U.S. Department of Labor, Office of Federal Contract Compliance Programs and Robert A. Evans (Authority decision, April 30, 1982)

Final FLRA decision. The Authority adopted the Judge’s dismissal of an unfair-labor-practice complaint. An aggrieved person may seek judicial review in a United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

Robert Evans alleged that a Department of Labor office gave him an unfavorable work critique because he filed a grievance. The Judge found that the supervisor completed the critique before learning of the grievance, even though the typed document bore a later date. The Authority rejected the General Counsel’s challenge to the Judge’s credibility findings and adopted the dismissal.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1)-(2).
• Outcome: The Judge’s dismissal was adopted; the complaint was dismissed.
• Key point: A critique completed before the supervisor learned of the grievance did not establish retaliation.

Full text (FLRA public release)

[ v08 p451 ]

08:0451(96)CA

The decision of the Authority follows:

8 FLRA No. 96

UNITED STATES DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF FEDERAL CONTRACT COMPLIANCE
PROGRAMS, COLUMBUS, OHIO
Respondent

and

ROBERT A. EVANS, AN INDIVIDUAL
Charging Party

Case No. 5-CA-698

DECISION AND ORDER

THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND (2) OF THE
STATUTE AND RECOMMENDING THAT THE CASE BE DISMISSED IN ITS ENTIRETY.
EXCEPTIONS TO THE JUDGE'S DECISION WERE FILED BY THE GENERAL COUNSEL,
AND AN OPPOSITION WAS FILED TO THE GENERAL COUNSEL'S EXCEPTIONS BY THE
RESPONDENT.

PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) 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 HEREBY ADOPTS THE
JUDGE'S FINDINGS, /1/ CONCLUSION AND RECOMMENDATION.

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-698 BE, AND
IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., APRIL 30, 1982

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

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

/1/ THE GENERAL COUNSEL IN ESSENCE EXCEPTED TO CERTAIN CREDIBILITY
FINDINGS MADE BY THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF
CONSEQUENCE IN RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD
THE ADVANTAGE OF OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE
AUTHORITY WILL NOT OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO
CREDIBILITY UNLESS A CLEAR PREPONDERANCE OF ALL THE RELEVANT EVIDENCE
DEMONSTRATES SUCH RESOLUTION WAS INCORRECT. THE AUTHORITY HAS EXAMINED
THE RECORD CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S
CREDIBILITY FINDINGS.

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

UNITED STATES DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS
ADMINISTRATION, OFFICE OF FEDERAL CONTRACT COMPLIANCE
PROGRAMS, COLUMBUS, OHIO
RESPONDENT

AND

ROBERT A. EVANS, AN INDIVIDUAL
CHARGING PARTY

SHEILA K. CRONAN,
ATTORNEY FOR RESPONDENT

JUDITH A. RAMEY,
ATTORNEY FOR THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY

BEFORE: ISABELLE R. CAPPELLO
ADMINISTRATIVE LAW JUDGE

CASE NO. 5-CA-698

DECISION

THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, CHAPTER 7, TITLE 5 OF THE U.S. CODE
(HEREINAFTER REFERRED TO AS THE "STATUTE") AND THE RULES AND REGULATIONS
ISSUED THEREUNDER AND PUBLISHED IN 45 FED.REG. 3482-3524 (1/17/80), 5
CFR 2421 ET SEQ.

A COMPLAINT AND NOTICE OF HEARING WAS FILED BY THE REGIONAL DIRECTOR,
CHICAGO REGION, OF THE FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER,
THE "AUTHORITY") ON NOVEMBER 25, 1980. THE COMPLAINT ALLEGES THAT
RESPONDENT HAS VIOLATED, AND IS VIOLATING SECTION 7116 (A)(1) AND (2) OF
THE STATUTE, /1/ BY AND THROUGH J. ROBERT MACK, BY THE FOLLOWING ALLEGED
ACTS AND CONDUCT. ON OR ABOUT SEPTEMBER 5, 1980, /2/ MR. MACK ISSUED A
MEMORANDUM CRITICAL OF THE WORK PERFORMANCE OF ROBERT A. EVANS BECAUSE,
ON OR ABOUT SEPTEMBER 2, MR. EVANS HAD FILED A GRIEVANCE WITH HIS UNION
CONCERNING A MEMORANDUM AND COUNSELLING HE HAD RECEIVED FROM MR. MACK
ON
AUGUST 22. RESPONDENT DENIES THAT A VIOLATION HAS OCCURRED.

