[ v09 p73 ]
09:0073(11)CA
The decision of the Authority follows:
9 FLRA No. 11
OFFICE OF PROGRAM OPERATIONS,
FIELD OPERATIONS,
SOCIAL SECURITY ADMINISTRATION,
SAN FRANCISCO REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF
SOCIAL SECURITY DISTRICT OFFICE LOCALS,
SAN FRANCISCO REGION
Charging Party
Case Nos. 8-CA-379
8-CA-380
8-CA-401
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE CONSOLIDATED COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
JUDGE'S DECISION, AND BOTH THE GENERAL COUNSEL AND THE CHARGING PARTY
FILED BRIEFS IN RESPONSE THERETO. /1/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
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 IN THE SUBJECT CASES, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS AS MODIFIED BELOW.
IN CASE NO. 8-CA-379, THE JUDGE FOUND THAT THE RESPONDENT VIOLATED
SECTION 7116(A)(1) AND (2) OF THE STATUTE BY TAKING EMPLOYEE FLOYD
BANKS' UNION ACTIVITIES INTO CONSIDERATION AND THEREBY DISCRIMINATING
AGAINST HIM DURING THE PROCESS OF SELECTING CANDIDATES FOR PROMOTION TO
THE MANAGERIAL POSITION OF TECHNICAL ASSISTANT. IN SO CONCLUDING, THE
JUDGE STATED THAT SUCH A VIOLATION MUST BE FOUND ONLY A PART IN
MANAGEMENT'S DECISION NOT TO SELECT AN EMPLOYEE FOR PROMOTION. THE
JUDGE FURTHER FOUND THAT CERTAIN STATEMENTS BY BANKS' SUPERVISOR WHICH
REFERRED TO THE EMPLOYEE'S UNION ACTIVITIES AS A "PROBLEM" DURING A
CONVERSATION BETWEEN THEM CONCERNING BANKS' QUALIFICATIONS FOR THE
PROMOTION CONSTITUTED AN INDEPENDENT VIOLATION OF SECTION 7116(A)(1) OF
THE STATUTE.
IN CASE NO. 8-CA-380, THE JUDGE FOUND THAT THE RESPONDENT VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE
ESTABLISHED PAST PRACTICE AND PROCEDURE FOLLOWED BY EMPLOYEES TO SECURE
ANNUAL LEAVE AROUND HOLIDAY TIMES WHILE THE PARTIES WERE ENGAGED IN
NEGOTIATIONS CONCERNING CHANGES IN LEAVE POLICY; AND IN CASE NO.
8-CA-401 THE JUDGE ADDITIONALLY FOUND THAT NEGOTIATIONS CONCERNING
CHANGES IN LEAVE POLICY AND UNILATERALLY IMPLEMENTING TWO NEW LEAVE
POLICIES.
THE EXCEPTIONS FILED BY THE RESPONDENT DID NOT TAKE ISSUE WITH THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE JUDGE REGARDING THE
SECTION 7116(A)(1) AND (5) VIOLATIONS IN CASE NOS. 8-CA-380 AND
8-CA-401, AND THE AUTHORITY HEREBY ADOPTS THOSE FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS SINCE THEY ARE FULLY SUPPORTED BY THE RECORD
EVIDENCE. AS TO THE JUDGE'S SECTION 7116(A)(1) FINDINGS IN CASE NO.
8-CA-379, THE RECORD EVIDENCE FULLY SUPPORTS THE JUDGE'S FINDINGS AND
CONCLUSIONS WHICH ARE HEREBY ADOPTED. HOWEVER, THE AUTHORITY DOES NOT
AGREE WITH THE JUDGE'S FURTHER CONCLUSION IN CASE NO. 8-CA-379 THAT THE
RESPONDENT DISCRIMINATED AGAINST EMPLOYEE BANKS, IN VIOLATION OF SECTION
7116(A)(1) AND (2), BY TAKING BANKS' UNION ACTIVITIES INTO CONSIDERATION
DURING THE PROCESS OF SELECTING APPLICANTS FOR TECHNICAL ASSISTANT
POSITIONS.
IN REACHING HIS CONCLUSION IN THIS LATTER REGARD, THE JUDGE APPLIED
THE TEST ESTABLISHED UNDER EXECUTIVE ORDER 11491, AS AMENDED, THAT A
VIOLATION OF PROVISIONS SIMILAR TO SECTION 7116(A)(1) AND (2) OF THE
STATUTE MUST BE FOUND IF THE EVIDENCE DISCLOSES THAT MANAGEMENT'S
FAILURE TO PROMOTE WAS BASED IN WHOLE OR IN PART ON UNION ACTIVITIES.
AFTER THE JUDGE ISSUED HIS DECISION IN THE SUBJECT CASE, HOWEVER, THE
AUTHORITY ISSUED ITS DECISION IN INTERNAL REVENUE SERVICE, WASHINGTON,
D.C., 6 FLRA NO. 23(1981), IN WHICH A DIFFERENT TEST UNDER THE STATUTE
WAS ENUNCIATED FOR DETERMINING WHETHER A VIOLATION HAS BEEN COMMITTED IN
SUCH CIRCUMSTANCES. THUS, THE AUTHORITY STATED THAT, UNDER THE STATUTE,
" . . . THE BURDEN IS ON THE GENERAL COUNSEL TO MAKE A PRIMA FACIE
SHOWING THAT THE EMPLOYEE HAD ENGAGED IN PROTECTED ACTIVITY AND THAT
THIS CONDUCT WAS A MOTIVATING FACTOR IN AGENCY MANAGEMENT'S DECISION NOT
TO PROMOTE. ONCE THIS IS ESTABLISHED, THE AGENCY MUST SHOW BY A
PREPONDERANCE OF THE EVIDENCE THAT IT WOULD HAVE REACHED THE SAME
DECISION AS TO THE PROMOTION EVEN IN THE ABSENCE OF THE PROTECTED
CONDUCT." IN THE INSTANT CASE, WHILE THE JUDGE FOUND THAT BANKS' UNION
ACTIVITIES WERE A CONSIDERATION IN THE RESPONDENT'S DECISION NOT TO
PROMOTE HIM, HE FURTHER FOUND (AND THE RECORD SUPPORTS SUCH FINDING)
THAT " . . . RESPONDENT MET ITS BURDEN BY SHOWING THAT OTHER REASONS
EXISTED FOR BANKS' NON-SELECTION THAN UNION CONSIDERATIONS." THUS, AS
FOUND BY THE JUDGE, BANKS DID NOT RECEIVE A TOP RATING IN ANY CATEGORY
CONSIDERED BY THE RESPONDENT IN MAKING THE SELECTIONS FOR PROMOTION
(INCLUDING SUPERVISORY RECOMMENDATIONS, PERFORMANCE APPRAISALS, LEAVE
RECORDS AND TRAINING ABILITY), AND THERE WAS NO EVIDENCE IN THE RECORD
TO SUGGEST THAT HE WAS MORE QUALIFIED THAN ANY OF THE EMPLOYEES ACTUALLY
SELECTED. MOREOVER, AS THE JUDGE FOUND, "BANKS ACKNOWLEDGED AT LEAST
TWO INCIDENTS IN WHICH HE HAD BECOME INVOLVED WHICH MIGHT WELL HAVE, IF
TAKEN INTO CONSIDERATION, PREVENTED HIS SELECTION." INASMUCH AS BANKS
DISCUSSED BOTH INCIDENTS WITH THE SELECTING OFFICIAL AT A COUNSELLING
SESSION ON THE DAY BEFORE THE PROMOTION SELECTIONS WERE MADE (THE FIRST
INVOLVING HIS HEATED CONFRONTATION WITH ONE OF THE RESPONDENT'S
SUPERVISORS ON A PERSONAL MATTER IN THE PRESENCE OF OTHER EMPLOYEES AND
THE OTHER CONCERNING HIS FAILURE TO SIGN A FORM INDICATING HIS
ACTIVITIES ON BEHALF OF AN EMPLOYEE SOCIAL ORGANIZATION AS REQUIRED BY
ESTABLISHED POLICY), THE AUTHORITY FINDS THAT THESE INCIDENTS WERE
CONSIDERED DURING THE SELECTION PROCESS. ACCORDINGLY, THE AUTHORITY
CONCLUDES THAT THE RESPONDENT SATISFIED THE SECOND PART OF THE TEST SET
FORTH IN THE INTERNAL REVENUE SERVICE CASE BY ESTABLISHING BY A
PREPONDERANCE OF THE EVIDENCE THAT IT WOULD HAVE REACHED THE SAME
DECISION AS TO THE PROMOTION EVEN IN THE ABSENCE OF THE PROTECTED
CONDUCT.
UNDER THESE CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT THE PORTION
OF THE COMPLAINT IN CASE NO. 8-CA-379 ALLEGING AN UNLAWFUL REFUSAL TO
SELECT EMPLOYEE BANKS FOR THE PROMOTION TO TECHNICAL ASSISTANT SHOULD BE
DISMISSED, AND SHALL MODIFY THE ORDER ACCORDINGLY.
ORDER
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY
ADMINISTRATION, SAN FRANCISCO REGION, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING FLOYD BANKS, OR ANY
OTHER EMPLOYEE, IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE, BY
REFERRING DURING THE COURSE OF A SELECTION PROCESS TO HIS MEMBERSHIP OR
ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN
FRANCISCO REGION, OR ANY OTHER LABOR ORGANIZATION.
(B) CHANGING THE LEAVE POLICY OF EMPLOYEES AT THE LOS ANGELES,
CALIFORNIA TELESERVICE CENTER REPRESENTED EXCLUSIVELY BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY
DISTRICT LOCALS, SAN FRANCISCO REGION, WITHOUT AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO BARGAIN IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE STATUTE:
(A) RESCIND THE POLICY MEMORANDA OF MARCH 13, 1980 PERTAINING TO
CHANGES IN LEAVE POLICY AND RESTORE THE LEAVE POLICY IN EFFECT PRIOR TO
DECEMBER 1979 IN THE LOS ANGELES TELESERVICE CENTER.
(B) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION,
OR ANY INTENDED CHANGES IN LEAVE POLICY FOR LOS ANGELES TELESERVICE
CENTER EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, WITH THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE CONCERNING SUCH CHANGES.
(C) POST AT ITS FACILITIES AT THE LOS ANGELES TELESERVICE CENTER, LOS
ANGELES, CALIFORNIA, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR, OFFICE OF PROGRAM
OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN
FRANCISCO REGION, 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 SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VIII, FEDERAL LABOR
RELATIONS AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS HEREBY ORDERED THAT THE PORTION OF THE CONSOLIDATED COMPLAINT
ALLEGING A VIOLATION OF SECTION 7116(A)(2) BE, AND IT HEREBY IS,
DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 11, 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 INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEE FLOYD BANKS,
OR ANY OTHER EMPLOYEE, IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE
BY REFERRING, DURING THE SELECTION PROCESS, TO HIS MEMBERSHIP OR
ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN
FRANCISCO REGION, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT CHANGE THE LEAVE POLICY OF EMPLOYEES REPRESENTED
EXCLUSIVELY BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION,
THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, WITHOUT AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO BARGAIN IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
WE WILL NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION,
OF ANY INTENDED CHANGE IN LEAVE POLICY FOR LOS ANGELES TELESERVICE
CENTER EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
(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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 350 SOUTH FIGUEROA
STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90071, AND WHOSE TELEPHONE
NUMBER IS (213) 688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SILVIA M. DIAZ
GERALD M. COLE, ESQS.
FOR THE GENERAL COUNSEL
DANIEL H. GREEN
JOHN OLEXY, ESQS.
FOR THE RESPONDENT
JEFFEREY H. DASTEEL
FOR THE CHARGING PARTY
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
CASE NOS. 8-CA-379
8-CA-380
8-CA-401
DECISION
STATEMENT OF THE CASE
THESE CONSOLIDATED CASES AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. SECTION
7101, ET SEQ., (HEREINAFTER CALLED THE "STATUTE") AS A RESULT OF A
CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT FILED ON MAY 20, 1980.
