[ v06 p96 ]
06:0096(23)CA
The decision of the Authority follows:
6 FLRA No. 23
INTERNAL REVENUE SERVICE,
WASHINGTON, D.C.
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 5-CA-230
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE INTERNAL REVENUE
SERVICE (RESPONDENT) HAD ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED
IN THE COMPLAINT, AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM
AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED
JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND ORDER, AND A
SUPPORTING BRIEF.
THEREFORE, 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 (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 THIS CASE, INCLUDING THE EXCEPTIONS AND SUPPORTING
BRIEF OF THE RESPONDENT, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATION ONLY TO THE EXTENT CONSISTENT
HEREWITH.
THE COMPLAINT HEREIN ALLEGED THAT RESPONDENT VIOLATED SECTION
7116(A)(1) AND (2) OF THE STATUTE BY ITS ACTION IN REFUSING TO PROMOTE
EMPLOYEE CAROL LA FOLLETTE TO THE POSITION OF REVENUE REPRESENTATIVE
BECAUSE SHE FILED GRIEVANCES AND BECAUSE OF CONDUCT EXHIBITED DURING THE
COURSE OF A GRIEVANCE MEETING. THE RESPONDENT ASSERTED THAT LA FOLLETTE
WAS NOT PROMOTED BECAUSE OF HER INTERVIEWS, HER LACK OF PRIOR EXPERIENCE
AND FORMAL EDUCATION, AND A JUDGMENT, BASED ON INCIDENTS NOT CONNECTED
WITH GRIEVANCES OR GRIEVANCE MEETINGS, THAT LA FOLLETTE COULD NOT HANDLE
"PRESSURE SITUATIONS" WITH THE PUBLIC, WHICH WAS A REQUIREMENT OF THE
POSITION.
THE RECORD REVEALS THAT EMPLOYEE CAROL LA FOLLETTE PARTICIPATED IN A
GRIEVANCE MEETING IN MAY 1978, DURING WHICH SHE BECAME FRUSTRATED AND
UPSET AND CONCLUDED THE MEETING BY TELLING BOTH THE PARTICIPATING
MANAGEMENT AND UNION OFFICIALS TO "TAKE THEIR JOB AND GRIEVANCE AND
SHOVE IT." THE INCIDENT BECAME COMMON KNOWLEDGE AMONG THE EMPLOYEES AND
SUPERVISORS THROUGHOUT THE OFFICE. THEREAFTER, LA FOLLETTE APPLIED FOR
THE POSITION OF REVENUE REPRESENTATIVE (TAX EXAMINER), AND WAS RANKED ON
THE BEST-QUALIFIED LIST FOR THREE VACANCIES.
RESPONDENT DID NOT SELECT LA FOLLETTE, ASSERTING THAT HER INABILITY
TO CONTROL HER TEMPER LED TO SERIOUS DOUBTS CONCERNING HER ABILITY TO
DEAL ADEQUATELY WITH TAXPAYERS, AN INHERENT FEATURE OF THE WORK OF A
REVENUE REPRESENTATIVE. THE RESPONDENT CITED THREE INCIDENTS TO
INDICATE LAFOLLETTE'S ADVERSE REACTION UNDER STRESS: (1) A DISAGREEMENT
WITH A FELLOW CLERK; (2) A COUNSELING SESSION WITH A SUPERVISOR; AND,
(3) AN EXTREMELY AGITATED INTERVIEW. THE RESPONDENT ALSO ASSERTED THAT
LAFOLLETTE'S ANSWERS TO QUESTIONS POSED DURING INTERVIEWS FOR TWO OF THE
VACANCIES WERE SUBSTANTIVELY "SHALLOW," AND THAT LAFOLLETTE'S NOTICEABLE
AND ADMITTED LACK OF SELF CONFIDENCE PERMEATED THE INTERVIEW SESSIONS.
THE RESPONDENT ADDS THAT LAFOLLETTE'S PRIOR EXPERIENCE, EDUCATIONAL
BACKGROUND, AND TEST SCORES AS COMPARED TO OTHER CANDIDATES ALSO
CONTRIBUTED TO THE DECISION NOT TO SELECT HER. THE RESPONDENT DENIED
THAT THE INCIDENT OCCURRING AT THE MAY 1978, GRIEVANCE MEETING WAS
CONSIDERED IN THE DECISION NOT TO SELECT LA FOLLETTE FOR ONE OF THE
POSITIONS BEING FILLED.
IN REACHING HIS CONCLUSIONS HEREIN, THE JUDGE FOUND THAT RESPONDENT
HAD TAKEN LAFOLLETTE'S "PAST PROBLEMS AND DISPOSITION" AND "PAST
HISTORY" INTO CONSIDERATION WHEN IT REFUSED TO SELECT HER FOR ONE OF THE
VACANCIES FOR WHICH SHE HAD APPLIED. THE JUDGE FURTHER FOUND THAT THIS
CONSIDERATION HAD "NO DOUBT INCLUDED HER IMPULSIVE BEHAVIOR AT THE MAY
1978, GRIEVANCE MEETING. . . . " ADDITIONALLY, THE JUDGE FOUND
LAFOLLETTE'S BEHAVIOR AT THE MAY 1978, GRIEVANCE MEETING TO BE WITHIN
THE AMBIT OF PROTECTED ACTIVITY, CITING VETERANS ADMINISTRATION REGIONAL
OFFICE, DENVER, COLORADO, 2 FLRA NO. 84 (1980). BASED ON THESE
FINDINGS, THE JUDGE CONCLUDED THAT WHERE, AS HERE, A LEGITIMATE BASIS
FOR MANAGEMENT ACTION EXISTS BUT UNION CONSIDERATIONS ARE ALSO SHOWN TO
HAVE PLAYED A PART, AN UNFAIR LABOR PRACTICE WILL BE FOUND, CITING THE
AUTHORITY'S DECISION UNDER EXECUTIVE ORDER 11491, AS AMENDED,
DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY,
HEADQUARTERS, DEFENSE LOGISTICS AGENCY, 2 FLRA NO. 118(1980).
