[ v06 p616 ]
06:0616(109)CA
The decision of the Authority follows:
6 FLRA No. 109
COMMUNITY SERVICES ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3249
Charging Party
Case No. 23-CA-512
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD
NOT ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1)
AND (2) OF THE STATUTE AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED.
NO EXCEPTIONS WERE FILED BY EITHER PARTY.
PURSUANT TO SECTION 2423.19 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 23-CA-512 BE, AND
IT IS HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 21, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
ALEXANDER W. PORTER, ESQUIRE
FOR THE RESPONDENT
JAMES E. PETRUCCI, ESQUIRE
NINA L. SCHWARTZ, ESQUIRE
FOR THE GENERAL COUNSEL
MARTIN R. COHEN, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 26, 1980
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, NEW
YORK REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON NOVEMBER 19,
1980 AT NEW YORK, NEW YORK.
THIS CASE ARISES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (HEREIN CALLED THE ACT). IT IS BASED ON A FIRST AMENDED CHARGE
FILED ON JUNE 17, 1980 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3249, AFL-CIO (HEREIN CALLED THE UNION) AGAINST COMMUNITY SERVICES
ADMINISTRATION (HEREIN CALLED THE RESPONDENT).
THE COMPLAINT HEREIN ALLEGED THAT, ON OR ABOUT JUNE 1, 1979,
RESPONDENT FAILED OR REFUSED TO SELECT JANICE S. FRAZIER FOR A POSITION
AS CAP FIELD REPRESENTATIVE GS-12 BECAUSE OF HER PROTECTED UNION
ACTIVITY UNDER THE ACT, INCLUDING THE FILING OF GRIEVANCES-- ALL IN
VIOLATION OF SECTION 7116(A)(1) AND (2) THEREOF.
RESPONDENT FILED AN ANSWER DATED JULY 15, 1980 DENYING THE COMMISSION
OF ANY UNFAIR LABOR PRACTICES.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS /1/ WAS FILED WITH THE
UNDERSIGNED AND HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN A COLLECTIVE BARGAINING AGREEMENT
EXISTED BETWEEN RESPONDENT AND THE UNION COVERING GENERAL SCHEDULE (GS)
AND WAGE GRADE (WG) EMPLOYEES. /2/ JANICE S. FRAZIER, WHO IS EMPLOYED
AS A CAP FIELD REPRESENTATIVE, GS-11 BY RESPONDENT, IS A UNIT EMPLOYEE
UNDER THE AFORESAID AGREEMENT.
2. THE SAID AGREEMENT CONTAINS VARIOUS PROVISIONS UNDER ARTICLE 12
WHICH DEAL WITH MERIT PROMOTIONS. UNDER DATE OF SEPTEMBER 11, 1973 THE
AGREEMENT WAS AMENDED IN RESPECT TO VARIOUS TERMS AND CONDITIONS.
SECTION 11 OF THE AMENDMENT, ENTITLED "FILLING VACANCIES" PROVIDES THAT
"ALL VACANCIES IN THE COMPETITIVE SERVICE ABOVE THE ENTRY LEVEL WILL BE
FILLED WITH IN-HOUSE CANDIDATES, WHERE POSSIBLE WITH THE EXCEPTION OF
POLICY AND SUPERVISORY POSITIONS OR WHERE THERE IS AN EMERGENCY WHICH
PRECLUDES USE OF THE MERIT PROMOTION SYSTEM.
3. RESPONDENT FUNDS VARIOUS GRANTEES, INCLUDING COMMUNITY ACTION
AGENCIES, IN AN EFFORT TO ASSIST LOW-INCOME INDIVIDUALS. MOST OF THE
GRANTEES ARE PRIVATE NON-PROFIT AGENCIES. THE PHILADELPHIA REGION OF
COMMUNITY SERVICES ADMINISTRATION HAS TWO FIELD OPERATIONS: BRANCH 1
COVERING PENNSYLVANIA AND WEST VIRGINIA, AND BRANCH 2 COMPRISING
DISTRICT OF COLUMBIA, DELAWARE, MARYLAND, AND VIRGINIA.
