Community Services Administration (Respondent) and American Federation of Government Employees, Local 324, AFL-CIO (Charging Party) (Authority decision, September 21, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A Community Services Administration employee alleged that she was denied a field representative promotion because she had filed grievances. The judge found that management assessed her interview and qualifications and selected another candidate for reasons unrelated to protected activity. No party filed exceptions. The Authority adopted the judge’s findings and dismissed the complaint.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1), 5 U.S.C. § 7116(a)(2), 5 U.S.C. § 7118.
• Outcome: Judge’s dismissal adopted; promotion retaliation complaint dismissed.
• Key point: The record did not connect the nonselection to the employee’s grievances.

Full text (FLRA public release)

[ v06 p616 ]

06:0616(109)CA

The decision of the Authority follows:

6 FLRA No. 109

COMMUNITY SERVICES ADMINISTRATION
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3249
Charging Party

Case No. 23-CA-512

DECISION AND ORDER

THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD
NOT ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1)
AND (2) OF THE STATUTE AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED.
NO EXCEPTIONS WERE FILED BY EITHER PARTY.

PURSUANT TO SECTION 2423.19 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL 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 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.

IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 23-CA-512 BE, AND
IT IS HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 21, 1981

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

-------------------- ALJ DECISION FOLLOWS --------------------

ALEXANDER W. PORTER, ESQUIRE
FOR THE RESPONDENT

JAMES E. PETRUCCI, ESQUIRE
NINA L. SCHWARTZ, ESQUIRE
FOR THE GENERAL COUNSEL

MARTIN R. COHEN, ESQUIRE
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 JUNE 26, 1980
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, NEW
YORK REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON NOVEMBER 19,
1980 AT NEW YORK, NEW YORK.

THIS CASE ARISES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (HEREIN CALLED THE ACT). IT IS BASED ON A FIRST AMENDED CHARGE
FILED ON JUNE 17, 1980 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3249, AFL-CIO (HEREIN CALLED THE UNION) AGAINST COMMUNITY SERVICES
ADMINISTRATION (HEREIN CALLED THE RESPONDENT).

THE COMPLAINT HEREIN ALLEGED THAT, ON OR ABOUT JUNE 1, 1979,
RESPONDENT FAILED OR REFUSED TO SELECT JANICE S. FRAZIER FOR A POSITION
AS CAP FIELD REPRESENTATIVE GS-12 BECAUSE OF HER PROTECTED UNION
ACTIVITY UNDER THE ACT, INCLUDING THE FILING OF GRIEVANCES-- ALL IN
VIOLATION OF SECTION 7116(A)(1) AND (2) THEREOF.

RESPONDENT FILED AN ANSWER DATED JULY 15, 1980 DENYING 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 /1/ WAS FILED WITH THE
UNDERSIGNED AND HAVE BEEN DULY CONSIDERED.

UPON THE ENTIRE RECORD IN THIS CASE, 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 A COLLECTIVE BARGAINING AGREEMENT
   EXISTED BETWEEN RESPONDENT AND THE UNION COVERING GENERAL SCHEDULE (GS)
   AND WAGE GRADE (WG) EMPLOYEES. /2/ JANICE S. FRAZIER, WHO IS EMPLOYED
   AS A CAP FIELD REPRESENTATIVE, GS-11 BY RESPONDENT, IS A UNIT EMPLOYEE
   UNDER THE AFORESAID AGREEMENT.

2. THE SAID AGREEMENT CONTAINS VARIOUS PROVISIONS UNDER ARTICLE 12
   WHICH DEAL WITH MERIT PROMOTIONS. UNDER DATE OF SEPTEMBER 11, 1973 THE
   AGREEMENT WAS AMENDED IN RESPECT TO VARIOUS TERMS AND CONDITIONS.
   SECTION 11 OF THE AMENDMENT, ENTITLED "FILLING VACANCIES" PROVIDES THAT
   "ALL VACANCIES IN THE COMPETITIVE SERVICE ABOVE THE ENTRY LEVEL WILL BE
   FILLED WITH IN-HOUSE CANDIDATES, WHERE POSSIBLE WITH THE EXCEPTION OF
   POLICY AND SUPERVISORY POSITIONS OR WHERE THERE IS AN EMERGENCY WHICH
   PRECLUDES USE OF THE MERIT PROMOTION SYSTEM.

3. RESPONDENT FUNDS VARIOUS GRANTEES, INCLUDING COMMUNITY ACTION
   AGENCIES, IN AN EFFORT TO ASSIST LOW-INCOME INDIVIDUALS. MOST OF THE
   GRANTEES ARE PRIVATE NON-PROFIT AGENCIES. THE PHILADELPHIA REGION OF
   COMMUNITY SERVICES ADMINISTRATION HAS TWO FIELD OPERATIONS: BRANCH 1
   COVERING PENNSYLVANIA AND WEST VIRGINIA, AND BRANCH 2 COMPRISING
   DISTRICT OF COLUMBIA, DELAWARE, MARYLAND, AND VIRGINIA.

4. JANICE S. FRAZIER WAS HIRED BY RESPONDENT IN 1970 AS A SECRETARY.
   IN 1976 SHE BECAME A GS-7 FIELD REPRESENTATIVE BY VIRTUE OF A
   PROMOTION. SHE WAS PROMOTED TO A GS-9 THE FOLLOWING YEAR. ON DECEMBER
   28, 1976 HER SUPERVISOR GARY E. GRUNDER RATED FRAZIER AS SATISFACTORY
   FOR THE PERIOD DECEMBER 7, 1975 TO JANUARY 1, 1977. ON JANUARY 13, 1978
   GRUNDER RATED /3/ HER AS SATISFACTORY FOR THE PERIOD FEBRUARY 13, 1977
   TO FEBRUARY 12, 1978.

