[ v22 p420 ]
22:0420(41)CA
The decision of the Authority follows:
22 FLRA No. 41
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1501, AFL-CIO
Charging Party
Case No. 9-CA-40003
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a
supporting brief.
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, the Authority adopts the Judge's
findings, conclusions and recommendation that the complaint be
dismissed.
The Authority concludes that the General Counsel has not met the
burden of proving that a unit employee, John Mack, was denied overtime
because of his protected union activities.
In adopting the Judge's conclusion that the complaint should be
dismissed, the Authority notes particularly his findings that overtime
for Title 2 claims employees was granted to those employees who had
unmanageable backlogged cases, and that the Activity determined employee
Mack's backlog of cases in relation to other employees' backlogs was
insufficient to warrant assigning him overtime.
While there was some indication of union animus toward Mack, we
conclude, in agreement with the Judge, that the record indicates the
denial of overtime would have occurred even in the absence of such
animus. /1/ Internal Revenue Service, Washington, D.C., 6 FLRA 96
(1981). See also American Federation of Government Employees v. FLRA,
716 F.2d 47 (D.C. Cir. 1983), enforcing Office of Program Operations,
Field Operations, Social Security Administration, San Francisco Region,
9 FLRA 73 (1982). Accordingly, the complaint must be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-40003 be, and it
hereby is, dismissed.
Issued, Washington, D.C. July 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 9-CA-40003 /2/
SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1501,
AFL-CIO
Charging Party
Wilson Schuerholz
For the Respondent
Josanna Berkow, Esq.
For the General Counsel
Michael A. Teefy
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on January 6,
1984, by the Regional Director for the Federal Labor Relations
Authority, Region IX, a hearing was held before the undersigned on March
22, and 21, 1984 at Seattle, Washington.
This is a proceeding which arose under the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (here called
the Statute). It is based on a charge filed on January 3, 1984, by
American Federation of Government Employees, Local 1501, AFL-CIO (herein
called the Union) against Social Security Administration, Baltimore,
Maryland (herein called Respondent).
The Complaint alleged, in substance, that in August and/or September,
1983 Respondent denied John C. Mack, an employee, the opportunity to
work overtime; that said John Mack was the alternate local union
representative for Respondent's South Seattle Branch office, Seattle,
Washington, as well as Technical advisor for employees and Union
officials in the Puget Sound area; that the denial of Mack of an
opportunity to work overtime was because of the aforesaid activity
engaged in by Mack on behalf of the Union -- all in violation of Section
7116(a)(1) and (2) of the Statute.
Respondent's Answer, dated January 23, 1984, denied that Mack was not
afforded an opportunity to work overtime; that it did so based on
Mack's union activities. It also denied the commission of any unfair
labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs /3/ were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein American Federation of Government
Employees, AFL-CIO, was the certified bargaining representative of
Respondent Social Security Administration's employees in a specified
unit. Included within said unit, at all times material herein, have
been the claims representatives as well as other employees, who are
employed at Respondent's South Seattle Branch office, Seattle,
Washington.
2. At all times material herein American Federation of Government
Employees, Local 1501, AFL-CIO, was the designated and authorized agent,
on behalf of American Federation of Government Employees, AFLO-CIO, to
represent and act for the unit employees of Respondent's South Seattle
Branch office, Seattle, Washington. /4/
3. Respondent and American Federation of Government Employees,
AFL-CIO, are parties to a National Collective Bargaining Agreement
which, by its terms, became effective in June 11, 1982 for a three year
period. Said agreement is, and has been at all times material herein,
applicable to the unit employees at Respondent's South Seattle Branch,
Washington, D.C.