4. JANICE S. FRAZIER WAS HIRED BY RESPONDENT IN 1970 AS A SECRETARY.
IN 1976 SHE BECAME A GS-7 FIELD REPRESENTATIVE BY VIRTUE OF A
PROMOTION. SHE WAS PROMOTED TO A GS-9 THE FOLLOWING YEAR. ON DECEMBER
28, 1976 HER SUPERVISOR GARY E. GRUNDER RATED FRAZIER AS SATISFACTORY
FOR THE PERIOD DECEMBER 7, 1975 TO JANUARY 1, 1977. ON JANUARY 13, 1978
GRUNDER RATED /3/ HER AS SATISFACTORY FOR THE PERIOD FEBRUARY 13, 1977
TO FEBRUARY 12, 1978.
5. CAREER LADDER EMPLOYEES, OF WHOM FRAZIER WAS ONE, USUALLY
ESCULATED THEIR POSITIONS OF EMPLOYMENT TO A JOURNEYMEN'S LEVEL UPON
RECEIVING A SATISFACTORY PERFORMANCE RATING.
6. AS A FIELD REPRESENTATIVE FRAZIER WAS REQUIRED TO PUT GRANTS
TOGETHER, PROVIDE TECHNICAL ASSISTANCE TO AGENCIES, MONITOR THE PROGRESS
OF THE AGENCIES, AND MEET WITH THEIR STAFFS AS WELL AS PUBLIC OFFICIALS.
TRAVEL WAS REQUIRED SINCE MUCH OF THE WORK INVOLVED VISITING RURAL
AREAS.
7. ON JANUARY 16, 1978 FRAZIER CONFERRED WITH SUPERVISOR GRUNDER
REGARDING HER PERFORMANCE APPRAISAL. AT THAT MEETING GRUNDER ADVISED
THE EMPLOYEES SHE COULD NOT ADVANCE TO A GS-11 UNDER THE CAREER LADDER
PROMOTION PROGRAM. THE SUPERVISOR EXPLAINED THAT THE PROMOTION WOULD BE
TEMPORARILY WITHHELD DUE TO AN INSUFFICIENT WORKLOAD TO SUPPORT A GS-11
POSITION.
8. SUBSEQUENTLY, ON FEBRUARY 13, 1978, FRAZIER FILED A GRIEVANCE
WITH RESPONDENT UNDER THE COLLECTIVE BARGAINING AGREEMENT BASED ON
MANAGEMENT'S FAILURE TO PROMOTE HER TO THE GS-11 AS AFORESAID. BY
LETTER DATED FEBRUARY 27, 1978 W.A. KIRK, RESPONDENT'S REGIONAL
DIRECTOR, INFORMED FRAZIER THAT HER GRIEVANCE WAS DENIED. HE STATED
THEREIN THAT THE EMPLOYER MAXIMIZED ITS COMPLEMENT OF GS-12 JOURNEYMEN
LEVEL EMPLOYEES BY STAFFING THAT GRADE WITH EIGHT INDIVIDUALS; THAT IT
DID NOT APPEAR SUFFICIENT WORK WAS AVAILABLE TO SUSTAIN A GS-11 AS
FRAZIER REQUESTED.
9. PRIOR TO THE AFORESAID GRIEVANCE BEING SUBMITTED TO ARBITRATION,
THE NATIONAL OFFICE OF RESPONDENT REVERSED THE DECISION OF KIRK BY A
LETTER ADDRESSED TO HIM DATED AUGUST 18, 1978. THE REVERSAL LETTER
STATED THAT IN 1976 TWO FIELD REPRESENTATIVE POSITIONS AT GS-11 LEVEL
WERE POSTED; THAT NO EVIDENCE OF A DRASTIC CHANGE WAS SHOWN TO EXPLAIN
THE NEED FOR THESE POSITIONS IN 1977 AND THE DISAPPEARANCE OF SUCH NEED
A YEAR LATER.
10. AS A RESULT OF THE DECISION BY THE NATIONAL OFFICE FRAZIER AND
ROBERT CROLL, /4/ THE OTHER GS-9 FIELD REPRESENTATIVE, WERE BOTH
PROMOTED TO GS-11 RETROACTIVE TO FEBRUARY, 1978.
11. A REORGANIZATION WAS EFFECTED BY RESPONDENT IN JULY, 1978.
GRUNDER BECAME CHIEF OF BRANCH 1, AND WALTER S. MILLS WAS MADE CHIEF OF
BRANCH 2. THE LATTER ALSO BECAME SUPERVISOR OF FRAZIER AT THAT TIME.
