Veterans Administration, Medical and Regional Office Center, White River Junction, Vermont (Respondent) and American Federation of Government Employees, AFL-CIO, Local 2604 (Charging Party)
[ v06 p381 ]
06:0381(68)CA
The decision of the Authority follows:
6 FLRA No. 68
VETERANS ADMINISTRATION, MEDICAL AND REGIONAL
OFFICE CENTER, WHITE RIVER JUNCTION, VERMONT
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2604
Charging Party
Case No. 1-CA-147
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE UNFAIR
LABOR PRACTICE COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED
VIOLATIONS OF SECTION 7116(A)(1) AND SECTION 7116(A)(1) AND (2) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) BE
DISMISSED IN ITS ENTIRETY. THE GENERAL COUNSEL AND THE CHARGING PARTY
FILED EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER, AND THE RESPONDENT
FILED AN OPPOSITION TO SUCH EXCEPTIONS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF 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 THIS CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. WITH REGARD TO THE
ALLEGATION THAT EMPLOYEE BURRIS WAS TERMINATED BECAUSE OF HER CONTACT
WITH THE UNION, THE AUTHORITY AGREES WITH THE JUDGE THAT EVEN IF
RESPONDENT WAS IN SOME PART MOTIVATED BY UNION CONSIDERATION, "THE OTHER
ASSIGNED REASONS WOULD ALONE HAVE LED TO THIS TERMINATION." SEE INTERNAL
REVENUE SERVICES AND NATIONAL TREASURY EMPLOYEES UNION, 6 FLRA NO.
23(1980).
ORDER
IT IS ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-147 BE, AND IT
HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 5, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
JAMES KLEIN, ESQUIRE
FOR THE RESPONDENT
RICHARD B. BLAZAR, ESQUIRE
RICHARD D. ZAIGER, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
CASE NO. 1-CA-147
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET. SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON DECEMBER 13, 1979, BY THE
REGIONAL DIRECTOR, REGION I, FEDERAL LABOR RELATIONS AUTHORITY. THE
COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (2) OF
THE STATUTE BY REPEATEDLY TELLING EMPLOYEE JUDY BURRIS NOT TO GO TO THE
UNION WITH HER EMPLOYMENT PROBLEMS BEFORE GOING TO HER SUPERVISOR, AND
BY TERMINATING HER EMPLOYMENT ON AUGUST 24, 1979 BECAUSE OF HER CONTACT
WITH, AND ACTIVITIES ON BEHALF OF, THE UNION.
A HEARING WAS HELD ON MARCH 4, 1980 IN WHITE RIVER JUNCTION, VERMONT.
ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
WITNESSES AND TO INTRODUCE EVIDENCE. BRIEFS WERE FILED. UPON THE
ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATION:
FINDINGS OF FACT
1. AT ALL RELEVANT TIMES, LOCAL 2604, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, HAS BEEN THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF CERTAIN EMPLOYEES OF RESPONDENT, INCLUDING THOSE AT
THE TELEPHONE SWITCHBOARD, WHERE THE UNFAIR LABOR PRACTICES ALLEGEDLY
OCCURRED.
2. THE SWITCHBOARD WAS IN CONTINUOUS OPERATION, AND, WHEN POSSIBLE,
WAS STAFFED WITH TWO DAY SHIFT OPERATORS, ONE EACH ON THE SWING AND
GRAVEYARD SHIFTS, AND ONE CETA EMPLOYEE WHO WORKED THE DAY SHIFT FROM
MONDAY THROUGH FRIDAY. EXCEPT FOR THE CETA EMPLOYEE, THESE SHIFTS WERE
ROTATED, WITH EACH EMPLOYEE BEING REQUIRED TO WORK TWO WEEKENDS OF EVERY
FOUR. THUS, UNLIKE THE NORMAL WORK-SCENE, WHERE PRIVILEGES ACCRUE TO
THE SENIOR EMPLOYEES, HERE THE MOST DESIRABLE WORK WEEK WAS ENJOYED BY
THE JUNIOR EMPLOYEE PURSUANT TO REQUIREMENTS OF THE CETA PROGRAM. THIS,
COMPOUNDED BY MANPOWER SHORTAGES AND THE NEED FOR REGULAR EMPLOYEES
TO
WORK ODD AND UNPREDICTABLE HOURS, CAUSED RESENTMENT AND PERSONALITY
CONFLICTS, AS WILL BECOME CLEAR IN THE ENSUING DISCUSSION.
3. PEARL CANTLIN WAS APPOINTED SWITCHBOARD SUPERVISOR IN APRIL,
1977. IN AUGUST, JUDY BURRIS BEGAN AS A CETA TELEPHONE OPERATOR
TRAINEE. MONTHLY SUPERVISOR REPORTS INDICATE THAT SHE DID VERY WELL,
CONTINUALLY IMPROVING HER PERFORMANCE. AMONG OTHER THINGS, IT WAS NOTED
THAT SHE HAD PARTICIPATED IN THE TRAINING OF ANOTHER EMPLOYEE WITH "EASE
AND EFFECTIVENESS." THE ONLY NEGATIVE NOTE OCCURRED IN THE LAST SUCH
REPORT ON JULY 21, 1978, WHEN CANTLIN, AFTER STATING THAT BURRIS HAD
BEEN A GREAT ASSET TO THE GROUP, COMMENTED THAT A THREE-SHIFT SCHEDULE
AND BURRIS' LEVEL ON THE CSC REGISTER CREATED A PROBLEM. SHE OBSERVED
THAT THEY WOULD WELCOME BURRIS AS A PERMANENT EMPLOYEE IF THESE PROBLEMS
COULD BE OVERCOME. BURRIS HAD INDICATED THAT SHE DID NOT DESIRE TO WORK
NIGHTS. IN LATE AUGUST, SHE RECEIVED A 30-DAY TEMPORARY APPOINTMENT
PURSUANT TO WHICH, WITH THE AGREEMENT OF THE OTHER OPERATORS, SHE WORKED
DAYS ONLY. ON SEPTEMBER 24, THIS WAS CONVERTED TO A CAREER-CONDITIONAL
APPOINTMENT UNDER WHICH SHE WAS REQUIRED TO SUCCESSFULLY SERVE A
ONE-YEAR PROBATIONARY PERIOD BEFORE OBTAINING CAREER STATUS. SHE WAS
CLEARLY NOT ENTHUSIASTIC ABOUT THE PROSPECT OF THE MIDNIGHT SHIFT, AND
WAS IN PART MOTIVATED TO ACCEPT THIS POSITION BECAUSE IT WAS ANTICIPATED
THAT THE MIDNIGHT SHIFT WOULD BE ELIMINATED. SHE UNDERSTOOD, HOWEVER,
THAT SHE WOULD BE REQUIRED TO ROTATE ALL SHIFTS EQUALLY SHOULD THE
CLOSEDOWN NOT OCCUR.