THIS CASE IS ONE OF FIRST IMPRESSION UNDER THE STATUTE IN THAT IT,
FOR THE FIRST TIME, AFFORDS THE AUTHORITY AN OPPORTUNITY TO ADDRESS THE
QUESTION OF WHAT TEST SHOULD BE APPLIED UNDER THE STATUTE IN SITUATIONS
WHERE CONSIDERATIONS OF AN EMPLOYEE'S PARTICIPATION IN ACTIVITIES
PROTECTED BY THE STATUTE PLAYED A PART IN A MANAGEMENT DECISION
ADVERSELY AFFECTING THAT EMPLOYEE. FOR THE REASONS WHICH FOLLOW, WE
REJECT THE TEST APPLIED BY THE JUDGE AND DISAGREE WITH HIS CONCLUSIONS
AND RECOMMENDATIONS TO THE EXTENT REFLECTED HEREIN.
SECTION 7101(B) OF THE STATUTE PROVIDES:
IT IS THE PURPOSE OF THIS CHAPTER TO PRESCRIBE CERTAIN RIGHTS AND
OBLIGATIONS OF THE
EMPLOYEES OF THE FEDERAL GOVERNMENT AND TO ESTABLISH PROCEDURES WHICH
ARE DESIGNED TO MEET THE
SPECIAL REQUIREMENTS AND NEEDS OF THE GOVERNMENT. THE PROVISIONS OF
THIS CHAPTER SHOULD BE
INTERPRETED IN A MANNER CONSISTENT WITH THE REQUIREMENT OF AN
EFFECTIVE AND EFFICIENT
GOVERNMENT.
SECTION 7102 OF THE STATUTE PROVIDES THAT "(E)ACH EMPLOYEE SHALL HAVE
THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN
FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL,
AND EACH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT."
SECTION 7116(A)(1) AND (2) PROVIDES:
"(I)T SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY-- (1) TO
INTERFERE WITH, RESTRAIN, OR
COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER THIS CHAPTER; (2) TO
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION BY
DISCRIMINATION IN CONNECTION
WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
(.)"
SECTION 7118(A)(7) AND (8) OF THE STATUTE PROVIDES THAT THE AUTHORITY
WILL RESOLVE COMPLAINTS OF UNFAIR LABOR PRACTICES, AND EITHER ISSUE AN
APPROPRIATE REMEDIAL ORDER OR DISMISS THE COMPLAINT ON THE BASIS OF
WHETHER OR NOT THE PREPONDERANCE OF THE EVIDENCE ESTABLISHES THAT THE
RESPONDENT HAS ENGAGED, OR IS ENGAGING IN, UNFAIR LABOR PRACTICES.
IN DISCHARGING THIS RESPONSIBILITY IMPOSED BY THE STATUTE, THE
AUTHORITY SEEKS TO PROTECT RIGHTS ASSURED BY THE STATUTE WITHOUT
PRODUCING CONSEQUENCES INCONSISTENT WITH THE STATED PURPOSE OF THE
STATUTE. IN THIS REGARD, THE AUTHORITY NOTES THAT A RULE WHICH FOCUSES
SOLELY ON WHETHER PROTECTED CONDUCT PLAYED A PART IN A MANAGEMENT
DECISION FAILS TO CONSIDER "THE SPECIAL REQUIREMENTS AND NEEDS OF THE
GOVERNMENT" INCLUDING "THE REQUIREMENT OF AN EFFECTIVE AND EFFICIENT
GOVERNMENT." THE DIFFICULTY WITH THE TEST APPLIED BY THE JUDGE IN THIS
CASE IS THAT IT WOULD REQUIRE PROMOTION OF AN EMPLOYEE IN CIRCUMSTANCES
WHERE UNION CONSIDERATIONS PLAYED A PART IN THE ORIGINAL PROMOTION
DECISION-- EVEN IF THE SAME DECISION WOULD HAVE BEEN REACHED APART FROM
UNION CONSIDERATIONS. AN AGENCY SHOULD BE GIVEN AN OPPORTUNITY TO
ATTEMPT TO PROVE THAT, APART FROM ANY CONSIDERATION OF PROTECTED
ACTIVITIES, AN EMPLOYEE WOULD NOT HAVE BEEN PROMOTED IN ANY EVENT.
IN SUCH CIRCUMSTANCES THE AUTHORITY FINDS THAT THE BURDEN IS ON THE
GENERAL COUNSEL TO MAKE A PRIMA FACIE SHOWING THAT THE EMPLOYEE HAD
ENGAGED IN PROTECTED ACTIVITY AND THAT THIS CONDUCT WAS A MOTIVATING
FACTOR IN AGENCY MANAGEMENT'S DECISION NOT TO PROMOTE. ONCE THIS IS
ESTABLISHED, THE AGENCY MUST SHOW BY A PREPONDERANCE OF THE EVIDENCE
THAT IT WOULD HAVE REACHED THE SAME DECISION AS TO THE PROMOTION EVEN IN
THE ABSENCE OF THE PROTECTED CONDUCT. /1/
IN THE AUTHORITY'S VIEW, THE APPLICATION OF SUCH A TEST WILL SERVE TO
BALANCE THE LEGITIMATE INTERESTS AND PURPOSES OF GOVERNMENT WITH THOSE
RIGHTS ASSURED TO EMPLOYEES AND THEIR REPRESENTATIVES UNDER THE STATUTE.
SUCH A TEST SERVES THE PURPOSES OF THE STATUTE BY MAKING IT POSSIBLE TO
MORE THOROUGHLY ANALYZE THE RELATIONSHIP BETWEEN THE AGENCY ACTION AND
THE PROTECTED CONDUCT OF AN EMPLOYEE. UNDER THIS TEST, THEREFORE, BOTH
THE GENERAL COUNSEL AND THE AGENCY WILL HAVE AN OPPORTUNITY TO ADDUCE
EVIDENCE AS TO THE MOTIVATING FACTORS INVOLVED IN THE ACTION OR DECISION
OF THE AGENCY WHICH IS THE BASIS OF THE COMPLAINT. IF IT IS ESTABLISHED
BY A PREPONDERANCE OF THE EVIDENCE THAT THE SAME ACTION OR DECISION OF
THE AGENCY WOULD HAVE TAKEN PLACE EVEN IN THE ABSENCE OF THE PROTECTED
ACTIVITY, A COMPLAINT OF VIOLATION OF SECTION 7116(A)(1) AND (2) OF THE
STATUTE WILL NOT BE SUSTAINED. CONVERSELY, IF IT IS NOT ESTABLISHED BY
A PREPONDERANCE OF THE EVIDENCE THAT THE ACTION OR DECISION WOULD HAVE
TAKEN PLACE IN ANY EVENT, THE AUTHORITY WILL FIND A VIOLATION UNDER
SECTION 7116(A)(1) AND (2) OF THE STATUTE.
