U.S. Department of the Air Force, Electronic Systems Division, Hanscom Air Force Base and Harriet L. Guerin, National Association of Government Employees (Authority decision, April 27, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's dismissal of an unfair labor practice complaint in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

A Hanscom Air Force Base telephone operator and her union alleged that management denied representation at a performance counseling meeting, made an antiunion statement, and discharged her because of union activity. The judge found the meeting concerned individual performance rather than matters that triggered the union's right to attend under Executive Order 11491. He did not credit the alleged antiunion statement and found insufficient evidence that union animus caused the discharge. No exceptions were filed. The Authority adopted his findings and dismissed the complaint.

Decision snapshot

• Authority: Executive Order 11491, §§ 10(e) and 19(a)(1), (2), (6); 5 U.S.C. § 7135(b).
• Outcome: Judge's dismissal adopted; complaint dismissed.
• Key point: The judge found no representation right at this individual counseling meeting and no proven antiunion reason for the discharge.

Full text (FLRA public release)

[ v01 p196 ]

01:0196(25)CA

The decision of the Authority follows:

1 FLRA No. 25

U.S. DEPARTMENT OF THE AIR FORCE
ELECTRONIC SYSTEMS DIVISION (AFCS)
HANSCOM AIR FORCE BASE, MASSACHUSETTS
Respondent

and

HARRIET L. GUERIN - NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES
(NAGE)
Complainants

Assistant Secretary
Case No. 31-10773(CA)

DECISION AND ORDER

ON DECEMBER 15, 1978, ADMINISTRATIVE LAW JUDGE RANDOLPH D. MASON
ISSUED HIS RECOMMENDED DECISION AND ORDER 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. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
ON. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 31-10773(CA) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., APRIL 27, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

JOHN G. ABIZAID, ESQ.

OFFICE OF THE STAFF JUDGE ADVOCATE

HANSCOM AIR FORCE BASE

BEDFORD, MASSACHUSETTS 01731

FOR THE RESPONDENT

FERNAND J. DUPERE', JR., ESQ.

NATIONAL REPRESENTATIVE

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES

285 DORCHESTER AVENUE

BOSTON, MASSACHUSETTS 02127

FOR THE COMPLAINANT

BEFORE: RANDOLPH D. MASON

ADMINISTRATIVE LAW JUDGE

RECOMMENDED DECISION AND ORDER

PRELIMINARY STATEMENT

THIS PROCEEDING WAS HEARD IN BOSTON, MASSACHUSETTS, ON SEPTEMBER 21,
1978, AND ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED. PURSUANT TO
THE REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS (HEREINAFTER CALLED THE ASSISTANT SECRETARY), A NOTICE OF
HEARING ON COMPLAINT WAS ISSUED ON AUGUST 2, 1978. THIS CASE WAS
INITIATED BY A COMPLAINT FILED ON JANUARY 19, 1977, WHICH COMPLAINT WAS
AMENDED ON JANUARY 31, 1977, BY HARRIET L. GUERIN AND THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) (HEREINAFTER THE "UNION").
THE AMENDED COMPLAINT ALLEGED THAT THE 2014TH COMMUNICATIONS SQUADRON
(AFCS), HANSCOM AIR FORCE BASE, MASSACHUSETTS, (HEREINAFTER RESPONDENT)
VIOLATED SECTIONS 19(A)(1), (2), (5), AND (6) OF THE EXECUTIVE ORDER.
THE ISSUES PRESENTED FOR DECISION ARE AS FOLLOWS: /2/

I. WHETHER THE RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) BY
REFUSING TO GIVE THE UNION THE OPPORTUNITY TO BE REPRESENTED AT A
MEETING ON NOVEMBER 3, 1976; AND, WHETHER RESPONDENT VIOLATED SECTION
19(A)(1) BY DENYING AN EMPLOYEE'S REQUEST FOR ASSISTANCE BY THE
EXCLUSIVE REPRESENTATIVE AT THIS MEETING; AND,

II. WHETHER ONE OF RESPONDENT'S SUPERVISORS MADE AN ANTI-UNION
STATEMENT AT THE ABOVE MEETING IN VIOLATION OF SECTION 119(A)(1); AND,

III. WHETHER AN EMPLOYEE'S DISCHARGE FROM EMPLOYMENT WAS DUE, IN
PART, TO ANTI-UNION CONSIDERATIONS IN VIOLATION OF SECTION 19(A)(2).