4. ON SEPTEMBER 29, IT WAS LEARNED THAT THE MIDNIGHT SHIFT WOULD BE
CONTINUED. BURRIS UNSUCCESSFULLY SOUGHT TO SWAP THE MIDNIGHT SHIFT WITH
MARY GUARINO, AND THEREAFTER PULLED THAT SHIFT SEVERAL TIMES. AT ABOUT
THIS TIME, AND UNTIL TERRY WASHER AND PAM MEGAN WERE HIRED IN LATE
DECEMBER, 1979, THE STAFF WAS SHORT AND THERE WERE SCHEDULING
DIFFICULTIES ATTENDED BY RANCOR, BACKBITING AND GOSSIP. WHETHER
WELL-FOUNDED OR NOT, IT IS CLEAR THAT CANTLIN BELIEVED THAT BURRIS TOLD
OTHER OPERATORS THAT SHE WAS PLAYING FAVORITES IN SCHEDULING. SHE IS
SUPPORTED IN THIS VIEW BY MARY GUARINO, WHO IS NO LONGER IN THE
TELEPHONE UNIT. GUARINO TESTIFIED THAT BURRIS' ATTITUDE CHANGED TOTALLY
WHEN SHE BECAME A PERMANENT EMPLOYEE, WHERE SHE RESENTED ROTATION. I
CREDIT GUARINO'S STATEMENT THAT, DURING THE SCHEDULING PROBLEMS ARISING
FROM RESPONDENT'S INABILITY TO HIRE AN ADDITIONAL OPERATOR BECAUSE OF A
HIRING FREEZE, BURRIS SAID THAT THEY SHOULD REFUSE TO WORK OVERTIME.
THIS WAS REPORTED BACK TO CANTLIN AS A REQUEST THAT THEY SHOULD
COLLECTIVELY CALL IN SICK AND REFUSE OVERTIME ASSIGNMENTS IN ORDER TO
FORCE MANAGEMENT TO HIRE. OTHER OPERATORS, ESPECIALLY NANCY HILL AND
PAUL KENDALL WERE UNHAPPY ALSO. CANTLIN CLEARLY RESENTED THE ATTITUDE
TOWARD HERSELF AND HER MOTIVATION IN SCHEDULING, AS WELL AS THE AMOUNT
OF OVERTIME SHE HAD TO DO HERSELF AT A TIME WHEN HER SON WAS SERIOUSLY
ILL AND HER PRESENCE AT HOME WAS PARTICULARLY NECESSARY.
5. MATTERS WERE ALLEVIATED IN LATE DECEMBER WHEN TERRY WASHER WAS
HIRED FOR 32 HOURS PER WEEK AND VOLUNTEERED FOR THE MIDNIGHT SHIFT, AND
LATER, WHEN PAM MEGAN WAS HIRED UNDER THE CETA PROGRAM. IN THE MEANTIME
HOWEVER, CANTLIN ASKED THE CHIEF OF PERSONNEL AND THE CHIEF OF MEDICAL
ADMINISTRATIVE SERVICES FOR HELP IN RESOLVING HER PROBLEMS AND THE
CONTINUING RESENTMENT SHE ENCOUNTERED. THE LATTER, JOSEPH LINDSEY, MET
WITH TWO OPERATORS AND, AT THEIR REQUEST, A MEETING WAS ARRANGED FOR
MID-JANUARY WITH THE UNION REPRESENTED. PRESENT WERE BURRIS, KENDALL,
HILL, GUARINO, UNION PRESIDENT WARREN, LINDSEY AND CANTLIN. MANY
JOB-RELATED PROBLEMS WERE DISCUSSED FOR SEVERAL HOURS, INCLUDING
PARTICULARLY OVERTIME, SCHEDULING AND THE HIRING OF ADDITIONAL HELP.
PARTICULARLY RELEVANT HERE IS THAT JUDY BURRIS INQUIRED WHETHER OVERTIME
WAS MANDATORY. UNION PRESIDENT WARREN RESPONDED, POINTING OUT THAT
EMPLOYEES MUST DO WHAT THEY ARE REQUESTED TO DO, OR FACE CHARGES OF
INSUBORDINATION.
6. IN MARCH, BURRIS MADE SEVERAL REMARKS ABOUT PATIENTS WHICH ARE
ALLEGED BY MANAGEMENT TO DEMONSTRATE THE LACK OF COMPASSION WHICH WAS
ONE OF THE ASSIGNED REASONS FOR HER SEPARATION. SUFFICE IT TO SAY THAT
DO NOT THINK EITHER EVENT FIGURED PROMINENTLY IN THAT DECISION.
7. ON MARCH 26, CANTLIN RECOMMENDED THAT BURRIS BE PROMOTED TO GS-4.
HER EXPLANATION IS THAT BURRIS HAD COMPLAINED THAT GUARINO HAD BEEN
PROMOTED AND COULD DO NO WRONG, AND THAT SHE WAS AN OPTIMIST, BELIEVING
THAT BURRIS WAS ESSENTIALLY ALRIGHT BUT THE VICTIM OF OTHER ESTRANGED
EMPLOYEES (HILL AND KENDALL) WHO RESENTED HER APPOINTMENT AS A
SUPERVISOR. IN ANY EVENT, THE RECOMMENDATION WAS PREMATURE, AS BURRIS
LACKED SUFFICIENT TIME IN GRADE. IT IS INTERESTING TO NOTE THAT
CANTLIN'S NOTES (G.C. #4) STATE THAT BURRIS DID NOT COMPLAIN TO HER
ABOUT GUARINO'S PROMOTION, BUT WENT TO PERSONNEL, THUS INDICATING
ANNOYANCE AT BURRIS' FAILURE TO FIRST BRING THE PROBLEM TO HER
ATTENTION.
8. IN MARCH, CANTLIN ALSO MADE A LATE, 90-DAY EVALUATION, OF BURRIS'
PERFORMANCE. IT IS MISSING, BUT THERE IS NO INDICATION THAT IT WAS NOT
A GOOD ONE, AS BURRIS TESTIFIED. IN MAY, CANTLIN AGAIN EVALUATED BURRIS
FOR PROMOTION TO POSITIONS ELSEWHERE IN THE HOSPITAL (G.C. #7). THERE
SHE WAS RATED, IN 10 OF 12 CATEGORIES, AS WHAT ONLY CAN BE DESCRIBED AS
MERELY ADEQUATE, AS OPPOSED TO SUB-PAR OR SUPERIOR. HER WORK WAS
DESCRIBED AS OF HIGH QUALITY AND AS BEING DONE WITH MINIMAL SUPERVISION.
THREE AREAS SEEMS ESPECIALLY RELEVANT HERE: THE REPORT THAT SHE
MAINTAINS SATISFACTORY WORK RELATIONSHIPS WITH MOST (AS OPPOSED TO ALL)
PEOPLE, THAT SHE NORMALLY ACCEPTS AND FOLLOWS SUPERVISORY DIRECTION (AS
OPPOSED TO READILY ACCEPTING ADDITIONAL ASSIGNMENTS AND WORKING WELL AS
A TEAM MEMBER), AND THAT SHE ADJUSTS SATISFACTORILY TO NEW SITUATIONS.
THE GENERAL COUNSEL OFFERS THIS AS EVIDENCE OF A FULLY SATISFACTORY
PERFORMANCE, WHICH WAS ENTERED DURING THE MONTH BEFORE BURRIS ENGAGED IN
UNION ACTIVITY, AND WHICH THEREFORE UNDERMINES THE CLAIM THEREAFTER MADE
THAT HER WORK WAS NOT WORTHY OF CONVERSION TO CAREER STATUS. STANDING
ALONE, WITHOUT BENEFIT OF THE YARDSTICK USED (A COMPARISON WITH THE
RATINGS OF OTHER OPERATORS), I FIND IT HAS LITTLE VALUE. ON ITS FACE IT
IS HARDLY AN ENTHUSIASTIC ENDORSEMENT FOR A PROMOTION. IT DESCRIBES
EMPLOYEE WITH SHORTCOMINGS, MANIFESTED AT A TIME WHEN MOTIVATION, BASED
ON THE DESIRE TO ACHIEVE PERMANENT STATUS, SHOULD BE AT ITS HIGHEST.