5. CAREER LADDER EMPLOYEES, OF WHOM FRAZIER WAS ONE, USUALLY
   ESCULATED THEIR POSITIONS OF EMPLOYMENT TO A JOURNEYMEN'S LEVEL UPON
   RECEIVING A SATISFACTORY PERFORMANCE RATING.

6. AS A FIELD REPRESENTATIVE FRAZIER WAS REQUIRED TO PUT GRANTS
   TOGETHER, PROVIDE TECHNICAL ASSISTANCE TO AGENCIES, MONITOR THE PROGRESS
   OF THE AGENCIES, AND MEET WITH THEIR STAFFS AS WELL AS PUBLIC OFFICIALS.
   TRAVEL WAS REQUIRED SINCE MUCH OF THE WORK INVOLVED VISITING RURAL
   AREAS.

7. ON JANUARY 16, 1978 FRAZIER CONFERRED WITH SUPERVISOR GRUNDER
   REGARDING HER PERFORMANCE APPRAISAL. AT THAT MEETING GRUNDER ADVISED
   THE EMPLOYEES SHE COULD NOT ADVANCE TO A GS-11 UNDER THE CAREER LADDER
   PROMOTION PROGRAM. THE SUPERVISOR EXPLAINED THAT THE PROMOTION WOULD BE
   TEMPORARILY WITHHELD DUE TO AN INSUFFICIENT WORKLOAD TO SUPPORT A GS-11
   POSITION.

8. SUBSEQUENTLY, ON FEBRUARY 13, 1978, FRAZIER FILED A GRIEVANCE
   WITH RESPONDENT UNDER THE COLLECTIVE BARGAINING AGREEMENT BASED ON
   MANAGEMENT'S FAILURE TO PROMOTE HER TO THE GS-11 AS AFORESAID. BY
   LETTER DATED FEBRUARY 27, 1978 W.A. KIRK, RESPONDENT'S REGIONAL
   DIRECTOR, INFORMED FRAZIER THAT HER GRIEVANCE WAS DENIED. HE STATED
   THEREIN THAT THE EMPLOYER MAXIMIZED ITS COMPLEMENT OF GS-12 JOURNEYMEN
   LEVEL EMPLOYEES BY STAFFING THAT GRADE WITH EIGHT INDIVIDUALS; THAT IT
   DID NOT APPEAR SUFFICIENT WORK WAS AVAILABLE TO SUSTAIN A GS-11 AS
   FRAZIER REQUESTED.

9. PRIOR TO THE AFORESAID GRIEVANCE BEING SUBMITTED TO ARBITRATION,
   THE NATIONAL OFFICE OF RESPONDENT REVERSED THE DECISION OF KIRK BY A
   LETTER ADDRESSED TO HIM DATED AUGUST 18, 1978. THE REVERSAL LETTER
   STATED THAT IN 1976 TWO FIELD REPRESENTATIVE POSITIONS AT GS-11 LEVEL
   WERE POSTED; THAT NO EVIDENCE OF A DRASTIC CHANGE WAS SHOWN TO EXPLAIN
   THE NEED FOR THESE POSITIONS IN 1977 AND THE DISAPPEARANCE OF SUCH NEED
   A YEAR LATER.

10. AS A RESULT OF THE DECISION BY THE NATIONAL OFFICE FRAZIER AND
    ROBERT CROLL, /4/ THE OTHER GS-9 FIELD REPRESENTATIVE, WERE BOTH
    PROMOTED TO GS-11 RETROACTIVE TO FEBRUARY, 1978.

11. A REORGANIZATION WAS EFFECTED BY RESPONDENT IN JULY, 1978.
    GRUNDER BECAME CHIEF OF BRANCH 1, AND WALTER S. MILLS WAS MADE CHIEF OF
    BRANCH 2. THE LATTER ALSO BECAME SUPERVISOR OF FRAZIER AT THAT TIME.

12. WALTER S. MILLS BECAME FRAZIER'S DIRECT SUPERVISOR IN 1978. HE
    TESTIFIED THAT IN JULY, 1978 HE ENGAGED IN SEVERAL DISCUSSIONS WITH
    FRAZIER REGARDING HER ATTITUDE AND WORK PERFORMANCE. IN ONE INSTANCE
    THEIR DISCUSSION WAS PRECIPITATED BY FRAZIER'S BEING UNABLE-- DUE TO A
    PRIOR COMMITMENT-- TO ATTEND A TRAINING SESSION ON A PARTICULAR DAY.
    DURING THE CONVERSATION BETWEEN THEM THE EMPLOYEE MENTIONED SHE HAD
    SOME
    DIFFICULTY WITH RURAL TRAVEL AS SHE GOT LOST ON OCCASION. AT ONE
    CONVERSATION MILLS MENTIONED THAT FRAZIER'S OFFICE BEHAVIOR CAUSED
    PROBLEMS SINCE SHE DISTURBED STAFF MEMBERS. /5/

RECORD FACTS SHOW MILLS ENCOURAGED FRAZIER TO UNDERTAKE TRAINING IN
THE HISTORY OF STATE GOVERNMENT SINCE SHE HAD NO COURSES IN STATE AND
LOCAL GOVERNMENT OR POLITICAL SCIENCE. IN JULY, 1978 THE SUPERVISOR
ALSO SPOKE WITH LOLA ROSS, PERSONNEL OFFICER, REGARDING FRAZIER'S
ATTITUDE, HER RELUCTANCE TO TRAVEL, AND HER NEED FOR MORE ON THE JOB
TRAINING. ROSS SUGGESTED THAT MILLS SEND A LETTER OF CAUTION TO THE
EMPLOYEE. /6/

13. RECORD FACTS REFLECT THAT RESPONDENT FOLLOWED AN ESTABLISHED
    PRACTICE IN FILLING VACANCIES. THE VACANCY ANNOUNCEMENT WAS POSTED AND
    PROCESSED INITIALLY; A CERTIFICATE OF ELIGIBLE CANDIDATES WAS FURNISHED
    TO THE SUPERVISORS ALONG WITH FORM 171'S (APPLICATIONS) AND SUPPORTING
    DOCUMENTS; THE SUPERVISOR INTERVIEWED THE ELIGIBLES, AND THEN ISSUED A
    RECOMMENDATION TO THE REGIONAL DIRECTOR.