AT THE HEARING, ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED
FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY. THEREAFTER, BOTH PARTIES
FILED BRIEFS WHICH 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, CONCLUSIONS, AND RECOMMENDATION.

FINDINGS OF FACT

1. AT ALL TIMES MATERIAL HEREIN, LOCAL R1-8 OF THE NATIONAL
   ASSOCIATION OF GOVERNMENT EMPLOYEES WAS THE EXCLUSIVE BARGAINING
   REPRESENTATIVE OF VARIOUS NON-SUPERVISORY EMPLOYEES OF THE RESPONDENT.

2. ON OR ABOUT JANUARY 5, 1976, HARRIET GUERIN WAS HIRED BY THE
   RESPONDENT AS A GS-3 TELEPHONE OPERATOR. ON NOVEMBER 1, 1976, GUERIN
   WAS ASKED ON THREE SEPARATE OCCASIONS BY THE ACTING CHIEF OPERATOR TO
   ASSIST A STUDENT OPERATOR. ON EACH OCCASION, GUERIN RESPONDED
   NEGATIVELY TO THE SUPERVISOR, STATING THAT THE REQUESTED ACTIVITY WAS
   NOT WITHIN HER JOB DESCRIPTION. THE JOB DESCRIPTION GENERALLY STATES
   THAT AN OPERATOR WILL PERFORM OTHER DUTIES AS ASSIGNED.

3. ON NOVEMBER 2, 1976, THE ABOVE ACTING CHIEF OPERATOR DELIVERED A
   MEMORANDUM TO THE CHIEF OPERATOR, SHIRLEY MANCHUROWSKI, DESCRIBING IN
   DETAIL THE THREE INCIDENTS IN WHICH GUERIN FAILED TO COOPERATE ON THE
   PREVIOUS DAY. LATER ON NOVEMBER 2, GUERIN WAS CALLED INTO A MEETING
   WHICH SQUADRON COMMANDER WILCOX, MANCHUROWSKI, AND THE INDIVIDUAL WHO
   HAD BEEN THE ACTING CHIEF OPERATOR ON NOVEMBER 1. GUERIN WAS GIVEN A
   COPY OF THE ABOVE MEMORANDUM. SHE OBJECTED TO THE CONTENTS OF THE
   MEMORANDUM, STATING THAT THE INCIDENTS DID NOT OCCUR EXACTLY AS SET
   FORTH IN THE MEMORANDUM. SHE WAS THEN TOLD THAT THE DISCUSSION WOULD
   CONTINUE IN THE MORNING.

4. ON THE MORNING OF NOVEMBER 3, 1976, HARRIET GUERIN AND ANOTHER
   TELEPHONE OPERATOR, MICHELLE BILODEAU, WERE CALLED INTO A MEETING WITH
   WILCOX, MANCHUROWSKI, AND ANOTHER SUPERVISOR. THE MEETING WAS CALLED
   FOR THE PURPOSE OF ATTEMPTING TO RESOLVE PROBLEMS WHICH THE CHIEF
   OPERATOR, MANCHUROWSKI, WAS HAVING WITH GUERIN AND BILODEAU REGARDING
   THEIR CONDUCT AT THE SWITCHBOARD. WILCOX SPOKE ABOUT CERTAIN CHANGES
   THAT THESE TWO EMPLOYEES WOULD HAVE BE MAKE WITH RESPECT TO THEIR BREAKS
   AND LUNCH HOURS. THEN GUERIN RAISED THE SUBJECT OF THE NOVEMBER 2
   MEMORANDUM TO WHICH SHE HAD OBJECTED ON THE PREVIOUS DAY. GUERIN
   REQUESTED PERMISSION TO HAVE HER UNION REPRESENTATIVE PRESENT DURING
   THIS PART OF THE DISCUSSION. WILCOX REFUSED TO GRANT THIS REQUEST,
   STATING THAT HE FELT THAT THE MATTER UNDER DISCUSSION WAS SOMETHING
   BETWEEN HIMSELF AND GUERIN CONCERNING JOB PERFORMANCE AND THAT A UNION
   REPRESENTATIVE WAS NOT NEEDED. HE ALSO STATED THAT HE DID NOT THINK IT
   WOULD BE APPROPRIATE TO HAVE A UNION REPRESENTATIVE PRESENT DURING
   FUTURE MEETINGS WITH GUERIN CALLED FOR THE PURPOSE OF RESOLVING HER
   INDIVIDUAL PROBLEMS ON THE JOB. AT THAT POINT, BILODEAU WAS EXCUSED
   FROM THE MEETING SINCE THE DISCUSSION NO LONGER CONCERNED HER. THE
   MEETING HAD BEGUN AT ABOUT 9:00 A.M.; GUERIN WAS EXCUSED AT ABOUT 11:30
   A.M.