THE CONSOLIDATED COMPLAINTS ALLEGED, IN SUBSTANCE, THAT THE OFFICE OF
PROGRAM OPERATIONS FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN
FRANCISCO REGION, (HEREINAFTER REFERRED TO AS "RESPONDENT") VIOLATED 5
U.S.C. SECTION 7116(A), (1), (2) AND (5) THROUGH UNLAWFUL STATEMENTS
MADE TO A UNIT EMPLOYEE REGARDING HIS UNION ACTIVITIES IN CONNECTION
WITH HIS SEEKING A PROMOTION AND UNLAWFUL DISCRIMINATION AGAINST THE
SAME EMPLOYEE BY IMPROPERLY CONSIDERING HIS UNION ACTIVITIES IN
CONNECTION WITH A PROMOTION; BY REFUSING TO BARGAIN THROUGH
UNILATERALLY CHANGING PROCEDURES BY WHICH EMPLOYEES AT THE LOS ANGELES,
CALIFORNIA TELESERVICE, CENTER (HEREINAFTER CALLED THE "CENTER") SECURED
LEAVE AROUND HOLIDAY TIME, WITHOUT GIVEN NOTICE TO OR ALLOWING AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY
DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION, (HEREINAFTER CALLED THE
"UNION" OR THE "CHARGING PARTY") AN OPPORTUNITY TO NEGOTIATE CONCERNING
THE CHANGES IN POLICY; AND, BY UNILATERALLY ADOPTING AND IMPLEMENTING
TWO LEAVE POLICIES AT THE CENTER WITHOUT ALLOWING THE UNION AN
OPPORTUNITY TO BARGAIN. /2/
RESPONDENT'S ANSWER DENIED THE COMMISSION OF ANY UNFAIR LABOR
PRACTICES.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON AUGUST 21, 1980 IN LOS
ANGELES, CALIFORNIA. ALL PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND
EXAMINE AND CROSS-EXAMINE WITNESSES. ALL PARTIES FILED TIMELY BRIEFS
WHICH HAVE BEEN DULY CONSIDERED. /3/
BASED ON 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 OF LAW AND RECOMMENDATIONS.
FINDINGS OF FACT
RESPONDENT AND THE UNION, HAVE AT ALL TIMES MATERIAL HEREIN, BEEN
PARTIES TO COLLECTIVE-BARGAINING AGREEMENT COVERING THE EMPLOYEES
INVOLVED IN THIS MATTER.
A. CASE NO. 8-CA-379
AROUND DECEMBER 1979, FLOYD BANKS, A TELEPHONE SERVICE REPRESENTATIVE
AT THE CENTER FOR ABOUT FOUR AND A HALF YEARS, APPLIED FOR AND WAS
PLACED ON THE BEST QUALIFIED LIST FOR A TECHNICAL ASSISTANT POSITION AT
THE CENTER. DURING THE SAME PERIOD BANKS APPLIES FOR AND WAS ALSO
PLACED ON THE BEST QUALIFIED LISTS FOR SEVERAL CLAIMS REPRESENTATIVE
POSITIONS WITH THE AGENCY IN THE SOUTHERN CALIFORNIA AREA. BANKS WAS
ONE OF ABOUT FIVE EMPLOYEES WHO MADE THE BEST QUALIFIED LIST FOR THE
TECHNICAL ASSISTANT POSITION AT THE CENTER. /4/
AROUND FEBRUARY 5, 1980, BANKS ENGAGED IN A RATHER LENGTHY
CONVERSATION WITH THE CENTER'S MANAGER JAMES BRENNAN CONCERNING THE TWO
PROMOTIONAL ANNOUNCEMENTS. BRENNAN AS MANAGER OF THE CENTER WAS TO BE
THE SELECTING OFFICIAL FOR ABOUT THREE TECHNICAL ASSISTANT POSITIONS.
ACCORDING TO BANKS, BRENNAN OPENED THE CONVERSATION BY STATING THAT
WHILE HE HAD NOT HAD AN OPPORTUNITY TO REVIEW BANKS' WORK RECORD, HE
WANTED TO TALK ABOUT SOME OF THE BEST QUALIFIED LISTS THAT BANKS HAD
BEEN PLACED ON. AT THE OUTSET, BRENNAN DISCUSSED THE CLAIMS
REPRESENTATIVE POSITIONS, NOTING THAT HE DID NOT FEEL THAT HE COULD
RECOMMEND BANKS FOR THAT POSITION TO OTHER MANAGERS, MAINLY BECAUSE HE
HAD SOME DOUBTS ABOUT BANKS' "APPLICATION OF TIME". BANKS INQUIRED AS
TO WHAT HE MEANT, TO WHICH BRENNAN RESPONDED THAT HE HAD OBSERVED BANKS
WALKING AROUND THE OFFICE OR SITTING AT OTHER EMPLOYEES DESKS DURING
WORKING HOURS. BANKS REPLIED THAT HIS WALKING AROUND OR TALKING TO
OTHER EMPLOYEES SHOULD NOT BE VIEWED AS HIS NOT WORKING. BANKS
ATTEMPTED TO EXPLAIN THAT SOMETIMES IT BECAME NECESSARY FOR HIM TO GO TO
THE COMPUTER OR TO THE NON-RECEIPT UNIT FOR INFORMATION. AT OTHER TIMES
HE HAD BEEN STOPPED BY OTHER EMPLOYEES EITHER TO ANSWER TECHNICAL
QUESTIONS REGARDING WORK, AS HE HAD BEEN AN INSTRUCTOR FOR NUMEROUS
TRAINING COURSES GIVEN AT THE CENTER, OR TO ANSWER QUESTIONS RELATED TO
UNION BUSINESS, AS HE WAS THE LOCAL REPRESENTATIVE FOR THE CHARGING
PARTY. UPON HEARING THIS, BRENNAN POINTED OUT THAT BANKS SHOULD FILL
OUT FORM 75'S (OFFICIAL TIME FORMS) FOR UNION BUSINESS CONDUCTED DURING
WORKING HOURS. BANKS RESPONDED THAT IF HE DID THIS EVERY TIME AN
EMPLOYEE ASKED HIM A QUESTION CONCERNING LABOR RELATIONS, HE WOULD END
UP FILLING OUT 50 TO 75 SUCH FORM A DAY. /5/
ACCORDING TO BANKS, HE WAS NOT SATISFIED WITH BRENNAN'S STATEMENT
CONCERNING "APPLICATION OF TIME", AND HE ASKED FOR SOME CLARIFICATION
FROM BRENNAN. BRENNAN RESPONDED BY REFERRING TO AN INCIDENT IN WHICH
BANKS AND ALLEGEDLY TAKEN TOO LONG IN DEALING WITH A MATTER INVOLVING A
CENTER EMPLOYEE, THELMA WALSH WHO HAD FILED AN INFORMAL GRIEVANCE WHICH
HAD NOT BEEN RESOLVED. BRENNAN THEN ASKED BANKS IN HIS CAPACITY AS
UNION REPRESENTATIVE TO RESOLVE THE MATTER. BANKS NOTED THAT THIS
INCIDENT WAS UNION BUSINESS AND THAT BRENNAN'S CONSIDERATION OF THIS
MATTER WAS IMPROPER. BRENNAN DID NOT RESPOND, BUT REMAINED SILENT.
CONCERNING THE TECHNICAL ASSISTANT POSITION, BANKS TESTIFIED THAT
BRENNAN STATED AS FOLLOWS:
Q AND WHAT DO YOU RECALL WAS MENTIONED ABOUT THAT ("TECHNICAL
ASSISTANT THING")?
A OKAY. HE (BRENNAN) ASKED ME WHY DID I APPLY FOR THE TA POSITION
AND I RESPONDED
SOMETHING TO THE EFFECT THAT IT WAS MORE MONEY AND HE KIND OF LAUGHED
AT THAT AND SAID HE WAS
SERIOUS AND WHY DID I APPLY FOR THE TECHNICAL ASSISTANT THAT THAT'S A
MANAGEMENT POSITION. I
SAID SOMETHING LIKE, SO, AND HE SAID BUT YOU'RE THE UNION REPT AND I
SAID THAT THAT WAS NO
PROBLEM. I TOLD HIM THAT IF I GOT IT I WOULD RESIGN AS UNION REPT
AND THEN HE SAID SOMETHING
LIKE, WELL, WITH ALL THE TROUBLE THAT YOU'VE GIVEN ME IN THE LAST
YEAR DO YOU REALLY EXPECT ME
TO PICK YOU FOR THAT POSITION? I STOPPED HIM ONCE AGAIN AND SAID
"WHAT TROUBLE ARE YOU
TALKING ABOUT BECAUSE THE ONLY TROUBLE I'VE EVER GIVEN YOU HAS BEEN
UNION AND THAT'S NOT
SUPPOSED TO BE CONSIDERED I'M JUST DOING MY JOB LIKE YOU'RE DOING
YOURS".
THE CONVERSATION ENDED WITH DISCUSSION OF THE CLAIMS REPRESENTATIVE
POSITION WITH BANKS ASKING BRENNAN WHAT BRENNAN HAD SAID TO ONE PARTY
WHO HAD CALLED FROM RESPONDENT'S TORRANCE OFFICE CONCERNING BANKS
EMPLOYABILITY. BANKS WANTED TO KNOW WHAT BRENNAN'S RECOMMENDATION HAD
BEEN.
BRENNAN TESTIFIED THAT HE VIEWED THE CONVERSATION WITH BANKS AS A
COUNSELLING SESSION ON PROMOTIONAL OPPORTUNITY. ACCORDING TO BRENNAN,
HIS INTENTION WAS TO GIVE BANKS A PICTURE OF WHAT HE AND SOME OTHERS HAD
OF BANKS. HOWEVER, INSTEAD OF COMING ACROSS IN A POSITIVE MANNER WITH
CONSTRUCTIVE CRITICISM, BRENNAN INDICATED THAT BANKS TOOK ISSUE WITH HIS
REMARKS AND REQUIRED HIM TO JUSTIFY THE CRITICISM. BRENNAN FURTHER
TESTIFIED THAT HE DID NOT DISCUSS THE PARTICULARS OF THE TECHNICAL
ASSISTANT POSITION WITH BANKS BECAUSE HE HAD NOT MADE THE SELECTION AT
THAT TIME AND TO DO SO WOULD BE UNFAIR TO THE OTHER EMPLOYEES ON THE
BEST QUALIFIED LIST. BRENNAN INDICATED TO BANKS THAT HE HAD SOUGHT
RECOMMENDATIONS FROM OTHER SUPERVISORS IN THE OFFICE FOR THE POSITION
AND WHERE BANKS FELL IN THOSE INFORMAL RATINGS. BRENNAN FURTHER
TESTIFIED THAT HIS REMARK TO BANKS WAS NOT, "WITH ALL THE TROUBLE YOU'VE
GIVEN ME IN THE PAST YEAR, DO YOU REALLY THINK I'D PICK YOU?", BUT WAS
PROBABLY, "FLOYD, WHY WOULD I PROMOTE YOU WITH THE PROBLEMS THAT YOU'VE
CAUSED ME?" BRENNAN TESTIFIED THAT HIS REMARK WAS NOT A SARCASTIC REMARK
CONCERNING BANKS' PROMOTION TO THE TECHNICAL ASSISTANT POSITION, BUT WAS
A RHETORICAL QUESTION DESIGNED TO SOLICIT BANKS' INPUT DURING THE
COUNSELLING SESSION. BRENNAN STATES THAT HE WAS ONLY ATTEMPTING TO
ELICIT WHAT QUALITIES BANKS FELT HE HAD WHICH WOULD WARRANT
RECOMMENDATION. BRENNAN'S FURTHER TESTIMONY CONCERNING THE
CONVERSATION
IS CONSISTENT WITH THAT OF BANKS.