A HEARING ON THE MATTER WAS HELD ON FEBRUARY 26, 1981, IN COLUMBUS,
OHIO. THE PARTIES APPEARED AND WERE GIVEN A FULL OPPORTUNITY TO ADDUCE
EVIDENCE AND EXAMINE AND CROSS-EXAMINE WITNESSES. BRIEFS WERE FILED ON
MARCH 27, 1981, BY THE GENERAL COUNSEL OF THE AUTHORITY, AND ON MARCH
30, 1981, BY THE RESPONDENT. BASED ON THE RECORD MADE, MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, AND THE BRIEFS, I MAKE THE
FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDED ORDER.

FINDINGS /3/

1. THE UNITED STATES DEPARTMENT OF LABOR OPERATES A FACILITY AT
   COLUMBUS, OHIO, KNOWN AS THE EMPLOYMENT STANDARDS ADMINISTRATION, OFFICE
   OF FEDERAL CONTRACT COMPLIANCE PROGRAMS. (IT WILL ALSO BE REFERRED TO
   HEREIN AS THE "RESPONDENT.") L.W. FARROW IS DIRECTOR OF THE COLUMBUS
   AREA OFFICE. J. ROBERT MACK IS AN EQUAL OPPORTUNITY SPECIALIST,
   SUPERVISOR, OF RESPONDENT. KAREN WOODS IS A EQUAL OPPORTUNITY
   SPECIALIST, TEAM LEADER, AND IS ASSIGNED TO WORK FOR MR. MACK. ROBERT A.
   EVANS IS AN EQUAL OPPORTUNITY SPECIALIST (HEREINAFTER, "EOS") ASSIGNED
   TO MS. WOODS' TEAM.

2. SINCE ON OR ABOUT AUGUST 17, 1978, THE UNITED STATES DEPARTMENT
   OF LABOR HAS RECOGNIZED THE NATIONAL COUNCIL OF FIELD LABOR LOCALS,
   AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AS THE EXCLUSIVE
   COLLECTIVE BARGAINING REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES, IN A
   NATIONWIDE UNIT. EMPLOYEES WHO WORK AS EOSS ARE MEMBERS OF THE
   BARGAINING UNIT. LOCAL 2089 IS THE AGENT OF THE NATIONAL COUNCIL WITH
   RESPECT TO EMPLOYEES OF TEE COLUMBUS ACTIVITY. YOULA BRANT, AN EOS
   EMPLOYEE OF RESPONDENT, WAS APPOINTED AS UNION STEWARD, AT THE COLUMBUS
   ACTIVITY, ON JULY 14, AND HAS BEEN ENGAGED IN SOME REPRESENTATIONAL
   ACTIVITY SINCE ABOUT MAY 14.

3. MR. EVANS HAS WORKED AS AN EOS FOR RESPONDENT SINCE OCTOBER 13,

4. ON MARCH 31 HE RECEIVED A "SATISFACTORY" PERFORMANCE RATING FROM
   MR. MACK, OUT OF OTHER POSSIBLE CHOICES OF "OUTSTANDING" AND
   "UNSATISFACTORY." MR. MACK CHECKED MR. EVANS AS "PROFICIENT" OUT OF A
   POSSIBLE "SUPERIOR" AND "PASSABLE."

5. ON MAY 8, MR. MACK COMPLETED A SUPERVISOR'S REPORT ON EMPLOYEE
   AFTER PLACEMENT ON MR. EVANS. MR. MACK WROTE ON THE FORM:

I BELIEVE MR. EVANS HAS THE GRASP OF THE BASIC POLICIES AND
PROCEDURES OF OUR PROGRAM AND

IS COMPETENT TO PERFORM INDEPENDENT WORK OF AVERAGE COMPLEXITY. HE
WILL REQUIRE CONTINUED

ASSISTANCE AND GUIDANCE ON FINE POINTS AND INFREQUENTLY IDENTIFIED
PROBLEMS.