5. AT APPROXIMATELY 4:00 P.M. ON NOVEMBER 3, MANCHUROWSKI CALLED
   GUERIN TO HER OFFICE AND TOLD HER THAT SHE WAS GOING TO HAVE TO "DO SOME
   SERIOUS THINKING" ABOUT WHETHER TO RETAIN GUERIN IN HER POSITION. IN
   THIS REGARD, MANCHUROWSKI WAS REQUIRED BY THE FEDERAL PERSONNEL MANUAL
   TO SUBMIT, NO LATER THAN NOVEMBER 5, AN EVALUATION OF GUERIN, WHO WAS
   STILL IN HER PROBATIONARY STATUS. IN THE EVALUATION, MANCHUROWSKI WOULD
   BE REQUIRED TO RECOMMEND WHETHER GUERIN SHOULD BE DISMISSED OR RETAINED
   BEYOND THE PROBATIONARY PERIOD.

6. ON NOVEMBER 5 MANCHUROWSKI OFFICIALLY NOTIFIED GUERIN IN WRITING
   THAT SHE WAS BEING TERMINATED FROM HER POSITION AS TELEPHONE OPERATOR
   FOR RESPONDENT EFFECTIVE NOVEMBER 19, 1976. THE LETTER OF SEPARATION
   ENUMERATED SEVERAL INCIDENTS IN WHICH GUERIN HAD FAILED TO COOPERATE IN
   THE PERFORMANCE OF HER DUTIES AS A TELEPHONE OPERATOR. IN ADDITION TO
   THE REPEATED REFUSALS TO AID STUDENT OPERATORS ON NOVEMBER 1, THE LETTER
   ALSO REFERRED TO DISRUPTIVE CONVERSATIONS AT THE SWITCHBOARD AND AN
   ANGRY CONFRONTATION WITH THE CHIEF OPERATOR ON OCTOBER 7, 1976. IT WAS
   ALSO ASSERTED THAT GUERIN'S CONDUCT AND PERSONALITY HAD RESULTED IN A
   DECREASE IN OFFICE MORALE.

7. GUERIN IMMEDIATELY REQUESTED A REVIEW OF THE SEPARATION ACTION
   AND ON NOVEMBER 16 SHE ATTEMPTED TO REFUTE THE CHARGES BY HAVING SEVERAL
   FELLOW EMPLOYEES SPEAK ON HER BEHALF. THESE EMPLOYEES STATED AT THAT
   TIME THAT THEY HAD NEVER SEEN GUERIN BE UNCOOPERATIVE IN THE PERFORMANCE
   OF HER JOB OR HAVE AN ANGRY CONFRONTATION WITH ANYONE AT THE
   SWITCHBOARD. IT IS NOT KNOWN WHETHER THESE EMPLOYEES WERE ACTUALLY
   PRESENT DURING THE INCIDENTS WHICH WERE ALLEGED BY MANCHUROWSKI.

8. ON NOVEMBER 18 THE DISCHARGE WAS SUSTAINED BY THE DIRECTOR OF
   OPERATIONS. HE HAD GIVEN GUERIN A "CERTIFICATE OF PROFICIENCY" IN APRIL
   OF 1976 FOR HER WORK AT THE SWITCHBOARD. HE HAD ALSO GIVEN HER A LETTER
   OF COMMENDATION IN SEPTEMBER OF 1976 CONGRATULATING GUERIN ON PROMPTLY
   RESPONDING TO A TEST CALL. THIS DOCUMENT WAS ALSO SIGNED BY WILCOX AND
   WAS ESSENTIALLY A FORM LETTER WHICH WAS SENT TO OTHER OPERATORS FOR THIS
   PURPOSE.