4. The said collective bargaining agreement provides inter alia,
that: /5/ (a) The Administration shall not interfere with, or coerce
Union representatives in the exercise of their rights under 5 U.S.C. 71
and this agreement, (Article 2, Section 1B); (b) Each employee has the
right to join or assist the Union, to be protected in the exercise of
these rights, and to act for a labor organization as a representative
when dealing with an agency. (Article 3, Section 1); overtime should
not be distributed or withheld as a reward or penalty. (Article 10,
Section 2B); employees may, when approved by management, accrue and use
compensatory time. When feasible, the employer shall grant a request
for such time rather than payment for overtime. (Article 10, Section
2E); when the Administration decides to use overtime, qualified
volunteers shall be used before non-volunteers. (Article 10, Section
4A); all qualified employees whose performance is at least fully
satisfactory will be notified of the availability of overtime. (Article
10, Section 4B); overtime will be assigned fairly and equitably.
(Article 11, Section 4C).
5. The South Seattle Branch office, in its Title 2 unit, is
responsible for handling retirement and survivors benefits (RSI cases)
and disability claims (DIB cases). Its title 16 unit administered
social security claims which are designated as SSI cases.
6. John Mack, who has been employed at the South Seattle Branch
since July, 1976, is a claims representative in the Title 2 unit. As
such, Mack handles RSI and DIB claims which originate from either direct
interviews (about 95%), or by way of mail and telephone (about 5%).
7. At all times material herein Mack has been an alternate
representative of the local union at the South Seattle Branch. In that
capacity he steps in when the local representative is unable to handle a
grievance, complaint, an EEO matter, or during negotiations with
management. Mack also functions as advisor to union representatives in
most Puget Sound area offices, helping them directly or by means of
telephone calls made by the representatives to him at his office. In
addition, Mack is contacted regarding grievances or unfair labor
practices and he is the formal step 3 grievance official. In the past
twelve months Mack has handled at least 46 grievances and 39 unfair
labor practice charges against Respondent. About 39 of the grievances
involved the South Seattle Branch, while all unfair labor practice cases
concerned this branch.
8. The subject of official time is dealt with in Respondent's Manual
Circular -- Labor Relations Handbook. Part VI entitled "Administering
the Agreement -- Use of Time and Facilities" -- sets forth guidelines
for managers concerning official time usage. Provision is made therein
for granting such time to union representatives for union related
functions. The guidelines also provide that, except for incoming phone
calls, official time must be requested by the representative and
approved in advance. Further, it is deemed reasonable to allow a union
representative to accept an incoming call and complete same if it
doesn't last over five minutes. If it will last beyond that time, the
representative should contact the supervisor and seek official time.
(G.C. Exhibit 2, page 2).
9. In March, 1983, all but one of the Title 2 claims representatives
submitted a written request for overtime to supervisor Frank Allard.
Mack testified that he needed overtime since his work as a claims
representative backlogged badly by the end of February. In the few
months prior to March, Mack had been involved in 18-20 grievances, which
took away much of his time from case handling. Allard denied the
request.
10. Under date of April 8, 1983 Mack and Zee Williams filed a
grievance /6/ as a result of the denial by Allard of the March request
for overtime. In the grievance Mack alleged that management violated
Articles 2, 3, and 10, heretofore referred to, by denying his request.
He stated that his work was backlogged; that he submitted a detailed
list of such items; that the overtime or compensatory time was
necessary to complete the work; that overtime was being granted to
others for backlogged workloads.
11. Allard denied the aforesaid grievance in a letter dated July 5,
1983, /7/ addressed to Mary OMalley, AFGE Local Representative. He
stated, inter alia, that the request for overtime was not justified at
the time; that overtime had not been accorded title 2 claims
activities; that if and when it becomes available, all qualified
employees will be notified, and that it will be assigned equally and
fairly.
12. Mack made an informal oral request for overtime in May or June
to clean up his backlog before going on leave. /8/ He went on leave
from June 20 until July 10. Between July 11 and July 31, Mack was
engaged in labor-management relations activities for 18 of 80 hours. On
July 26 he made a second written request for overtime. His statement to
Allard recited that there were over 46 files backlogged upon his return
from leave; that he had not received overtime or extra adjudication
time despite his requests; that he had been on official time for 16
hours since July 11 and was scheduled for another 11 hours within the
next few days; that he had at least 34 files /9/ on his desk, of which
some were high priority; that he needed at least 3-4 hours overtime to
clear the highest priority ones.
