AUGUST 8,
1980, MEMORANDUM FROM MR. PLATT TO MS. JACKSON. ACCORDING, TO MR.
STRINGER, WHOM I CREDIT, PURSUANT TO THE COMPLAINT FROM MR. DODSON, HE
CONDUCTED AN INVESTIGATION OF THE CASH AWARDS MEETING AND FOUND NO
EVIDENCE THAT MR. PLATT HAD GIVEN ANY REASON FOR THE FAILURE OF MS.
JACKSON TO RECEIVE A CASH AWARD. FURTHER, ACCORDING TO MR. STRINGER,
ANOTHER EMPLOYEE IN THE UNIT WAS ALSO EXCLUDED FORM THE CASH AWARDS
PRESENTED BY MR. PLATT. THE FAILURE TO RECEIVE A CASH AWARD IS NOT
ALLEGED AS AN UNFAIR LABOR PRACTICE.
/2/ MS. JACKSON'S DESK IS JUST OUTSIDE MS. MINGO'S OFFICE.
/3/ DURING THE COURSE OF THE HEARING MR. PLATT DESCRIBED HIS WORK
RELATED PROBLEMS WITH MR. JACKSON. HIS TESTIMONY IN THE AFOREMENTIONED
REGARD WAS FOR THE MOST PART CONSISTENT WITH HIS PRE-TRIAL STATEMENT
TAKEN BY THE GENERAL COUNSEL AND ENTERED INTO EVIDENCE AS G.C.-EXHIBIT
NO. 5. HOWEVER, IN HIS PRE-TRIAL STATEMENT HE LISTED AMONG MS.
JACKSON'S PROBLEMS THE FACT THAT MR. DODSON, THE UNION PRESIDENT, HAD
THREATENED A LAW SUIT OVER MS. JACKSON'S FAILURE TO RECEIVE A CASH
AWARD. HE SPECIFICALLY DENIED, HOWEVER, IN THE PRE-TRIAL STATEMENT THAT
THE THREATENED LAW SUIT PLAYED ANY PART IN HIS DECISION TO GRANT THE
DETAIL TO MS. JACKSON. ACCORDING TO THE PRE-TRIAL STATEMENT, IT WAS
THE "EVENT" ITSELF WHICH CONCERNED HIM.