MR. EVANS IS CURRENTLY ATTENDING THE OFCCP BASIC TRAINING COURSE
"DESK AUDIT ANALYSIS" FROM

APRIL 28 TO MAY 9 . . . WITH ADDITIONAL OJT /4/ EXPERIENCE HE SHOULD
BECOME A PRODUCTIVE EOS

MEETING ALL THE STANDARDS OF HIS POSITION.

MR. MACK ALSO NOTED THAT MR. EVANS HAD RECEIVED SUPERVISED DESK AUDIT
ANALYSIS, OJT, FOR SEVERAL MAJOR CASES, PARTICIPATED IN THREE ON-SITE
REVIEWS, ONE OF WHICH WAS DONE INDEPENDENTLY, AND HAD INVESTIGATED,
UNDER CLOSE SUPERVISION, A COMPLAINT ALLEGING SYSTEMIC DISCRIMINATION.

5. A REGIONAL ACCOUNTABILITY REVIEW WAS HELD IN MAY. MS. BRANT
   COMPLAINED TO THE REGIONAL REPRESENTATIVE THAT EOSS WERE BEING FORCED TO
   CONDUCT REVIEWS OVER AND ABOVE WHAT THE POSITION DESCRIPTION REQUIRED.
   SOMETIME AFTER THIS MEETING, AN EOS, MARLENE SHANKLIN, TESTIFIED THAT
   HER SUPERVISOR, PHILIP STEPTEAU, A PEER OF MR. MACK'S, TOLD HER THAT
   BECAUSE OF "TROUBLE MAKERS" IN THE OFFICE, PROMOTIONS WOULD NOT BE AS
   AUTOMATIC AS ONCE EXPECTED, THAT "THE GOOD WOULD HAVE TO SUFFER WITH THE
   BAD," AND THAT THE WORK OF EOSS WAS GOING TO BE "CLOSELY SCRUTINIZED."
   (TR 56-61, R 2) MS. SHANKLIN APPEARED TO BE SURE OF HER FACTS. MR.
   STEPTEAU'S BARE DENIALS OF THEIR ACCURACY WERE NOT GIVEN IN A CONFIDENT
   MANNER. ACCORDINGLY, I CREDIT MS. SHANKLIN'S TESTIMONY, ON THIS POINT.

6. ON JUNE 10, MR. EVANS WAS PRESENT AT A MEETING BETWEEN MS. BRANT
   AND MR. FARROW, MR. EVANS WAS ASKED BY MS. BRANT TO BE PRESENT "AS A
   WITNESS." (TR 26) MR. FARROW INQUIRED AS TO WHETHER MR. EVANS WAS THERE
   AS A UNION STEWARD, OR A REPRESENTATIVE. MR. EVANS HOLDS NO UNION
   OFFICE.

7. ON JULY 15, MR. MACK FILLED OUT A SUPERVISOR'S REPORT ON EMPLOYEE
   DURING PROBATIONARY PERIOD ON MR. EVANS. THIS REPORT WAS REQUESTED ON
   JUNE 12, BY RESPONDENT. THE REPORT IS ONE WHICH IS ROUTINELY FILLED OUT
   WHILE AN EMPLOYEE IS SERVING THE NINTH MONTH OF HIS REQUIRED
   PROBATIONARY PERIOD. SEE GC 5, ITEM 5. MR. EVANS WAS APPARENTLY HIRED
   ON OCTOBER 13, 1979. SEE TR 21. MR. MACK RECOMMENDED RETAINING MR.
   EVANS, "AS PRESENTLY ASSIGNED AND THAT HE CONTINUE TO RECEIVE OJT FOR
   THOSE AREAS WHERE IMPROVEMENT IS NEEDED." (GC 5, ITEM 6D) MR. MACK
   DETAILED SOME UNFLATTERING INSTANCES OF MR. EVAN'S INABILITY GET ALONG
   WITH OTHER EMPLOYEES, AND NOTED THAT HE HAD VERBALLY COUNSELLED MR.
   EVANS REGARDING REPORTS FROM FELLOW EMPLOYEES THAT HE "DISPLAYED
   EXCESSIVE EMOTIONAL DISTURBANCE ON AT LEAST THREE OCCASIONS." (GC 5,
   ITEM 6A) MR. MACK DESCRIBED MR. EVANS' "WORK PERFORMANCE" AS FOLLOWS:

MR. EVANS HAS DEMONSTRATED A WORKING KNOWLEDGE OF THE BASIC
PRINCIPLES OF COMPLIANCE

REVIEWS AND COMPLAINT INVESTIGATIONS. RECENT WORK ON A POTENTIAL
AFFECTED CLASS, HOWEVER,

SHOWS A NEED FOR BETTER UNDERSTANDING OF THE ADVERSE EFFECT FORMULA
AND SUCCEEDING STEPS FOR

APPROPRIATE IDENTIFICATION OF AFFECTED CLASSES. MR. EVANS IS MEETING
THE STANDARDS OF HIS

POSITION IN ACCOMPLISHMENT OF ASSISTED REVIEWS INVOLVING BOTH COMPLEX
AND NON-COMPLEX

ISSUES. (GC, ITEM 6C)

8. ON AUGUST 22, MR. EVANS RECEIVED FROM MR. MACK A MEMORANDUM AND A
   COUNSELLING ON ALLEGED UNPROFESSIONAL AND DISRUPTIVE CONDUCT. SEE GC 2.

9. BETWEEN JUNE AND SEPTEMBER, MS. WOODS WORKED ON THREE MAJOR
   COMPLIANCE REVIEWS WITH MR. EVANS. MISTAKES WERE FOUND ON EACH. MS.
   WOODS SHARED THESE PROBLEMS WITH MR. MACK.

10. ON AUGUST 26, MS. WOODS WROTE A MEMORANDUM TO MR. MACK IN WHICH
    SHE DISCUSSED PROBLEMS WITH THE DESK AUDIT OF ARMCO STEEL PERFORMED BY
    MR. EVANS.

11. ON SEPTEMBER 2 MR. EVANS SIGNED A GRIEVANCE CONCERNING THE
    MEMORANDUM AND COUNSELLING HE HAD RECEIVED FROM MR. MACK ON AUGUST 22.
    MS. BRANT DELIVERED THE GRIEVANCE TO MR. MACK, IN A WHITE ENVELOPE, ON
    SEPTEMBER 4.

12. ON SEPTEMBER 3, MR. EVANS MET WITH HIS TEAM LEADER, MS. WOODS,
    TO DISCUSS THE PERFORMANCE OF A DESK AUDIT ON STANDARD OIL OF LIMA,
    OHIO. /5/ A DESK AUDIT IS AN ANALYSIS OF A FEDERAL CONTRACTOR TO INSURE
    THAT ALL EQUAL OPPORTUNITY POLICIES HAVE BEEN IMPLEMENTED BY PROMOTIONS,
    TRANSFERS, AND OTHER PERSONNEL ACTIONS.

13. ON SEPTEMBER 3, /6/ MR. MACK CALLED MR. EVANS AND MS. WOODS TO
    HIS OFFICE TO GO OVER THE DESK AUDIT DONE BY MR. EVANS ON STANDARD OIL,
    BECAUSE A DECISION HAD TO BE MADE ON WHETHER AN ON-SITE REVIEW SHOULD BE
    SCHEDULED. MS. WOODS STATED THAT A QUICK REVIEW SHE HAD DONE OF MR.
    EVANS' WORKPAPERS INDICATED SOME PROBLEM WITH MR. EVANS' STATISTICAL
    ANALYSIS. MR. MACK TOLD HER TO CHECK AND ADVISE HIM. MR. MACK ALSO
    TOLD HER THAT HE WANTED TO SEE THE ENTIRE CASE FILE AND THE WORKPAPERS,
    FOR HIS OWN REVIEW. WITHIN HALF AN HOUR, MS. WOODS COMPLIED. MR. MACK
    TESTIFIED THAT HE THEN BEGAN HIS OWN REVIEW OF MR. EVANS' WORK AND FELT
    THAT HE HAD TO REDUCE HIS REVIEW TO WRITING BECAUSE OF THE NUMBER OF
    SERIOUS DEFICIENCIES FOUND. MR. MACK TESTIFIED THAT HE SPENT TWO HOURS
    OF OFFICE TIME AND TWO TO THREE HOURS OF TIME AT HOME TO COMPLETE HIS
    REVIEW. THE WORKPAPERS REVIEWED CONSISTED OF 25 PAGES. SEE R 16.