IN APPLYING THE TEST DESCRIBED ABOVE TO THE INSTANT CASE, THE
AUTHORITY CONCLUDES, IN AGREEMENT WITH THE JUDGE, THAT LA FOLLETTE WAS
ENGAGED IN PROTECTED ACTIVITY DURING THE MAY 25, 1978, GRIEVANCE MEETING
AND THAT RESPONDENT'S REFUSAL TO PROMOTE HER TO A REVENUE REPRESENTATIVE
POSITION WAS BASED, AT LEAST IN PART, ON UNION CONSIDERATIONS. THE
AUTHORITY FURTHER CONCLUDES THAT THE RESPONDENT ESTABLISHED BY A
PREPONDERANCE OF EVIDENCE ADDUCED AT THE HEARING, THAT LA FOLLETTE WOULD
NOT HAVE BEEN SELECTED FOR PROMOTION TO THE POSITION OF REVENUE
REPRESENTATIVE EVEN IF LA FOLLETTE HAD NOT ENGAGED IN PROTECTED
ACTIVITY. IN THIS REGARD. RESPONDENT CONTENDED THAT LA FOLLETTE WAS
NOT SELECTED DUE TO, AMONG OTHER REASONS, HER HANDLING OF STRESS
SITUATIONS AND HER DOUBTED ABILITY TO CONTROL HERSELF EMOTIONALLY. THE
RECORD ESTABLISHES SEVERAL INSTANCES, OTHER THAN THE GRIEVANCE MEETING
INCIDENT, WHEREIN LA FOLLETTE HAD EMOTIONAL CONFRONTATIONS WITH HER
FELLOW EMPLOYEES AND SUPERVISORS. AS RECOGNIZED BY THE JUDGE (AT P. 6
OF HIS DECISION), "THE RECORD REVEALED AN EMOTIONAL AND AGITATED
INDIVIDUAL WHO CANDIDLY ADMITTED DIFFICULTY WITH FELLOW EMPLOYEES AND
WITH SUPERVISORS." ADDITIONALLY, IN APPLYING THE TEST, THE AUTHORITY
NOTES THAT THE SELECTING OFFICIAL FOR TWO OF THE VACANT POSITIONS
TESTIFIED THAT UPON CONSIDERATION OF PRIOR EXPERIENCE, EDUCATIONAL
BACKGROUND, TEST SCORES, AND PARTICULARLY HIS INTERVIEWS OF THE
APPLICANTS, HE CONSIDERED THREE OTHER CANDIDATES BETTER QUALIFIED FOR
THE POSITION THAN LA FOLLETTE.
THEREFORE, APPLYING THE PROPER TEST TO THE CIRCUMSTANCES OF THIS
CASE, AND BASED ON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
FINDINGS DISCUSSED ABOVE, THE AUTHORITY CONCLUDES THAT THE AGENCY HAS
ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT LA FOLLETTE WOULD
NOT HAVE BEEN SELECTED FOR ANY OF THE REVENUE REPRESENTATIVE POSITIONS
EVEN IF SHE HAD NOT ENGAGED IN ANY PROTECTED ACTIVITY. ACCORDINGLY, THE
COMPLAINT WILL BE DISMISSED IN ITS ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-230 BE, AND
IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., JUNE 17, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
RUDOLPH L. JANSEN, ESQUIRE
FOR RESPONDENT
SHEILA REILLY, ESQUIRE
FOR THE GENERAL COUNSEL
MR. RONALD F. HICKS
FOR THE CHARGING PARTY
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. SECTION 7101, ET SEQ., AS A RESULT OF AN
UNFAIR LABOR PRACTICE CHARGE FILED ON SEPTEMBER 21, 1979 AND AMENDED ON
NOVEMBER 8, 1979. COMPLAINT AND NOTICE OF HEARING ISSUED ON NOVEMBER
13, 1979 ALLEGING IN SUBSTANCE THAT THE INTERNAL REVENUE SERVICE,
WASHINGTON, D.C. HEREINAFTER CALLED "RESPONDENT" HAD VIOLATED 5 U.S.C.
7116(A)(1) AND (2) BY RESTRAINING ITS EMPLOYEES IN THE EXERCISE OF
RIGHTS GUARANTEED IN 5 U.S.C. 7102 AND DISCOURAGED MEMBERSHIP IN
NATIONAL TREASURY EMPLOYEES UNION, HEREINAFTER CALLED THE "UNION" BY
FAILING TO PROMOTE EMPLOYEE CAROL LA FOLLETTE ON SEVERAL OCCASIONS TO
THE POSITION OF TAX EXAMINER (REVENUE REPRESENTATIVE). RESPONDENT'S
ANSWER DENIED THE ALLEGATIONS OF THE COMPLAINT.
A HEARING WAS HELD IN THIS MATTER IN INDIANAPOLIS, INDIANA ON JANUARY
16, 1980. ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE AND CROSS
EXAMINE WITNESSES, AND TO FILE POST HEARING BRIEFS.
BASED UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, THE UNION WAS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF RESPONDENT'S EMPLOYEES AT ITS DISTRICT OFFICE IN
INDIANAPOLIS, INDIANA.
ABOUT MAY 25, 1978, CAROL LA FOLLETTE, A GRIEVANT, AND HER UNION
REPRESENTATIVE, GENE FRIEDMAN, LOCAL UNION PRESIDENT, MET WITH CHARLES
L. KURASZ, CHIEF, COLLECTION DIVISION OF THE INDIANAPOLIS DISTRICT AND
OTHER MANAGEMENT OFFICIALS TO DISCUSS LA FOLLETTE'S IS THIRD STEP
GRIEVANCE, AS REQUIRED BY THE TERMS OF THE COLLECTIVE BARGAINING
AGREEMENT. AS MR. FRIEDMAN WAS PRESENTING THE GRIEVANCE AND MR. KURASZ
WAS COMMENTING ON THE PRESENTATION AND DEFENDING MANAGEMENT'S POSITION,
LA FOLLETTE BECAME FRUSTRATED AND UPSET AT WHAT SHE APPARENTLY PERCEIVED
TO BE MERELY A DISCUSSION OF GENERALITIES, JUMPED UP, THREW HER PAPERS
AND PENCIL DOWN ON THE TABLE AND IN AN ANGRY AND LOUD VOICE STATED THAT
SHE DID NOT FEEL THAT SHE COULD GET A FAIR HEARING OR FAIR TREATMENT AND
TOLD EACH OF THE PARTICIPANTS TO "TAKE THEIR JOB AND GRIEVANCE AND SHOVE
IT." SHE THEN WALKED OUT THE DOOR AND DID NOT RETURN TO THE MEETING.