9. ON APRIL 23, LYNDA CUTLER, ANOTHER CETA EMPLOYEE, WAS HIRED TO
REPLACE PAM MEGAN. SHE DESCRIBED HER RECEPTION BY CO-WORKERS BURRIS,
HILL AND KENDALL AS HOSTILE. AS AN ILLUSTRATION OF THIS SHE TESTIFIED
THAT BURRIS WAS TELEPHONICALLY DIRECTED BY CANTLIN ONE DAY TO LISTEN TO
CUTLER'S PHONE AND HELP TRAIN HER, AND THAT BURRIS RESPONDED BY STOMPING
HER FEET AND REMARKING THAT THAT WAS NOT IN HER JOB DESCRIPTION. SHE
TESTIFIED TO ANOTHER OCCASION WHEN SHE OVERHEARD BURRIS SAY TO ANOTHER
OPERATOR THAT SHE DID NOT UNDERSTAND WHY CETA EMPLOYEES DID NOT SHARE
THE BURDEN OF OVERTIME. SHORTLY AFTER REPORTING FOR DUTY, CUTLER CALLED
CANTLIN AT HOME, UPSET ABOUT THE APPARENT RESENTMENT TOWARD HER AND THE
FAILURE OF OTHER OPERATORS, PARTICULARLY BURRIS, TO TRAIN HER, AND
INCLINED TO QUIT. CUTLER REPORTED THAT BURRIS WOULD NOT ANSWER HER
QUESTIONS, GOSSIPED ABOUT CANTLIN AND HER PETS AND SPIES, AND STATED
THAT GUARINO COULD DO NO WRONG. SHE ALSO SAID THAT NANCY HILL WAS COOL
AND RESENTFUL AND THAT PAUL KENDALL WAS SARCASTIC. THIS LED TO A
MEETING BETWEEN CANTLIN, CUTLER, KENDALL AND BURRIS ABOUT THE TRAINING
OF NEW EMPLOYEES. IT IS APPARENT THAT KENDALL AND HILL WERE NOT HELPFUL
EITHER. ACCORDING TO CUTLER, THOSE TWO AND BURRIS SPOKE OF QUITTING
TOGETHER SO AS TO EMBARRASS CANTLIN. THE CHIEF ILLUSTRATION OF BURRIS'
ALLEGED UNWILLINGNESS TO HELP TRAINEES OCCURRED WHEN AN AMBU, OR
EMERGENCY CALL WAS TAKEN BY CUTLER ON JUNE 11. ACCORDING TO CUTLER, IT
WAS HER FIRST AMBU CALL AND, UNSURE OF HERSELF, SHE SOUGHT ASSISTANCE
FROM BURRIS BUT, BEING IGNORED, DID NOT GET HER ATTENTION UNTIL AFTER
THE CALLING PARTY WAS OFF THE LINE. SHE THEN REPEATED THE MESSAGE TO
BURRIS THAT A DOCTOR WAS NEEDED IN ROOM 330, AND BURRIS PAGED AMBU TO
THE LIBRARY, WHERE THE TELEPHONE NUMBER WAS 330. BURRIS TESTIFIED THAT
THE CALL CAME, ACCORDING TO CUTLER, FROM EXTENSION 330, WHICH SHE
THOUGHT ODD BECAUSE IT WAS THE LIBRARY. WHEN THE MEDICAL TEAM RUSHED BY
THE SWITCHBOARD TO THE LIBRARY AND THEN BACK, SHE ASCERTAINED THE SOURCE
OF THE CALL, GOT THE ROOM NUMBER, AND DISPATCHED THE TEAM WITHOUT ANY
FURTHER NEED TO PAGE. ACCORDING TO JANET LORD, A SUPERVISOR, SHE CALLED
THE SWITCHBOARD TO SEEK A CORRECTION OF THE PAGE, AND ENCOUNTERED SO
MUCH RESISTANCE FROM BURRIS, WHO WAS BENT ON EXPLAINING HOW THE MISTAKE
WAS MADE INSTEAD OF CORRECTING IT, THAT SHE HAD TO SHOUT AT BURRIS TO
GET THE EMERGENCY PROPERLY PAGED. BURRIS ASSERTED THAT SHE WAS SIMPLY
TRYING TO TELL LORD THAT SHE HAD ALREADY SENT THE TEAM TO THE RIGHT
LOCATION, SO THAT A PAGE WAS UNNECESSARY. ANOTHER PAGE WAS THEN,
PERHAPS NEEDLESSLY, MADE. I FIND IT IMPOSSIBLE TO DETERMINE WHICH, IF
ANY, OF THE EXCITED PARTICIPANTS IN THIS EMERGENCY HAS THE STORY
STRAIGHT. I AM, HOWEVER, IMPRESSED BY THE FACT THAT IT WAS APPARENTLY
STANDARD PROCEDURE TO GIVE THE ROOM NUMBER, AND THAT BURRIS
ACKNOWLEDGED
THAT IT WAS ODD TO HAVE BEEN GIVEN A TELEPHONE NUMBER. I AM ALSO
INCLINED TO BELIEVE CUTLER'S VERSION THAT SHE WAS MOMENTARILY IGNORED,
AND LOST THE CALLING PARTY BEFORE SHE PASSED THE INFORMATION ON. I AM
IN ANY EVENT, PERSUADED THAT CANTLIN ACCEPTED THE VERSIONS OPPOSED TO
BURRIS'. IT IS WHAT SHE IN FACT BELIEVED, RATHER THAN WHAT ACTUALLY
HAPPENED, WHICH IS AT ISSUE HERE.
10. ON JUNE 7, IT WAS REPORTED, APPARENTLY, TO CANTLIN THAT BURRIS
WAS SEEKING ANOTHER JOB AND, IF SUCCESSFUL, WOULD GIVE NOTICE TO HER
EMPLOYER ON HER DEPARTURE DATE.
11. IN EARLY JUNE, TERRY WASHER OVERHEARD BURRIS TELLING CANTLIN
THAT SHE WAS SICK AND DID NOT WANT TO COVER TWO MIDNIGHT SHIFTS WHEN HE
WAS OFF, BUT THAT SHE WOULD. WASHER WAS STILL VOLUNTARILY COVERING THAT
SHIFT FIVE NIGHTS A WEEK. ON THE FOLLOWING MORNING HE CALLED BURRIS TO
SEE HOW SHE WAS FEELING AND IF SHE WANTED HIM TO TAKE THE SHIFTS. SHE
DECLINED HIS HELP, AND STATED THAT THE NEXT TIME THIS WAS ABOUT TO
HAPPEN SHE "WOULD FIX PEARL" (CANTLIN) BY GETTING A DOCTOR'S STATEMENT
THAT SHE COULD NOT WORK OVERTIME. THIS WAS REPORTED TO CANTLIN, WHO
ASSERTED THERE WAS NO PRIOR INDICATION THAT BURRIS' HEALTH WOULD PREVENT
OVERTIME.