CONCLUSIONS OF LAW

I. THE FIRST ISSUES ARISE OUT OF RESPONDENT'S REFUSAL TO ALLOW A
UNION REPRESENTATIVE TO BE PRESENT AT THE NOVEMBER 3, 1976, MEETING. IT
IS FIRST NECESSARY TO DETERMINE WHETHER THE UNION HAD A RIGHT TO BE
REPRESENTED; IF SO, RESPONDENT'S REFUSAL WOULD HAVE CONSTITUTED A
VIOLATION OF SECTIONS 19(A)(6) AND (1) OF THE EXECUTIVE ORDER.

UNLESS OTHERWISE AGREED BY THE PARTIES, A UNION HAS THE RIGHT TO 0E
REPRESENTED AT MEETINGS WITH AGENCY MANAGEMENT ONLY UNDER THE
CIRCUMSTANCES SET FORTH IN THE LAST SENTENCE OF SECTION 10(E). NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION (NASA), WASHINGTON, D.C., A/SLMR
457, FLRC 74 A-95 (SEPTEMBER 26, 1975), REPORT NO. 84. THAT SENTENCE
PROVIDES:

THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL

DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING

GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING

CONDITIONS OR EMPLOYEES IN THE UNIT.

THE MEETING IN QUESTION DID NOT CONSTITUTE A "FORMAL DISCUSSION"
WITHIN THE MEANING OF SECTION 10(E). THE MEETING CLEARLY DID NOT
INVOLVE ANY DISCUSSION OF GRIEVANCES, PERSONNEL POLICIES AND PRACTICES,
OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
THE UNIT. THE MEETING WAS CALLED FOR THE PURPOSE OF COUNSELING TWO
INDIVIDUAL EMPLOYEES REGARDING PROBLEMS WITH THEIR PERFORMANCE AT THE
SWITCHBOARD. SINCE THE DISCUSSION CONCERNED THE POSSIBLE MISCONDUCT OF
ONLY TWO EMPLOYEES AND DID NOT INVOLVE THE EMPLOYMENT INTERESTS OF OTHER
PERSONNEL IN THE BARGAINING UNIT, I MUST CONCLUDE THAT THE UNION DID NOT
HAVE ANY RIGHT TO BE REPRESENTED AT THIS MEETING. SOCIAL SECURITY
ADMINISTRATION, GREAT LAKES PROGRAM CENTER, CHICAGO, ILLINOIS, A/SLMR
804(1977).

THE NEXT ISSUE FOR CONSIDERATION IS WHETHER RESPONDENT VIOLATED
SECTION 19(A)(1) BY REFUSING HARRIET GUERIN'S REQUEST TO BE REPRESENTED
BY THE UNION AT THE NOVEMBER 3 MEETING. THE FEDERAL LABOR RELATIONS
COUNCIL HAS HELD THAT AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION
DOES NOT HAVE A PROTECTED RIGHT UNDER THE ORDER TO ASSISTANCE OR
REPRESENTATION AT A NONFORMAL INVESTIGATIVE MEETING OR INTERVIEW TO
WHICH HE IS SUMMONED BY MANAGEMENT. STATEMENT ON MAJOR POLICY ISSUE,
FLRC 75P-2, REPORT NO. 116 (DECEMBER 2, 1976). IN THE INSTANT CASE, THE
MEETING IN QUESTION WAS NONFORMAL IN NATURE FOR THE REASONS SET FORTH
ABOVE. THE UNION ALLEGES THAT WHEN THE NOVEMBER 2 MEMORANDUM CONCERNING
GUERIN'S FAILURE TO COOPERATE WAS RAISED, GUERIN HAD REASON TO BELIEVE
THAT MANAGEMENT MIGHT TAKE DISCIPLINARY ACTION AGAINST HER AND THAT HER
EMPLOYMENT INTERESTS NEEDED PROTECTION. THE ASSISTANT SECRETARY HAS
HELD UNDER SIMILAR CIRCUMSTANCES THAT THE EMPLOYEE DOES NOT HAVE A RIGHT
TO REPRESENTATION. INTERNAL REVENUE SERVICE, A/SLMR 897(1977).
ACCORDINGLY, I MUST CONCLUDE AND HOLD THAT RESPONDENT DID NOT VIOLATE
THE ORDER SINCE NEITHER THE INDIVIDUAL EMPLOYEE NOR THE UNION HAD A
RIGHT TO BE REPRESENTED AT THE NOVEMBER 3 MEETING.