12. WALTER S. MILLS BECAME FRAZIER'S DIRECT SUPERVISOR IN 1978. HE
TESTIFIED THAT IN JULY, 1978 HE ENGAGED IN SEVERAL DISCUSSIONS WITH
FRAZIER REGARDING HER ATTITUDE AND WORK PERFORMANCE. IN ONE INSTANCE
THEIR DISCUSSION WAS PRECIPITATED BY FRAZIER'S BEING UNABLE-- DUE TO A
PRIOR COMMITMENT-- TO ATTEND A TRAINING SESSION ON A PARTICULAR DAY.
DURING THE CONVERSATION BETWEEN THEM THE EMPLOYEE MENTIONED SHE HAD
SOME
DIFFICULTY WITH RURAL TRAVEL AS SHE GOT LOST ON OCCASION. AT ONE
CONVERSATION MILLS MENTIONED THAT FRAZIER'S OFFICE BEHAVIOR CAUSED
PROBLEMS SINCE SHE DISTURBED STAFF MEMBERS. /5/
RECORD FACTS SHOW MILLS ENCOURAGED FRAZIER TO UNDERTAKE TRAINING IN
THE HISTORY OF STATE GOVERNMENT SINCE SHE HAD NO COURSES IN STATE AND
LOCAL GOVERNMENT OR POLITICAL SCIENCE. IN JULY, 1978 THE SUPERVISOR
ALSO SPOKE WITH LOLA ROSS, PERSONNEL OFFICER, REGARDING FRAZIER'S
ATTITUDE, HER RELUCTANCE TO TRAVEL, AND HER NEED FOR MORE ON THE JOB
TRAINING. ROSS SUGGESTED THAT MILLS SEND A LETTER OF CAUTION TO THE
EMPLOYEE. /6/
13. RECORD FACTS REFLECT THAT RESPONDENT FOLLOWED AN ESTABLISHED
PRACTICE IN FILLING VACANCIES. THE VACANCY ANNOUNCEMENT WAS POSTED AND
PROCESSED INITIALLY; A CERTIFICATE OF ELIGIBLE CANDIDATES WAS FURNISHED
TO THE SUPERVISORS ALONG WITH FORM 171'S (APPLICATIONS) AND SUPPORTING
DOCUMENTS; THE SUPERVISOR INTERVIEWED THE ELIGIBLES, AND THEN ISSUED A
RECOMMENDATION TO THE REGIONAL DIRECTOR.
14. A VACANCY FOR A GS-12 FIELD REPRESENTATIVE (R111-79-1) AROSE IN
EARLY 1979, ALTHOUGH FRAZIER DID NOT APPLY FOR IT. SHE DID, HOWEVER,
FILE A GRIEVANCE IN FEBRUARY OF THAT YEAR WHEN ANOTHER INDIVIDUAL WAS
SELECTED FOR THE POSITION. FRAZIER'S GRIEVANCE WAS PREDICATED ON HER
CONTENTION THAT SHE SHOULD HAVE BEEN PROMOTED NON-COMPETITIVELY TO A
GS-12 SINCE THAT GRADE WAS THE JOURNEYMEN LEVEL WHEN SHE ENTERED THE
CAREER LADDER. REGIONAL DIRECTOR KIRK MET THEREAFTER WITH FRAZIER AND
DAVIS IN REGARD THERETO. KIRK EXPLAINED THAT MANAGEMENT WOULD NOT
PROMOTE NON-COMPETITIVELY BEYOND THE JOURNEYMEN LEVEL, WHICH WAS A GS-11
AT THAT TIME. /7/
15. ANOTHER VACANCY ANNOUNCEMENT (R111-79-4) FOR A GS-12 CAP FIELD
REPRESENTATIVE IN BRANCH 1 WAS POSTED IN 1979 WHICH ANNOUNCED THE
OPENING DATE AS APRIL 16, 1979 AND THE CLOSING DATE AS MAY 2, 1979.
FRAZIER APPLIED FOR THIS POSITION AND SUBMITTED A SUPERVISORY EVALUATION
FORM TO MILLS FOR COMPLETION BY HIM.
16. THE AFORESAID EVALUATION FORM, DATED APRIL 26, 1979, WAS FILLED
OUT BY MILLS AND RETURNED TO THE EMPLOYEE. HE RATED HER AS AVERAGE IN
RESPECT TO THE FOLLOWING FACTORS:
- QUANTITY OF WORK.
- ABILITY TO ACCEPT ORDERS, SUPERVISION AND RESPONSIBILITY.