12. ON JUNE 13, SHORTLY AFTER THE AMBU INCIDENT AND THE ONE
DESCRIBED ABOVE, CANTLIN POSTED A PROPOSED SCHEDULE FOR THE TWO WEEKS
COMMENCING ON JUNE 25. BECAUSE OF THE RESIGNATION OF NANCY HILL, AND
THE ANTICIPATED MILITARY LEAVE OF PAUL KENDALL AND ANNUAL LEAVE OF
BURRIS, OVERTIME WAS NECESSARY AND BURRIS WAS SCHEDULED FOR FOUR HOURS
ON A SATURDAY AND TWO ON THE FOLLOWING SUNDAY. BURRIS WAS UPSET. SHE
REQUESTED AND RECEIVED OFFICIAL TIME TO DISCUSS THE MATTER WITH UNION
PRESIDENT WARREN, AS DID KENDALL. SHE TOLD WARREN THAT HER HEALTH WOULD
NOT PERMIT CONTINUED OVERTIME. WARREN SAID SHE WOULD ARRANGE A MEETING.
SOMETIME DURING THE DAY BURRIS ALSO TOLD CANTLIN THAT SHE DID NOT KNOW
HOW MUCH LONGER SHE COULD WORK THE NIGHT SHIFT; THAT SHE FELT SHE HAD
HIGH BLOOD PRESSURE AND MAYBE HEART PROBLEMS; AND THAT SHE KNEW THAT IF
SHE SAW A DOCTOR HE WOULD TELL HER TO STAY HOME FOR REST. CANTLIN
SUGGESTED SHE GO TO THE CLINIC, BUT BURRIS SAID THE VA DOCTORS COULD NOT
HELP HER. LATER THAN DAY, WILLIAM MONTAGUE, CHIEF MEDICAL
ADMINISTRATION, CALLED CANTLIN TO SAY THAT UNION PRESIDENT WARREN WANTED
A MEETING ABOUT THE POSTED SCHEDULE.
13. ON JUNE 14, A MEETING WAS HELD INVOLVING MONTAGUE, CANTLIN,
WARREN, BURRIS AND KENDALL. BURRIS SAID THAT SHE COULD NOT WORK
OVERTIME BECAUSE OF HER HEALTH. MONTAGUE RESPONDED THAT HE WOULD GET
SOMEONE TO COVER IF HE COULD, BUT IF HE COULD NOT, SHE WOULD HAVE TO
WORK THE OVERTIME UNLESS SHE PRODUCED A DOCTOR'S CERTIFICATE.
MANAGEMENT FURTHER SAID IT WAS DOING EVERYTHING IT COULD TO SECURE A
REPLACEMENT FOR NANCY HILL. ON THE NEXT DAY, CANTLIN ASKED MONTAGUE WHO
HAS REQUESTED THE UNION MEETING, NOTING THAT NEITHER BURRIS NOR KENDALL
HAD APPROACHED HER ABOUT PROBLEMS WITH THE SCHEDULE. SHE WAS INFORMED
THAT WARREN HAD DONE SO.
14. ON JUNE 18, BURRIS CALLED CANTLIN, AT HOME TO ADVISE HER THAT
HER DOCTOR TOLD HER TO STAY HOME ONE WEEK. THE NEXT DAY HIS STATEMENT
WAS RECEIVED, INDICATING THAT SHE SHOULD BE PLACED ON SICK LEAVE FROM
JUNE 20 TO JUNE 26. WHEN BURRIS RETURNED TO WORK ON JUNE 27, SHE
BROUGHT A DOCTOR'S STATEMENT THAT SHE SHOULD BE ASSIGNED NO OVERTIME FOR
AT LEAST ONE MONTH. IT WAS REPORTED TO CANTLIN THAT BURRIS TOLD ANOTHER
OPERATOR THAT CANTLIN WAS RUDE IN RESCHEDULING HER FOR WORK THE
FOLLOWING SATURDAY WHEN HER SCHEDULED ANNUAL LEAVE BEGAN THE FOLLOWING
MONDAY. ALTHOUGH RESPONDENT DID NOT CHALLENGE THE DOCTOR'S CERTIFICATE,
IT IS CLEAR THAT CANTLIN BELIEVED THE EXCUSE WAS UNJUSTIFIED.
15. ON JULY 12, BURRIS ARRANGED WITH SUPERVISOR JANET LORD FOR THREE
HOURS OF OVERTIME FOR PURPOSES OF MAKE-UP CLASSES IN REQUIRED TRAINING.
WHATEVER THE PRIORITIES WERE, CANTLIN CLEARLY CONSIDERED THIS AN AFFRONT
IN VIEW OF BURRIS' MEDICAL EXCUSE FOR AVOIDANCE OF SIMILAR OVERTIME AT
THE SWITCHBOARD, AND HER FAILURE TO TAKE THE MATTER UP WITH CANTLIN.
CANTLIN IN FACT INTERVENED TO CANCEL FUTURE CLASSES AND SPOKE TO BURRIS
ABOUT THE MATTER.
16. ON JULY 17 OR 18, A NINE-WEEK SCHEDULE WAS POSTED, IN WHICH
BURRIS APPARENTLY RECEIVED A CONSIDERABLE SHARE OF NIGHT AND WEEKEND
WORK. SHE SPOKE TO UNION STEWARD ROBIN RAFUSE ON HER WAY OUT AT
MIDNIGHT. RAFUSE SUGGESTED SHE SPEAK TO CANTLIN AND SEEK A FAIRER
DISTRIBUTION OF WEEKEND WORK AND SHIFTS. SOMETIME LATER, UNABLE TO
DISCUSS THE MATTER WITH CANTLIN, WHO WAS ABSENT, SHE LEFT HER A NOTE
REQUESTING AN EXPLANATION. CANTLIN CALLED, ASKED HER UP TO THE OFFICE,
AND PROVIDED AN EXPLANATION. SHE ALSO TOLD BURRIS THAT SHE KNEW BURRIS
HAD TALKED TO A UNION REPRESENTATIVE ALTHOUGH SHE HAD TOLD ALL OPERATORS
TO COME TO HER AND ATTEMPT TO STRAIGHTEN PROBLEMS OUT BEFORE GOING TO
THE UNION. /1/
17. ON JULY 24, WITHIN A WEEK OF THE ABOVE-DESCRIBED ENCOUNTER,
BURRIS COMPLETED 10 MONTHS OF PROBATIONARY SERVICE. CANTLIN WAS
REQUIRED, ON OR BEFORE THAT DATE, TO MAKE OUT A FORM RECOMMENDING THAT
BURRIS BE RETAINED OR BE SEPARATED BEFORE THE END OF HER PROBATIONARY
YEAR. AS RESPONDENT RIGHTLY POINTS OUT, THIS IS NOT A CASE WHERE
ADVERSE ACTION SIMPLY FOLLOWED HARD UPON THE HEELS OF THE UNION ACTIVITY
SO AS TO GIVE RISE TO AN INFERENCE THAT THE ONE CAUSED THE OTHER. THAT
INFERENCE IS WEAKENED WHERE THE TIMING OF THE SECOND EVENT WAS A FEDERAL
PERSONNEL MANUAL REQUIREMENT BEYOND MANAGEMENT'S CONTROL. HERE CANTLIN
HAD TO MAKE THE VERY SERIOUS DECISION WHETHER BURRIS SHOULD BE RETAINED
AS A CAREER CIVIL SERVANT BY JULY 24. SHE IN FACT COMPLETED THE FORM ON
JULY 30-- THE SAME DAY MAS CHIEF MONTAGUE SIGNED OFF-- HAVING MADE
SEVERAL DAYS EARLIER A VERBAL RECOMMENDATION WHICH SHE WAS REQUIRED TO
DOCUMENT WITH THE NOTES IN EVIDENCE AS G.C. EXH. 4. SEPARATION WAS
RECOMMENDED ON THE FOLLOWING GROUNDS:
(1) DOES NOT MANIFEST TEAMWORK.