14. THE SECRETARY WHO TYPED THE STANDARD OIL CRITIQUE BY MR. MACK
    WAS CALLED AS A WITNESS. SHE IS NO LONGER EMPLOYED BY RESPONDENT. SHE
    COULD NOT RECALL EXACTLY WHEN SHE TYPED IT. AT FIRST SHE RECALLED
    SEPTEMBER 2. THEN SHE WAS SHOWN THE DOCUMENT, DATED SEPTEMBER 5. SHE
    TESTIFIED THAT SHE "USUALLY" GOT SUCH MEMORANDUMS OUT ON THE DAY THEY
    WERE GIVEN TO HER. (TR 169) ON CROSS-EXAMINATION BY COUNSEL FOR
    RESPONDENT, SHE ACKNOWLEDGED THAT IT WAS "POSSIBLE" THAT SHE COULD HAVE
    BEEN GIVEN THE CRITIQUE, FOR TYPING, ON SEPTEMBER 4. (TR 172 SHE ALSO
    TESTIFIED THAT MR. MACK WAS GENERALLY A "VERY PATIENT" MAN, WITH NO
    SHOWING OF HOSTILITY OR ANGER ABOUT THE FILING OF GRIEVANCES. (TR
    171-172)

15. WHETHER MR. MACK COMPLETED HIS CRITIQUE ON SEPTEMBER 3, BEFORE
    RECEIVING MR. EVANS' GRIEVANCE ON SEPTEMBER 4, IS CRITICAL TO THIS
    PROCEEDING. HE TESTIFIED THAT HE DID. HE WAS AT EASE, AS A WITNESS,
    AND SEEMED TO BE SURE OF HIS FACTS. HIS FORMER SECRETARY ATTESTED TO
    THE FACT THAT THE FILING OF GRIEVANCES DID NOT GENERALLY PROVOKE
    HOSTILITY OR ANGER IN HIM. IT IS UNDISPUTED THAT THE REVIEW PROCESS OF
    THE PERFORMANCE INVOLVED BEGAN ON SEPTEMBER 3. SEE TR 137 AND FINDING
    13, ABOVE. THE CRITIQUE WAS AN HONEST ONE, AS MR. MACK DEMONSTRATED, ON
    A POINT-BY-POINT BASIS, AT THE HEARING. THERE WAS NO EVIDENCE TO
    ESTABLISH THAT MR. MACK HAD ANY UNION ANIMUS. IT IS UNDISPUTED THAT,
    PRIOR TO SEPTEMBER 3, MR. EVANS WAS HAVING SOME DIFFICULTIES IN WORK
    PERFORMANCE. SEE FINDING 7, ABOVE. BASED ON A CONSIDERATION OF THESE
    FACTS, I CREDIT THE TESTIMONY OF MR. MACK THAT HE COMPLETED THE CRITIQUE
    ON SEPTEMBER 3. /7/

16. ON SEPTEMBER 4, AT THE TIME MS. BRANT DELIVERED THE GRIEVANCE TO
    MR. MACK, OR SHORTLY THEREAFTER, THE STANDARD OIL AUDIT WAS BEING
    DISCUSSED BY MS. WOODS AND MR. MACK. MR. MACK TOLD MS. WOODS THAT HE
    HIMSELF, HAD REVIEWED THE WORKPAPERS ON THE AUDIT, CONFIRMED THE ERRORS
    SHE HAD SPOTTED, FOUND ADDITIONAL ONES, AND PLANNED TO GIVE HER A
    MEMORANDUM ON THE MATTER. THEN MR. MACK TOLD MS. WOODS THAT SHE WAS TO
    GO OVER THE AUDIT WITH MR. EVANS, AND RESUBMIT A CORRECTED AUDIT.
    DURING THIS CONVERSATION, MR. MACK WAS HOLDING IN HIS HAND A SEALED
    WHITE ENVELOPE. AFTER MS. MACK TOLD HER WHAT HE WAS GOING TO DO IN
    REGARD TO THE STANDARD OIL AUDIT, MS. WOODS ASKED WHEN THEY WOULD MEET
    TO DISCUSS THE AUDIT WITH MR. EVANS. MR. MACK REPLIED THAT HE WAS
    PUTTING HIS CRITIQUE IN WRITING, THAT HE HAD SOME OTHER THINGS TO
    DISCUSS WITH MR. EVANS, AND GESTURED TO THE WHITE ENVELOPE IN HIS HAND.
    MS. WOODS ASKED IF A GRIEVANCE WAS IN THE ENVELOPE. MR. MACK TOLD HER
    THAT IT WAS, BUT THAT IT DID NOT CONCERN HER OR THE STANDARD OIL AUDIT.
    MS. WOODS THOUGHT THAT MR. MACK SEEMED UPSET.