- ABILITY TO GET ALONG WITH OTHERS IN A WORK SITUATION.
- ABILITY TO COMMUNICATE ORALLY.
- ABILITY TO LEARN NEW WORK, ADAPT TO NEW SITUATIONS.
- RELIABILITY.
- INTEREST IN SELF-DEVELOPMENT, WILLINGNESS TO DO MORE THAN THE
MINIMUM, EAGERNESS TO GET
AHEAD.
MILLS RATED FRAZIER AS ABOVE AVERAGE IN RESPECT TO (A) QUALITY OF
WORK, TECHNICAL PROFICIENCY, (B) ABILITY TO COMMUNICATE IN WRITING. HE
ALSO COMMENTED AS FOLLOWS:
"MRS. FRAZIER'S OVERALL QUALITY OF WORK IS AVERAGE. MRS. FRAZIER'S
STRONG PERFORMANCE
POINTS INCLUDE HER WILLINGNESS TO COMPLETE IN A TIMELY MANNER ANY
REGULAR OR EXTRA ASSIGNMENTS
GIVEN TO HER; SHE DOES, HOWEVER, APPEAR TO HAVE RELUCTANCE TO
TRAVEL. IF SELECTED FOR THE
GS-12 POSITION, IT IS RECOMMENDED THAT AN INTENSIVE TRAINING PROGRAM
BE IMPLEMENTED."
KIRK, WHO WAS THE REVIEWING OFFICIAL, SIGNED THE SUPERVISORY
EVALUATION ON APRIL 26, 1979. THEREAFTER BOTH FRAZIER AND DAVIS MET
WITH MILLS TO DISCUSS THE LATTER'S EVALUATION. THE EMPLOYEE PROTESTED
THE RATINGS OF HER SUPERVISOR, BUT SINCE THEY DISAGREED AS TO THE
CRITICISMS LEVELLED BY MILLS NOTHING WAS ACCOMPLISHED.
17. ON MAY 15, 1979 GRUNDER, WHO WAS RESPONSIBLE FOR RECOMMENDING
THE PERSON TO BE SELECTED FOR THE GS-12 IN BRANCH 1, INTERVIEWED FRAZIER
FOR THAT POSITION. PRIOR THERETO THE RANKING PANEL, COMPOSED OF
IN-HOUSE EMPLOYEES OCCUPYING THE SAME GRADE AS THE POSITION SOUGHT (IN
THIS INSTANCE GS-12'S), RATED FRAZIER AS HIGHLY QUALIFIED. IT ISSUED A
MERIT-PROMOTION CERTIFICATE WHICH CONTAINED ONLY THE NAME OF JANICE
FRAZIER THEREON. DURING THE INTERVIEW GRUNDER DISCUSSED FRAZIER'S
KNOWLEDGE OF THE ASSIGNMENT AND HER BACKGROUND IN PUBLIC ADMINISTRATION
AS WELL AS THE ROLES OF THE VARIOUS GOVERNMENTS. GRUNDER WAS INTERESTED
IN HOW CANDIDATES RELATED TO OTHERS, PARTICULARLY ELECTED OFFICIALS. IN
RESPECT TO FRAZIER, THE SUPERVISOR FELT SHE WAS CONFUSED AS TO THE
RESPONSIBILITIES OF LOCAL GOVERNMENTS IN VIRGINIA. GRUNDER TESTIFIED
THAT THE EMPLOYEE CONSIDERED GREEN COUNTY ECONOMIC DEVELOPMENT
CORPORATION, A GRANTEE, A PRIVATE AGENCY WHEREAS IT IS AN AGENCY OF THE
GREEN COUNTY GOVERNMENT. HE CONCLUDED, DURING THE INTERVIEW, THAT
FRAZIER WAS NOT PERFORMING AT THE JOURNEYMEN LEVEL. SHE WAS RATED BY
HIM AS BELOW AVERAGE.
18. GRUNDER SENT A MEMORANDUM DATED MAY 15, 1979 TO PERSONNEL
OFFICER ROSS REGARDING HIS INTERVIEW WITH FRAZIER FOR THE POSITION OF
GS-12 FIELD REPRESENTATIVE. HE STATED THAT AS A RESULT OF THE INTERVIEW
IT WAS REQUESTED THE AREA OF CONSIDERATION FOR CANDIDATED BE EXPANDED.