(2) DOES NOT ACCEPT CHANGE (SCHEDULE, OVERTIME).
(3) UNWILLING TO ACCEPT NEW PEOPLE OR HELP TRAIN THEM.
(4) DOES NOT TOLERATE OR SHOW COMPASSION FOR CERTAIN TYPE PATIENTS.
(5) DOES NOT FOLLOW CHAIN OF COMMAND.
18. ON AUGUST 1, MONTAGUE PREPARED A MEMO TO BURRIS ANNOUNCING A
MEETING ON AUGUST 6 TO DISCUSS HER REMOVAL DURING THE PROBATIONARY
PERIOD. THE MEETING WAS ATTENDED BY MAS CHIEF MONTAGUE, ACTING
PERSONNEL DIRECTOR DUTILLE, CANTLIN, UNION PRESIDENT WARREN AND BURRIS.
THE FIVE REASONS WERE READ BY DUTILLE, AND IN RESPONSE TO WARREN'S
REQUEST FOR SPECIFICS, SHE WAS GIVEN A COPY OF THE SUPERVISORS' NOTES AS
THE SUBSTANTIATION OF MANAGEMENT'S DECISION. WARREN WAS UPSET AT THE
SEVERAL REFERENCES TO THE UNION AND WAS TOLD THAT IT HAD NO BEARING UPON
THE TERMINATION. WHEN SHE REACHED THE NOTES OF THE JULY 18 MEETING
WARREN ASKED CANTLIN HOW SHE KNEW BURRIS HAD CONTACTED HER UNION
REPRESENTATIVE. CANTLIN RESPONDED THAT SHE HAD BEEN TOLD, AND WARREN
THEN SAID THAT BURRIS HAD EVERY RIGHT TO CONTACT A UNION REPRESENTATIVE
AND DISCUSS HER SCHEDULE OR ANY OTHER PROBLEM. CANTLIN THEN SAID SHE
HAD TOLD BURRIS MANY TIMES TO COME TO HER FIRST BEFORE GOING TO THE
UNION OR ANYONE ELSE WITH A PROBLEM. IT WAS ANNOUNCED THAT BURRIS WOULD
BE SEPARATED EFFECTIVE AUGUST 18. UNTIL THIS MEETING, BURRIS HAD NEVER
RECEIVED ANY WRITTEN REPRIMAND OR OTHER WRITTEN NOTICE OF SHORTCOMINGS
AS AN EMPLOYEE. NOR HAD ANY OTHER EMPLOYEE UNDER CANTLIN'S SUPERVISION.
19. ON AUGUST 9, BURRIS WAS SERVED WITH WRITTEN NOTICE OF
TERMINATION FROM ACTING PERSONNEL CHIEF DUTILLE, BASED UPON THE SAME
REASONS EXCEPT FOR THE CURIOUS AND SUSPICIOUS OMISSION OF ANY REFERENCE
TO THE FAILURE TO FOLLOW THE CHAIN OF COMMAND. WHETHER THIS REPRESENTS
DUTILLE'S DECISION NOT TO RELY UPON THAT REASON IS UNEXPLAINED. CANTLIN
DID TESTIFY THAT THIS WAS NOT "BASICALLY" A REASON, ALTHOUGH, ASIDE FROM
THE UNION, THERE WERE SEVERAL INSTANCES OF SUCH CONDUCT-- GOING TO
PERSONNEL ABOUT A PROMOTION AND GOING TO JANET LORD ABOUT MAKE-UP
CLASSES.
20. LAST, I DEEM IT USEFUL TO SET FORTH CERTAIN EXCERPTS FROM THE
TRANSCRIPT, AS COUNSEL FOR THE GENERAL COUNSEL RELIES HEAVILY UPON PARTS
OF THEM AS CONTAINING VIRTUAL ADMISSIONS BY CANTLIN THAT HER ACTION
AGAINST BURRIS WAS MOTIVATED BY ANTI-UNION CONSIDERATIONS. THE COLLOQUY
QUOTED COMES FROM RIGOROUS AND SKILLFUL EXAMINATION OF CANTLIN PURSUANT
TO RULE 611(C). AS THE QUESTIONS MAKE CLEAR, COUNSEL REPEATEDLY
ATTEMPTED TO EXTRACT A CONCESSION THAT BURRIS' HAVING GONE TO THE UNION
AND SET UP THE MEETING OF JUNE 14 WAS THE EVENT WHICH PRECIPITATED THE
RECOMMENDATION THAT BURRIS BE SEPARATED. IN MY JUDGEMENT, THERE WAS
UNAVOIDABLE CONFUSION AS TO WHETHER CANTLIN WAS UPSET BY THE VERY FACT
THAT A UNION MEETING WAS TAKING PLACE, OR BY WHAT WAS SAID AT THAT
MEETING, OR BY BOTH. THOSE EXCERPTS ARE AS FOLLOWS:
Q. WHAT EXACTLY OCCURRED IN JUNE ABOUT HER (BURRIS) NOT ACCEPTING
CHANGE EXCEPT FOR THE
FACT THAT A MEETING WAS HELD IN WHICH UNION WAS INVOLVED? IS THAT
IT? DID THAT MANIFEST THAT
SHE DID NOT ACCEPT CHANGE (TR. 58).
A. SHE SAID THAT SHE COULD NOT WORK OVERTIME.
Q. DID SHE SAY THAT AT THIS UNION MEETING THAT WAS HELD?
A. YES, YES.
. . . .
Q. (DESIRE NOT TO WORK OVERTIME) IS A VALID WORKER'S COMPLAINT,
ISN'T IT?
A. RIGHT.
Q. AND SHE WAS WITH THE UNION MAKING THIS COMPLAINT?
A. RIGHT.
Q. AND YOU'RE SAYING THAT INDICATED TO YOU THAT SHE WOULD NOT ACCEPT
A CHANGE, TRUE?
A. THAT WAS ONE OF THEM.
Q. OKAY.
A. YES.
Q. SHE WENT TO THE UNION AND VOICED THESE COMPLAINTS, RIGHT?
A. YES.
. . . .
(THERE FOLLOWED QUESTIONS WHICH LED TO CANTLIN'S RECOUNTING THE EARLY
JUNE INCIDENT IN WHICH BURRIS TOLD TERRY WASHER THAT SHE WOULD "FIX"
CANTLIN, PREVENTING THE ASSIGNMENT OF FURTHER OVERTIME BY GETTING A
MEDICAL STATEMENT PROHIBITING IT. THEN AFTER OTHER MATTERS WERE
COVERED, COUNSEL RETURNED TO THE ULTIMATE QUESTION:
Q. AND YOU DISCHARGED JUDY BURRIS BECAUSE OF HER COMPLAINTS AND HER
REFUSAL TO ACCEPT
ORDERS OR YOUR METHOD OF SCHEDULING, RIGHT? (TR. 79).