II. THE NEXT ISSUE PRESENTED FOR DECISION IS WHETHER SQUADRON
COMMANDER WILCOX UTTERED WORDS TO THE EFFECT THAT HE WOULD NOT PERMIT
HIS STAFF TO MEET WITH GUERIN AND ANY UNION REPRESENTATIVE WITH REGARD
TO ANY MATTER. COMPLAINANT CONTENDS THAT THE STATEMENT WAS MADE AND
THAT IT CONSTITUTED A VIOLATION OF SECTION 19(A)(1). AFTER REVIEWING
THE RECORD ON THIS ISSUE, I CHOOSE TO CREDIT THE TESTIMONY OF THE
SQUADRON COMMANDER AND FIND THAT HE DID NOT MAKE SUCH A STATEMENT. THE
SUBSTANCE OF HIS STATEMENT TO GUERIN AT THE NOVEMBER 3 MEETING WAS
MERELY THAT HE WOULD NOT PERMIT A UNION REPRESENTATIVE TO BE PRESENT
DURING ANY FUTURE COUNSELING SESSIONS WITH GUERIN SIMILAR TO THE
NOVEMBER 3 MEETING. I FIND AND CONCLUDE THAT NEITHER THE TONE NOR THE
CONTENT OF WILCOX'S STATEMENT CONSTITUTED A VIOLATION OF SECTION
19(A)(1).

III. THE FINAL ISSUE IS WHETHER RESPONDENT DISCHARGED GUERIN FROM
HER POSITION ON THE BASIS OF UNION CONSIDERATIONS IN VIOLATION OF
SECTIONS 19(A)(2) AND (1). /3/ COMPLAINANTS ARGUE THAT GUERIN WAS
DISMISSED PRIMARILY BECAUSE SHE REQUESTED A UNION REPRESENTATIVE AT THE
NOVEMBER 3, 1976, MEETING. IF THIS WAS ONE OF THE REASONS FOR HER
DISMISSAL, RESPONDENT WOULD HAVE VIOLATED SECTION 19(A)(2). /4/

I HAVE CONCLUDED THAT COMPLAINANTS HAVE FAILED TO SUSTAIN THEIR
BURDEN OF PROVING THAT GUERIN'S REQUEST FOR A UNION REPRESENTATIVE
PLAYED ANY PART IN HER DISMISSAL. IN AM NOT CONVINCED THAT WILCOX'S
REFUSAL TO ALLOW A UNION REPRESENTATIVE TO BE PRESENT AT GUERIN'S
COUNSELING SESSIONS PROVED THAT HE HAD AN ANTI-UNION ATTITUDE; IN THE
CIRCUMSTANCES OF THIS CASE HE WAS UNDER NO OBLIGATION TO PERMIT
REPRESENTATION AT SUCH MEETINGS. FURTHERMORE, COMPLAINANTS HAVE FAILED
TO ADDUCE ANY OTHER EVIDENCE TENDING TO PROVE THE EXISTENCE OF UNION
ANIMUS.

COMPLAINANTS ARGUE THAT THE REASONS GIVEN BY MANAGEMENT FOR THE
TERMINATION, WHICH ARE SET FORTH IN THE NOVEMBER 5 LETTER OF SEPARATION,
WERE MERELY A PRETEXT DESIGNED TO CONCEAL UNION ANIMUS. AGAIN, THEY
HAVE FAILED TO SUSTAIN THEIR BURDEN OF PROOF. RESPONDENT ALLEGED IN THE
LETTER THAT GUERIN HAD FAILED TO COOPERATE AND GAVE EXAMPLES IN SUPPORT
OF ITS POSITION. THE INCIDENT WHICH OCCURRED ON NOVEMBER 1, 1976, IN
WHICH SHE FAILED TO COOPERATE ON THREE OCCASIONS, IS INDICATIVE OF AN
UNDERLYING CONFLICT BETWEEN GUERIN AND ONE OF HER SUPERVISORS. A LETTER
FROM HER SUPERVISOR DESCRIBING THIS INCIDENT WAS GIVEN TO HER, AND
PLACED IN HER PERSONNEL FOLDER, BEFORE THE REQUEST FOR UNION
REPRESENTATION WAS MADE AND WAS INDEPENDENT OF ANY UNION CONSIDERATIONS.
COMPLAINANTS ATTEMPTED TO REFUTE THE EXISTENCE OF THE OTHER INCIDENTS
DESCRIBED BY MANAGEMENT THROUGH THE TESTIMONY OF CO-WORKERS. HOWEVER,
THESE WITNESSES ESSENTIALLY TESTIFIED THAT THEY WERE UNAWARE OF THE
OCCURRENCES, AND DID NOT PROVE THAT THEY DID NOT OCCUR.