THE REASONS FOR THE REQUEST WERE:
A) FRAZIER EVIDENCED LITTLE UNDERSTANDING OF THE NATURE OF THE
FEDERAL SYSTEM OF
GOVERNMENT, ESPECIALLY AS IT PERTAINS TO STATE AND LOCAL
RELATIONSHIPS.
B) FRAZIER SHOWED LITTLE KNOWLEDGE OF THE SOCIO-ECONOMIC STRUCTURE OF
VIRGINIA, ESPECIALLY
AS THEY CONCERNED PROBLEMS OF POVERTY AND ECONOMICS. FURTHER,
GRUNDER HAD TO EXPLAIN THE
GEOGRAPHY OF VIRGINIA TO THE APPLICANT.
C) FRAZIER APPEARED UNFAMILIAR REGARDING THE STATUS OF GREEN COUNTY
EDAC (LPA).
D) FRAZIER'S SUPERVISOR IN HIS APPRAISAL, STATED THE EMPLOYEE WAS
RELUCTANT TO
TRAVEL. WHILE SHE INSISTS NO PROBLEM EXISTS AS TO TRAVEL, FRAZIER
ADMITTED TO GETTING "MIXED
UP" IN RURAL AREAS.
E) ALTHOUGH SHE EVINCES A GENERAL KNOWLEDGE OF THE PROCEDURES OF
COMMUNITY ACTIONS, FRAZIER
HAS DIFFICULTY CONSIDERING AND DEVELOPING CONCEPTS.
F) FRAZIER'S UNDERSTANDING OF THE ROLE OF THE CAP FIELD
REPRESENTATIVE IS LIMITED. SHE IS
ORIENTED TO PROCESS AND MECHANICS. /8/
19. THEREAFTER A NEW PROMOTION CERTIFICATE, SIGNED BY THE COMMITTEE
MEMBERS ON JUNE 5, 1979, WAS ISSUED FOR THE GS-12 VACANCY. IN ADDITION
TO FRAZIER (THE ONLY IN-HOUSE CANDIDATE), THE CERTIFICATE CONTAINED THE
NAMES OF FOUR OTHER CANDIDATES WHO WERE RATED HIGHLY QUALIFIED:
LAWRENCE BARNHOUSE, HOMER J. HUBERT, PAUL KOCHIS, AND STANFORD LAMB.
/9/
20. GRUNDER INTERVIEWED ALL THE CANDIDATES ON THE NEW PROMOTION
ADMINISTRATION, AS WELL AS HER PROBLEMS WITH TRAVELING. GRUNDER
ADMINISTRATION AND THE STRUCTURE OF GOVERNMENT AS WELL AS THE ABILITIES
OF THE CANDIDATES. THE SUPERVISOR HAD CONCLUDED FRAZIER WAS NOT THE
PROPER PERSON FOR THE JOB BASED ON HER LACK OF KNOWLEDGE AS TO THE
PRESENT JOB RESPONSIBILITIES AND THE TRADITIONAL KINDS OF PUBLIC
ADMINISTRATION, AS WELL AS HER PROBLEMS WITH TRAVELLING. GRUNDER
TESTIFIED HE WAS SEEKING SOMEONE TO HANDLE COMPLEX PROBLEMS IN
ADMINISTERING 35 MILLION DOLLARS IN FEDERAL FUNDS. /10/
21. RECORD FACTS DISCLOSES THAT THE ESSENTIAL DIFFERENCES BETWEEN A
GS-11 AND GS-12 FIELD REPRESENTATIVE REVOLVES AROUND THE COMPLEXITY OF
THE FUNDING ITSELF. THIS, IN TURN, DEPENDS UPON THE SIZE OF THE AGENCY
AND THE AMOUNT OF THE GRANT. THE PROBLEMS CONFRONTED BY THE GS-12 MAY
BE MORE COMPLEX, AND THIS GRADE FIELD REPRESENTATIVE WOULD REQUIRE LESS
SUPERVISION THAN THE GS-11 EMPLOYEE. /11/
22. ON MAY 21, 1979 GRUNDER INTERVIEWED CANDIDATE PAUL KOCHIS. THE
LATTER WAS RATED ABOVE AVERAGE BY THE SUPERVISOR BASED ON HIS (A)
ARTICULATENESS, (B) KNOWLEDGE REGARDING WORKING OF STATE GOVERNMENT AND
EXPERIENCE THEREIN, (C) EXPERIENCE IN MANAGING GRANTS.