17. ON SEPTEMBER 8, MR. EVANS RECEIVED FROM HIS TEAM LEADER, MS.
    WOODS, AN UNFAVORABLE, WRITTEN CRITIQUE OF THE DESK AUDIT PERFORMED BY
    MR. EVANS ON THE STANDARD OIL MATTER. THE CRITIQUE IS IN THE FORM OF A
    MEMORANDUM FROM MR. MACK TO MS. WOODS. IT IS DATED SEPTEMBER 5. IT
    ITEMIZES 18 DEFICIENCIES IN THE DESK AUDIT, AND REFERENCES THE PAGE
    NUMBERS OF MR. EVANS' WORKPAPERS WHERE THE DEFICIENCIES ARE LOCATED.
    THE MEMORANDUM STATES THAT THE WORKPAPERS ARE BEING RETURNED FOR
    REWORKING. THE MEMORANDUM CONCLUDES THAT THE MISTAKES MADE BY MR.
    EVANS WERE UNNECESSARY AND WASTEFUL, AND THAT HIS PERFORMANCE ON THIS
    AUDIT WAS NOT ACCEPTABLE.

18. SOMETIME BETWEEN JUNE 1 AND AUGUST 1, MR. MACK HAD WRITTEN UP
    ANOTHER DETAILED CRITIQUE OF MR. EVAN'S WORK ON A BANK CASE. THE
    MEMORANDUM WAS GIVEN TO MS. WOODS WITH VERBAL DIRECTIONS TO HAVE MR.
    EVANS REDO THE WORK, AND ADJUST IT TO THE COMMENTS MR. MACK HAD WRITTEN.
    SEE R 12. APPARENTLY THE WRITTEN CRITIQUE WAS NOT PASSED ALONG TO MR.
    EVANS, AS HE TESTIFIED THAT THE SEPTEMBER WRITTEN CRITIQUE WAS THE FIRST
    SUCH CRITIQUE HE HAD RECEIVED.

19. SINCE OCTOBER 1979, WRITTEN CRITIQUES HAVE BEEN GIVEN, ON
    OCCASION, TO EOSS. SIX WERE IDENTIFIED AS HAVING RECEIVED THEM. ONLY
    TWO OF THE SIX, YOULA BRANT AND ROBERT EVANS, WERE IDENTIFIED AS HAVING
    ANY UNION AFFILIATION. MS. BRANT RECEIVED HERS IN JULY AND, TO HER
    KNOWLEDGE, IT WAS THE FIRST ONE RECEIVED BY ON EOS.

20. WRITTEN WORK CRITIQUES ARE NORMALLY KEPT IN SUPERVISORS' WORKING
    FILES, WHICH ARE ROUTINELY PURGED. THE OCTOBER 11, 1979, CRITIQUE OF
    ONE WAS AVAILABLE, AS EVIDENCE AT THE HEARING, ONLY BECAUSE THE
    SUPERVISOR, WHO HAD WRITTEN IT, HAD RETIRED IN AUGUST 1979, AND PASSED
    ALONG ALL OF HIS FILE, INTACT. THE OFFICIAL PERSONNEL FILE OF AN
    EMPLOYEE DOES NOT CONTAIN COPIES OF THESE CRITIQUES.