14. A VACANCY FOR A GS-12 FIELD REPRESENTATIVE (R111-79-1) AROSE IN
    EARLY 1979, ALTHOUGH FRAZIER DID NOT APPLY FOR IT. SHE DID, HOWEVER,
    FILE A GRIEVANCE IN FEBRUARY OF THAT YEAR WHEN ANOTHER INDIVIDUAL WAS
    SELECTED FOR THE POSITION. FRAZIER'S GRIEVANCE WAS PREDICATED ON HER
    CONTENTION THAT SHE SHOULD HAVE BEEN PROMOTED NON-COMPETITIVELY TO A
    GS-12 SINCE THAT GRADE WAS THE JOURNEYMEN LEVEL WHEN SHE ENTERED THE
    CAREER LADDER. REGIONAL DIRECTOR KIRK MET THEREAFTER WITH FRAZIER AND
    DAVIS IN REGARD THERETO. KIRK EXPLAINED THAT MANAGEMENT WOULD NOT
    PROMOTE NON-COMPETITIVELY BEYOND THE JOURNEYMEN LEVEL, WHICH WAS A GS-11
    AT THAT TIME. /7/

15. ANOTHER VACANCY ANNOUNCEMENT (R111-79-4) FOR A GS-12 CAP FIELD
    REPRESENTATIVE IN BRANCH 1 WAS POSTED IN 1979 WHICH ANNOUNCED THE
    OPENING DATE AS APRIL 16, 1979 AND THE CLOSING DATE AS MAY 2, 1979.
    FRAZIER APPLIED FOR THIS POSITION AND SUBMITTED A SUPERVISORY EVALUATION
    FORM TO MILLS FOR COMPLETION BY HIM.

16. THE AFORESAID EVALUATION FORM, DATED APRIL 26, 1979, WAS FILLED
    OUT BY MILLS AND RETURNED TO THE EMPLOYEE. HE RATED HER AS AVERAGE IN
    RESPECT TO THE FOLLOWING FACTORS:

• QUANTITY OF WORK.

• ABILITY TO ACCEPT ORDERS, SUPERVISION AND RESPONSIBILITY.

• ABILITY TO GET ALONG WITH OTHERS IN A WORK SITUATION.

• ABILITY TO COMMUNICATE ORALLY.

• ABILITY TO LEARN NEW WORK, ADAPT TO NEW SITUATIONS.

• RELIABILITY.

• INTEREST IN SELF-DEVELOPMENT, WILLINGNESS TO DO MORE THAN THE
  MINIMUM, EAGERNESS TO GET

AHEAD.

MILLS RATED FRAZIER AS ABOVE AVERAGE IN RESPECT TO (A) QUALITY OF
WORK, TECHNICAL PROFICIENCY, (B) ABILITY TO COMMUNICATE IN WRITING. HE
ALSO COMMENTED AS FOLLOWS:

"MRS. FRAZIER'S OVERALL QUALITY OF WORK IS AVERAGE. MRS. FRAZIER'S
STRONG PERFORMANCE

POINTS INCLUDE HER WILLINGNESS TO COMPLETE IN A TIMELY MANNER ANY
REGULAR OR EXTRA ASSIGNMENTS

GIVEN TO HER; SHE DOES, HOWEVER, APPEAR TO HAVE RELUCTANCE TO
TRAVEL. IF SELECTED FOR THE

GS-12 POSITION, IT IS RECOMMENDED THAT AN INTENSIVE TRAINING PROGRAM
BE IMPLEMENTED."

KIRK, WHO WAS THE REVIEWING OFFICIAL, SIGNED THE SUPERVISORY
EVALUATION ON APRIL 26, 1979. THEREAFTER BOTH FRAZIER AND DAVIS MET
WITH MILLS TO DISCUSS THE LATTER'S EVALUATION. THE EMPLOYEE PROTESTED
THE RATINGS OF HER SUPERVISOR, BUT SINCE THEY DISAGREED AS TO THE
CRITICISMS LEVELLED BY MILLS NOTHING WAS ACCOMPLISHED.