23. SUPERVISOR GRUNDER RECOMMENDED KOCHIS FOR THE GS-12 POSITION AS
BEST QUALIFIED. HE WAS IMPRESSED WITH THE INDIVIDUAL'S KNOWLEDGE OF,
AND ABILITY TO DISCUSS, CONCEPTS OF LOCAL GOVERNMENT, AS WELL AS THE
CONTACT WHICH KOCHIS HAD PREVIOUSLY WITH ELECTED LOCAL OFFICIALS.
RECORD FACTS REFLECT, FURTHER, THAT KOCHIS SPENT EIGHT YEARS IN THE
PUBLIC SECTOR AS A PLANNER AND GRANTS ADMINISTRATOR. MOST OF THIS
PERIOD WAS DEVOTED TO PROBLEM ANALYSIS, SOLUTION DEVELOPMENT, AND
IMPLEMENTATION. WHILE EMPLOYED WITH THE DEPARTMENT OF COMMUNITY AFFAIRS
IN SCRANTON, PA., HE ASSISTED LOCAL GOVERNMENTS IN ANALYZING PARK AND
RECREATIONAL RESOURCES AND NEEDS, AS WELL AS ASSISTING COMMUNITIES IN
OBTAINING STATE AND FEDERAL FUNDS TO ACQUIRE AND DEVELOP FACILITIES.
WITH THE HERITAGE CONSERVATION AND RECREATION SERVICE HE PARTICIPATED IN
THE ADMINISTRATION OF THREE OF THE AGENCY'S GRANT PROGRAMS. HE WAS ALSO
PRINCIPAL CO-ORDINATOR FOR FEDERAL LAND ACQUISITION IN THE AFORESAID
DEPARTMENT. IN THE SURPLUS PROPERTY PROGRAM HE EFFECTIVELY MADE
RECOMMENDATIONS AFTER EVALUATING LOCAL GOVERNMENT ADMINISTRATIVE AND
DEVELOPMENTAL CAPABILITIES.
24. BY LETTER DATED JUNE 8, 1979 MANAGEMENT INFORMED FRAZIER THAT,
THOUGH FOUND BASICALLY ELIGIBLE FOR THE GS-12 R111-79-4 POSITION, SHE
WAS NOT SELECTED; THAT PAUL F. KOCHIS HAD BEEN CHOSEN FOR THE POSITION.
DIRECTOR KIRK'S TESTIMONY REVEALS THAT HE ACCEPTED THE RECOMMENDATION
OF GRUNDER IN SELECTING KOCHIS TO FILL THE VACANCY.
25. THE RECORD REVEALS THAT FRAZIER IS CURRENTLY SERVING ON THE
PERFORMANCE RATING AND AWARDS COMMITTEE; THAT SHE HAS CONSULTED FREELY
WITH UNION OFFICIALS WITHOUT INTERFERENCE FROM MANAGEMENT; AND THAT NO
THREATS WERE MADE BY RESPONDENT TO FRAZIER BASED ON HER HAVING FILED
GRIEVANCES OR ENGAGED IN ANY UNION ACTIVITY. /12/
26. IT IS FURTHER REFLECTED BY THE TESTIMONY OF UNION PRESIDENT
DAVIS THAT SEVEN GRIEVANCES HAVE BEEN FILED BY, OR ON BEHALF OF
EMPLOYEES, SINCE 1974; THAT SEVERAL EMPLOYEES FILED GRIEVANCES AFTER
JULY, 1978 WITHOUT RESULTING IN ANY RETALIATORY ACTION BEING TAKEN
AGAINST THEM BY RESPONDENT; AND THAT UNION MEMBERS HAVE BEEN PROMOTED
OR HAVE RECEIVED PERFORMANCE AWARDS SINCE 1978.
CONCLUSIONS
THE ISSUE PRESENTED FOR DETERMINATION IS SIMPLY STATED; WHETHER
RESPONDENT FAILED AND REFUSED TO PROMOTE JANICE S. FRAZIER, FIELD
REPRESENTATIVE, TO A GS-12 IN JUNE, 1979 BECAUSE SHE FILED TWO
GRIEVANCES AGAINST MANAGEMENT-- ALL IN VIOLATION OF SECTIONS 7116(A)(1)
AND (2) OF THE ACT.