BRENNAN STATES THAT HE MADE THE SELECTIONS FOR THE TECHNICAL
ASSISTANT POSITIONS BASED UPON SUPERVISORY RECOMMENDATIONS, PERSONNEL
QUALIFICATIONS, APPRAISALS, LEAVE RECORDS, TECHNICAL ABILITIES AND HIS
OWN PERSONNEL JUDGEMENT OF THE APPLICANTS. HE ALSO STATED THAT THE
QUALITIES HE LOOKED FOR IN THE SELECTION OF AN INDIVIDUAL FOR THE
TECHNICAL ASSISTANT POSITIONS WERE THE ABILITY TO RELATE WELL TO PEOPLE,
TRAINING EXPERIENCE REFLECTING TECHNICAL SKILL, AND ABILITY TO WORK WELL
WITH LITTLE SUPERVISION. BRENNAN ALSO TESTIFIED THAT HE DID NOT
CONSIDER BANK'S UNION ACTIVITIES WHEN HE MADE THE SELECTIONS. FINALLY,
HE INDICATED THAT HE KNEW THAT HE WAS NOT PERMITTED TO TAKE UNION
ACTIVITIES INTO CONSIDERATION IN SELECTION DECISIONS. BRENNAN CONTENDED
THAT HIS STRONGEST RELIANCE IN THE SELECTION PROCESS WAS UPON
SUPERVISORY RECOMMENDATIONS.
IN THE EARLY SPRING OF 1979, ABOUT A YEAR BEFORE THE FEBRUARY 5, 1979
CONVERSATION, WITH BRENNAN, BANKS WAS ELECTED AS A LOCAL UNION
REPRESENTATIVE. IN HIS CAPACITY AS A UNION REPRESENTATIVE, HE PRESENTED
GRIEVANCES OF BARGAINING UNIT EMPLOYEES TO MANAGEMENT, HANDLED VARIOUS
EMPLOYEE INFORMAL COMPLAINTS, SERVED AS BACK-UP FOR ANOTHER UNION
REPRESENTATIVE, IN WHICH CAPACITY HE RECEIVED NOTICE OF CHANGES, AND AS
PREVIOUSLY NOTED, SPENT A SIGNIFICANT AMOUNT OF TIME ANSWERING
EMPLOYEES' QUESTIONS RELATING TO LABOR-MANAGEMENT ISSUES. SUBSEQUENTLY,
IN JUNE 1980, BANKS BECAME THE CENTERS CHIEF STEWARD.
BANKS EMPLOYMENT INVOLVED HANDLING TELEPHONE CALLS FROM THE INQUIRING
PUBLIC CONCERNING MATTERS OF SOCIAL SECURITY. HE ALSO SERVED AS A STAFF
TRAINING INSTRUCTOR AT THE CENTER, AS WELL AS WITH THE LOS ANGELES
CENTRAL NETWORK PROGRAM. BANKS' WORK PERFORMANCE DISCLOSED A PATTERN
OF
HAVING "EXCEED WORK REQUIREMENTS, BUT NOT TO AN EXCEPTIONAL DEGREE" IN
MOST AREAS, TO HAVING "EXCEEDED REQUIREMENTS TO AN EXCEPTIONAL DEGREE"
IN A FEW AREAS SUCH AS IN ADAPTABILITY AND FLEXIBILITY AND ORAL
COMMUNICATIONS. REGARDING HIS PERFORMANCE AS A TRAINING INSTRUCTOR,
BANKS RATINGS WERE FAVORABLE. JANE STUART, ONE OF HIS FORMER
SUPERVISORS, TESTIFIED THAT SHE RATED BANKS "SATISFACTORY TO ABOVE
AVERAGE" AS AN INSTRUCTOR. ALSO, BANKS RECEIVED COMMENDATIONS FROM
OTHER REGARDING HIS DEDICATION, CONCERN AND PROFESSIONALISM.
IN 1978, BANKS WAS PRESIDENT OF THE SUNSHINE CLUB, AN OFFICE
ORGANIZATION WHICH HANDLED SOCIAL FUNCTIONS. IN THAT POSITION HE
RECEIVED SOME CRITICISM FROM BRENNAN CONCERNING HIS FAILURE TO SIGN A
CLERICAL SHEET WHENEVER HE ENGAGED IN SUNSHINE CLUB FUNCTIONS. BANKS
APPARENTLY WAS NOT SIGNING THE CLERICAL SHEET REQUIRED TO BE SIGNED BY
EMPLOYEES WHENEVER THEY WERE OFF THE TELEPHONES. IN ANY EVENT, HIS
HANDLING OF THIS RESPONSIBILITY WAS DISCUSSED WITH BRENNAN DURING THE
FEBRUARY 5 CONVERSATION.
BOTH BANKS AND BRENNAN TESTIFIED TO TWO WORK RELATED PROBLEMS
DISCUSSED DURING THE FEBRUARY 5 MEETING. FIRST, THE SUNSHINE CLUB
PROBLEM MENTIONED ABOVE AND THE SECOND INVOLVED A STAFF MEETING
CONDUCTED AROUND JUNE 20, 1979. AT THE JUNE 20, 199 STAFF MEETING,
BANKS APPARENTLY CONFRONTED ASSISTANT MANAGER LARRY HYERT ABOUT AN ISSUE
CONCERNING THE USE OF TELEPHONES IN THE OFFICE. BANKS POINTED OUT THAT
IT HAD BEEN ABOUT FOUR MONTHS SINCE MANAGEMENT HAD BEEN ASKED TO CLARIFY
WHICH TELEPHONES WERE TO BE USED BY EMPLOYEES FOR MAKING CALL BACKS.
BANKS FURTHER NOTED THAT MANAGEMENT TOOK A SATURDAY OF OVERTIME TO WORK
A DISCIPLINARY ACTION ON AN EMPLOYEE. HYERT WAS OBVIOUSLY UPSET WITH
BANKS' COMMENT, AS WERE SOME OF THE EMPLOYEES ATTENDING. BANKS THEN SAT
DOWN BUT WITHIN A FEW MINUTES EXITED THE MEETING ROOM. A GROUP
COMPLAINT AGAINST BANKS WAS PRESENTED TO BRENNAN AFTER THIS MEETING.
BRENNAN TESTIFIED CONCERNING THE JUNE 20 INCIDENT AS FOLLOWS:
Q DID YOU MENTION TO HIM ANY REMARKS IN REGARD TO HIS UNION
ACTIVITIES OR THIS PERCEPTION
OF HIS BEHAVIOR BY THE EMPLOYEES?
A I THINK WE DISCUSSED THAT THAT YOU KNOW AS A UNION PERSON IF HE IS
EVEN IF HE'S NOT
ACTING IT'S VERY HARD FOR HIM TO DIFFERENTIATE TO OTHER EMPLOYEES, IF
HE'S ACTING ON BEHALF OF
HIMSELF OR HIS UNION ROLE BECAUSE HE HAS AN IMAGE THAT HE HAS TO HOLD
(SIC) IN THE OFFICE AS
THE UNION REPRESENTATIVE AND I DON'T KNOW-- IN THIS CASE OBVIOUSLY,
HE WAS ACTING ON HIS OWN
BUT I'M NOT SURE THAT THAT WAS APPARENT TO ALL THE EMPLOYEES IN THE
OFFICE.
Q DID YOU ADDRESS THAT VERBALLY AND REMARK TO HIM THAT BECAUSE OF THE
GROUP COMPLAINT
REFERENCE TO THE UNION DEALINGS THERE?
A I THINK I JUST ADDRESSED IT AS SOMETHING OF TRYING TO IMPROVE
LABOR/MANAGEMENT
RELATIONSHIPS THAT IF HE'S GOING TO ACT THIS WAY THAT IT'S REALLY
GOING TO BE VERY DIFFICULTY
BECAUSE I'M REALLY NOT GOING TO KNOW WHICH HAT HE'S WEARING.
AROUND FEBRUARY 6, 1980, THE DAY AFTER THE CONVERSATION BETWEEN BANKS
AND BRENNAN TOOK PLACE, THE SELECTIONS WERE MADE FOR THREE TECHNICAL
ASSISTANT POSITIONS. EMPLOYEES BARBARA WITTE, PAULINE GABBARD, AND
WILLARD FULLERTON, WHO WERE ALL TELESERVICE REPRESENTATIVES AT THE
CENTER, WERE SELECTED FOR THE TECHNICAL ASSISTANT POSITIONS AT THE
CENTER. ALTHOUGH RATED IN THE TOP THREE SLOTS BY SOME SUPERVISORS,
BANKS WAS NOT SELECTED. THE RECORD REVEALS THAT BANKS LEAVE RECORD WAS
SIMILAR TO FULLERTON AND GABBARD AND THERE WAS SOME QUESTION THAT WITTE
HAD ANY TRAINING EXPERIENCE WHILE BANKS WAS RATED AVERAGE TO ABOVE IN
THAT AREA. FURTHER, BRENNAN TESTIFIED THAT BANKS, "DOES A BETTER THAN
AVERAGE JOB."
B. CASES NOS. 8-CA-380 AND 8-CA-401
A. BACKGROUND
SOMETIME IN LATE NOVEMBER 1979, A SURVEY WAS CONDUCTED AT THE CENTER
BY AREA DIRECTOR MATTHEW WOODS, WHICH REVEALED AN ATMOSPHERE OF LOW
MORALE AMONG EMPLOYEES, CAUSED, IN PART, BY THE LEAVE POLICY IN
EXISTENCE AT THAT TIME. AMONG THE PROBLEMS VOICED BY EMPLOYEES,
CONCERNING THE EXISTING POLICY, WAS THAT THE SAME EMPLOYEES WERE GETTING
THE SAME ANNUAL LEAVE EVERY YEAR, THAT EMPLOYEES WERE REQUIRED TO
ACCUMULATE FORTY HOURS OF ANNUAL LEAVE BEFORE BEING ABLE TO TAKE ANNUAL
LEAVE, AND THAT THE SUPERVISORS WERE NOT IMPLEMENTING THE TARDINESS
POLICY UNIFORMLY.
BOTH SIDES ACKNOWLEDGED THE PROBLEMS WITH THE LEAVE POLICY AND
EXPRESSED A NEED TO SEE THAT POLICY CHANGED. CONSEQUENTLY, A MEETING
WAS HELD ON DECEMBER 12, 1979 AT WHICH IT WAS AGREED THAT THAT ASSISTANT
MANAGER HYERT AND UNION REPRESENTATIVE SUSQUILLA STEWART WOULD WORK
TOGETHER IN MAKING APPROPRIATE REVISIONS TO THE EXISTING LEAVE POLICY.
BECAUSE STEWART WOULD BE ON ANNUAL LEAVE FROM DECEMBER 28, 1979 UNTIL
JANUARY 14, 1980, IT WAS DECIDED THAT HYERT WOULD WORK ON REVISIONS TO
THE LEAVE POLICY, BUT THAT HE WAS TO REPORT BACK TO THE UNION ON
WHATEVER HE DID AND GET INPUT FROM STEWART.
PRIOR TO THIS TIME THE LEAVE POLICY AT THE CENTER WAS CONTAINED IN A
DOCUMENT DATED JANUARY 11, 1978. THIS DOCUMENT, SIGNED BY BRENNAN,
CONTAINED NO PROVISION FOR HOLIDAY LEAVE, WHICH SUBSEQUENTLY BECAME THE
CENTER OF DISPUTE.
B. CASE NO. 8-CA-830
THE GENERAL COUNSEL PRESENTED WITNESSES REGARDING THE PROCEDURES
FOLLOWED AND OBSERVED BY CENTER EMPLOYEES PRIOR TO JANUARY 1980 IN
OBTAINING ANNUAL LEAVE FOR PERIODS OF TIME AROUND HOLIDAYS. THEIR
TESTIMONY ESTABLISHED THAT PRIOR TO JANUARY 1980, EMPLOYEES AT THE
CENTER COULD SUBMIT THE APPROPRIATE SSA-FORM 71 AS EARLY AS JANUARY OF
THE PARTICULAR YEAR AND REQUEST TO TAKE OFF TIME FOR ANY PERIOD DURING
THE REMAINDER OF THE YEAR. THERE WERE NO RESTRICTIONS ON WHEN EMPLOYEES
COULD MAKE SUCH REQUEST AND THEIR WAS NO DISTINCT HOLIDAY LEAVE POLICY
PRIOR TO THAT TIME. THUS, IT APPEARED THAT EMPLOYEE REQUESTS, WHICH
WERE CONSIDERED AS ANY OTHER ANNUAL LEAVE REQUEST, WOULD BE EITHER
APPROVED OR DISAPPROVED BY THEIR SUPERVISORS PURSUANT TO THE PERSONNEL
GUIDE FOR SUPERVISORS MANUAL, AND THEIR REQUESTS FOR VACATION WOULD
NORMALLY BE GRANTED ON A FIRST-COME, FIRST-SERVE BASIS AS SET OUT IN THE
JANUARY 11, 1978 MEMORANDUM.