17. ON MAY 15, 1979 GRUNDER, WHO WAS RESPONSIBLE FOR RECOMMENDING
    THE PERSON TO BE SELECTED FOR THE GS-12 IN BRANCH 1, INTERVIEWED FRAZIER
    FOR THAT POSITION. PRIOR THERETO THE RANKING PANEL, COMPOSED OF
    IN-HOUSE EMPLOYEES OCCUPYING THE SAME GRADE AS THE POSITION SOUGHT (IN
    THIS INSTANCE GS-12'S), RATED FRAZIER AS HIGHLY QUALIFIED. IT ISSUED A
    MERIT-PROMOTION CERTIFICATE WHICH CONTAINED ONLY THE NAME OF JANICE
    FRAZIER THEREON. DURING THE INTERVIEW GRUNDER DISCUSSED FRAZIER'S
    KNOWLEDGE OF THE ASSIGNMENT AND HER BACKGROUND IN PUBLIC ADMINISTRATION
    AS WELL AS THE ROLES OF THE VARIOUS GOVERNMENTS. GRUNDER WAS INTERESTED
    IN HOW CANDIDATES RELATED TO OTHERS, PARTICULARLY ELECTED OFFICIALS. IN
    RESPECT TO FRAZIER, THE SUPERVISOR FELT SHE WAS CONFUSED AS TO THE
    RESPONSIBILITIES OF LOCAL GOVERNMENTS IN VIRGINIA. GRUNDER TESTIFIED
    THAT THE EMPLOYEE CONSIDERED GREEN COUNTY ECONOMIC DEVELOPMENT
    CORPORATION, A GRANTEE, A PRIVATE AGENCY WHEREAS IT IS AN AGENCY OF THE
    GREEN COUNTY GOVERNMENT. HE CONCLUDED, DURING THE INTERVIEW, THAT
    FRAZIER WAS NOT PERFORMING AT THE JOURNEYMEN LEVEL. SHE WAS RATED BY
    HIM AS BELOW AVERAGE.

18. GRUNDER SENT A MEMORANDUM DATED MAY 15, 1979 TO PERSONNEL
    OFFICER ROSS REGARDING HIS INTERVIEW WITH FRAZIER FOR THE POSITION OF
    GS-12 FIELD REPRESENTATIVE. HE STATED THAT AS A RESULT OF THE INTERVIEW
    IT WAS REQUESTED THE AREA OF CONSIDERATION FOR CANDIDATED BE EXPANDED.
    THE REASONS FOR THE REQUEST WERE:

A) FRAZIER EVIDENCED LITTLE UNDERSTANDING OF THE NATURE OF THE
FEDERAL SYSTEM OF

GOVERNMENT, ESPECIALLY AS IT PERTAINS TO STATE AND LOCAL
RELATIONSHIPS.

B) FRAZIER SHOWED LITTLE KNOWLEDGE OF THE SOCIO-ECONOMIC STRUCTURE OF
VIRGINIA, ESPECIALLY

AS THEY CONCERNED PROBLEMS OF POVERTY AND ECONOMICS. FURTHER,
GRUNDER HAD TO EXPLAIN THE

GEOGRAPHY OF VIRGINIA TO THE APPLICANT.

C) FRAZIER APPEARED UNFAMILIAR REGARDING THE STATUS OF GREEN COUNTY
EDAC (LPA).

D) FRAZIER'S SUPERVISOR IN HIS APPRAISAL, STATED THE EMPLOYEE WAS
RELUCTANT TO

TRAVEL. WHILE SHE INSISTS NO PROBLEM EXISTS AS TO TRAVEL, FRAZIER
ADMITTED TO GETTING "MIXED

UP" IN RURAL AREAS.

E) ALTHOUGH SHE EVINCES A GENERAL KNOWLEDGE OF THE PROCEDURES OF
COMMUNITY ACTIONS, FRAZIER

HAS DIFFICULTY CONSIDERING AND DEVELOPING CONCEPTS.

F) FRAZIER'S UNDERSTANDING OF THE ROLE OF THE CAP FIELD
REPRESENTATIVE IS LIMITED. SHE IS

ORIENTED TO PROCESS AND MECHANICS. /8/

19. THEREAFTER A NEW PROMOTION CERTIFICATE, SIGNED BY THE COMMITTEE
    MEMBERS ON JUNE 5, 1979, WAS ISSUED FOR THE GS-12 VACANCY. IN ADDITION
    TO FRAZIER (THE ONLY IN-HOUSE CANDIDATE), THE CERTIFICATE CONTAINED THE
    NAMES OF FOUR OTHER CANDIDATES WHO WERE RATED HIGHLY QUALIFIED:
    LAWRENCE BARNHOUSE, HOMER J. HUBERT, PAUL KOCHIS, AND STANFORD LAMB.
    /9/

20. GRUNDER INTERVIEWED ALL THE CANDIDATES ON THE NEW PROMOTION
    ADMINISTRATION, AS WELL AS HER PROBLEMS WITH TRAVELING. GRUNDER
    ADMINISTRATION AND THE STRUCTURE OF GOVERNMENT AS WELL AS THE ABILITIES
    OF THE CANDIDATES. THE SUPERVISOR HAD CONCLUDED FRAZIER WAS NOT THE
    PROPER PERSON FOR THE JOB BASED ON HER LACK OF KNOWLEDGE AS TO THE
    PRESENT JOB RESPONSIBILITIES AND THE TRADITIONAL KINDS OF PUBLIC
    ADMINISTRATION, AS WELL AS HER PROBLEMS WITH TRAVELLING. GRUNDER
    TESTIFIED HE WAS SEEKING SOMEONE TO HANDLE COMPLEX PROBLEMS IN
    ADMINISTERING 35 MILLION DOLLARS IN FEDERAL FUNDS. /10/

21. RECORD FACTS DISCLOSES THAT THE ESSENTIAL DIFFERENCES BETWEEN A
    GS-11 AND GS-12 FIELD REPRESENTATIVE REVOLVES AROUND THE COMPLEXITY OF
    THE FUNDING ITSELF. THIS, IN TURN, DEPENDS UPON THE SIZE OF THE AGENCY
    AND THE AMOUNT OF THE GRANT. THE PROBLEMS CONFRONTED BY THE GS-12 MAY
    BE MORE COMPLEX, AND THIS GRADE FIELD REPRESENTATIVE WOULD REQUIRE LESS
    SUPERVISION THAN THE GS-11 EMPLOYEE. /11/

22. ON MAY 21, 1979 GRUNDER INTERVIEWED CANDIDATE PAUL KOCHIS. THE
    LATTER WAS RATED ABOVE AVERAGE BY THE SUPERVISOR BASED ON HIS (A)
    ARTICULATENESS, (B) KNOWLEDGE REGARDING WORKING OF STATE GOVERNMENT AND
    EXPERIENCE THEREIN, (C) EXPERIENCE IN MANAGING GRANTS.