IT IS NOT DISPUTED THAT AN EMPLOYEE WHO FILES GRIEVANCES UNDER A
NEGOTIATED COLLECTIVE BARGAINING AGREEMENT MAY NOT, AS A RESULT THEREOF,
BE THE VICTIM OF DISCRIMINATION. SUCH CONDUCT BY AN EMPLOYEE IS
PROTECTED ACTIVITY, AND AN EMPLOYER MAY NOT DISCOURAGE THE FILING OF
GRIEVANCES OR TAKE REPRISALS FOR SUCH ACTION. UNITED STATES DEPARTMENT
OF TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS,
3 FLRA NO. 116; DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD,
BREMENTON, WASHINGTON, A/SLMR NO. 582; DEPARTMENT OF DEFENSE NATIONAL
GUARD, A/SLMR NO. 53.
IN SUPPORT OF ITS CONTENTION THAT FRAZIER WAS DISCRIMINATED AGAINST
BY RESPONDENT THE GENERAL COUNSEL ADVERTS TO SEVERAL FACTORS: (A) THE
PRACTICE HAS BEEN, IN ACCORDANCE WITH SECTION 11 OF THE AMENDMENT TO THE
AGREEMENT, TO FILL VACANCIES WITH IN-HOUSE CANDIDATES; (B) FRAZIER WAS
THE ONLY IN-HOUSE CANDIDATE CERTIFIED FOR THE POSITION AND SHE WAS RATED
HIGHLY QUALIFIED; (C) SUPERVISORS HAVE ALWAYS APPRAISED FRAZIER, IN
RESPECT TO HER WORK PERFORMANCE, AS SATISFACTORY AND THUS CRITICISMS OF
HER BY BOTH GRUNDER AND MILLS SHOULD BE VIEWED WITH SUSPICION; (D) NO
WRITTEN COMPLAINTS OR REPRIMANDS WERE EVEN ISSUED TO THIS EMPLOYEE, AND
NO DIFFERENCE EXISTS BETWEEN THE JOB DUTIES OF A GS-11 AND GS-12 FIELD
REPRESENTATIVE; (E) AN INFERENCE IS WARRANTED THAT GRUNDER REFUSED TO
RECOMMEND FRAZIER FOR THE GS-12 (R111-79-4) BASED ON HER HAVING FILED
GRIEVANCES IN THE PAST, ESPECIALLY SINCE SHE WAS CONTINUALLY PROMOTED AS
A CAREER LADDER EMPLOYEE.
CONTRARIWISE, RESPONDENT INSISTS IT HAS NEVER EXHIBITED ANTI-UNION
ANIMUS OR DISCRIMINATED AGAINST EMPLOYEES FOR UNION OR PROTECTED
ACTIVITY. THE EMPLOYER MAINTAINS THE GS-12 FIELD REPRESENTATIVE
POSITION REQUIRES DEPTH OF KNOWLEDGE REGARDING LOCAL GOVERNMENTS AND
LESS SUPERVISION IS NEEDED OVER SUCH INCUMBENT. IT URGES THAT, DESPITE
THE RATING OF 'SATISFACTORY' ACCORDED FRAZIER, MANAGEMENT HAD A FIRM
BASIS FOR ITS CONCLUSION THAT SHE COULD NOT HANDLE THIS POSITION AS WELL
AS OTHER APPLICANTS. FINALLY, RESPONDENT CONTENDS THAT OTHER EMPLOYEES
HAVE FILED GRIEVANCES WITHOUT SUFFERING ANY LOSS OF BENEFITS OR
RETALIATIONS BY MANAGEMENT. HENCE, IT IS MAINTAINED NO FINDING OF
DISCRIMINATION IS WARRANTED HEREIN.