JANE STUART, A SUPERVISOR AT THE FACILITY TESTIFIED THAT MANY
EMPLOYEES WOULD SUBMIT LEAVE REQUESTS AT THE BEGINNING OF THE YEAR, IN
JANUARY. STUART ALSO STATED THAT EMPLOYEES WHO PUT IN LEAVE SLIPS FOR
ANNUAL LEAVE AROUND HOLIDAYS WOULD HAVE THOSE REQUESTS ROUTINELY
APPROVED UNLESS THE QUOTA FOR EMPLOYEES TAKING THE SAME PERIOD OF TIME
OFF HAD BEEN REACHED. /6/
THE CONTROVERSY IN THIS MATTER WAS BROUGHT TO A HEAD WHEN LEAVE SLIPS
SUBMITTED IN JANUARY 1980 REQUESTING LEAVE AFTER JULY 1, 1980 WERE
EITHER RETURNED BY THE INDIVIDUAL'S SUPERVISOR OR HELD IN ABEYANCE BY
THE SUPERVISOR, WITH NO ACTION BEING TAKEN ON THE REQUEST.
EMPLOYEE MARGOT SCHOOLS STATED THAT HER REQUESTS FOR LEAVE WERE
SUBMITTED IN THE CUSTOMARY FASHION IN EARLY JANUARY 1980, BUT THAT HER
SUPERVISOR MARY CLARK, RETURNED THE LEAVE SLIPS FOR "EVERYTHING AFTER
THE END OF JUNE 1980". ACCORDING TO SCHOOLS, CLARK TOLD HER THAT,
"THERE WAS GOING TO BE A CHANGE IN THE LEAVE POLICY AND THAT SHE HAD TO
GIVE THE SLIPS BACK TO ME AND I WOULD HAVE TO RESUBMIT MY REQUEST FOR
THE LEAVE THAT I WANTED AFTER JUNE 30TH AFTER THE FIRST SIX MONTHS OF
THE YEAR." SIMILARLY, BANKS SUBMITTED LEAVE REQUESTS DURING THE FIRST
WEEK IN JANUARY 1980, BUT HAD THOSE SLIPS FOR PERIODS AROUND HOLIDAYS
OCCURRING AFTER JULY 4, 1980, RETURNED TO HIM BY HIS SUPERVISOR, JEAN
KARECKAS. BANKS WAS TOLD BY KARECKAS THAT, "MANAGEMENT WOULD BE COMING
OUT WITH A NEW LEAVE POLICY FOR HOLIDAY PERIODS." BOTH SCHOOLS AND BANKS
WERE TOLD BY THEIR RESPECTIVE SUPERVISORS TO RESUBMIT THEIR REQUESTS IN
JUNE 1980.
RESPONDENT'S WITNESSES CONFIRMED THAT IN EARLY JANUARY 1980,
SUPERVISORS EITHER RETURNED LEAVE SLIPS REQUESTING ANNUAL LEAVE AFTER
JUNE 1980 TO EMPLOYEES OR HELD THE LEAVE REQUESTS IN ABEYANCE WITHOUT
ANY ACTION. ACCORDING TO BRENNAN, THE INITIAL DECISION TO HAVE EMPLOYEE
LEAVE SLIPS HELD IN ABEYANCE WAS ANNOUNCED AT A SUPERVISORY MEETING WITH
BRENNAN ON JANUARY 6, 1980, IN ANTICIPATION OF A NEW LEAVE POLICY.
HOWEVER, IT APPEARS THAT BRENNAN'S INSTRUCTIONS WERE APPARENTLY
CONFUSING, ACCORDING TO STUART, WHO WAS PRESENT AT THE MEETING, AS SHE
AND OTHER SUPERVISORS LEFT THE MEETING THINKING THAT THEY WERE TO RETURN
THE LEAVE SLIPS TO THE EMPLOYEES AND THAT THEY SHOULD NOT HOLD THEM IN
ABEYANCE. THE MEETING DID MAKE CLEAR THAT SUPERVISORS WERE NOT TO
APPROVE OR DISAPPROVE LEAVE SLIPS FOR THE PERIOD AFTER JUNE 1980 IN ANY
EVENT.
THE FIRST NOTICE OF THE ALLEGED CHANGE CONCERNING HOLIDAY LEAVE WAS
GIVEN TO UNION REPRESENTATIVE STEWART ON OR ABOUT JANUARY 26, 1980.
ALTHOUGH STEWART WAS ON LEAVE UNTIL AROUND JANUARY 14, 1980, BANKS, HER
ALTERNATE FOR RECEIPT OF NOTICE OF CHANGES IN WORKING CONDITIONS, FIRST
BECAME AWARE OF THE HOLIDAY LEAVE ON JANUARY 28, 1980, WHEN THE PROPOSAL
WAS PASSED ON TO HIM BY STEWART.
C. CASE NO. 8-CA-401
FOLLOWING THE DECEMBER 12, 1979 MEETING, PREVIOUSLY REFERRED TO, THE
FIRST FORMAL PROPOSAL ON ANNUAL LEAVE WAS PRESENTED TO THE UNION ON
JANUARY 26, 1980. ACCORDING TO STEWART, THE PROPOSAL WAS ENTITLED
"OFFICE POLICY ON HOLIDAY LEAVE". WHEN SHE RECEIVED THE DOCUMENT FROM
HYERT, IT WAS NOT DISCUSSED. ON MONDAY, JANUARY 28, 1980, STEWART
SHOWED THE DOCUMENT TO BANKS WHO RESPONDED NEGATIVELY DUE TO CHANGES
THAT HE FELT HAS ALREADY OCCURRED REGARDING LEAVE IN CONJUNCTION WITH
HOLIDAY.
SOMETIME BETWEEN JANUARY 14, 1980, WHEN STEWART RETURNED TO WORK, AND
JANUARY 26, 1980, WHEN SHE RECEIVED THE HOLIDAY LEAVE DOCUMENT, STEWART
HAD BEEN SHOWN, BY HYERT, A ROUGH DRAFT ON PROPOSED LEAVE POLICY.
HOWEVER, STEWART CONTENDED THAT THE ROUGH DRAFT CONCERNED LEAVE POLICY
IN GENERAL AND NOT HOLIDAY LEAVE. SINCE IT IS CLEAR FROM THE RECORD
THAT RESPONDENT WAS IN THE PROCESS OF DRAFTING TWO PROPOSALS FOR LEAVE,
STEWART'S RECOLLECTION IS PROBABLY CORRECT. FURTHER STEWART STATES THAT
IN HER DISCUSSIONS WITH HYERT, AT THE TIME HE SHOWED HER THE DRAFT,
THEIR CONVERSATION WAS BRIEF AND PASSING. HOWEVER, SHE STATES THAT SHE
MADE SOME COMMENTS CONCERNING THE DRAFT. HYERT TESTIFIED THAT HE
INDICATED TO STEWART, ON HER RETURN, THAT HE HAD SOMETHING HE WAS
WORKING ON AND THAT HE WOULD GIVE HER WRITTEN PROPOSALS WHEN THEY WERE
READY AND HOLD A MEETING TO DISCUSS THE MATTER.
THEREAFTER, ON JANUARY 30, 1980, STEWART AND BANKS MET WITH BRENNAN
AND HYERT AT A LABOR-MANAGEMENT MEETING. HOLIDAY LEAVE WAS AMONG THE
ISSUED DISCUSSED AT THIS MEETING. ACCORDING TO BANKS, HE TOLD BRENNAN
THAT THE EMPLOYEES WERE LARGELY UNINFORMED ABOUT ANY NEW POLICY ON
HOLIDAY LEAVE AND THAT TO THE EXTENT SOME KNEW ABOUT IT, THEY WERE
DISSATISFIED. BANKS RECALLED THAT BRENNAN SUGGESTED TO HIM THAT, IN
VIEW OF THE FACT THAT BANKS HAD EARLIER REQUESTED TO HAVE A UNION
MEETING AT THE OFFICE, PERHAPS THE MATTER COULD BE BROUGHT UP WITH THE
EMPLOYEES IN THAT UNION MEETING. /7/ BANKS COULD THEN REPORT TO BRENNAN
ON THE EMPLOYEES' SENTIMENT ON THE ISSUE. IN THE MEANTIME, UNIT
MEETINGS WERE TO BE SCHEDULED, IN WHICH THE SUPERVISORS WOULD EXPLAIN
THE NEW POLICY TO THE EMPLOYEES. STEWART TESTIFIED THAT, SHE MAY HAVE
INDICATED DURING THIS MEETING THAT MANAGEMENT SHOULD TALK TO THE
EMPLOYEES ABOUT THE HOLIDAY LEAVE POLICY. SHE FELT THAT THIS COULD BEST
BE ACCOMPLISHED AT THE WEEKLY UNIT MEETINGS CONDUCTED BY THE
SUPERVISORS. STEWART ALSO RECALL THAT SHE ATTENDED A UNIT MEETING ON
FEBRUARY 4, 1980, WHERE SHE NOTED TO HER SUPERVISOR THAT THE HOLIDAY
LEAVE POLICY UNDER DISCUSSION WOULD HAVE TO BE APPROVED BY THE UNION.
AS ALREADY NOTED, ON OR ABOUT FEBRUARY 4, 1980, SUPERVISORS DISCUSSED
LEAVE POLICY DURING UNIT MEETINGS. PRINCIPALLY, ACCORDING TO STEWART
AND BANKS, THE SUPERVISORS READ TO EMPLOYEES WHAT APPEARED TO BE THE
JANUARY 26, 1980 PROPOSAL WHICH HAD BEEN GIVEN TO STEWART. LEAVE IN
GENERAL AND NOT HOLIDAY LEAVE WAS DISCUSSED AT THESE MEETINGS.
BRENNAN RECALLS THAT SUPERVISORS REPORTED, TO HIM, THE RESULTS OF THE
UNIT MEETING DISCUSSIONS WITH EMPLOYEES ON THE HOLIDAY LEAVE ISSUE ON
FEBRUARY 6, 1980. THEN ON FEBRUARY 8, 1980, RESPONDENT PRESENTED THE
UNION WITH A PROPOSAL ENTITLED, "LEAVE POLICY", DATED FEBRUARY 6, 1980.
IN THE INTERIM, STEWART AND BANKS HAD SOME DISAGREEMENT REGARDING THE
HANDLING OF THE LEAVE POLICY AND STEWART RESIGNED HER POSITION WITH THE
UNION, LEAVING BANKS AND PATRICIA SANTA-MARIA AS PRINCIPAL UNION
CONTRACTS. THE LEAVE PROPOSAL APPARENTLY WAS THE SAME AS THE ONE SHOWN
STEWART BY HYERT EARLIER WHEN IN DRAFT FORM.
AT ABOUT THIS SAME TIME, THE UNION WAS ALSO GIVEN A COPY OF A REVISED
PROPOSAL TITLED, "OFFICE POLICY ON HOLIDAY LEAVE", ALSO DATED FEBRUARY
8, 1980. THIS PROPOSAL HAD BEEN MODIFIED TO INCLUDE A "THIRD PRIORITY,"
AND TO NOTE DATES ON WHICH EMPLOYEES COULD SIGN UP FOR ANNUAL LEAVE.
THESE CHANGES MAY HAVE BEEN BASED ON WHAT THE SUPERVISORS HAD RELATED TO
BRENNAN CONCERNING THE INFORMATION WHICH THEY HAD GATHERED FOR BRENNAN
FROM EMPLOYEES DURING THE UNIT MEETINGS.
BANKS STATES THAT AT THE TIME THAT HE AND SANTA-MARINA RECEIVED
COPIES OF THE NEW LEAVE POLICY, HYERT INDICATED THAT THEY SHOULD STUDY
WHAT HAD BEEN PROVIDED THE UNION AND COME UP WITH PROPOSALS OR
"FEEDBACK". THE UNIONS PROPOSALS OR "FEEDBACK" WERE PREPARED IN THE
FORM OF BARGAINING PROPOSALS ON FEBRUARY 29, 1980. THESE PROPOSALS
COVERED ALL ASPECTS OF LEAVE INCLUDED IN THE NEW LEAVE POLICY AND THE
CONTESTED HOLIDAY LEAVE PROPOSAL OF MANAGEMENT.