SHORTLY THEREAFTER, LA FOLLETTE APOLOGIZED TO KURASZ FOR HER ACTIONS.
LA FOLLETTE DROPPED HER UNION MEMBERSHIP FROM MAY 1978 UNTIL MARCH 1979.
THERE IS NO DISPUTE THAT THE OCCURRENCE AT THIS MEETING WAS COMMON
KNOWLEDGE AMONG EMPLOYEES AND SUPERVISORS OF THE DISTRICT OFFICE.
SUPERVISORS DAVID LARSON AND LAWRENCE MARTIN TESTIFIED THAT THEY WERE
AWARE OF THE INCIDENT, THOUGH NOT PRESENT AT THE GRIEVANCE MEETING. LA
FOLLETTE TESTIFIED THAT HER SUPERVISOR MR. BLIGHTON TOLD HER DURING
1978, "I HEARD HOW YOU TOLD THEM TO STICK IT IN THEIR EAR." FRIEDMAN
TESTIFIED THAT MR. BLIGHTON ALSO MENTIONED THE INCIDENT TO HIM. MR.
KURASZ, IN A LATER GRIEVANCE MEETING TOLD FRIEDMAN THAT HE WAS NOT
VINDICTIVE ABOUT THE INCIDENT.
AT THE TIME OF THIS INCIDENT LA FOLLETTE WAS A GS-4 GROUP CLERK IN
THE COLLECTION DIVISION. SUBSEQUENT TO MAY 1978 LA FOLLETTE APPLIED FOR
FOUR SEPARATE POSITIONS INCLUDING THAT OF TAX EXAMINER (REVENUE
REPRESENTATIVE), ON THREE SEPARATE OCCASIONS. SHE WAS RANKED ON THE
BEST-QUALIFIED LIST FOR THREE REVENUE REPRESENTATIVE OPENINGS IN MAY,
JUNE AND AUGUST 1979, RESPECTIVELY, BY A RANKING PANEL, WHICH TOOK INTO
ACCOUNT EMPLOYEE EVALUATIONS, WORK EXPERIENCE, EDUCATION, TRAINING,
AWARDS AND OTHER FACTORS. ALSO, SHE WAS PLACED ON THE BEST QUALIFIED
LIST FOR A CLERK TYPIST POSITION IN FEBRUARY 1979. MS. LA FOLLETTE ALSO
PASSED RESPONDENT'S "MEET AND DEAL" INTERVIEW FOR THE POSITION.
ACCORDING TO RESPONDENT, THIS INTERVIEW IS STANDARD PROCEDURE FOR
APPLICANTS FOR POSITIONS WITHIN THE INTERNAL REVENUE SERVICE WHICH
REQUIRE MEETING WITH THE PUBLIC.
IN MAY 1979 TWO VACANCIES FOR WHICH LA FOLLETTE APPLIED WERE FILLED
BY ANOTHER EMPLOYEE OF THE COLLECTION DIVISION, AND AN APPLICANT FROM
OUTSIDE THE INDIANAPOLIS DISTRICT, WHO HAD A RANKING SCORE LESS THAN
LAFOLLETTE'S. IN JUNE 1979, THREE VACANCIES FOR THE POSITION OF REVENUE
REPRESENTATIVE WERE ADVERTISED AND THE THREE APPLICANTS SELECTED WERE
FROM OUTSIDE THE COLLECTION DIVISION AND TWO WITH LOWER SCORES THAN LA
FOLLETTE WERE SELECTED. FOR THE AUGUST 1979 POSITION, ALTHOUGH TWO
VACANCIES WERE ADVERTISED ONLY ONE WAS FILLED, BY AN EMPLOYEE FROM
OUTSIDE THE COLLECTION DIVISION, AND THE OTHER VACANCY WAS READVERTISED
AT A SUPERVISORY LEVEL, BECAUSE THE SUPERVISOR MR. MARTIN TESTIFIED
THERE WAS A GREATER NEED TO FILL THE POSITION AT A SUPERVISORY LEVEL
BECAUSE OF A POSSIBLE FREEZE.
BEFORE FILING THE GRIEVANCE WHICH WAS THE SUBJECT OF THE MAY 1978
MEETING, LA FOLLETTE HAD BEEN PROMOTED FROM A GS-3 TO GS-4 BY
RESPONDENT. SINCE THE GRIEVANCE MEETING LA FOLLETTE HAS NOT BEEN
PROMOTED BECAUSE ALLEGEDLY SHE COULD NOT CONTROL HER TEMPER, CREATING
ACCORDING TO RESPONDENT, SERIOUS CONCERNS ABOUT HER MEETING TAX PAYERS,
AN INHERENT PART OF THE WORK OF A REVENUE REPRESENTATIVE. THE RECORD
REVEALED THAT MS. LA FOLLETTE HAD CONSIDERABLE EXPERIENCE IN MEETING AND
DEALING WITH TAX PAYERS. IN THIS REGARD, DURING 1979, SHE WORKED AS A
RECEPTIONIST/TAX EXAMINER, WHERE HER DUTIES INVOLVED, AMONG OTHER
THINGS, GREETING TAX PAYERS WHO CAME IN TO PAY DELINQUENT TAX BILLS,
RETRIEVING INFORMATION ON THEIR ACCOUNTS, BRINGING THEIR ACCOUNTS UP TO
DATE, DETERMINING THE ACCRUALS OF PENALTIES ON ACCOUNTS, AND SITTING
DOWN WITH THE TAX PAYER TO ESTABLISH A PAYMENT PLAN. RESPONDENT'S
WITNESSES TESTIFIED THAT CLERICAL DUTIES DIFFER WIDELY FROM THE DUTIES
OF A REVENUE REPRESENTATIVE. THERE IS NO RECORD EVIDENCE OF ANY
EMOTIONAL OUTBURSTS WHEN LA FOLLETTE DEALT WITH TAX PAYERS OR THAT SHE
DEALT WITH TAX PAYERS IN OTHER THAN A LEVEL HEADED MANNER. FURTHER, HER
APPRAISAL FOR THE AUGUST 1979 REVENUE REPRESENTATIVE POSITION
ANNOUNCEMENT COVERING THIS TIME PERIOD, WAS EXCELLENT.