DISCUSSION AND CONCLUSIONS

THE GENERAL COUNSEL PERSUASIVELY ARGUES THAT AN EMPLOYEE WHO FILES A
GRIEVANCE IS ENGAGING IN AN ACTIVITY WHICH IS A PROTECTED RIGHT, UNDER
THE STATUTE.

AS SHOWN BY THE FINDINGS MADE ABOVE, HOWEVER, THE GENERAL COUNSEL HAS
FAILED TO DEMONSTRATE THE VIOLATION OF THE STATUTE, AS ALLEGED. THE
EXERCISE BY MR. EVANS OF THE PROTECTED RIGHT TO FILE A GRIEVANCE WAS NOT
MADE KNOWN TO RESPONDENT'S AGENT, MR. MACK, UNTIL SEPTEMBER 4. THE
UNFAVORABLE CRITIQUE, WHICH THE GENERAL COUNSEL ALLEGES TO BE THE
VIOLATIVE ACT, WAS COMPLETED BY MR. MACK ON SEPTEMBER 3. THE FACT THAT
THE CRITIQUE IS DATED SEPTEMBER 5 IS DUE TO THE FACT THAT THE CRITIQUE
WAS NOT TYPED AND READY FOR SIGNATURE BEFORE THAT DATE. THUS, THE FACTS
ESTABLISHED DO NOT SUPPORT A FINDING OF ANY UNFAIR LABOR PRACTICE; AND
THE COMPLAINT SHOULD BE DISMISSED.

ULTIMATE FINDINGS AND ORDER

RESPONDENT HAS NOT BEEN SHOWN TO HAVE ENGAGED IN ANY UNFAIR LABOR
PRACTICES, UNDER SECTIONS 7116(A)(1) AND (2), AS ALLEGED IN THE
COMPLAINT.

ACCORDINGLY, THE COMPLAINT SHOULD BE, AND IT HEREBY IS, DISMISSED.

ISABELLE R. CAPPELLO
ADMINISTRATIVE LAW JUDGE

DATED: JULY 24, 1981
WASHINGTON, D.C.

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

/1/ SECTION 7116(A) PROVIDES, IN PERTINENT PART, THAT IT SHALL BE AN
UNFAIR LABOR PRACTICE FOR ANY AGENCY:

(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF

ANY RIGHT UNDER THIS CHAPTER; (AND)

(2) TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION
BY DISCRIMINATION IN

CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF
EMPLOYMENT.

/2/ ALL DATES HEREIN REFERENCED ARE IN 1980, UNLESS OTHERWISE
SPECIFIED.

/3/ THE FOLLOWING ABBREVIATIONS WILL BE USED: "GC" REFERS TO THE
EXHIBITS OF THE GENERAL COUNSEL; "R" REFERS TO THE EXHIBITS OF THE
RESPONDENT; "TR" REFERS TO THE TRANSCRIPT; "GCBR" REFERS TO THE BRIEF
OF THE GENERAL COUNSEL; AND "RBR" REFERS TO THE BRIEF OF THE
RESPONDENT.

/4/ "OJT" IS TAKEN TO MEAN "ON THE JOB TRAINING."

/5/ THERE WAS TESTIMONY THAT THIS MEETING TOOK PLACE ON SEPTEMBER 2.
SEE TR 27. HOWEVER, IT WAS ESTABLISHED THAT MR. EVANS WAS ABSENT ON
LEAVE ON SEPTEMBER 2.

/6/ SEE TR 137. MS. WOODS RECALLED THE MEETING TAKING PLACE ON
SEPTEMBER 2. SEE TR 44. HOWEVER, IT WAS ESTABLISHED THAT MR. EVANS WAS
ON ANNUAL LEAVE ON SEPTEMBER 2.

/4/ THE GENERAL COUNSEL FINDS SIGNIFICANT THE FACT THAT MR. MACK
TESTIFIED THAT ON SEPTEMBER 4 HE TOLD MS. WOODS THAT HE WAS "GOING" TO
REDUCE HIS CRITIQUE "TO A MEMO." SEE TR 44, 45 AND GCBR 10. I FIND THAT
MR. MACK WAS REFERRING TO THE TYPING UP OF HIS HANDWRITTEN CRITIQUE.
THE TYPING WAS ONE ON SEPTEMBER 4 OR SEPTEMBER 5.