RESPONDENT ANSWERED THE UNION ON MARCH 4, 1980 STATING:
THIS IS TO INFORM YOU THAT I DO NOT WISH TO ENTER INTO NEGOTIATIONS
WITH YOU CONCERNING THE
TIME AND LEAVE POLICY AT THE LOS ANGELES TELESERVICE CENTER. WHILE I
APPRECIATE YOUR CONCERN
ON THE POTENTIAL IMPACT OF THESE CHANGES, I LACK THE AUTHORITY TO
NEGOTIATE ON THEM.
THERE HAVE BEEN NO FURTHER CONTACTS WITH THE UNION ON THE ISSUE OF
THE LEAVE POLICIES.
SUBSEQUENTLY, ON MARCH 13, 1980, RESPONDENT ISSUED TO EMPLOYEES OF
THE CENTER, TWO POLICIES ENTITLED "LEAVE POLICY" AND "OFFICE POLICY ON
HOLIDAY LEAVE". COMPARISON OF THE POLICIES WITH PREVIOUS LEAVE POLICY
INDICATES THAT A NEW TYPE OF LEAVE, HOLIDAY LEAVE, AND VARIOUS
PROCEDURES FOR SECURING HOLIDAY LEAVE; A NEW QUOTA DESIGNATING THE
NUMBER OF EMPLOYEES ELIGIBLE TO TAKE LEAVE AT ONE TIME; THE
INCORPORATION AND APPLICATION OF A TARDINESS POLICY AS PART OF THE LEAVE
PROGRAM; AND ADOPTION OF PROVISIONS APPLYING TO HANDICAPPED EMPLOYEES.
DISCUSSION AND CONCLUSIONS
A. CASE NO. 8-CA-379
THE GENERAL COUNSEL CONTENDS THAT CERTAIN REMARKS MADE BY
RESPONDENT'S CENTER MANAGER BRENNAN, ON FEBRUARY 5, 1980, TO EMPLOYEE
FLOYD BANKS CONSTITUTE SEPARATE AND INDEPENDENT VIOLATIONS OF SECTION
7116(A)(1) OF THE STATUTE. FURTHERMORE, THE GENERAL COUNSEL MAINTAINS
THAT THE FACTS ESTABLISH ANTI-UNION ANIMUS DISPLAYED BY RESPONDENT IN
CONSIDERING BANKS FOR PROMOTION TO TECHNICAL ASSISTANT AND THAT UNION
CONSIDERATIONS PLAYED A PART IN THE SELECTION PROCESS IN VIOLATION OF
SECTION 7116(A)(2) AND (1) OF THE STATUTE. RESPONDENT INSISTS THAT THE
GENERAL COUNSEL HAS NOT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
THAT ANY VIOLATION OCCURRED RELATED TO THE FAILURE OF MANAGER BRENNAN TO
SELECT BANKS FOR ONE OF THE THREE TECHNICAL ASSISTANT POSITIONS.
RESPONDENT MAINTAINS THAT THE STATEMENTS MADE DURING THE COUNSELLING
SESSION ARE UNCORROBORATED AND CANNOT BE REASONABLY CONSTRUED TO BE
COERCIVE IN NATURE. THE CHARGING PARTY UNION ALSO FILED A BRIEF IN THE
MATTER URGING NOT ONLY THAT RESPONDENT VIOLATED SECTION 7116(A)(2) AND
(1) WITH REGARD TO THE NON-SELECTION OF EMPLOYEE BANKS, BUT REQUESTING
BY WAY OF REMEDY, THE RETROACTIVE PROMOTION OF BANKS TO THE TECHNICAL
ASSISTANT POSITION, WITH BACK PAY.
SECTION 7102 OF THE STATUTE GUARANTEES TO CERTAIN EMPLOYEES OF THE
FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION OR TO REFRAIN
FROM SUCH ACTIVITY. AGENCY MANAGEMENTS' ENCOURAGEMENT OR
DISCOURAGEMENT
OF THESE RIGHTS BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION
OR OTHER CONDITIONS OF EMPLOYMENT IS VIOLATIVE OF SECTION 7116(A)(2) AND
(1) OF THE STATUTE. THE AUTHORITY HAS MADE IT CLEAR THAT SUCH VIOLATION
OF THE STATUTE WILL BE FOUND IN THE FEDERAL SECTOR WHERE UNION
CONSIDERATIONS ARE SHOWN TO HAVE PLAYED ONLY A PART IN MANAGEMENTS'
ACTION. THUS, IF MANAGEMENTS' RATING OF A DISCRIMINATEE OR ITS FAILURE
TO SELECT A DISCRIMINATEE FOR PROMOTION WAS BASED IN WHOLE OR IN PART ON
HIS UNION ACTIVITY A VIOLATION WILL BE ESTABLISHED. U.S. DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE, MILWAUKEE,
WISCONSIN, 7 A/SLMR 948,949, A/S/LMR NO. 92(1977); DIRECTORATE OF
SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, HEADQUARTERS, DEFENSE
LOGISTICS AGENCY, 2 FLRA NO. 118(1980); VETERANS ADMINISTRATION
HOSPITAL, LEXINGTON, KENTUCKY, 2 FLRA NO. 110(1980).
IN THIS MATTER, THERE ARE NO REAL INCONSISTENCIES AS TO WHAT WAS SAID
TO BANKS DURING THE FEBRUARY 5, 1980 CONVERSATION. WHILE THE
CONVERSATION DID NOT FOCUS INITIALLY ON THE TECHNICAL ASSISTANT
POSITIONS IT WITHOUT DOUBT SHIFTED TO CONSIDERATION OF THOSE POSITIONS
BEFORE IT WAS CONCLUDED. NOT EVEN BRENNAN DENIES THAT HE POINTED OUT
PROBLEMS TO BANKS AND AMONG THOSE PROBLEMS WERE HIS PARTICIPATION IN
UNION BUSINESS. UNDER CASE LAW AS IT PRESENTLY STANDS THIS QUESTIONING
ALONE IS SUFFICIENT TO FIND A VIOLATION OF THE STATUTE.
"ANY REFERENCE TO PRIOR UNION MEMBERSHIP OR ACTIVITY OF AN APPLICANT
IN AN INTERVIEW FOR
PROMOTION IS, AT THE VERY LEAST, HIGHLY SUSPICIOUS, AND WHERE SUCH
REFERENCE IS COMPLETELY
EXTRANEOUS TO THE SUBJECT INTERVIEW, WITHOUT MORE CONSTITUTES A
VIOLATION." SEE VETERANS
ADMINISTRATION HOSPITAL, SUPRA.
WHILE THE CONVERSATION WAS CHARACTERIZED BY BRENNAN AS A COUNSELLING
SESSION IT WAS INITIATED AND OCCURRED ONLY ONE DAY BEFORE THE ACTUAL
SELECTIONS TOOK PLACE AND SO NEAR AS TO BE PART OF THE SELECTION PROCESS
FOR THOSE POSITIONS. NOR DOES RESPONDENT CONTEND THAT THE SELECTION HAD
ALREADY BEEN MADE BY BRENNAN WHEN THE CONVERSATION OCCURRED. DURING THE
CONVERSATION, IT IS UNDISPUTED THAT BRENNAN REFERRED TO BANKS'
ACTIVITIES AS A LOCAL UNION REPRESENTATIVE, SUGGESTING SOME DOUBT AS TO
HIS REASONS OR ABILITY TO SERVE IN A MANAGERIAL CAPACITY BECAUSE OF HIS
UNION BACKGROUND. AT THE SAME TIME, BRENNAN STATED, "WELL, WITH ALL THE
TROUBLE YOU'VE GIVEN ME IN THE LAST YEAR DO YOU REALLY EXPECT ME TO PICK
YOU FOR THAT POSITION". WHILE BRENNAN REFERRED TO BANKS' SUNSHINE CLUB
ACTIVITIES AS ONE OF HIS "PROBLEMS", I NOTE THAT BANKS HAD NOT BEEN THE
SUNSHINE CLUB PRESIDENT IN OVER A YEAR, RAISING DOUBT THAT BRENNAN
REALLY CONSIDERED THIS TO BE ONE OF THE PROBLEMS WHICH WOULD BAR A
PROMOTION. FURTHERMORE, IT IS NOTED THAT COINCIDENTALLY, BANKS HAD
BEGUN SERVING IN THE ROLE OF UNION REPRESENTATIVE ABOUT ONE YEAR PRIOR
TO THE CONVERSATION. MOREOVER, THE RECORD DEMONSTRATED THAT BRENNAN DID
INDEED HAVE DIFFICULTY IN SEPARATING BANKS THE EMPLOYEE FROM BANKS THE
UNION REPRESENTATIVE. THE JUNE 20, 1979 INCIDENT GRAPHICALLY
ILLUSTRATES BRENNAN'S DIFFICULTY IN THIS RESPECT. THERE, AS BRENNAN
TESTIFIED, HE HAD DIFFICULTY IN KNOWING WHICH "HAT" BANKS WAS WEARING.
THIS CONFIRMS BANKS EARLIER TESTIMONY THAT BRENNAN HAD TOLD HIM THAT HE
COULD NOT SEPARATE THE TWO ROLES. THIS INABILITY TO DISTINGUISH THE TWO
ROLES SURFACED AGAIN DURING THE FEBRUARY 5 CONVERSATION. BRENNEN'S
AWARENESS OF AT LEAST ONE OF THE "HATS" IS POINTED OUT IN HIS COMMENT,
"BUT YOU'RE THE UNION REPRESENTATIVE." MOREOVER, WHEN ALLUDING TO THE
"TROUBLE" CAUSED BY BANKS OVER THE LAST YEAR, BRENNAN USED THE HYERT
INCIDENT, WHERE BRENNAN WAS ADMITTEDLY CONFUSED ABOUT BANKS' DUAL ROLES.
IN THIS SAME VEIN, BRENNAN TOLD BANKS THAT ONE OF THE REASONS HE WOULD
HAVE PROBLEMS RECOMMENDING BANKS FOR A CLAIMS REPRESENTATIVE POSITION TO
OTHER MANAGERS WAS BECAUSE OF HIS "APPLICATION OF TIME." THE TIME
PROBLEM CITED AS AN EXAMPLE BY BRENNAN WAS AN INFORMAL GRIEVANCE
PROCESSED ON BEHALF OF EMPLOYEE WALSH BY BANKS AS A UNION REPRESENTATIVE
NOT AS AN EMPLOYEE. BRENNAN FELT HAD TAKEN TOO LONG TO HANDLE THE
MATTER. WHILE RESPONDENT REPRESENTS THAT THIS CRITICISM WAS LIMITED TO
THE CLAIMS REPRESENTATIVE POSITION, IT IS DIFFICULT TO CONCEIVE THAT
BRENNAN COULD IGNORE THIS ACTION WHEN CONSIDERING BANKS FOR A POSITION
IN HIS OWN OFFICE, ON WHICH HE WAS GOING TO MAKE A DECISION THE VERY
NEXT DAY.
THE EVIDENCE PRESENTED BY RESPONDENT THAT BANKS WOULD NOT HAVE BEEN
SELECTED IN ANY EVENT MUST INDEED BE WEIGHED WITH SOME DEGREE OF CARE.
IN MY VIEW, IT DOES NOT ESTABLISH BANKS TO BE THE PROBLEM EMPLOYEE THAT
RESPONDENT WOULD MAKE HIM OUT TO BE. RESPONDENT'S CHARACTERIZATION OF
BANKS AS A "PROBLEM" COULD BE INTERPRETED AS BANKS BEING A PROBLEM FOR
BRENNAN AND OTHER SUPERVISORY PERSONNEL WHEN ACTING IN HIS CAPACITY AS
UNION REPRESENTATIVE PROCESSING GRIEVANCE, CHALLENGING MANAGEMENTS'
ACTIONS, OR ADVISING AND AIDING OTHER EMPLOYEES CONCERNING PROBLEM THAT
THEY MAY HAVE BEEN HAVING ON THE JOB. BRENNAN'S CONCERN WITH BANKS'
UNION REPRESENTATIONAL ROLE WAS CLEARLY CONVEYED, IN MY OPINION, TO
BANKS DURING THIS CONVERSATION.