23. SUPERVISOR GRUNDER RECOMMENDED KOCHIS FOR THE GS-12 POSITION AS
    BEST QUALIFIED. HE WAS IMPRESSED WITH THE INDIVIDUAL'S KNOWLEDGE OF,
    AND ABILITY TO DISCUSS, CONCEPTS OF LOCAL GOVERNMENT, AS WELL AS THE
    CONTACT WHICH KOCHIS HAD PREVIOUSLY WITH ELECTED LOCAL OFFICIALS.
    RECORD FACTS REFLECT, FURTHER, THAT KOCHIS SPENT EIGHT YEARS IN THE
    PUBLIC SECTOR AS A PLANNER AND GRANTS ADMINISTRATOR. MOST OF THIS
    PERIOD WAS DEVOTED TO PROBLEM ANALYSIS, SOLUTION DEVELOPMENT, AND
    IMPLEMENTATION. WHILE EMPLOYED WITH THE DEPARTMENT OF COMMUNITY AFFAIRS
    IN SCRANTON, PA., HE ASSISTED LOCAL GOVERNMENTS IN ANALYZING PARK AND
    RECREATIONAL RESOURCES AND NEEDS, AS WELL AS ASSISTING COMMUNITIES IN
    OBTAINING STATE AND FEDERAL FUNDS TO ACQUIRE AND DEVELOP FACILITIES.
    WITH THE HERITAGE CONSERVATION AND RECREATION SERVICE HE PARTICIPATED IN
    THE ADMINISTRATION OF THREE OF THE AGENCY'S GRANT PROGRAMS. HE WAS ALSO
    PRINCIPAL CO-ORDINATOR FOR FEDERAL LAND ACQUISITION IN THE AFORESAID
    DEPARTMENT. IN THE SURPLUS PROPERTY PROGRAM HE EFFECTIVELY MADE
    RECOMMENDATIONS AFTER EVALUATING LOCAL GOVERNMENT ADMINISTRATIVE AND
    DEVELOPMENTAL CAPABILITIES.

24. BY LETTER DATED JUNE 8, 1979 MANAGEMENT INFORMED FRAZIER THAT,
    THOUGH FOUND BASICALLY ELIGIBLE FOR THE GS-12 R111-79-4 POSITION, SHE
    WAS NOT SELECTED; THAT PAUL F. KOCHIS HAD BEEN CHOSEN FOR THE POSITION.
    DIRECTOR KIRK'S TESTIMONY REVEALS THAT HE ACCEPTED THE RECOMMENDATION
    OF GRUNDER IN SELECTING KOCHIS TO FILL THE VACANCY.

25. THE RECORD REVEALS THAT FRAZIER IS CURRENTLY SERVING ON THE
    PERFORMANCE RATING AND AWARDS COMMITTEE; THAT SHE HAS CONSULTED FREELY
    WITH UNION OFFICIALS WITHOUT INTERFERENCE FROM MANAGEMENT; AND THAT NO
    THREATS WERE MADE BY RESPONDENT TO FRAZIER BASED ON HER HAVING FILED
    GRIEVANCES OR ENGAGED IN ANY UNION ACTIVITY. /12/

26. IT IS FURTHER REFLECTED BY THE TESTIMONY OF UNION PRESIDENT
    DAVIS THAT SEVEN GRIEVANCES HAVE BEEN FILED BY, OR ON BEHALF OF
    EMPLOYEES, SINCE 1974; THAT SEVERAL EMPLOYEES FILED GRIEVANCES AFTER
    JULY, 1978 WITHOUT RESULTING IN ANY RETALIATORY ACTION BEING TAKEN
    AGAINST THEM BY RESPONDENT; AND THAT UNION MEMBERS HAVE BEEN PROMOTED
    OR HAVE RECEIVED PERFORMANCE AWARDS SINCE 1978.

CONCLUSIONS

THE ISSUE PRESENTED FOR DETERMINATION IS SIMPLY STATED; WHETHER
RESPONDENT FAILED AND REFUSED TO PROMOTE JANICE S. FRAZIER, FIELD
REPRESENTATIVE, TO A GS-12 IN JUNE, 1979 BECAUSE SHE FILED TWO
GRIEVANCES AGAINST MANAGEMENT-- ALL IN VIOLATION OF SECTIONS 7116(A)(1)
AND (2) OF THE ACT.

IT IS NOT DISPUTED THAT AN EMPLOYEE WHO FILES GRIEVANCES UNDER A
NEGOTIATED COLLECTIVE BARGAINING AGREEMENT MAY NOT, AS A RESULT THEREOF,
BE THE VICTIM OF DISCRIMINATION. SUCH CONDUCT BY AN EMPLOYEE IS
PROTECTED ACTIVITY, AND AN EMPLOYER MAY NOT DISCOURAGE THE FILING OF
GRIEVANCES OR TAKE REPRISALS FOR SUCH ACTION. UNITED STATES DEPARTMENT
OF TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS,
3 FLRA NO. 116; DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD,
BREMENTON, WASHINGTON, A/SLMR NO. 582; DEPARTMENT OF DEFENSE NATIONAL
GUARD, A/SLMR NO. 53.