13. In a memo dated July 27, Allard denied the request and stated
that he reviewed the statistical date for the weeks of 7/15/83 and
7/22/83; that during those 10 work days the unit took in 110 claims in
DOWR categories 1, 2 and 4; that Mack had 9 receipts, or 8.2% of all
claims receipts; that the other 4 claims representatives had 17, 29, 24
and 21 claims respectively. Further, Allard noted that during this
period the claims unit took 175 RSHDI interviews, of which Mack took 32
or 18.3%, that another claims representative had 23 interviews and
receipted 21 claims whereas Mack had only receipted 9 claims. The
supervisor stated that, even taking into account Mack's official time
usage and annual leave, the employee's claims production is not
competitive. Allard commented that the backlog consists of actions Mack
should have taken previously; that the 3 hours of adjudication time
scheduled for Friday is sufficient to handle backlog. He concluded by
stating Mack's problem is one of time management and concentration.
Allard also requested a status report from the employee.
14. In his status report dated July 29 Mack again set forth a report
of cases on hand and work to be done. He recited that 20 backlogged
files have been resolved and moved to the next stage; that 12 of
original 34 files remain and though 11 of the 12 have low priority, he
has received 12 new files to be reviewed. /10/ Mack repeated that it
was not physically possible to clear a backlog of 40 files, take a full
share of interviews, and be out of the unit for 18 of 80 hours Allard
testified.
15. Record facts show that between July and September the claims
representatives in Title 2 unit were John Mack, Tiny Briscoe, Barbara
Larson, Sharon Mirante, Dave Rokowski, who left at the end of August,
and Fran Zacher, who replaced Rokowski.
16. Record facts show that Briscoe requested overtime in June or
July but was not permitted to work overtime. She requested it again in
August and her supervisor, Frank Allard, suggested she submit a memo
stating why she needed overtime. Based on her backlog of pending cases,
she was given overtime to perform adjudication duties.
17. In late June, or early July, Mirante gave Allard a written
statement indicating she was very backlogged in her work. She had been
interviewing non-stop for a long period of time, and there was little
adjudication time available. Mirante does not recall that she asked for
overtime-just that she wanted Allard to know the situation. Allard told
her he would take it up with Ruth Saunders, the Branch Manager of the
South Seattle office. A week later Allard informed her overtime would
be available. In August Allard approached Mirante and told her overtime
was available; that if she needed it, Mirante should advise Allard and
he would see if it could be arranged.
18. Mirante also testified that on one occasion in September she was
asked by Allard to work on some of Mack's old RSI cases because nothing
had been done on them. She worked on them one afternoon and was
finishing up one morning on one particular case. At that time Mack was
out of the office on labor matters.
19. Based on a stipulation entered into by the parties at the
hearing, the record reflects that:
(a) Tiny Briscoe worked overtime for 5 1/2 hours in August and
9 hours in September. Of this amount, 1/4 hour was on late
interviews and 14 hours on adjudication of RSI and DIB claims.
(b) Sharon Mirante worked overtime for 4 hours in July, 2 1/2
hours in August, and 7 1/4 hours in September. Of this amount,
3/4 hours was on late interviews and 13 hours were worked on RSI
and DIB claims.
(c) Barbara Larson worked overtime for 7 1/2 hours in July and
5 1/4 hours in September. All except 1/4 hours were worked on RSI
and DIB cases.
(d) Dave Rokowski worked overtime for 1/4 hour in July and 35
minutes in August -- all on late interviews.
(e) Fran Zacher worked no overtime in August or September.