ALTHOUGH IT IS FOUND THAT BRENNAN, WITHOUT QUESTION, CONSIDERED BANKS
UNION ACTIVITIES WHEN CONSIDERING HIM FOR THE TECHNICAL ASSISTANT
POSITION AND THAT THIS CONDUCT WAS VIOLATIVE OF SECTION 7116(A)(2) AND
(1) OF THE STATUTE, IT IS NECESSARY TO REVIEW THE SELECTION PROCESS FOR
THE TECHNICAL ASSISTANT POSITION SINCE THE CHARGING PARTY CONTENDS THAT
BANKS SHOULD BE ENTITLED TO RETROACTIVE PROMOTION AND BACK PAY. /8/
IN ITS BRIEF, THE CHARGING PARTY ARGUES THAT THE COMMISSION OF AN
UNFAIR LABOR PRACTICE CONSTITUTES AN UNJUSTIFIED AND UNWARRANTED
PERSONNEL ACTION AND THAT BANKS IS ENTITLED BY VIRTUE OF THAT ACTION TO
BOTH RETROACTIVE PROMOTION AND BACK PAY. THE CHARGING PARTY CONTENDS
THAT IN CHANGING THE BACK PAY ACT, CONGRESS INTENDED TO "REFLECT THE
BROADER INTERPRETATION OF THE STATUTE THAT HAS BEEN GIVEN THE BACK PAY
ACT IN RECENT YEARS BY THE COMPTROLLER GENERAL AND THE CIVIL SERVICE
COMMISSION THROUGH DECISIONS AND REGULATIONS." LEGISLATIVE HISTORY P.L.
95-453, 4 ADMINISTRATIVE NEWS 2836(1978). FURTHER, THE CHARGING PARTY
ASSERTS THAT ONCE A VIOLATION OF SECTION 7116(A)(2) AND (1) HAS BEEN
ESTABLISHED THE BURDEN OF PROOF SHIFTS TO THE RESPONDENT TO SHOW THAT
THE DISCRIMINATEE WOULD NOT HAVE BEEN SELECTED EVEN IF UNION ACTIVITIES
WERE NOT CONSIDERED. THE CHARGING PARTY MAINTAINS THAT THE BURDEN OF
PROOF SHIFTED TO RESPONDENT ONCE A VIOLATION OF SECTION 7116(A)(2) AND
(1) HAD BEEN ESTABLISHED AND THAT NOW RESPONDENT MUST SHOW THAT BANKS
WOULD NOT HAVE BEEN SELECTED EVEN IF HIS UNION ACTIVITIES WERE NOT
CONSIDERED.
THE AUTHORITY ON MORE THAN ONE OCCASION HAS ADDRESSED THE BACK PAY
ISSUE. SPECIFICALLY IN DIRECTORATE OF SUPPLY, DEFENSE LOGISTICS AGENCY,
SUPRA., THE AUTHORITY STATED THAT:
UNDER THE BACK PAY ACT OF 1966, 5 U.S.C. SECTION 5596, IT IS
NECESSARY NOT ONLY TO FIND
THAT AN EMPLOYEE HAS BEEN ADVERSELY AFFECTED BY AGENCY MANAGEMENT'S
IMPROPER ACTION, BUT ALSO
THAT "BUT FOR" THE IMPROPER ACTION THE EMPLOYEE WOULD NOT HAVE
SUFFERED A LOSS OR REDUCTION IN
PAY, ALLOWANCES, OR DIFFERENTIALS.
A REVIEW OF THE INSTANT RECORD CONVINCES THE UNDERSIGNED THAT, IF
INDEED THE BURDEN OF PROOF SHIFTED AS THE CHARGING PARTY CONTENDS,
RESPONDENT MET ITS BURDEN BY SHOWING THAT OTHER REASONS EXISTED FOR
BANKS NON-SELECTION THAN UNION CONSIDERATIONS. INDEED BANKS
ACKNOWLEDGED AT LEAST TWO INCIDENTS IN WHICH HE HAD BECOME INVOLVED
WHICH MIGHT WELL HAVE, IF TAKEN INTO CONSIDERATION, PREVENTED HIS
SELECTION. THESE INCIDENTS WERE BOTH DISCUSSED DURING THE SO-CALLED
COUNSELLING SESSION OF FEBRUARY 5, 1980. MORE IMPORTANTLY, THERE IS NO
CLEAR CONVINCING EVIDENCE ON THIS RECORD WHICH WOULD ESTABLISH THAT
BANKS WAS ANYMORE QUALIFIED FOR SELECTION THAN THE THREE EMPLOYEES
ACTUALLY CHOSEN FOR THE TECHNICAL ASSISTANT POSITIONS. FURTHERMORE, IF
SELECTIONS WERE BASED ON RECOMMENDATION OF SUPERVISORS, PERFORMANCE
APPRAISALS, LEAVE RECORDS AND TRAINING ABILITY, BANKS WAS NOT RANKED AS
THE TOP APPLICANT IN ANY SINGLE CATEGORY. WHILE BANKS WAS RATED IN THE
TOP THREE SLOTS BY SOME SUPERVISORS THIS ALONE DOES NOT INDICATE HIS
SELECTION WAS IMMINENT. ANY FINDING THAT HE WOULD HAVE BEEN SELECTED
"BUT FOR" HIS UNION ACTIVITIES WOULD BE PURELY SPECULATIVE.
ALTHOUGH THE IMPACT OF THE CHARGING PARTY'S ARGUMENT IS RECOGNIZED,
THE UNDERSIGNED IS CONSTRAINED TO FIND THAT THE EVIDENCE DOES NOT
ESTABLISH AN UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION NOR DOES IT
ESTABLISH THAT "BUT FOR" CONSIDERATION OF BANKS UNION ACTIVITIES HE
WOULD HAVE BEEN SELECTED FOR ONE OF THE THREE TECHNICAL ASSISTANT
POSITIONS. /9/
B. CASE NO. 8-CA-380
IT IS WELL ESTABLISHED THAT AN AGENCY MAY NOT ALTER PAST PRACTICES
WITHOUT NOTIFYING THE COLLECTIVE-BARGAINING REPRESENTATIVE OF ITS
EMPLOYEES AND AFFORDING IT AN OPPORTUNITY TO BARGAIN AS TO SUCH CHANGES.
INTERNAL REVENUE SERVICE, 4 FLRA NO. 30(1980); 78TH DIVISION
(TRAINING) KILMER USAR CENTER, EDISON, NEW JERSEY, 1 FLRA 97(1979).
THE GENERAL COUNSEL'S POSITION IS THAT RESPONDENT IMPLEMENTED NEW
PROCEDURES CONCERNING THE CENTERS' LEAVE POLICY WITH RESPECT TO ANNUAL
LEAVE IN CONJUNCTION WITH HOLIDAY PERIODS IN EARLY JANUARY 1980. THE
ALLEGED CHANGE, IT IS ARGUED OCCURRED WHEN SUPERVISORS AT THE CENTER
EITHER RETURNED OR HELD IN ABEYANCE LEAVE SLIPS SUBMITTED BY EMPLOYEES
SEEKING TIME OFF IN CONJUNCTION WITH HOLIDAYS OCCURRING AFTER JULY 1980.
RESPONDENT ASSERTS THAT NO CHANGE IN THE POLICY OCCURRED, BUT RATHER,
THE POLICY ITSELF WAS BEING NEGOTIATED DURING JANUARY AND FEBRUARY 1980
AND THAT RESPONDENT COULD NOT IMPLEMENT ANY NEW POLICY CONCERNING
GRANTING OF LEAVE WHILE THAT POLICY WAS BEING NEGOTIATED WITHOUT RISKING
AN UNFAIR LABOR PRACTICE CHARGE.
THE MAIN THRUST OF THE GENERAL COUNSEL'S ARGUMENT IS THAT A CHANGE
WAS EFFECTED SINCE EMPLOYEES ABILITY TO PUT IN FOR ANNUAL LEAVE AROUND
HOLIDAY PERIODS WAS RESTRICTED UNILATERALLY BY NOT ALLOWING EMPLOYEES TO
APPLY FOR SUCH LEAVE TRADITIONALLY APPROVED AS EARLY AS JANUARY OF EACH
YEAR ON A FIRST-COME, FIRST-SERVE BASIS. WITH RESPECT TO THIS ISSUE THE
RECORD DEMONSTRATES THAT NOT ONLY WAS THE PRACTICE OF APPROVING LEAVE
FOR THE ENTIRE YEAR FOLLOWED BY THE PARTIES, AT LEAST SINCE 1978, BUT
THAT RESPONDENT'S SUPERVISORS REFUSED TO PROCESS LEAVE FOR PERIODS AFTER
JULY 1, 1980. IT IS ALSO CLEAR THAT WHILE THE PARTIES WERE ENGAGED IN
THE PREPARATION OF A NEW LEAVE POLICY RESPONDENT CHANGED THE
REQUIREMENTS FOR RECEIVING LEAVE DURING 1980, BY INSTITUTING A NEW LEAVE
CATEGORY. THIS NEW CATEGORY WAS NOT DISCUSSED WITH THE UNION NOR DID IT
SEE RESPONDENT'S PROPOSALS UNTIL WELL AFTER "HOLIDAY LEAVE" HAD BEEN
IMPLEMENTED. THE IMPLEMENTATION OF THAT CHANGE WAS DONE BY BRENNAN WHEN
ON JANUARY 6, 1980 HE INSTRUCTED SUPERVISORS TO EITHER HOLD LEAVE SLIPS
IN ABEYANCE OR RETURN THEM TO EMPLOYEES WHO HAD REQUESTED LEAVE AFTER
JULY 1, 1980. STEWART REPRESENTING THE UNION FIRST LEARNED THAT
MANAGEMENT WAS PROPOSING CHANGES CONCERNING SPECIFIC HOLIDAY LEAVE
POLICY ON JANUARY 26, 1980. RESPONDENT'S ARGUMENT THAT IT FEARED AN
UNFAIR LABOR PRACTICE CHARGE IF IT ALLOWED LEAVE IN THE NORMAL MANNER IS
WITHOUT MERIT. ITS SUBSEQUENT ACTIONS SHOW THAT IT HAD ALREADY DECIDED
ON JANUARY 6, 1980 WHAT THE NEW LEAVE POLICY WOULD BE AND ITS ACTION IN
IMPLEMENTING THE "HOLIDAY LEAVE" CATEGORY AROUND THE FIRST OF JANUARY
WAS PART OF ITS NEW LEAVE PLAN. A PLAN ARRIVED AT DURING BARGAINING.