AN EARLIER APPRAISAL COVERING THE PERIOD MAY 1978 TO MARCH 1979
INDICATED THAT ALTHOUGH LA FOLLETTE HAD DIFFICULTY IN BEING SENSITIVE TO
OTHERS IN STRESS SITUATIONS IN THE PAST, THERE WAS IMPROVEMENT AND THERE
HAD BEEN NO RECURRENCE IN SIMILAR STRESS SITUATIONS. AMONG THE
INCIDENTS CITED BY RESPONDENT TO ESTABLISH DIFFICULTY IN STRESS
SITUATIONS WITNESSES TESTIFIED THAT LA FOLLETTE HAD A DISAGREEMENT WITH
ANOTHER GROUP CLERK AND HAD BECOME EMOTIONALLY UPSET; SHE HAD BEEN
COUNSELLED BY SUPERVISOR MARTIN FOR GREETING A TAX PAYER IN STOCKING
FEET AND THAT SHE HAD TOLD HIM THAT "(H)E WAS OUT TO GET HER"; AND,
DURING AN INTERVIEW CONDUCTED BY, SUPERVISOR DAVID LARSON, SHE HAD
BECOME "VERY, VERY AGITATED" AND "STARTED TO LOSE CONTROL."
THE SELECTING OFFICIAL FOR THE FIRST TWO VACANCIES WAS SUPERVISOR
DAVID LARSON, SUPERVISOR MARTIN ASSISTED WITH THE INTERVIEWS.
CONCERNING THE INTERVIEW FOR THE JUNE 1979 POSITION, MR. LARSON
TESTIFIED THAT LAFOLLETTE'S ANSWERS WERE "SHALLOW" AND THAT SHE ADMITTED
A LACK OF SELF CONFIDENCE IN HER ABILITY TO HANDLE PRESSURE SITUATIONS.
ACCORDING TO LARSON, ALTHOUGH THE PERFORMANCE APPRAISAL PREVIOUSLY
PREPARED BY LAFOLLETTE'S MANAGER INDICATED SHE WAS ABLE TO COPE WITH
STRESS, HER PERFORMANCE AT THE INTERVIEWS INDICATED OTHERWISE. IN
ADDITION, MR. LARSON REFERRED TO HER LACK OF PRIDE IN THE WORK SHE WAS
DOING AND OTHER RESPONSES WHICH DEMONSTRATED TO HIM THAT OTHER
CANDIDATES HAD BETTER POTENTIAL FOR THE REVENUE REPRESENTATIVE POSITION.
MR. LARSON TESTIFIED THAT TAKING INTO CONSIDERATION PRIOR EXPERIENCE,
EDUCATIONAL BACKGROUND, TEST SCORES, AND PARTICULARLY TAKING INTO
CONSIDERATION THE INTERVIEWS, HE CONSIDERED THREE OTHER CANDIDATES
BETTER QUALIFIED FOR THE POSITION THAN LA FOLLETTE. MR. LARSON, WHO IS
A UNION MEMBER, TESTIFIED THAT HE DID NOT INQUIRE INTO LAFOLLETTE'S
UNION ACTIVITIES AND DID NOT CONSIDER THE MAY 1978 GRIEVANCE MEETING IN
MAKING HIS SELECTION.
SUPERVISOR LARRY MARTIN, WHO WAS THE SELECTING OFFICIAL FOR SEVERAL
POSITIONS APPLIED FOR BY LA FOLLETTE, TESTIFIED THAT HE WAS TOLD AROUND
MAY 1978 OF LA FOLLETTE ACTIVITY DURING THE GRIEVANCE MEETING WITH MR.
KURASZ. LA FOLLETTE TESTIFIED THAT MR. MARTIN TOLD HER, AFTER HE HAD
BEEN SELECTED CHIEF OF THE DIVISION, THAT SHE "WOULD SOON FIND OUT THAT
THERE (WERE) WAYS OF TELLING PEOPLE THINGS THAT (SHE) WANTED THEM TO
KNOW ABOUT WITHOUT RECEIVING REPRISALS FROM THEM." MARTIN TESTIFIED THAT
HE HAD A CONVERSATION WITH LA FOLLETTE IN WHICH IT WAS ACKNOWLEDGED
THAT, "YOU CANNOT GET ANYWHERE IF YOU SLAM THE DOOR ON THE CHIEF OF
COLLECTIONS." DURING THE INTERVIEW FOR THE AUGUST 1979 POSTING, LA
FOLLETTE TESTIFIED THAT MARTIN MENTIONED THAT IF HE HAD NOT KNOWN HER
AND HER PAST HISTORY OF BECOMING UPSET DURING STRESS SITUATIONS THAT HE
WOULD ONLY GO ON THE INTERVIEWS AND HER EVALUATION; BUT SINCE HE KNEW
HER, HE WAS ALSO TAKING HER PAST HISTORY INTO CONSIDERATION.
UNION STEWARD FRIEDMAN TESTIFIED THAT HE WAS TOLD BY MARTIN ON AUGUST
23, 1979, THAT HE KNEW THAT THE UNION HAD QUITE A FEW GRIEVANCES WITH LA
FOLLETTE AND HE HAD JUST INTERVIEWED HER FOR THE REVENUE REPRESENTATIVE
POSITION AGAIN. MARTIN ADDED THAT THE INTERVIEW WAS "ONE OF THE FINEST
INTERVIEWS HE HAD EVER HAD." ACCORDING TO FRIEDMAN, MARTIN ALSO STATED
THAT EXCEPT FOR "HER PAST PROBLEMS AND HER DISPOSITION" HE WOULD HAVE
SELECTED HER FOR THE REVENUE REPRESENTATIVE POSITION. FRIEDMAN WAS, OF
COURSE, AWARE OF THE GRIEVANCE MEETING INCIDENT AND HE WAS ALSO AWARE OF
THE INCIDENT INVOLVING A DISAGREEMENT BETWEEN LA FOLLETTE AND ANOTHER
GROUP CLERK. MARTIN TESTIFIED THAT DURING THIS CONVERSATION HE TOLD
FRIEDMAN THAT THE INTERVIEW WITH LA FOLLETTE, WHO HAD BEEN INTERVIEWED
BY HIM ON TWO OTHER OCCASIONS, HAD BEEN ONE OF HER BEST INTERVIEWS. HE
ALSO TESTIFIED THAT HE TOLD FRIEDMAN THAT HE HAD RESERVATIONS ABOUT HER
ABILITY TO HANDLE HERSELF IN PRESSURE SITUATIONS WITH MEMBERS OF THE
PUBLIC. MARTIN CITED SEVERAL INCIDENTS INVOLVING LAFOLLETTE'S PROBLEMS
WITH MANAGEMENT AND OFFICE PERSONNEL. MARTIN DENIED THAT UNION
MEMBERSHIP WAS EVER A CONSIDERATION IN HIS APPRAISAL OF MS. LA FOLLETTE.