20. A 2nd step grievance meeting, involving the April 8 grievance,
was held on July 27. Carl Rabun, Assistant Deputy Manager for
Respondent's downtown office, presided for management. Mack and
O'Malley were present, but Zee had retired and did not attend. The
employees told Rabun that Title 2 was short-staffed as much as Title 16
but that different conditions prevailed. Thus, the supervisor in Title
16 approached employees for overtime, and the employees did not have to
ask for it. Rabun was informed that Williams and Mack were told
overtime wasn't necessarily for Title 2 employees. The union
representatives also stated that both Mack and Williams were fearful
that Allard's memorandum of July 27 regarding their request for overtime
would be kept in the file and utilized for appraisal purposes. There
was no attempt to amend the grievance to indicate the denial by
management of the July request by Mack for overtime. Neither was there
any mention of said denial being prompted by Mack's union activities.
The relief sought includes granting all future employee's rights for
compensatory time and removing Allard's July 27 memo from Mack's file.
21. The 2nd step grievance was denied by Rabun in his decision dated
August 12 (Resp. Exh. 1). He stated that management must decide, on a
case by case basis, when compensatory time is appropriate; that
management decided, in regard to Mack, neither compensatory nor overtime
was warranted as his caseload was not unreasonable or unbalanced; that
the memo of July 27 must remain to support Allard's decision.
22. In early September Mack told Allard his backlog was very big and
he would be going out again on official time. Allard advised Mack to do
his best in handling his work.
23. On September 21 Mack was interviewing a claimant at his desk.
He was interrupted by several phone calls, most of which were from the
public regarding claims Mack worked on for them. About 11 A.M., as he
was concluding a phone call, Allard came to the desk. The supervisor
asked the seated claimant if the call concerned him. Upon being told it
did not, Allard stated to Mack that he wanted to speak with him after
the interview. About 20 minutes later Allard approached the desk again.
The claimant had left the interview. Mack testified that Allard spoke
to Mack, saying: "If you ever take another union call while you're
interviewing, the next time you do it you'll be reprimanded. And the
next time you do it after that, you'll be suspended, and the next time
you do it after that, you'll be fired." /11/ Mack had never been spoken
to regarding receipt of phone calls theretofore.
24. The April 28 grievance reached its 3rd step presentation at a
meeting held on September 30. Both O'Malley and Mack attended and
management's representative was Dennis Rainey, Respondent's Area
Director. In addition to repeating the same contentions made at the 2nd
step meeting, Mack also mentioned that some claims representatives had
heard it said that union officials would be denied overtime based on
their union activities. O'Malley told Rainey she had not checked that
out; that she would do so and if it were true, an unfair labor practice
charge would be filed. In the presentation of the grievance neither
Mack nor O'Malley raised anti-union animus as part of the grievance.
/12/
Both Mack and Rainey testified, and I find, that the Union
representatives consented to Rainey's writing one decision covering the
April 8 grievance and the matters to be included in the October 7
grievance. Rainey also testified that it was common for the Union, at a
3rd step grievance session, to raise matters of LMR /13/ concerns which
are not part of a pending grievance. The Union representatives,
however, did not consider the April 8 and October 7 grievance as merged.
25. Rainey's administrative assistant, June Riston, reported back to
her supervisor that she had conducted an investigation and found no
support for the contention that overtime was denied to union members or
union activists.
26. A grievance dated October 7 was filed by Mack and O'Malley
alleging that on September 9 management scheduled overtime for the
following Saturday and violated the National Agreement, Article 10,
Section 2B, 4A, 4B and 4C. It was also alleged that in September 9 the
Union became aware that management's failure to abide by the contract
had been ongoing and continues. Both employees sought, as relief, back
pay for overtime where it was scheduled in violation of the contract;
and that management cease its discriminatory scheduling of overtime.