FINALLY, COMPLAINANTS EMPHASIZE THE FACT THAT GUERIN RECEIVED HER
NOVEMBER 5 LETTER OF SEPARATION ONLY TWO DAYS AFTER SHE HAD REQUESTED
UNION REPRESENTATION. THEY ALSO POINT TO HER SUPERVISOR'S REMARK A FEW
HOURS AFTER THIS REQUEST TO THE EFFECT THAT SHE WOULD HAVE TO SERIOUSLY
CONSIDER WHETHER GUERIN SHOULD BE RETAINED. THEY ARGUE THAT THE
PROXIMITY OF THESE EVENTS PROVES THE DISMISSAL WAS DUE, AT LEAST IN
PART, TO UNION ANIMUS. I DISAGREE. THE LETTER OF SEPARATION WAS
WRITTEN ON NOVEMBER 5 BECAUSE THAT WAS THE LAST DAY THAT SUCH ACTION
COULD BE TAKEN FOR THE PURPOSE OF DISCHARGING GUERIN DURING HER
PROBATIONARY PERIOD. I FIND THAT THE PROXIMITY IN TIME, ABSENT ANY
OTHER PROBATIVE EVIDENCE OF UNION ANIMUS, MERELY RAISES A SUSPICION
WHICH DOES NOT SUFFICE TO CARRY THE COMPLAINANTS' BURDEN OF PROOF.

ACCORDINGLY, I MUST CONCLUDE AND HOLD THAT RESPONDENT DID NOT VIOLATE
SECTIONS 19(A)(2) AND (1) OF THE ORDER. SEE, E.G., DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION WILLIAM P. HOBBY AIRPORT
TRAFFIC CONTROL TOWER (TRACAB), HOUSTON, TEXAS, A/SLMR 1039(1978).

RECOMMENDATION

IN VIEW OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, I
HEREBY RECOMMEND TO THE ASSISTANT SECRETARY THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.

RANDOLPH D. MASON

ADMINISTRATIVE LAW JUDGE

DATED: DEC 15 1979

WASHINGTON, D.C.

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.

/2/ COMPLAINANTS FAILED TO CARRY THEIR BURDEN OF PROVING THAT
RESPONDENT REFUSED TO ACCORD APPROPRIATE RECOGNITION TO THE UNION AND
ABANDONED THE SECTION 19(A)(5) ALLEGATION AT THE CONCLUSION OF THE
HEARING.

/3/ THE REGIONAL ADMINISTRATOR DISMISSED THIS ALLEGATION ON THE
GROUND THAT IT WAS NOT PROPERLY RAISED IN THE PRECOMPLAINT CHARGE;
HOWEVER, I AM BOUND BY THE ASSISTANT SECRETARY'S SUBSEQUENT REVERSAL
HOLDING THAT A REASONABLE BASIS FOR THE COMPLAINT HAD BEEN ESTABLISHED
FOR ALL ISSUES INCLUDING THE ALLEGED VIOLATION OF SECTION 19(A)(2).

/4/ IN ITS CLOSING STATEMENT COMPLAINANT INADVERTENTLY ABANDONED
SECTION 19(A)(2) AND IMPROPERLY CHARACTERIZED THE ALLEGED FACTS AS A
VIOLATION OF SECTION 1=(A)(1) ONLY. SINCE COMPLAINANT HAS ALWAYS
MAINTAINED THAT GUERIN WAS DISCHARGED ON THE BASIS OF UNION
CONSIDERATIONS, THIS INADVERTENCE HAS BEEN DISREGARDED. ALTHOUGH
RESPONDENT NOW CONTENDS THAT COMPLAINANT WAIVED THE ISSUE, RESPONDENT
ADEQUATELY DISCUSSED THE MERITS OF THE SECTION 19(A)(2) QUESTION ON
BRIEF AND HAS NOT BEEN PREJUDICED BY MY DECISION TO CONSIDER THE ISSUE.