A. PART OF IT.
Q. AND PART OF THAT WAS HER COMPLAINTS AT THE JUNE MEETING AS YOU
TESTIFIED HERE TODAY,
RIGHT?
A. THAT MEETING, YES.
I DO NOT REGARD THE ADMISSION THAT CANTLIN WAS IN PART MOTIVATED TO
SEPARATE BURRIS BY STATEMENTS THE LATTER MADE AT THE MEETING ATTENDED BY
UNION PRESIDENT WARREN AS AN ADMISSION THAT GOING TO THE UNION WITH HER
COMPLAINTS WAS A REASON. RATHER, I VIEW IT AS A STATEMENT THAT BURRIS'
CONTINUING RESISTANCE TO OVERTIME, MIDNIGHT SHIFT AND WEEKEND WORK, AS
EXPRESSED ONCE AGAIN, ALBEIT AT A MEETING WITH THE UNION, WAS INDEED A
REASON. JUST AS UNION ACTIVITY DOES NOT CLOAK AN OTHERWISE
UNSATISFACTORY EMPLOYEE WITH IMMUNITY FROM DISCIPLINE, ANY STATEMENT
UTTERED IN A MEETING WITH A UNION REPRESENTATIVE PRESENT DOES NOT
THEREBY BECOME A SPECIES OF UNION ACTIVITY WHICH MAY NOT BE A VALID
BASIS FOR EMPLOYMENT DECISIONS. I CONCLUDE THAT CANTLIN CONCEDED ONLY
THAT BURRIS' RESISTANCE TO SCHEDULE CHANGES, AS REITERATED AT THE
MEETING WITH THE UNION, AND AS UNDERSCORED BY HER THREAT, PROMISE OR
PREDICTION THAT A DOCTOR'S EXCUSE WOULD BE FORTHCOMING, WAS AN IMPORTANT
CONSIDERATION IN HER DECISION TO RECOMMEND THAT BURRIS BE SEPARATED.
CONCLUSIONS OF LAW
SECTION 7116(A)(1) AND (2) PROHIBIT A DISCHARGE, EVEN IF A LEGITIMATE
BASIS FOR SUCH ACTION EXISTED, IF CONSIDERATIONS OF UNION ACTIVITY
PLAYED ANY PART IN THAT DECISION. DIRECTORATE OF SUPPLY OPERATIONS,
DEFENSE LOGISTICS AGENCY, 2 FLRA 118. /2/ SECTION 7116(A)(1) PROHIBITS
ANY STATEMENT BY AGENCY MANAGEMENT WHICH IMPLIES ADVERSE EMPLOYMENT
CONSEQUENCES FOR AN EMPLOYEE WHO SEEKS OR ACCEPTS UNION ASSISTANCE AND
REPRESENTATION CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES
OR OTHER MATTERS AFFECTING EMPLOYMENT. HEW, SOCIAL SECURITY
ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER, 2 FLRC 12; DOT,
FEDERAL AVIATION ADMINISTRATION, 6 A/SLMR 523.
THE FIRST ISSUE IS WHETHER CANTLIN'S SEVERAL STATEMENTS TO BURRIS
(AND OTHERS), THAT THEY SHOULD COME TO HER WITH THEIR PROBLEMS BEFORE
GOING TO THE UNION, UNLAWFULLY INTERFERED WITH RIGHTS ASSURED BY THE
STATUTE. NO CASES HAVE BEEN CITED WHICH TREAT WITH A STATEMENT SIMILAR
TO THIS ONE. HERE THERE WAS NO EXPLICIT THREAT, AS WAS THE CASE IN FAA,
SUPRA, WHERE A SECTOR MANAGER PLAINLY STATED THAT THE EMPLOYEE'S CONDUCT
IN LETTING THE UNION LEAD HIM AROUND "WAS NOT THE WAY TO GET AHEAD."
HERE A FIRST LINE SUPERVISOR INFORMED SUBORDINATES THAT THEY SHOULD SEEK
SOLUTIONS TO THEIR SCHEDULING OR OTHER PROBLEMS BY BRINGING THEM TO HER
ATTENTION BEFORE INVOLVING THE UNION, OR, FOR THAT MATTER, OTHER LEVELS
OF MANAGEMENT. AS SHE PUT IT, SHE COULD NOT STRAIGHTEN OUT PROBLEMS
UNLESS THEY WERE BROUGHT TO HER ATTENTION. SHE THOUGHT IT WAS UNFAIR TO
"BYPASS" HER IN THIS WAY. SHE RESENTED IT, JUST AS SHE WAS ANNOYED WHEN
BURRIS WENT DIRECTLY TO PERSONNEL TO SEEK A GS-4 AND COMPLAIN ABOUT
ALLEGED FAVORITISM TO MARY GUARINO, AND WHEN SHE WENT TO SUPERVISOR
JANET LORD ABOUT HER TRAINING SCHEDULE.
CANTLIN'S STATEMENT WAS UNACCOMPANIED BY ANY SUGGESTION OF ADVERSE
CONSEQUENCES, NOR WAS IT EVEN ALLEGED THAT HER TONE OR MANNER WERE
THREATENING. THIS RECORD, IN FACT, RATHER STRONGLY INDICATES THAT
CANTLIN WAS NOT TOUGH ENOUGH IN DEALING WITH HER SUBORDINATES IN THE
EFFORT TO ENSURE THAT THE SWITCHBOARD WAS PROPERLY COVERED AT ALL TIMES.
OUT OF HER OWN DESPERATION SHE SOUGHT THE ASSISTANCE OF HIGHER
MANAGEMENT IN DEALING WITH HER PROBLEMS IN THE WINTER OF 1979, WHICH
LEAD TO THE JANUARY MEETING WITH LOCAL PRESIDENT WARREN IN ATTENDANCE.
THERE IS IN THIS RECORD NO INDICATION THAT THE UNION AND THE HOSPITAL
DID NOT ENJOY A HARMONIOUS RELATIONSHIP UNTIL THE DECISION TO SEPARATE
BURRIS OCCURRED. THERE IS ABSOLUTELY NO EVIDENCE OF ANTI-UNION ANIMUS.