27. Rainey rendered his written decision regarding the 3rd step
grievance session on October 24. He stated therein, inter alia, that:
(a) an investigation showed no discriminatory assignment of overtime;
(b) he began reducing overtime in 1980 for Area I due to its excessive
use thereof, and in 1982 and 1983 he required that managers request
specific hours of needed overtime and justify its requirement; (c)
concerning Mack's request for overtime on March 25, Rainey ascertained
that during the first quarter of the year Mack's claims receipt averaged
7 2/3 per week which was not a particularly heavy load -- it was about
1/2 the receipt per claims representatives for another D O in the
Seattle area, and in most offices would be considered an average or
below average workload. Rainey concluded by stating that he agreed with
the management staff, which reviewed Mack's caseload, that overtime for
him was not justified and be denied the grievance.
28. Respondent issued a program report for Mack covering the period
from 10/29/82 to 9/31/83. His performance was characterized as fully
satisfactory as of 2/23/83 and also as of 8/3/83. /14/ The narrative,
which is dated 2/23/83, put forth goals which Mack should strive to
meet. /15/ The comments dated 8/3/83 by supervisor Allard were as
follows:
Your performance continues to be fully satisfactory overall.
My opinion takes into account the variables that require you to be
away from your desk: LMR activities and use of leave.
29. On October 10, Mack was assigned to handle post-entitlement
claims. This was effected since the initial claims, which Mack handled
theretofore, required quick action which could not be accomplished when
Mack was out on official time. Thus, by this reassignment, Mack would
not be stuck in short time frames.
30. Supervisor Allard testified that, in evaluating Mack's request
for overtime, the employee's union activities were not considered. In
respect to appraising Mack's work, Allard stated he subtracts the union
time from the amount of time Mack is on the job to determine whether the
employee has handled the proper volume of work and whether it is timely
or not.
31. Branch Manager Ruth Saunders testified that no overtime was
necessary for Title 2 claims representatives prior to July. This
differed from the situation in the Title 16 unit where the number of
claims representatives had been reduced but the case load had not
diminished. The situation changed in July since employees in Title 2
were going on vacation. Allard asked her for overtime for the RSI unit,
stating that several claims representatives were backlogged and had
requested overtime. Saunders inquired as to why adjudication time /16/
wouldn't suffice. Allard said the employees were interviewing
constantly and not getting adjudication time. Whereupon Saunders
approached Manager Barnes and asked for overtime for the Title 2 unit.
Justification for the request was the vacation schedules of the
employees. She obtained 15 hours per month for July, August and
September.
32. Further testimony by Saunders reflects that claims
representative Briscoe asked for overtime due to backlog and was denied
by Allard. Then the employee came to Saunders stating she had heavy
interviewing and no adjudication time. Saunders arranged for her to
work adjudication time. Briscoe came to her again in mid-July and asked
for overtime, and thereafter Saunders approached Barnes for overtime for
Title 2 people.
33. In July Allard told Saunders that Mack had wanted to work
overtime. Saunders looked at the workload reports which showed Mack had
two high priority cases (retirement survivor). /17/ She told Allard
there didn't seem to be a need for overtime at this point, and Mack had
adjudication time scheduled for later that week. Saunders did not check
Mack's desk after July 11.
34. Mack testified he told Allard on September 6 that he would be
leaving again for official time and working on arbitration cases. He
further advised the supervisor that he had about 60 files; that Allard
said he wanted Mack to review and prioritize that week. When Mack
indicated he doesn't have time, Allard told the employee to ask for one
hour's overtime.
35. Saunders testified that Mack requested overtime orally on
September 7; that she looked at the work and concluded it was the first
time his request was justified. Accordingly, Saunders told Allard to
approve it. Saunders further testified she was surprised to note that
the overtime slip showed that Mack had reviewed and prioritized his
cases rather than working them. She approved one hour for overtime and
5 1/2 hours of compensatory time. /18/ Saunders stated that Mack is
entitled to receive overtime if he should need it.