IN SUPPORT OF ITS CONTENTION THAT FRAZIER WAS DISCRIMINATED AGAINST
BY RESPONDENT THE GENERAL COUNSEL ADVERTS TO SEVERAL FACTORS: (A) THE
PRACTICE HAS BEEN, IN ACCORDANCE WITH SECTION 11 OF THE AMENDMENT TO THE
AGREEMENT, TO FILL VACANCIES WITH IN-HOUSE CANDIDATES; (B) FRAZIER WAS
THE ONLY IN-HOUSE CANDIDATE CERTIFIED FOR THE POSITION AND SHE WAS RATED
HIGHLY QUALIFIED; (C) SUPERVISORS HAVE ALWAYS APPRAISED FRAZIER, IN
RESPECT TO HER WORK PERFORMANCE, AS SATISFACTORY AND THUS CRITICISMS OF
HER BY BOTH GRUNDER AND MILLS SHOULD BE VIEWED WITH SUSPICION; (D) NO
WRITTEN COMPLAINTS OR REPRIMANDS WERE EVEN ISSUED TO THIS EMPLOYEE, AND
NO DIFFERENCE EXISTS BETWEEN THE JOB DUTIES OF A GS-11 AND GS-12 FIELD
REPRESENTATIVE; (E) AN INFERENCE IS WARRANTED THAT GRUNDER REFUSED TO
RECOMMEND FRAZIER FOR THE GS-12 (R111-79-4) BASED ON HER HAVING FILED
GRIEVANCES IN THE PAST, ESPECIALLY SINCE SHE WAS CONTINUALLY PROMOTED AS
A CAREER LADDER EMPLOYEE.

CONTRARIWISE, RESPONDENT INSISTS IT HAS NEVER EXHIBITED ANTI-UNION
ANIMUS OR DISCRIMINATED AGAINST EMPLOYEES FOR UNION OR PROTECTED
ACTIVITY. THE EMPLOYER MAINTAINS THE GS-12 FIELD REPRESENTATIVE
POSITION REQUIRES DEPTH OF KNOWLEDGE REGARDING LOCAL GOVERNMENTS AND
LESS SUPERVISION IS NEEDED OVER SUCH INCUMBENT. IT URGES THAT, DESPITE
THE RATING OF 'SATISFACTORY' ACCORDED FRAZIER, MANAGEMENT HAD A FIRM
BASIS FOR ITS CONCLUSION THAT SHE COULD NOT HANDLE THIS POSITION AS WELL
AS OTHER APPLICANTS. FINALLY, RESPONDENT CONTENDS THAT OTHER EMPLOYEES
HAVE FILED GRIEVANCES WITHOUT SUFFERING ANY LOSS OF BENEFITS OR
RETALIATIONS BY MANAGEMENT. HENCE, IT IS MAINTAINED NO FINDING OF
DISCRIMINATION IS WARRANTED HEREIN.

UPON REVIEWING THE RECORD I AM PERSUADED THAT GENERAL COUNSEL HAS
FAILED TO ESTABLISH THAT THE RESPONDENT'S REFUSAL TO PROMOTE FRAZIER, AS
ALLEGED, SPRANG FROM A DISCRIMINATORY MOTIVE. SPECIAL NOTE IS TAKEN OF
THE FACT THAT OTHER EMPLOYEES HAVE FILED GRIEVANCES SINCE 1974; THAT
NONE OF THESE INDIVIDUALS WAS INTERFERED WITH, OR SUFFERED REPRISALS AS
A RESULT THEREOF. SIGNIFICANCE IS ATTACHED TO THE FACT THAT NO EVIDENCE
WAS ADDUCED SHOWING UNION ANIMUS ON THE PART OF RESPONDENT. FURTHER, I
CANNOT DEDUCE FROM THE RECORD THAT MANAGEMENT MANIFESTED ANY HOSTILITY
TOWARD FRAZIER BY REASON OF THE GRIEVANCES WHICH SHE FILED. DESPITE THE
FACT THAT SHE FILED A GRIEVANCE IN 1978, RESPONDENT PERMITTED HER TO
APPLY FOR A GS-12 VACANCY IN JANUARY, 1979 EVEN THROUGH THE TIME TO FILE
APPLICATIONS HAD EXPIRED. ALTHOUGH GENERAL COUNSEL POINTS TO THE REMARK
BY SUPERVISOR MILLS THAT FRAZIER "ALWAYS RUNS TO THE UNION," I AM UNABLE
TO CONCLUDE THAT SUCH A COMMENT, STANDING ALONE, JUSTIFIES AN INFERENCE
OF HOSTILITY TOWARD THE EMPLOYEE. MILLS DID NOT REJECT FRAZIER FOR THE
POSITION IN QUESTION, AND NONE OF HIS APPRAISALS OF THIS EMPLOYEE MADE
ANY REFERENCE TO HER UNIONISM OR THE FILING OF GRIEVANCES. IN TRUTH, NO
EVIDENCE APPEARS HEREIN THAT THE EMPLOYER ATTEMPTED TO THWART FRAZIER'S
CONDUCT IN THIS REGARD, AND I PERCEIVE NO ACTS OF INTERFERENCE,
RESTRAINT OR COERCIVE DIRECTED TOWARD THE EMPLOYEE WHICH WOULD SUPPORT
A
DISCRIMINATORY MOTIVE BY MANAGEMENT IN NOT PROMOTING HER IN JUNE, 1979.