BOTH SIDES HAD ALREADY AGREED PURSUANT TO THE SURVEY TO WORK ON A NEW
LEAVE POLICY. FURTHERMORE, THE INITIAL HANDLING HAD BEEN DESIGNATED TO
HYERT AND STEWART. HOWEVER, STEWART WAS NOT AT WORK DURING THIS PERIOD,
DID NOT SEE THE LEAVE PROPOSAL AND HAD NO INPUT. WITHOUT SUCH UNION
PARTICIPATION RESPONDENT COULD HARDLY BEGIN IMPLEMENTING ITS PLAN DURING
THE COURSE OF BARGAINING. TO DO SO, WHEN THE PARTIES HAD ALREADY AGREED
TO NEGOTIATE THE MATTER SHOWS A LACK OF GOOD FAITH IN THE BARGAINING
PROCESS. THE CHIEF PROBLEMS ACCORDING TO THE LATE-NOVEMBER SURVEY WERE
THAT THE SAME EMPLOYEES WERE GETTING THE SAME LEAVE EVERY YEAR, THE
APPARENT DISPARATE APPLICATION OF THE TARDINESS POLICY, AND THE FACT
THAT EMPLOYEES WERE EXPECTED TO ACCUMULATE 40 HOURS OF ANNUAL LEAVE
BEFORE TAKING OFF. SINCE THE RESPONSIBILITY FOR THE DRAFT WAS LEFT IN
HYERT'S HANDS, IT IS NOT INCONCEIVABLE THAT HE WOULD BREAK THE PROPOSAL
UP INTO TWO CATEGORIES. HOWEVER, THIS WAS ONLY A PROPOSAL AT THIS POINT
AND THE UNION WAS STILL ENTITLED TO INPUT. SINCE RESPONDENT HAD SEIZED
THIS OPPORTUNITY TO REVAMP THE CENTER'S ENTIRE LEAVE POLICY, THE UNION
WAS CERTAINLY ENTITLED TO NEGOTIATE ANY SUCH CHANGES. FAILURE TO ALLOW
NEGOTIATION AND THE UNILATERAL IMPLEMENTATION OF THE HOLIDAY LEAVE
POLICY WHILE THE PARTIES WERE ENGAGED IN NEGOTIATIONS ON THAT VERY LEAVE
POLICY INDICATES A LACK OF GOOD FAITH BARGAINING. MOREOVER, RESPONDENT
CANNOT NOW CLAIM THAT IT FEARED AN UNFAIR LABOR PRACTICE CHARGE IF IT
ALLOWED LEAVE FOR 1980 BEYOND JULY BECAUSE IT MIGHT WELL HAVE BEEN
CONVINCED TO ELIMINATE HOLIDAY LEAVE IF NEGOTIATIONS HAD OCCURRED. IN
MY VIEW, RESPONDENT HAD A PRECONCEIVED NOTION OF WHAT IT WANTED THE NEW
LEAVE POLICY TO BE AND THAT IT IMPLEMENTED ITS POLICY WITHOUT BARGAINING
WITH THE UNION.
ACCORDINGLY, IT IS FOUND THAT RESPONDENT UNILATERALLY CHANGED THE
PROCEDURE WHICH EMPLOYEES AT ITS CENTER FOLLOWED TO SECURE ANNUAL LEAVE
AROUND HOLIDAY TIMES PRIOR TO JANUARY 1980 WHILE THE PARTIES WERE
ENGAGED IN NEGOTIATIONS CONCERNING LEAVE CHANGES IN VIOLATION OF SECTION
7116(A)(5) AND (1) OF THE STATUTE.
C. CASE NO. 8-CA-401
THE COMPLAINT IN THE ABOVE-CAPTIONED CASE ALLEGED A REFUSAL TO
BARGAIN BASED ON RESPONDENT'S REFUSAL TO NEGOTIATE CHANGES IN AND THE
ADOPTION OF TWO LEAVE POLICIES AT ITS CENTER AND THE UNILATERAL
IMPLEMENTATION OF THOSE TWO POLICIES.
IN ITS BRIEF, RESPONDENT URGES THAT THE UNION'S FAILURE TO RESPOND TO
THE MARCH 4, 1980 LETTER CONSTITUTED A "CONSTRUCTIVE WAIVER" OF ITS
RIGHT TO BARGAIN FURTHER ON THE MATTER.
THE TEST FOR WAIVERS HAS BEEN CLEARLY ESTABLISHED IN THE FEDERAL
SECTOR. THE FACTS, IN A WAIVER SITUATION MUST CLEARLY AND UNMISTAKEABLY
ESTABLISH THE EXISTENCE OF A WAIVER. NASA, KENNEDY SPACE CENTER, 2
A/SLMR 566, A/SLMR 223(1972); DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, WILKES-BARRE, PENNSYLVANIA, 7 A/SLMR 730, A/SLMR 889(1977);
DEPARTMENT OF THE TREASURY, IRS, AUSTIN SERVICE CENTER, AUSTIN, 8 A/SLMR
1187, A/SLMR 1142(1978); IRS, FRESNO SERVICE CENTER, 8 A/SLMR 1034,
A/SLMR 1119(1978); EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 8 A/SLMR
859, A/SLMR 1096(1978); IRS, KANSAS CITY, OGDEN, ET. AL., 8 A/SLMR 741,
A/SLMR 1074(1978); SOCIAL SECURITY ADMINISTRATION, BRANCH OFFICE,
ARLINGTON, TEXAS, 8 A/SLMR 170, A/SLMR 982(1978). THE MARCH 4, 1980
MEMORANDUM DESTROYS ANY ARGUMENT THAT THE UNION WAIVED ITS RIGHT TO
NEGOTIATE CONCERNING LEAVE POLICIES. THERE HYERT STATED:
THIS IS TO INFORM YOU THAT I DO NOT WISH TO ENTER INTO NEGOTIATION
WITH YOU CONCERNING THE
TIME AND LEAVE POLICY . . . WHILE I APPRECIATE YOUR CONCERN ON THE
POTENTIAL IMPACT OF THESE
CHANGES, I LACK THE AUTHORITY TO NEGOTIATE ON THEM.
UP TO THIS POINT, THE UNION HAD PATIENTLY WAITED FOR ITS OPPORTUNITY
FOR INPUT AND INDEED HAD PREPARED ITS COUNTER-PROPOSALS FOR BARGAINING.
AS RESPONDENT STATEMENT, IN BRIEF, THE MATTER OF NEGOTIATION OF LEAVE IS
COVERED BY THE MASTER AGREEMENT VIRTUALLY ADMITTING NEGOTIABILITY OF THE
SUBJECT. NONETHELESS RESPONDENT CONTENDS THAT THE HYERT LETTER WAS
ARTFULLY DRAWN TO SHOW CONCERN FOR HIS LACK OF AUTHORITY AT THE LOCAL
LEVEL FOLLOWING AN AFGE NATIONAL CONSOLIDATION IN AUGUST 1979. /10/
MAYBE TOO CAREFULLY, FOR THIS LETTER ON ITS FACE CLEARLY REJECTS, IN MY
MIND, THE UNION'S OFFER TO NEGOTIATE. FURTHERMORE, THE PARTIES WERE IN
THE MIDDLE OF NEGOTIATIONS WHEN RESPONDENT UNILATERALLY IMPLEMENTED ITS
PROPOSALS. IN ANY EVENT, RESPONDENT'S CONTENTION THAT THERE IS A WAIVER
EITHER CONSTRUCTIVE OR CONTRACTUAL IN THIS MATTER IS REJECTED. COMPARE
DEPARTMENT OF HEALTH AND WELFARE, SOCIAL SECURITY ADMINISTRATION, OFFICE
OF PROGRAM OPERATIONS AND FIELD OPERATIONS, SUTTER DISTRICT OFFICE, SAN
FRANCISCO, CALIFORNIA AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3172, AFL-CIO, CASE NOS. 9-CA-35, 36, 37 (ALJ DECISION, JULY 23,
1980) AT FOOTNOTE 8, WHERE THE ADMINISTRATIVE LAW JUDGE FOUND NO
CONTRACTUAL WAIVER IN EXAMINING THE VERY SAME MASTER AGREEMENT GOVERNING
THE PARTIES HEREIN. CLEARLY, IF THE ADMINISTRATIVE LAW JUDGE COULD FIND
NO CONTRACTUAL WAIVER THERE, WHERE "FLEXIBILITY" IS NOT EXPLICITLY
PROVIDED FOR AS A BARGAINABLE ITEM, THERE CERTAINLY CAN BE NO FINDING
THAT A WAIVER EXISTS HERE WITH RESPECT TO "LEAVE", WHICH UNLIKE
"FLEXIBILITY" IS EXPLICITLY PROVIDED FOR IN THE MASTER AGREEMENT.
AS TO THE SPECIFIC ISSUE OF LEAVE, WHILE THE UNION DID NOT SEEK TO
BARGAIN IN 1979 OVER THE EXPANSION OF THE QUOTA FOR EMPLOYEES SEEKING
TIME OFF AROUND HOLIDAYS-- AND THIS IS CERTAINLY UNDERSTANDABLE SINCE
SUCH CHANGE REDOUNDED TO THE BENEFIT OF THE BARGAINING UNIT-- IT WOULD
BE LUDICROUS TO INFER THAT BY THAT "INACTION" THE UNION SOMEHOW WAS
RELINQUISHING FOR ALL TIME ITS RIGHT TO BARGAIN ON LEAVE. INDEED, THE
RECORD SHOWS THAT BY COMPARISON, THE LEAVE PROPOSALS OF 1980 WERE THE
FIRST SIGNIFICANT PROPOSALS THAT THE UNION HAD BEEN PRESENTED BY
MANAGEMENT. AND, IN A TIMELY FASHION, THE UNION SOUGHT TO BARGAIN ON
THOSE PROPOSALS ONCE PRESENTED WITH THEM.
CASE LAW IS SETTLED THAT AN AGENCY MAY NOT ALTER TERMS AND CONDITIONS
OF EMPLOYMENT IN THE ABSENCE OF AGREEMENT OR IMPASSE FOLLOWING GOOD
FAITH BARGAINING, DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS
CENTER, NEWPORT NAVAL BASE, 3 FLRA NO. 64(1980); U. S. DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, 8 A/SLMR
NO. 497, A/SLMR NO. 1043(1978).
ASSUMING THAT THE MEETINGS BETWEEN STEWART AND BANKS AND MANAGEMENT
REPRESENTATIVE CONSTITUTED GOOD FAITH NEGOTIATIONS, ANY CHANGE IN TERMS
AND CONDITIONS OF EMPLOYMENT WHILE ENGAGED IN THOSE NEGOTIATIONS WITHOUT
AGREEMENT CONSTITUTES A VIOLATION OF THE STATUTE. THE RECORD REVEALS
THAT THE PARTIES HAD BEEN ENGAGED IN ACTIVE NEGOTIATION EFFORTS SINCE
DECEMBER 1979 TO ESTABLISH A NEW LEAVE PROGRAM. THUS, HYERT WAS
DESIGNATED INITIAL RESPONSIBILITY FOR PREPARING DRAFT PROPOSALS AND HAD
INDEED SHOWN THESE PROPOSALS TO UNION REPRESENTATIVE STEWART UPON HER
RETURN TO WORK AROUND JANUARY 14, 1980. ON JANUARY 28 STEWART RECEIVED
A DRAFT MEMORANDUM FROM HYERT CONCERNING HOLIDAY LEAVE. SOME DISCUSSION
ENSUED CONCERNING HYERT'S PROPOSAL. IN ADDITION THE UNION RECEIVED A
COPY OF A LEAVE PROPOSAL ON FEBRUARY 4. DURING THIS ENTIRE PERIOD
EITHER BANKS OR STEWART MET WITH ONE OF THE MANAGEMENT REPRESENTATIVES
CONCERNING THE LEAVE POLICY. WHILE THERE WERE NO FORMAL AROUND THE
TABLE DISCUSSIONS, IT IS CLEAR THAT THE PARTIES ACTIONS DURING THIS
ENTIRE PERIOD CONSTITUTED NEGOTIATIONS CONCERNING THE LEAVE POLICY.
IN ALL THE CIRCUMSTANCES OF THE CASE, IT IS FOUND THAT THE PARTIES
WERE ENGAGED IN NEGOTIATIONS CONCERNING CHANGES IN EXISTING LEAVE POLICY
AND THAT RESPONDENT, ON OR ABOUT MARCH 4, 1980 BROKE OFF THOSE
NEGOTIATIONS AND UNILATERALLY IMPLEMENTED TWO NEW LEAVE POLICIES WITHOUT
AGREEMENT OR IMPASSE. BASED ON THE FOREGOING, IT IS CONCLUDED THAT
RESPONDENT'S ACTIONS IN REFUSING TO BARGAIN CONCERNING THE NEW LEAVE
PROPOSALS AND BY UNILATERALLY IMPLEMENTING THE TWO NEW LEAVE POLICIES
WITHOUT GIVING THE UNION AN OPPORTUNITY TO BARGAIN VIOLATED SECTION
7116(A)(5) AND (1) OF THE STATUTE.
RECOMMENDATION
HAVING FOUND THAT CERTAIN CONDUCT OF RESPONDENT VIOLATED SECTION
7116(A)(1), (2) AND (5) OF THE STATUTE, I RECOMMENDED THAT THE AUTHORITY
ADOPT THE FOLLOWING ORDER. /11/
ORDER
PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND 5 C.F.R. SECTION
2423.28(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE OFFICE OF PROGRAM
OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATIVE, SAN
FRANCISCO REGION, SAN FRANCISCO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING FLOYD BANKS IN THE
EXERCISE OF RIGHTS ASSURED BY THE STATUTE, BY REFERRING DURING THE
COURSE OF A SELECTION PROCESS, TO HIS MEMBERSHIP OR ACTIVITIES ON BEHALF
OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF
SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION.