Conclusions
The principal issues for determination herein are as follows: (1)
whether the Complaint is barred by section 7116(d) of the Statute in
view of the April 8 and October 7 1983 grievances regarding the denial
of overtime to Mack by Respondent; (2) assuming arguendo, the Complaint
is not so based, whether Mack was denied overtime in July, August and
September 1983 based on his union activities and thus discriminated
against in violation of section 7116(a)(1) and (2) of the Statute.
(1) The pertinent part of section 7116(d) of the Statute provides
that:
. . . issues which can be raised under a grievance procedure
may, in the discretion of the aggrieved party, be raised under the
grievance procedure or as an unfair labor practice under this
section, but not under both procedures.
Respondent contends that the April 8 grievance was escalated to
cover, at the 2nd and 3rd step grievance presentations, t e same demand
of overtime to Mack as set forth in the Complaint. Further, it is
maintained that the October 7 grievance referenced denials of overtime
in September to Mack based on violations of the contract preserving the
right of employees to union activity.
The undersigned is not persuaded that 7116(d) of the Statute does
operate to bar the instant complaint. The April 8 grievance concerns
the denial of overtime to Mack prior to that date. While it does refer
to specific sections of the master agreement which assure employees the
right to engage in union activities, that grievance does not relate to
the denial of overtime in July, August and September, as alleged in the
complaint.
Moreover, I am not convinced that the discussion at the 2nd and 3rd
step grievance meetings were intended to include the denial of overtime
during those said months as part of the April 8 grievance. At the 2nd
step meeting O'Malley told Assistant District Manager Rabun that the
union wanted Allard's July 27 memo removed from the file; that
employees Mack and Williams were afraid it might be used in an appraisal
rating against them. While some discussion may have ensued concerning
Mack's being denied overtime at that stage, there was no attempt to
amend the April 8 grievance to cover later denials. Neither was any
mention made thereat regarding Mack's being denied overtime by reason of
union activities. At the 3rd step grievance session reference was made
by Mack to the fact that some employees heard comments that overtime
would be denied to officers of the union. However, O'Malley stated she
had not heard those remarks and would file a charge if they were proven
true. While she did make mention of union animus, it was done after the
grievance meeting was finished.
In respect to the October 7 grievance, that was an attempt to grieve
management's scheduling overtime on September 9 in contravention of the
right assured employees under the master agreement. The grievance does
not purport to cover any other period, nor does it contain any specifics
in regard to any alleged discrimination.
In order to bar an unfair labor practice complaint based upon a prior
or pending grievance, it must be shown that the said complaint raises
the same issues as are involved in the grievance procedure. Social
Security Administration, 16 FLRA 434; Department of Health and Human
Services, etc. 5 FLRA 504. The issue raised in the April 8 grievance,
as well as that posed in the October 7 grievance, is not identical to
the issue raised in the instant complaint, and those grievances do not
cover the same period of alleged discriminations. Accordingly, I
conclude that the complaint herein is not barred by Section 7116(d) of
the Statute.
(2) General Counsel insists that Mack was denied overtime by reason
of his activities as a union representative. While conceding that no
direct evidence upholds that conclusion, it is argued that
discrimination may be inferred from the circumstances. In support of
such inference General Counsel contends that the record reflects
disparate treatment between Mack and the other claims representatives in
Title 2; that union animus is apparent from the statements made by
Allard to Mack on September 21; and that the pretextual nature of the
denial of overtime to Mack can be seen from the unwarranted assertions
by management regarding Mack's performance problems, as well as the
failure to grant him such time in the face of his backlog of work.
As correctly stated by General Counsel, an employee engaged in
protected activity may not, under the statute, be discriminated against
because of such activity. Thus, an employee who is active on behalf of
a union may not be treated adversely by reasons thereof without
management running afoul of Section 7116(a)(1) and (2) of the Statute.