THE RECORD DOES, MOREOVER, CONTAIN VARIOUS INSTANCES WHEREIN
MANAGEMENT HAD OCCASION TO DISCUSS WITH FRAZIER CERTAIN PROBLEMS
CONFRONTING HER IN THE PERFORMANCE OF HER JOB. THUS, IT IS EVIDENT THAT
THE EMPLOYEE HAD DIFFICULTY WITH RURAL TRAVEL AND ADMITTED TO BEING
CONFUSED AT TIMES. IN ADDITION, HER UNION REPRESENTATIVE TESTIFIED
FRAZIER EXHIBITED CERTAIN HEADSTRONG TENDENCIES, AND THE SUPERVISOR
NOTED BEHAVIORAL PROBLEMS INVOLVING OTHER INDIVIDUALS. WHILE NONE OF
THESE FACTORS WAS SUFFICIENT TO LABEL FRAZIER'S WORK PERFORMANCE AS
OTHER THAT SATISFACTORY, IT IS CONCEIVABLE THAT BOTH MIGHT WELL DETRACT
FROM HER STANDING IN RESPECT TO FILLING THE GS-12 POSITION.

CONSIDERABLE STRESS BY THE GENERAL COUNSEL IS LAID UPON THE FAILURE
OF MANAGEMENT TO ADHERE TO ITS GENERAL PRACTICE OF PROMOTING IN-HOUSE
CANDIDATES AHEAD OF OTHERS. WHILE THIS FAILURE MAY WELL PROMPT CONCERN
AS TO THE REASONS THEREFORE, I AM SATISFIED THAT THE DISREGARD OF THIS
POLICY DOES NOT, IPSO FACTO, REQUIRE A FINDING OR CONCLUSION THAT IT WAS
BOTTOMED UPON A DISCRIMINATORY INTENTIONS. IT DOES APPEAR THAT, DURING
HIS INTERVIEW WITH FRAZIER, SUPERVISOR GRUNDER CONCLUDED THAT THE
EMPLOYEE HAD DIFFICULTY IN RESPECT TO CERTAIN CONCEPTS OF THE VARIOUS
GOVERNMENTAL LEVELS. MOREOVER, SINCE SHE WAS CONFUSED AS TO THE STATUS
OF A PARTICULAR GRANTEE, GRUNDER WAS LOATH TO RECOMMEND HER FOR THE
VACANCY. SUCH A CONCLUSION IS JUSTIFIED IN VIEW OF THE FACT THAT THE
FIELD REPRESENTATIVE GS-12 JOB DOES, AS I HAVE FOUND, INVOLVE MORE
COMPLEX SITUATIONS AND CALLS FOR AN INCUMBENT TO PERFORM WITH LESS
DIRECT SUPERVISION. FURTHER, I AM CONSTRAINED TO CONCLUDE THAT
MANAGEMENT MAY WELL ENLARGE ITS SLATE OF CANDIDATES FOR A POSITION WHERE
THE RECOMMENDING OFFICIAL IS HESITANT TO PROMOTE A PARTICULAR EMPLOYEE.
THIS IS ESPECIALLY SO WHERE, AS IN THE CASE AT BAR, A SUPERVISOR HAS
DETERMINED THAT FRAZIER'S WORK PERFORMANCE IS AVERAGE; AND, FURTHER,
WHERE THE SUPERVISOR COMMENTED IN WRITING THAT THE EMPLOYEE WOULD NEED
INTENSIVE TRAINING IF SELECTED AS THE GS-12 FILED REPRESENTATIVE.

NEITHER DO I DRAW ADVERSE INFERENCES, AS GENERAL COUNSEL REQUESTS,
FROM THE FACT THAT GRUNDER STATED IN 1978 THAT FRAZIER'S WORK
PERFORMANCE WAS NOT A DETERMINANT IN THE REGION'S REFUSAL TO PROMOTE HER
TO A GS-11, AND THEN CRITICIZED THE EMPLOYEE SEVERELY IN 1979. APART
FROM THE FACT THAT THE GS-12 WAS A HIGHER POSITION WITH ATTENDANT
COMPLEXITIES, THE PARTICULAR INTERVIEW IN MAY, 1979 WAS DETAILED AND
BROUGHT TO LIGHT CERTAIN DEFICIENCIES WHICH MIGHT NOT HAVE SURFACED
EARLIER. I CANNOT CONCLUDE THEREFORE THAT GRUNDER'S CRITICISMS IN 1979
WERE LEVELLED AT FRAZIER BY VIRTUE OF HER HAVING FILED A GRIEVANCE
AGAINST MANAGEMENT.

IT SHOULD ALSO BE NOTED THAT THE RECORD OF THE SELECTEE, PAUL KOCHIS,
REVEALS THE INDIVIDUAL HAD AN EXCEPTIONAL BACKGROUND IN PUBLIC
ADMINISTRATION; THAT HE HAD, AS REFLECTED IN HIS APPLICATION AND
INTERVIEW WITH GRUNDER, A FINE GRASP OF THE LEVELS OF GOVERNMENT, AND
THAT HE HAD BEEN HIGHLY RECOMMENDED FOR HIS DEALINGS WITH GRANTEES. IN
SUM, GRUNDER WAS SATISFIED THAT KOCHIS UNDERSTOOD THE COMPLEXITIES OF
GOVERNMENTAL UNITS AND THAT THE CANDIDATE WAS VERY ARTICULATE IN HIS
DISCUSSION THEREOF. WHILE IT IS NOT WITHIN MY PROVINCE TO DECIDE
WHETHER THIS INDIVIDUAL WAS SUITABLE FOR THE VACANCY, I AM SATISFIED
THAT GRUNDER UTILIZED OBJECTIVE CONSIDERATIONS IN HIS SELECTION.
FURTHER, IT BUTTRESSES THE CONCLUSION THAT HE WAS NOT BY-PASSING THE
GRIEVANT HEREIN BECAUSE OF HER UNION OR PROTECTED ACTIVITY.