HE ALSO TESTIFIED THAT HE WAS A UNION MEMBER.
ON AUGUST 23, 1979, LA FOLLETTE HAD TWO SEPARATE CONVERSATIONS WITH
THE ACTING CHIEF OF REVENUE REPRESENTATIVE SECTION A, NANCY DURHAM WHO
HAD ASSISTED MR. MARTIN IN THE INTERVIEWS FOR THE POSITION. DURING THE
FIRST CONVERSATION MS. DURHAM INFORMED LA FOLLETTE THAT THEY HAD
INTERVIEWED SOMEONE WHO REALLY HAD A FANTASTIC INTERVIEW AND THEY WERE
GOING TO SELECT THIS APPLICANT. MARTIN'S TESTIMONY CONFIRMED THAT ONE
APPLICANT WAS HEAD AND SHOULDERS ABOVE THE OTHERS. UPON LEARNING THAT
THE APPLICANT DID NOT ACCEPT THE JOB, LA FOLLETTE RETURNED TO MS.
DURHAM'S OFFICE, AGAIN ASKING IF SHE HAD A CHANCE. AT THAT TIME, MS.
DURHAM TOLD HER THAT "THE WAY SHE UNDERSTOOD IT AS TO WHY I WAS NOT
BEING SELECTED, WAS BECAUSE THEY-- WANTED ME TO BE ABLE TO HANDLE
PROBLEMS ON MY OWN WITHOUT INTERFERENCE FROM THE UNION." MS. DURHAM
DENIED MAKING ANY COMMENTS ABOUT LAFOLLETTE'S UNION ACTIVITIES. SHE
TESTIFIED THAT SHE TOLD LA FOLLETTE THAT IN HER OPINION, LA FOLLETTE WAS
NOT SELECTED BECAUSE SHE WAS NOT READY TO MEET AND DEAL WITH TAX PAYERS,
AND/OR THEIR REPRESENTATIVES SINCE THEY OFTEN BECAME ABUSIVE OR USED
DEROGATORY LANGUAGE AND THAT SHE DID NOT THINK THAT LA FOLLETTE WAS
QUITE READY FOR THAT. MS. DURHAM EXPRESSED THAT SHE WAS NOT THE
SELECTING OFFICIAL AND THAT ANYTHING THAT SHE SAID WAS BETWEEN THE TWO
OF THEM. MS. DURHAM LATER TESTIFIED THAT SHE HAD BEEN WARNED PRIOR TO
ASSUMING HER POSITION AS ACTING MANAGER "TO WATCH YOUR GROUP CLERK" AND
THAT SHE HAD HEARD OTHER INDIVIDUALS IN THE SECTION MENTION "THAT SHE
HAD FILED GRIEVANCES."
SOMETIME DURING SEPTEMBER 1978, WILLIAM MCCLOSKEY, A SELECTING
OFFICIAL FOR A TAX EXAMINER POSITION FOR WHICH LA FOLLETTE DID NOT MAKE
THE BEST QUALIFIED LIST TOLD HER THAT SHE DID NOT GET THE POSITION FOR
WHICH HE WAS SELECTING OFFICIAL BECAUSE SHE "HAD STEPPED ON OTHERS'
TOES." MCCLOSKEY DID NOT APPEAR AS A WITNESS.
DISCUSSION AND CONCLUSION
CASE LAW IN THE PUBLIC SECTOR HAS ESTABLISHED THAT IN ORDER TO SHOW A
VIOLATION BASED ON NON-SELECTION THE EVIDENCE MUST SHOW THAT AGENCY
MANAGEMENT HAS DISCRIMINATORILY AFFECTED EMPLOYEE TERMS AND CONDITIONS
OF EMPLOYMENT BASED ON UNION CONSIDERATIONS. FURTHER, SUCH A VIOLATION
WILL BE FOUND IN "MIXED MOTIVE" SITUATIONS, I.E., WHERE A LEGITIMATE
BASIS FOR THE MANAGEMENT ACTION EXISTS, BUT WHERE UNION CONSIDERATIONS
ALSO ARE SHOWN TO HAVE PLAYED A PART. DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
APPEALS, REGION II, SAN JUAN, PUERTO RICO, 8 A/SLMR 1092, 1093, A/SLMR
NO. 1127(1978); U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
MILWAUKEE AREA OFFICE, MILWAUKEE, WISCONSIN, 7 A/SLMR 948, 949, A/SLMR
NO. 925(1977); DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS
AGENCY, HEADQUARTERS, DEFENSE LOGISTICS AGENCY, 2 FLRC NO. 118(1980).
THUS, IT IS ONLY NECESSARY THAT IT BE ESTABLISHED THAT ONE OF THE
REASONS FOR AGENCY MANAGEMENTS' REFUSAL TO SELECT LA FOLLETTE WAS BASED
ON HER UNION OR PROTECTED ACTIVITY.
THE THRESHOLD QUESTION IN THIS MATTER IS WHETHER OR NOT LA FOLLETTE
WAS ENGAGED IN PROTECTED ACTIVITY AT THE TIME OF THE MAY 1978 GRIEVANCE
MEETING. THE AUTHORITY HAS SAID AT THAT THE GRIEVANCE PROCEDURE IS AN
INTEGRAL AND FUNDAMENTAL PART OF A LABOR ORGANIZATION'S RIGHT TO
EFFECTIVELY REPRESENT EMPLOYEES. VETERANS' ADMINISTRATION REGIONAL
OFFICE, DENVER, COLORADO, 2 FLRA 84(1980). FURTHER, IT HAS STATED THAT
AN EMPLOYEE'S RIGHT TO ENGAGE IN PROTECTED ACTIVITY PERMITS LEEWAY FOR
IMPULSIVE BEHAVIOR, WHICH IS BALANCED AGAINST THE EMPLOYER'S RIGHT TO
MAINTAIN ORDER AND RESPECT FOR ITS SUPERVISORY STAFF ON THE JOB SITE.
DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
WASHINGTON, 2 FLRC 107(1980). AND TO REMOVE THE CONDUCT FROM THE AMBIT
OF PROTECTED ACTIVITY, THE EMPLOYEE MUST BE FOUND TO HAVE ENGAGED IN
FLAGRANT MISCONDUCT. DEPARTMENT OF THE NAVY, HEADQUARTERS, MILITARY
TRAFFIC MANAGEMENT, 2 FLRC 72(1980). WHILE THESE CASES INVOLVE
MISCONDUCT ATTRIBUTED TO UNION REPRESENTATIVES SERVING IN VARIOUS
CAPACITIES, IT IS MY VIEW THAT THE SAME PROTECTION EXTENDS TO EMPLOYEE
PARTICIPANTS IN GRIEVANCE PROCEEDINGS. PARTICULARLY WHERE SUCH
MISCONDUCT IS ATTRIBUTED TO STATEMENTS MADE REGARDING THE EMPLOYEE'S OWN
GRIEVANCE. ALTHOUGH I DO NOT CONDONE LAFOLLETTE'S CONDUCT DURING THIS
MEETING, SHE WAS ENGAGED IN NEITHER FLAGRANT MISCONDUCT NOR DID SHE USE
ABUSIVE LANGUAGE WHICH WOULD DESTROY MANAGEMENT'S RIGHT TO MAINTAIN
ORDER AND RESPECT WHICH WOULD REMOVE HER ACTIONS FROM PROTECTED STATUS.
ACCORDINGLY, IT IS FOUND THAT LA FOLLETTE WAS ENGAGED IN PROTECTED
ACTIVITY DURING THE MAY 25, 1978 GRIEVANCE MEETING AND THAT HER CONDUCT
AT THE MEETING WAS NOT BEYOND THE AMBIT OF PROTECTED ACTIVITY.
TURNING TO RESPONDENT'S CONTENTION THAT IT DID NOT SELECT LA FOLLETTE
FOR PROMOTION BECAUSE OF HER HANDLING OF STRESS SITUATIONS AND HER
DOUBTED ABILITY TO CONTROL HERSELF EMOTIONALLY. THE RECORD REVEALED AN
EMOTIONAL AND AGITATED INDIVIDUAL WHO CANDIDLY ADMITTED DIFFICULTY WITH
FELLOW EMPLOYEES AND WITH SUPERVISORS. HOWEVER, THESE INCIDENTS
OCCURRED WHEN SHE WAS BEING COUNSELLED BY SUPERVISION, OR DURING
INTERVIEWS AND DURING A SINGLE INSTANCE OF INTEMPERANCE WITH ANOTHER
GROUP CLERK. WHILE RESPONDENT MAINTAINED THAT IT WAS CONCERNED WITH HER
ABILITY TO DEAL WITH TAXPAYERS OR THE PUBLIC THERE IS NOT A SINGLE
INSTANCE CITED TO SHOW THAT SHE WOULD EXPERIENCE SUCH DIFFICULTY
ALTHOUGH LA FOLLETTE HAD DEALT WITH THE PUBLIC OVER A CONSIDERABLE
PERIOD OF TIME AND SHE HAD PASSED THE "MEET AND DEAL" INTERVIEW.
CERTAINLY LA FOLLETTE ACTIONS IN BECOMING EMOTIONAL AND AGITATED WITH
OTHERS IN THE OFFICE WOULD RAISE SOME CONCERN AS TO HER SUITABILITY FOR
PROMOTION TO REVENUE REPRESENTATIVE BUT, RESPONDENT'S NONSELECTIONS OF
AN EMPLOYEE CONSISTENTLY RATED ON ITS BEST QUALIFIED LIST WERE NOT BASED
ON THESE ACTIONS ALONE. I CREDIT UNION PRESIDENT FRIEDMAN'S ACCOUNT OF
THE AUGUST 23, 1979 CHANCE MEETING WITH SUPERVISOR MARTIN IN WHICH HE
WAS TOLD BY MARTIN THAT LA FOLLETTE WOULD HAVE BEEN SELECTED FOR THAT
POSITION EXCEPT FOR "HER PAST PROBLEMS AND HER DISPOSITION." ALSO I
CREDIT LAFOLLETTE'S TESTIMONY THAT MARTIN TOLD HER DURING THE AUGUST
1979 INTERVIEW THAT HE WAS TAKING HER "PAST HISTORY INTO CONSIDERATION."
LAFOLLETTE'S PAST PROBLEMS NO DOUBT INCLUDED HER IMPULSIVE BEHAVIOR AT
THE MAY 1978 GRIEVANCE MEETING AND THIS INCIDENT WAS COMMON KNOWLEDGE
AMONG THE EMPLOYEES AND SUPERVISORS AT THE OFFICE. FURTHERMORE, LA
FOLLETTE HAD SEEMINGLY BECOME MORE OF A PROBLEM SINCE SHE HAD FILED
SEVERAL GRIEVANCES SINCE MAY 1978 WHICH PROBLEM WAS POINTED OUT TO HER
BY SUPERVISOR DURHAM DURING ONE OF THEIR AUGUST 23, 1979 CONVERSATIONS.
WHILE IT IS CLEAR FROM THE RECORD THAT LA FOLLETTE MIGHT NOT HAVE BEEN
SELECTED FOR ANY OF THE REVENUE REPRESENTATIVE POSITIONS DURING 1979
BECAUSE OF HER LACK OF FORMAL TRAINING AND THE DIFFICULTY IN RISING FROM
A CLERICAL POSITION, IT IS EQUALLY CLEAR, THAT IN EVALUATING HER
PROMOTION POTENTIAL, AT LEAST SUPERVISOR MARTIN, WHO WAS ON INTERVIEW
PANELS FOR JOBS APPLIED FOR BY LA FOLLETTE DURING MAY AND JUNE 1979 AND
WHO WAS THE SELECTING OFFICIAL FOR AN AUGUST 1979 POSITION, HAD TAKEN
INTO ACCOUNT HER PAST HISTORY AND DISPOSITION AND SUCH AN APPRAISAL
COULD NOT IGNORE HER ACTIONS AT THE MAY 1978 GRIEVANCE MEETING.