Directorate of Supply Operations, Defense Logistics Agency,
Headquarters, Defense Logistics Agency, 2 FLRA 937. It is also true
that discriminatory conduct on the part of an employer may be inferred
on the basis of the circumstances which exist in a particular special
case. See Department of the Navy, Norfolk Naval Shipyard, Portsmouth,
Virginia, 15 FLRA 867. While it may be argued that Respondent herein
denied overtime to Mack during July, August and September because of his
union activities, I am constrained to conclude that the record does not
warrant that inference. The factors recited by General Counsel do not
establish, in my opinion, a prima facie case of discriminatory conduct
toward Mack. They do not justify concluding that an illegal motive was
the predicate for the fact that this individual did not receive similar
overtime during said months.
It is argued that disparate treatment of Mack by Respondent is one
factor reflecting discrimination. General Counsel adverts to the fact
that overtime was accorded the other claims representatives in Title 2,
while it was denied to Mack. The record shows that none of these
individuals received overtime prior to July, 1983. Claims
representative Briscoe was also denied overtime in June and July
although she requested it, and Fran Zacher worked no overtime. It is
true that, as stipulated, Briscoe worked overtime in August and
September; Mirante did so in all three months; Larson worked overtime
in July and September; and Rokowski worked for a short overtime period
in July and August. Note is taken, however, that 80% of the work for
the claims representative arises from the interviews taken by each
individual. Thus, since Mack was out of the office a good deal
attending to labor relations matters, the remaining four claims
representatives were taking most of the interviews. Accordingly, these
individuals were responsible for handling most of the cases or claims in
Title 2. The record does not contain the exact amount of case backlog
for each of the other claims representatives. It is however, reasonably
inferable that their backlog would be high and supportive of overtime to
handle their cases. Moreover, manager Saunders worked Mack's desk in
his absence, and she concluded that since he only had two priority cases
there was no justification for overtime being granted to him. Further,
the record indicates Mack did not seek overtime in August, and that
around that time, in September, he was 'in pretty good shape'. Although
I recognize that Mack had a considerable amount of work to be completed
-- much of which did not necessarily involve processing of initial
claims, one must recognize that management may exercise its own
discretion in the allotment of overtime. The assignment of overtime is
a judgment call, and it would be difficult, at best, to substitute
another judgment for that of management in such an instance. In the
event that other considerations prevail which clearly demonstrate that
the disparate allotment was predicated on an employee's unionism, then
management's decision in this respect may well be deemed pretextual.
However, I am not persuaded that such was the case in so far as Mack was
concerned.
As a predicate for establishing illegal motivation in not granting
overtime to Mack, it is contended that the statements of Allard to Mack
on September 21, evince discriminatory intent by Respondent. The
comments by Allard on that date may well, in my opinion, show union
animus on the part of the supervisor. /19/ Nevertheless, I am not
convinced that a nexus exists between those remarks and the failure to
allot overtime to Mack by Respondent during July, August and September.
While these remarks demonstrate annoyance on the part of Allard with
Mack's receiving union related phone calls, it does not follow that the
failure to grant overtime was due to his activity as a union
representative. The final approval of overtime, or denial thereof, was
in the hands of Saunders, who displayed no animus in that regard.
Moreover, Allard rated Mack as "fully satisfactory" in the appraisals of
the employee for July, August and September. Those ratings go a long
way toward dispelling any inference of discrimination which General
Counsel contends is manifest from the Progress Reports concerning Mack's
performance. Finally, it is difficult to conclude that the September 21
statements constitute union animus which demonstrate illegal motivation
in the treatment of this employee, when it is seen that Mack was later
transferred to Title 16 so as not to be stuck in work with short time
frames.
Apart from the fact that the Branch Manager never thwarted Mack in
respect to his union activities or disapproved official time for such
duties, there is no evidence that Saunders' decision regarding overtime
was influenced by Mack's representational duties. Despite the confusion
in regard to the overtime granted Mack on September 7 for one hour,
Saunders understood the overtime was for processing cases as needed at
that time.
In sum, while the record discloses that Mack received significantly
less overtime than three of the other five claims representatives
employed during the July-September, 1983 period, I conclude it does not
appear that this was due to his union activities. Thus, I also conclude
Respondent did not violate Section 7116(a)(1) and (2) of the Statute.