I AM URGED TO ACCEPT, AS SUCH EVIDENCE, THE FACT THAT PRESIDENT WARREN
AND CANTLIN HAD VERY GOOD WORK AND SOCIAL RELATIONSHIPS UNTIL THAT
JANUARY MEETING, AND THAT CANTLIN THEREAFTER DID NOT SPEAK TO HER. THE
REASONS FOR THE ALLEGED RUPTURE ARE UNDISCLOSED. I CANNOT EQUATE A
FAILURE TO REMAIN ON FRIENDLY TERMS WITH A UNION OFFICIAL-- WHATEVER ITS
CAUSE-- WITH EVIDENCE OF ANTI-UNION ANIMUS. THE OBLIGATION TO ACCEPT A
UNION, RESPECT IT ROLE AND DEAL WITH IT IN GOOD FAITH, NO MORE REQUIRES
AFFECTION FOR A UNION AGENT THAN DOES THE INJUNCTION THAT YOU LOVE YOUR
NEIGHBOR COMMAND THAT YOU LIKE HIM. THUS, I FIND NOTHING IN THE
ENVIRONMENT OF THE STATEMENTS WITH WHICH TO CONSTRUCT AN IMPLIED THREAT
OF ADVERSE CONSEQUENCES FOR THOSE WHO DISOBEYED IT. SUCH A THREAT WOULD
INHERE IN THESE CIRCUMSTANCES ONLY BY APPLICATION OF THE LOGIC THAT
THERE IS IMPLIED, IN ANY INSTRUCTION OR REQUEST FROM A SUPERVISOR, THE
THREAT THAT YOU DISREGARD IT AT YOUR PERIL. I AM RELUCTANT TO ACCEPT
SUCH A PER SE APPROACH, ALTHOUGH IT HAS THE VIRTUE OF BEING EASY TO
APPLY AND VERY OFTEN CORRECT. ITS VICE IS THAT IT CAN DO VIOLENCE TO
THE PARTICULARS OF ANY GIVEN SITUATION, AND THAT IT WOULD TEND TO MUZZLE
SUPERVISORS WHO WISH TO EXPRESS USEFUL VIEWS OR OPINIONS IN AN
NON-THREATENING WAY.
IN THE PRIVATE SECTOR THE NATIONAL LABOR RELATIONS BOARD HAD OCCASION
TO ADDRESS A VIRTUALLY IDENTICAL STATEMENT IN AMERICAN BUILDING AND
MAINTENANCE COMPANY OF CALIFORNIA, 166 NLRB 143. THERE RESPONDENT WAS
ALLEGED TO HAVE UNLAWFULLY INSTRUCTED EMPLOYEES TO DEAL DIRECTLY WITH IT
CONCERNING THEIR PROBLEMS, THEREBY BYPASSING THE DULY DESIGNATED
COLLECTIVE BARGAINING REPRESENTATIVE. A SUPERVISOR OF RESPONDENT'S 58
JANITORIAL EMPLOYEES TOLD THEM "IF YOU HAVE ANY PROBLEMS, DON'T RUN TO
THE UNION. LETS SEE WHAT WE CAN DO ABOUT THEM TO STRAIGHTEN THEM OUT."
HE ALSO SAID HE SAW NO REASON FOR THEM "TO RUN TO THE UNION" IF THEY HAD
ANY COMPLAINTS, AND PROPOSED THAT THEY "TRY TO WORK IT OUT BEFORE YOU GO
TO THE UNION." NOTING AN AMICABLE COLLECTIVE BARGAINING HISTORY, THE
EXISTENCE OF A CONTRACT WITH GRIEVANCE AND ARBITRATION MACHINERY, THE
ADMITTED ABSENCE OF ANY PRIOR UNFAIR LABOR PRACTICE PROCEEDING AND THE
LACK OF ANTI-UNION BIAS OR HOSTILITY, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT IT WAS FARFETCHED TO MAINTAIN THAT RESPONDENT WAS ASKING
EMPLOYEES TO DEAL WITH IT DIRECTLY AND BYPASS THE UNION IN DEROGATION OF
ITS STATUS AS THE EXCLUSIVE BARGAINING REPRESENTATIVE. RATHER, HE FOUND
THE REMARKS TO CONSTITUTE AN EFFORT TO PERSUADE EMPLOYEES TO ADJUST ANY
DISPUTES WITH HIM BEFORE RESORTING TO THE GRIEVANCE MACHINERY, CONDUCT
WHICH HE FOUND NEITHER UNREASONABLE NOR UNLAWFUL BUT RATHER DESIRABLE
AND TO BE ENCOURAGED. A PANEL OF CHAIRMAN MCCULLOCH, FANNING AND BROWN
ADOPTED THE ALJ'S RECOMMENDATIONS. I FIND NO SIGNIFICANT DIFFERENCE
BETWEEN THE STATEMENTS THERE MADE AND THOSE OF CANTLIN, NOR IS THERE A
DIFFERENCE IN THE LABOR RELATIONS "CLIMATES." WHILE THE DECISIONS OF THE
NLRB ARE GUIDANCE ONLY, I COMMEND THIS ONE TO THE AUTHORITY. I
RECOMMEND THAT THE ALLEGED VIOLATIONS OF SECTION 7116(A)(1) BASED ON
CANTLIN'S REMARKS BE DISMISSED.
AS IS CLEAR FROM MY DISCUSSION OF THE FACTS SURROUNDING THE DECISION
TO TERMINATE BURRIS, I AM CONVINCED THAT SHE NEVER MADE THE ADJUSTMENT
FROM DAY WORK ON MONDAY THROUGH FRIDAY AS A CETA EMPLOYEE, TO THE
VARIOUS SHIFTS, OVERTIME AND WEEKEND WORK REQUIRED OF REGULAR EMPLOYEES.
THIS RECORD IS REPLETE WITH INCIDENTS DEMONSTRATING HER RELUCTANCE TO
ACCEPT OVERTIME, MIDNIGHT AND WEEKEND ASSIGNMENTS, AND HER DISPOSITION
TO TAKE ACTION TO AVOID THEM. SHE WAS LARGELY ABLE TO AVOID SUCH WORK,
IN PART BECAUSE TERRY WASHER WAS HIRED AND VOLUNTEERED FOR NIGHT WORK,
UNTIL HILL RESIGNED IN JUNE. AT THIS POINT, SHE MADE CLEAR IN HER
REMARK TO TERRY WASHER THAT SHE WOULD GET A DOCTOR'S CERTIFICATE IN
ORDER TO ESCAPE OTHERWISE UNAVOIDABLE OVERTIME AND WEEKEND WORK. SHE
HAD FROM THE FIRST BEEN RELUCTANT TO ACCEPT SUCH WORK, WITNESS THE
STATEMENT IN THE FALL OF 1978 THAT THE OPERATORS SHOULD REFUSE OVERTIME
ASSIGNMENTS. HOWEVER, UNTIL THE SUMMER OF 1979, THIS PROBLEM BECAME
ACUTE ONLY DURING THE CHRISTMAS AND NEW YEAR HOLIDAY SEASON. IT WENT
AWAY AGAIN WHEN NEW HIRES OCCURRED AND BURRIS WAS NOT CALLED UPON TO DO
SUCH WORK. DURING THIS PERIOD CANTLIN DID GIVE HER FAIRLY GOOD
APPRAISALS AND EVEN, IN MARCH, RECOMMENDED A PROMOTION. I ACCEPT
CANTLIN'S TESTIMONY THAT SHE STILL HOPED FOR THE BEST AND BELIEVED SHE
COULD PUT AT END TO BICKERING, AND PERHAPS TO BURRIS' ALIGNMENT WITH
SIMILARLY DISAFFECTED EMPLOYEES NANCY HILL AND PAUL KENDALL, WITH A
PROMOTION. THEREAFTER, THE TROUBLE WITH TRAINING CUTLER ENSUED, AND
MORE IMPORTANTLY, IN JUNE, CANTLIN WAS FACED WITH THE PERMANENT LOSS OF
HILL AND THE TEMPORARY LOSS OF KENDALL. AT THIS POINT, BURRIS'
RESISTANCE TO DISAGREEABLE HOURS TOOK THE FORM OF PROTECTED ACTIVITY IN
ASCERTAINING WHAT HELP THE UNION MIGHT PROVIDE IN HER EFFORT TO AVOID
THE NEWLY POSTED SCHEDULE. CONFRONTED WITH THE CLEAR NEED TO WORK HOURS
SHE DID NOT WISH TO WORK, SHE INDICATED OPENLY FOR THE FIRST TIME THAT
SHE WAS PHYSICALLY UNABLE TO DO SUCH WORK (AND THAT SHE WOULD "FIX" HER
SUPERVISOR). IT IS CLEAR THAT CANTLIN VIEWED A DOCTOR'S CERTIFICATE AS
THE TRUMP CARD WHICH BURRIS WOULD USE TO "REGULARIZE" HER WORK SCHEDULE,
AND THAT CANTLIN THOUGHT SUCH AN EXCUSE UNJUSTIFIED. SHE WAS FORTIFIED
IN THIS BELIEF BY BURRIS' ACTION IN ARRANGING FOR OVERTIME MAKE-UP
TRAINING CLASS AT THE SAME TIME SHE PROFESSED MEDICAL EXCUSE FOR RELIEF
FROM OVERTIME AT THE SWITCHBOARD. THE SEVERAL VISITS TO THE UNION ABOUT
THIS PROBLEM WERE NOT SWIFTLY FOLLOWED BY ACTION WHICH WAS WHOLLY AT
MANAGEMENT'S DISCRETION. RATHER MANAGEMENT WAS CONFRONTED WITH AN FPM
REQUIREMENT THAT HER PROBATIONARY YEAR PERFORMANCE BE ASSESSED. THUS
THE SUSPICION WHICH NORMALLY FLOWS FROM SUCH TIMING IS ABSENT, THE
TIMING HAVING BEEN IMPOSED BY OPM. AN ASSESSMENT HAD TO BE MADE AT THAT
TIME, AND A NEGATIVE ONE CARRIED INEVITABLY THE RISK WHICH GAVE RISE TO
THIS PROCEEDING.