(B) DISCOURAGING FLOYD BANKS FROM MEMBERSHIP IN AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT
OFFICE LOCALS, SAN FRANCISCO REGION, BY DISCRIMINATING AGAINST HIM IN
REGARD TO EVALUATING HIS WORK PERFORMANCE AND HIS FITNESS FOR PROMOTION
BASED ON UNION CONSIDERATIONS.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING FLOYD BANKS OR ANY OTHER EMPLOYEE IN THE EXERCISE OF RIGHTS
ASSURED BY THE STATUTE.
(D) CHANGING THE LEAVE POLICY OF EMPLOYEES AT THE LOS ANGELES
CALIFORNIA TELESERVICE CENTER REPRESENTED EXCLUSIVELY BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY
DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION, WITHOUT AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO BARGAIN IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS.
(E) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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 CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTES.
(A) RE-EVALUATE FLOYD BANKS' WORK PERFORMANCE FOR THE PERIODS
COVERING FEBRUARY 1979 AND FEBRUARY 5, 1980, AND ENSURE THAT THE
RE-EVALUATIONS ARE MADE FREE FROM ANY REFERENCE TO UNION MEMBERSHIP OR
ACTIVITY.
(B) TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW EVALUATION OF
FLOYD BANKS' WORK PERFORMANCE PURSUANT TO PARAGRAPH 2(A) ABOVE IS MADE
AWARE OF THE REQUIREMENT THAT CONSIDERATIONS OF UNION MEMBERSHIP OR
ACTIVITY MAY NOT PROPERLY ENTER INTO AN EVALUATION OF AN EMPLOYEES' WORK
PERFORMANCE.
(C) RERUN THE SELECTION PROCESS FOR FILLING THE POSITION OF TECHNICAL
ASSISTANT, FOR THE PURPOSE OF REAPPRAISING THE APPROXIMATE FIVE
CANDIDATES OF THE ORIGINAL BEST QUALIFIED LIST, INCLUDING FLOYD BANKS,
IN AN ATMOSPHERE FREE FROM ANY REFERENCE TO, OR CONSIDERATION OF UNION
MEMBERSHIP OR ACTIVITY. SUCH REAPPRAISAL SHOULD CONSIDER THE
RE-EVALUATION OF FLOYD BANKS WORK PERFORMANCE FOR THE PERIOD COVERED BY
THE EVALUATION OF FLOYD BANKS BETWEEN FEBRUARY 1979 AND FEBRUARY 5, 1980
FOR THE TECHNICAL ASSISTANT POSITION MANDATED BY PARAGRAPH 2(A) OF THIS
ORDER.
(D) TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW SELECTING
OFFICIAL RERUNNING THE SELECTION PROCESS PURSUANT TO PARAGRAPH 2(C) OF
THIS ORDER IS MADE AWARE OF THE REQUIREMENT THAT CONSIDERATIONS OF UNION
MEMBERSHIP OR ACTIVITY MAY NOT PROPERLY ENTER INTO AN APPRAISAL OF AN
EMPLOYEES' FITNESS FOR PROMOTION.
(E) RESCIND THE POLICY MEMORANDA OF MARCH 13, 1980 PERTAINING TO
CHANGES IN LEAVE POLICY AND RESTORE THE LEAVE POLICY IN EFFECT PRIOR TO
DECEMBER 1979 IN THE LOS ANGELES TELESERVICE CENTER.
(F) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION
OF ANY INTENDED CHANGES IN LEAVE POLICY OF LOS ANGELES TELESERVICE
CENTER EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
(G) POST AT ITS FACILITIES AT THE LOS ANGELES TELESERVICE CENTER, LOS
ANGELES, CALIFORNIA 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, OFFICE OF PROGRAM OPERATIONS,
FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION
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 SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(H) PURSUANT TO 5 C.F.R. SECTION 2423.29, NOTIFY THE REGIONAL
DIRECTOR, 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: FEBRUARY 27, 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 (92 STAT. 1191)
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEE FLOYD BANKS
IN THE EXERCISE OF HIS RIGHTS ASSURED BY THE STATUTE BY REFERRING,
DURING THE SELECTION PROCESS, TO HIS MEMBERSHIP OR ACTIVITIES ON BEHALF
OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF
SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION.
WE WILL NOT DISCOURAGE EMPLOYEE FLOYD BANKS FROM MEMBERSHIP IN THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION BY DISCRIMINATING
AGAINST HIM IN REGARD TO EVALUATING HIS WORK PERFORMANCE AND HIS FITNESS
FOR PROMOTION BASED ON UNION CONSIDERATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEE FLOYD BANKS OR ANY OTHER EMPLOYEE IN THE EXERCISE OF
RIGHTS ASSURED BY THE STATUTE.
WE WILL NOT CHANGE THE LEAVE POLICY OF EMPLOYEES REPRESENTED
EXCLUSIVELY BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION,
WITHOUT AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN IN GOOD
FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATION.
WE WILL RE-EVALUATE EMPLOYEE FLOYD BANKS' WORK PERFORMANCE FOR THE
PERIOD COVERING FEBRUARY 1979 TO FEBRUARY 5, 1980 AND WILL ENSURE THE
RE-EVALUATIONS ARE MADE FREE FROM ANY REFERENCE TO UNION MEMBERSHIP OR
ACTIVITY.
WE WILL RERUN THE SELECTION PROCESS FOR FILLING THE TECHNICAL
ASSISTANT POSITION FOR THE PURPOSE OF REAPPRAISING THE FIVE CANDIDATES
ON THE ORIGINAL BEST QUALIFIED LIST, INCLUDING EMPLOYEE FLOYD BANKS, IN
AN ATMOSPHERE FREE OF ANY REFERENCE TO OR CONSIDERATION OF UNION
MEMBERSHIP OR ACTIVITY. THE REAPPRAISAL WILL CONSIDER THE RE-EVALUATION
OF EMPLOYEE FLOYD BANKS' WORK PERFORMANCE FOR THE PERIOD FROM FEBRUARY
1979 TO FEBRUARY 5, 1980.
WE WILL TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW SELECTING
OFFICIAL RERUNNING THE SELECTION PROCESS IS MADE AWARE OF THE
REQUIREMENT THAT CONSIDERATIONS OF UNION MEMBERSHIP OR ACTIVITY MAY NOT
PROPERLY ENTER INTO AN APPRAISAL OF AN EMPLOYEE'S FITNESS FOR PROMOTION.
WE WILL NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION
OF ANY INTENDED CHANGE IN LEAVE POLICY OF LOS ANGELES TELESERVICE CENTER
EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS.
(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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 350 SOUTH FIGUEROA
STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90071.
--------------- FOOTNOTES$ ---------------
/1/ THE GENERAL COUNSEL'S RESPONSE BRIEF ASSERTED THAT THE
RESPONDENT'S EXCEPTIONS SHOULD NOT BE CONSIDERED BECAUSE THEY WERE FILED
ONE DAY LATE. SUCH ASSERTIONS MUST BE REJECTED. THUS, ON JUNE 10,
1981, THE AUTHORITY SERVED ON ALL PARTIES HEREIN ITS ORDER GRANTING THE
RESPONDENT'S REQUEST TO WAIVE THE EXPIRED TIME LIMIT, AND ACCEPTING THE
RESPONDENT'S EXCEPTIONS AS TIMELY FILED, ON THE BASIS OF A FINDING THAT
"EXTRAORDINARY CIRCUMSTANCES" EXISTED FOR DOING SO WITHIN THE MEANING OF
SECTION 2429.23(B) OF THE AUTHORITY'S RULES AND REGULATIONS.
/2/ VARIOUS AMENDMENTS TO THE COMPLAINT AND ANSWER WERE ALLOWED AT
THE HEARING.
/3/ THE CHARGING PARTY FILED A BRIEF COVERING THE COMPLAINT IN
8-CA-379.
/4/ THE POSITION OF TECHNICAL ASSISTANT, CLASSIFIED AS LEAD CONTACT
REPRESENTATIVE, IS A NON-BARGAINING UNIT POSITION AND IS CONSIDERED BY
THE PARTIES TO BE A SEMI-MANAGEMENT POSITION.
/5/ BANKS TESTIFIED THAT HE WAS OFTEN APPROACHED BY EMPLOYEES IN THE
OFFICE REGARDING UNION MATTERS. HE ESTIMATED THAT THIS OCCURRED
APPROXIMATELY 20 TIMES A DAY. BANKS ALSO STATED THAT THIS CONVERSATION
WITH BRENNAN REGARDING THE FACT THAT HE SHOULD FILL OUR THE TIME FORMS
FOR BRIEF CONVERSATIONS WAS THE FIRST TIME THAT BRENNAN HAD MENTIONED
ANYTHING TO HIM ABOUT HIS USE OF TIME.
/6/ UNDER THE PRE-JANUARY 1980 LEAVE POLICY, ANNUAL LEAVE WAS GRANTED
ON A FIRST-COME, FIRST-SERVE BASIS, DEPENDING ON THE NEEDS OF THE
OFFICE. IN GENERAL, IT APPEARS THAT THE CENTER ALLOWED NO MORE THAN 15%
OF AN OFFICE'S EMPLOYEES ON LEAVE AT THE SAME TIME. HOWEVER, THERE WAS
SOME SUPERVISORY DISCRETION TO EXTEND LEAVE, PARTICULARLY WHERE THE
OFFICE BEING SUPERVISED WOULD REMAIN OPERATIONAL OR IF EXTENUATING
CIRCUMSTANCES EXISTED SUCH AS THE LEAVE REQUESTED WAS FOR A MONDAY OR
FRIDAY AND THE HOLIDAY FELL ON A TUESDAY OR THURSDAY. ALSO, RESPONDENT
EXPERIMENTED WITH A LIST FOR HOLIDAY LEAVE IN 1979, BUT APPARENTLY
ABANDONED THAT PRACTICE SOMETIME DURING THE YEAR.
/7/ A UNION MEETING WAS HELD ON OR ABOUT FEBRUARY 7, 1980 AND BANKS
REPORTED THE RESULTS OF THE MEETING, INVOLVING THE HOLIDAY LEAVE ISSUE
TO BRENNAN.
/8/ IN AGREEMENT WITH THE GENERAL COUNSEL, IT IS FOUND THAT THE
STATEMENTS CONCERNING BANKS' UNION ACTIVITIES, WHICH OCCURRED DURING THE
CONVERSATION, ALSO CONSTITUTE AN INDEPENDENT VIOLATION AN INDEPENDENT
VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE.
/9/ IN RE RETROACTIVE APPOINTMENTS, 54 COMP.GEN. 69(1974) AND IN REN
ANNETTE SMITH, 56 COMP.GEN. 732(1977) CITED BY THE CHARGING PARTY ARE
DISTINGUISHABLE ON THEIR FACTS.
/10/ FURTHERMORE, RESPONDENT FAILS TO RECOGNIZE THAT SECTION
2422.2(H)(8) OF THE RULES AND REGULATIONS OF THE AUTHORITY PROVIDES:
UPON THE ISSUANCE OF A CERTIFICATE ON CONSOLIDATION OF UNITS, THE
TERMS AND CONDITIONS OF
EXISTING AGREEMENTS COVERING THOSE UNITS EMBODIED IN THE
CONSOLIDATION SHALL REMAIN IN EFFECT
EXCEPT AS MUTUALLY AGREED TO BY THE PARTIES UNTIL A NEW AGREEMENT
COVERING THE CONSOLIDATED
UNIT BECOMES EFFECTIVE. 45 CFR 2422.2(H)(8)
THUS THE MASTER AGREEMENT DISCUSSED REMAINS THE RELEVANT DOCUMENT IN
ASCERTAINING THE PARTIES' RIGHTS HEREIN. THEREFORE, RESPONDENTS
ARGUMENT IN THIS REGARD IS REJECTED.
/11/ THE GENERAL COUNSEL'S MOTION TO CORRECT TRANSCRIPT IS GRANTED.