Accordingly, it is recommended that the Complaint herein be dismissed in
its entirety.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Date: February 26, 1985
Washington, DC.C.
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun concludes, in agreement with the General
Counsel, that the Judge erred in refusing to take administrative notice
of another administrative law judge's factual findings establishing
union animus in a related case. In view of the outcome of this case,
that error is not prejudicial. Member Frazier finds it unnecessary in
the circumstances of this case to pass upon the General Counsel's
exceptions in this regard.
(2) Under date of February 27, 1984, an Order was issued by the
Regional Director, Federal Labor Relations Authority, Region IX,
consolidating Case No. 9-CA-40003 and Case No. 9-CA-40108, as well as a
Complaint and Notice of Hearing involving Case No. 9-CA-40108.
Thereafter, under date of March 16, 1984, the same Regional Director
issued an Order severing these cases and withdrawing the Complaint and
Notice of Hearing in Case No. 9-CA-40108.
(3) General Counsel's brief contains a Motion to Correct Hearing
Transcript. No objections having been filed thereto, the said motion is
granted and the transcript is corrected as requested.
(4) American Federation of Government Employees, Local 3937, AFL-CIO,
which was formerly a part of Local 1501, is the current representative
at this branch office.
(5) The undersigned has set forth, in substance, the particular
contractual provisions referred to by the Union in its grievances
concerning a denial of overtime.
(6) Article 24 of the National Agreement provides for a Grievance
Procedure which may be utilized by the parties or an employee in the
event of a complaint. It includes a three step procedure for grievance
presentation.
(7) Unless otherwise indicated, all dates hereinafter referred to
occurred in 1983.
(8) Though it does not appear in the record, this request was
presumably denied.
(9) Listed in his status report was the type of work to be done in
each file. It involves such tasks as review, memo to write, hearings,
etc. Eleven files were designated as "miscellaneous." (G.C. Exhibit 6).
(10) Mack testified that of the approximate 45-50 cases that were on
his desk after he returned from leave in July, none was RSI or DIB
cases. They pertained to reconsiderations, hearings, H-memo's,
impacting benefits and miscellaneous.
(11) Allard did not controvert having made these statements.
(12) Mack testified that, after the grievance closed, O'Malley did
mention that they were becoming aware of a pattern of anti-union animus;
that the Union may be filing charges based on such a pattern.
(13) Labor Management Relations.
(14) Mack was rated as fully satisfactory for months of July, August
and September.
(15) This Progress review Report was involved in another case,
9-CA-30242, which went to hearing before Judge Oliver. General Counsel
requested the undersigned to take administrative notes of Administrative
Law Judge Oliver's findings based on credibility resolutions regarding
Mack's February 23 Progress Report, as well as alleged anti-union
statements directed to Mack in that case. The undersigned denies that
request. It is not deemed proper to take such notice of factual
findings by another administrative law judge made in connection with
another case. As of this writing, the Authority has not issued its
decision in 9-CA-30242.
(16) Respondent gave 3 hours per week to each claims representative
to adjudicate claims. This involves actual case work -- processing
cases toward completion.
(17) Saunders claimed she worked Mack's desk while he was on
vacation; that he had, in addition to those two cases, two DIS cases to
be handled.
(18) Respondent's Exhibit 4 is the overtime for which Mack filled out
to report the time granted beforehand. This form is submitted by the
employee after the individual has worked the overtime. This exhibit
shows Mack worked one hour overtime in September 7 in reviewing and
prioritizing cases. Saunders testified she understood the request by
Mack was to work overtime on his caselod -- not to prioritize his
backlog -- and she believed that the approval of one hour overtime was
granted to handle his caseload. The exhibit showed he worked otherwise.
(19) The Complaint does not, however, allege that said statements
were violative of Section 7116(a)(1) of the Statute.