THEREFORE, I AM CONSTRAINED TO FIND THAT ANY CONSIDERATION OF HER PAST
HISTORY INCLUDED THE MAY 1978 PROTECTED ACTIVITY AND THAT RESPONDENT'S
REFUSAL TO PROMOTE LA FOLLETTE TO A REVENUE REPRESENTATIVE POSITION, AS
EARLY AS MAY 1979, /2/ WAS BASED AT LEAST, IN PART, ON UNION
CONSIDERATIONS. TO ALLOW AGENCY REPRESENTATIVES TO DENY PROMOTIONS
BASED ON AN EMPLOYEES' FILING OF GRIEVANCES OR UPON CONSIDERATIONS OF AN
EMPLOYEE DURING GRIEVANCE MEETINGS, WHERE SUCH ACTION DOES NOT
CONSTITUTE FLAGRANT MISCONDUCT OR INSUBORDINATION, IN MY VIEW INTERFERES
WITH EMPLOYEE'S RIGHTS GUARANTEED BY THE STATUTE. ACCORDINGLY, IT IS
FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (2) OF THE STATUTE
BY ALLOWING ANY PART OF LAFOLLETTE'S PROTECTED ACTIVITY TO PLAY A ROLE
IN ITS DETERMINATION OF HER FITNESS AND OR SELECTION FOR PROMOTION.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT WHICH IS
VIOLATIVE OF SECTIONS 7116(A)(1) AND (2) OF THE STATUTE, BY VIRTUE OF
ITS ACTIONS IN ALLOWING LAFOLLETTE'S ACTIVITIES AS A GRIEVANT TO PLAY A
ROLE IN HER SELECTION FOR PROMOTION, IT IS RECOMMENDED THAT THE FEDERAL
LABOR RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER DESIGNED TO
EFFECTUATE THE POLICIES OF THE STATUTE.
RECOMMENDED ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT INTERNAL REVENUE SERVICE, WASHINGTON, D.C. SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO PROMOTE CAROL LA FOLLETTE OR ANY OTHER EMPLOYEES WHO
HAVE UTILIZED THEIR
RIGHTS UNDER THE STATUTE TO FILE AND PROCESS GRIEVANCES.
(B) DISCOURAGING MEMBERSHIP IN THE NATIONAL TREASURY EMPLOYEES UNION,
OR ANY OTHER LABOR
ORGANIZATION, BY DISCRIMINATION IN RESPECT TO ANY TERM OR CONDITION
OF EMPLOYMENT, BASED UPON
CONSIDERATION OF UNION MEMBERSHIP OR ACTIVITY.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE STATUTE:
(A) OFFER EMPLOYMENT TO CAROL LA FOLLETTE, AS A TAX EXAMINER (REVENUE
REPRESENTATIVE) GS-5,
OR IF THAT JOB NO LONGER EXISTS, IN A SUBSTANTIALLY SIMILAR POSITION,
WITHOUT PREJUDICE TO THE
SENIORITY OR OTHER PRIVILEGES SHE WOULD HAVE ENJOYED BUT FOR THE
DISCRIMINATION, AND MAKE HER
WHOLE FOR ANY LOSS OF MONIES SHE MAY HAVE SUFFERED BY REASON OF THE
FAILURE OF THE AGENCY TO
PROMOTE HER ON MAY 4, 1979, LESS ANY AMOUNTS EARNED ELSEWHERE DURING
THAT PERIOD.
(C) POST AT ITS INDIANAPOLIS DISTRICT OFFICE, INDIANAPOLIS, INDIANA,
COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE FURNISHED BY
THE REGIONAL DIRECTOR FOR
REGION 5, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL
BE POSTED BY IT
IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60
CONSECUTIVE DAYS THEREAFTER,
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY
POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES
ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE REGIONAL DIRECTOR FOR REGION 5, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATE: APRIL 30, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER BY THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO PROMOTE CAROL LA FOLLETTE, OR ANY OTHER
EMPLOYEES WHO UTILIZE THEIR RIGHTS UNDER THE STATUTE TO FILE OR PROCESS
GRIEVANCES.
WE WILL NOT FAIL TO PROMOTE ANY EMPLOYEES WHO UTILIZE THEIR RIGHTS
UNDER THE STATUTE TO FILE OR PROCESS GRIEVANCES.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL OFFER EMPLOYMENT TO CAROL LA FOLLETTE AS TAX EXAMINER
(REVENUE REPRESENTATIVE) OR IF THAT JOB NO LONGER EXISTS TO A
SUBSTANTIALLY SIMILAR POSITION, WITHOUT PREJUDICE TO SENIORITY OR OTHER
PRIVILEGES SHE WOULD HAVE ENJOYED BUT FOR THE DISCRIMINATION, AND MAKE
HER WHOLE FOR ANY LOSS OF MONIES SHE MAY HAVE SUFFERED BY OUR FAILURE TO
PROMOTE HER ON AUGUST 23, 1979, LESS ANY AMOUNTS EARNED ELSEWHERE DURING
THAT PERIOD.
(AGENCY OR ACTIVITY)
DATED: BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO,
ILLINOIS 60604.
--------------- FOOTNOTES: ---------------
/1/ CF. MT. HEALTHY CITY SCHOOL DISTRICT BOARD OF EDUCATION V.
DOYLE, 429 U.S. 274(1977) (INVOLVING CONDUCT PROTECTED BY THE U.S.
CONSTITUTION.
/2/ AT THE HEARING RESPONDENT ARGUED THAT LA FOLLETTE ELECTED TO
RAISE THE QUESTION OF HER JUNE 1979 NONSELECTION TO A REVENUE
REPRESENTATIVE POSITION UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE AND
HAD THEREFORE FORECLOSED HER RIGHT TO LITIGATE THAT ACTION UNDER SECTION
7116(D). THE COMPLAINT IN THIS MATTER ALLEGED A CONTINUING COURSE OF
DISCRIMINATION AGAINST LA FOLLETTE BEGINNING ABOUT FEBRUARY 1979. IF
THE ALLEGED UNFAIR LABOR PRACTICE INVOLVED ONLY THE JUNE 1979
NONSELECTION, SECTION 7116(D) MIGHT INDEED BAR JURISDICTION. HOWEVER,
IN THIS PROCEEDING THE JUNE 1979 NONSELECTION CONSTITUTES ONLY A PART OF
THE NONSELECTIONS WHICH IT IS ALLEGED SHOWS A PATTERN OF DISCRIMINATION
AGAINST LA FOLLETTE AND THE ISSUE HEREIN IS WHETHER SUCH A PATTERN
EXISTED AND NOT WHETHER THE PARTICULAR NONSELECTION WAS PROPER.
ACCORDINGLY, I FIND RESPONDENT'S CONTENTION THAT JURISDICTION IS
PRECLUDED BECAUSE THE JUNE 1979 NONSELECTION WAS GRIEVED TO BE WITHOUT
MERIT.