THUS I AM CONVINCED, UPON THE BASIS OF THE FOREGOING, THAT RESPONDENT
DID NOT REFUSE OR FAIL TO PROMOTE JANICE S. FRAZIER TO A GS-12 FIELD
REPRESENTATIVE IN MAY, 1979 BECAUSE SHE FILED GRIEVANCES OR ENGAGED IN
ANY PROTECTED ACTIVITY UNDER THE ACT.

ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTIONS
7116(A)(1) AND (2) OF THE ACT. THEREFORE, IT IS RECOMMENDED THAT THE
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C)"

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 23-CA-512 BE, AND
THE SAME IS, HEREBY DISMISSED.

WILLIAM NAIMARK

ADMINISTRATIVE LAW JUDGE

DATED: MARCH 25, 1981

WASHINGTON, D.C.

--------------- FOOTNOTES: ---------------

/1/ SUBSEQUENT TO THE HEARING BOTH THE GENERAL COUNSEL AND THE
RESPONDENT FILED A MOTION TO CORRECT TRANSCRIPT. THE SAID MOTIONS,
WHICH IN EACH INSTANCE WERE UNOPPOSED, ARE HEREBY GRANTED AS REQUESTED.

/2/ THE AGREEMENT, WHICH WAS EXECUTED ON MARCH 31, 1972, WAS MADE
BETWEEN THE OFFICE OF ECONOMIC OPPORTUNITY AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO. OFFICE OF ECONOMIC OPPORTUNITY IS NOW
DESIGNATED AS COMMUNITY SERVICES ADMINISTRATION. THE AGREEMENT COVERS
VARIOUS REGIONAL OFFICERS, INCLUDING THE ONE INVOLVED HEREIN, WHICH ARE
REPRESENTED BY SEPARATE AFGE LOCALS. THE CHARGING PARTY REPRESENTS THE
UNIT EMPLOYEES AT THE REGIONAL OFFICE WHEREAT FRAZIER IS EMPLOYED.

/3/ PERFORMANCE RATINGS BY SUPERVISORS ARE MADE ANNUALLY FOR THE
FIELD REPRESENTATIVES.

/4/ NO GRIEVANCE WAS FILED BY CROLL, BUT HE WAS UPGRADED ALONG WITH
FRAZIER BY VIRTUE OF THE REVERSAL OF THE REGIONAL OFFICE'S DECISION.

/5/ ROBERT L. DAVIS, PRESIDENT OF THE UNION HEREIN, TESTIFIED THAT
MILLS DID TALK TO HIM REGARDING FRAZIER'S RELUCTANCE TO TRAVEL. HE
FURTHER CHARACTERIZED FRAZIER AS STRONG-WILLED, ALBEIT CONSCIENTIOUS,
AND THAT HER BEHAVIORAL ATTITUDES RESULTED IN DISAGREEMENTS BETWEEN THE
EMPLOYEE AND MANAGEMENT.

/6/ NO WRITTEN REPRIMANDS OR CAUTIONARY LETTERS WERE EVER SENT BY
MANAGEMENT OFFICIALS TO FRAZIER. IN AN OFFICIAL PERFORMANCE RATING
DATED OCTOBER 11, 1978, WHICH COVERED THE PERIOD FROM FEBRUARY 12,
1978-- FEBRUARY 11, 1979, MILLS RATED FRAZIER AS 'SATISFACTORY.'

/7/ DESPITE THE FACT THAT THE CLOSING DATE FOR APPLICATION WAS
JANUARY 29, 1979, RESPONDENT OFFERED FRAZIER THE OPPORTUNITY TO APPLY
FOR THE GS-12 POSITION.

/8/ THE RECORD INCLUDES LETTERS FROM GRANTEES COMPLIMENTING FRAZIER
AS WELL AS THOSE OF A COMPLAINING NATURE. SINCE FRAZIER RECEIVED A
SATISFACTORY RATING AND NONE OF THESE LETTERS WERE ADVERTED TO BY
MANAGEMENT, I CONCLUDE THAT NONE OF THEM WAS RELIED UPON BY MANAGEMENT
IN ITS REJECTION OF THIS EMPLOYEE FOR THE GS-12 POSITION.

/9/ A RANKING SHEET SHOWING CANDIDATES ELIGIBLE FOR THE POSITION IS
PREPARED BY THE PROMOTION COMMITTEE. WHILE FRAZIER'S SCORE IS THIRD
HIGHEST (FOLLOWING BARNHOUSE AND LAMB), RECORD FACTS REVEAL GRUNDER DID
NOT GET THESE RANKINGS BEFORE MAKING HIS RECOMMENDATION FOR THIS
POSITION.

/10/ NO INQUIRIES WERE MADE BY GRUNDER OF ANY APPLICANT AS TO WHETHER
HE FILED GRIEVANCES OR ENGAGED IN ANY UNION ACTIVITY.

/11/ WHILE OTHER WITNESSES TESTIFIED THERE IS NO DIFFERENCE BETWEEN
THESE POSITIONS, I AM PERSUADED THEY DO DIFFER SOMEWHAT AND CALL FOR
VARYING DEGREES OF RESPONSIBILITY.

/12/ THE RECORD DOES REVEAL THAT IN THE SPRING OF 1980, MILLS
REMARKED TO FIELD REPRESENTATIVE ESTELLE MOSLEY THAT FRAZIER "ALWAYS
RUNS TO THE UNION." THIS COMMENT WAS MADE DURING A CONVERSATION IN WHICH
MILLS MENTIONED HE WAS HAVING PROBLEMS WITH FRAZIER. I DO NOT CONSTRUE
IT AS AN IMPLIED OR EXPRESS THREAT BY THE SUPERVISOR.