HAVING NOTED THAT THE RECORD IS DEVOID OF EVIDENCE OF HOSTILITY TO
THE UNION, AND, ON THE CONTRARY SUGGESTS A HOSPITABLE ACCEPTANCE OF IT,
I MUST CONCLUDE THAT THE GENERAL COUNSEL HAS NOT ESTABLISHED BY A
PREPONDERANCE OF THE EVIDENCE THAT DISCRIMINATION OCCURRED. THIS IS NOT
TO SAY THAT I AM WITHOUT SUSPICION THAT BURRIS' DISREGARD OF CANTLIN'S
INSTRUCTION THAT EMPLOYEES APPROACH HER WITH THEIR PROBLEMS BEFORE GOING
TO THE UNION MAY NOT HAVE BEEN A FACTOR IN THE DECISION TO TERMINATE.
IT IS OBVIOUS THAT CANTLIN RESENTED SUCH CONDUCT, AND THE REFERENCE TO
BURRIS' "FAILURE TO FOLLOW THE CHAIN OF COMMAND" THROWS SOME DOUBT ON
THE MATTER. NEVERTHELESS, THE BURDEN IS WITH THE GENERAL COUNSEL AND
HIS CASE CREATES NO MORE THAN SUSPICION. I AM PERSUADED THAT CANTLIN
GAVE UP ANY HOPE THAT BURRIS WOULD END HER RESISTANCE TO THE NECESSARY
ASSIGNMENT OF OVERTIME OR HER PERSONAL ASSAULTS ON CANTLIN'S MOTIVES,
AND BECOME A COOPERATIVE MEMBER OF THE GROUP. WHEN FACED WITH THE
DECISION WHETHER BURRIS SHOULD BE CONVERTED TO CAREER STATUS, SHE
RECOMMENDED AGAINST IT ON THESE GROUNDS. THE FACT THAT OTHER REASONS
ADVANCED HAD TO DO WITH FAR LESS SERIOUS MATTERS, OR EVEN APPEAR TO HAVE
BEEN MAKE-WEIGHTS DOES NOT DETRACT FROM THE REALITY OF THE OTHERS. I AM
FURTHER PERSUADED THAT EVEN IF CANTLIN WAS IN SOME PART MOTIVATED TO
RECOMMEND SEPARATION BECAUSE OF HER RESENTMENT THAT BURRIS WENT TO THE
UNION BEFORE COMING TO HER, THE OTHER ASSIGNED REASONS WOULD ALONE HAVE
LED TO THIS TERMINATION. SEE AMERICAN BUILDING AND MAINTENANCE, SUPRA.
I THEREFORE RECOMMEND THAT THE SECTION 7116(A)(2) ALLEGATION BE
DISMISSED.
HAVING CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT
ESTABLISH VIOLATIONS OF SECTION 7116(A)(1) AND (2), AS ALLEGED, I
RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-147 BE, AND
IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 19, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ CANTLIN'S AFFIDAVIT (G.C. #9) WAS APPARENTLY INTRODUCED FOR THE
PURPOSE OF ESTABLISHING THAT SHE FELT IT WAS UNFAIR OF BURRIS TO GO TO
THE UNION ABOUT THIS PROBLEM BEFORE COMING TO HER. I THINK ITS DOUBTFUL
THAT THE STATEMENT IS AN ADMISSION AGAINST INTEREST ADMISSIBLE AS
AFFIRMATIVE EVIDENCE OF SUCH A DISPOSITION. NEVERTHELESS, I AM
SATISFIED THAT THIS RECORD SHOWS THAT CANTLIN WAS SENSITIVE TO THE
AIRING OF PROBLEMS, WHETHER OVER HER HEAD OR TO THE UNION, WHERE SHE HAD
NO PRIOR CHANCE TO ADDRESS THEM. RESPONDENT'S BRIEF CONCEDES THAT THE
EVIDENCES SHOWS THAT CANTLIN THOUGHT IT WAS UNFAIR OF BURRIS TO TAKE THE
JULY SCHEDULING PROBLEM DIRECTLY TO THE UNION. I FIND THAT CANTLIN DID
RESENT SUCH CONDUCT.
/2/ THAT, AT LEAST, WAS THE RULE UNDER THE EXECUTIVE ORDER, AS IT WAS
IN THE PRIVATE SECTOR, ALTHOUGH THE NATIONAL LABOR RELATIONS BOARD
RATIONALE HAD COME UNDER INCREASING ATTACK FROM UNITED STATES CIRCUIT
COURTS OF APPEALS. IN WRIGHT LINE, A DIVISION OF WRIGHT LINE, INC., 251
NLRB NO. 150, THE NLRB ANNOUNCED A NEW TEST BASED LARGELY ON THE SUPREME
COURT'S DECISION IN MT. HEALTHY CITY BOARD OF EDUCATION V. DOYLE, 429
U.S. 274. IN BRIEF, THE BOARD HELD THAT THE GENERAL COUNSEL MUST MAKE A
PRIMA FACIE CASE THAT PROTECTED CONDUCT WAS A MOTIVATING FACTOR IN THE
EMPLOYER'S DECISION TO DISCHARGE, AND THE BURDEN THEN SHIFTS TO THE
EMPLOYER TO DEMONSTRATE THAT THE DISCHARGE WOULD IN FACT HAVE TAKEN
PLACE EVEN IN THE ABSENCE OF THE PROTECTED CONDUCT.