UPON REVIEWING THE RECORD I AM PERSUADED THAT GENERAL COUNSEL HAS
FAILED TO ESTABLISH THAT THE RESPONDENT'S REFUSAL TO PROMOTE FRAZIER, AS
ALLEGED, SPRANG FROM A DISCRIMINATORY MOTIVE. SPECIAL NOTE IS TAKEN OF
THE FACT THAT OTHER EMPLOYEES HAVE FILED GRIEVANCES SINCE 1974; THAT
NONE OF THESE INDIVIDUALS WAS INTERFERED WITH, OR SUFFERED REPRISALS AS
A RESULT THEREOF. SIGNIFICANCE IS ATTACHED TO THE FACT THAT NO EVIDENCE
WAS ADDUCED SHOWING UNION ANIMUS ON THE PART OF RESPONDENT. FURTHER, I
CANNOT DEDUCE FROM THE RECORD THAT MANAGEMENT MANIFESTED ANY HOSTILITY
TOWARD FRAZIER BY REASON OF THE GRIEVANCES WHICH SHE FILED. DESPITE THE
FACT THAT SHE FILED A GRIEVANCE IN 1978, RESPONDENT PERMITTED HER TO
APPLY FOR A GS-12 VACANCY IN JANUARY, 1979 EVEN THROUGH THE TIME TO FILE
APPLICATIONS HAD EXPIRED. ALTHOUGH GENERAL COUNSEL POINTS TO THE REMARK
BY SUPERVISOR MILLS THAT FRAZIER "ALWAYS RUNS TO THE UNION," I AM UNABLE
TO CONCLUDE THAT SUCH A COMMENT, STANDING ALONE, JUSTIFIES AN INFERENCE
OF HOSTILITY TOWARD THE EMPLOYEE. MILLS DID NOT REJECT FRAZIER FOR THE
POSITION IN QUESTION, AND NONE OF HIS APPRAISALS OF THIS EMPLOYEE MADE
ANY REFERENCE TO HER UNIONISM OR THE FILING OF GRIEVANCES. IN TRUTH, NO
EVIDENCE APPEARS HEREIN THAT THE EMPLOYER ATTEMPTED TO THWART FRAZIER'S
CONDUCT IN THIS REGARD, AND I PERCEIVE NO ACTS OF INTERFERENCE,
RESTRAINT OR COERCIVE DIRECTED TOWARD THE EMPLOYEE WHICH WOULD SUPPORT
A
DISCRIMINATORY MOTIVE BY MANAGEMENT IN NOT PROMOTING HER IN JUNE, 1979.
THE RECORD DOES, MOREOVER, CONTAIN VARIOUS INSTANCES WHEREIN
MANAGEMENT HAD OCCASION TO DISCUSS WITH FRAZIER CERTAIN PROBLEMS
CONFRONTING HER IN THE PERFORMANCE OF HER JOB. THUS, IT IS EVIDENT THAT
THE EMPLOYEE HAD DIFFICULTY WITH RURAL TRAVEL AND ADMITTED TO BEING
CONFUSED AT TIMES. IN ADDITION, HER UNION REPRESENTATIVE TESTIFIED
FRAZIER EXHIBITED CERTAIN HEADSTRONG TENDENCIES, AND THE SUPERVISOR
NOTED BEHAVIORAL PROBLEMS INVOLVING OTHER INDIVIDUALS. WHILE NONE OF
THESE FACTORS WAS SUFFICIENT TO LABEL FRAZIER'S WORK PERFORMANCE AS
OTHER THAT SATISFACTORY, IT IS CONCEIVABLE THAT BOTH MIGHT WELL DETRACT
FROM HER STANDING IN RESPECT TO FILLING THE GS-12 POSITION.
CONSIDERABLE STRESS BY THE GENERAL COUNSEL IS LAID UPON THE FAILURE
OF MANAGEMENT TO ADHERE TO ITS GENERAL PRACTICE OF PROMOTING IN-HOUSE
CANDIDATES AHEAD OF OTHERS. WHILE THIS FAILURE MAY WELL PROMPT CONCERN
AS TO THE REASONS THEREFORE, I AM SATISFIED THAT THE DISREGARD OF THIS
POLICY DOES NOT, IPSO FACTO, REQUIRE A FINDING OR CONCLUSION THAT IT WAS
BOTTOMED UPON A DISCRIMINATORY INTENTIONS. IT DOES APPEAR THAT, DURING
HIS INTERVIEW WITH FRAZIER, SUPERVISOR GRUNDER CONCLUDED THAT THE
EMPLOYEE HAD DIFFICULTY IN RESPECT TO CERTAIN CONCEPTS OF THE VARIOUS
GOVERNMENTAL LEVELS. MOREOVER, SINCE SHE WAS CONFUSED AS TO THE STATUS
OF A PARTICULAR GRANTEE, GRUNDER WAS LOATH TO RECOMMEND HER FOR THE
VACANCY. SUCH A CONCLUSION IS JUSTIFIED IN VIEW OF THE FACT THAT THE
FIELD REPRESENTATIVE GS-12 JOB DOES, AS I HAVE FOUND, INVOLVE MORE
COMPLEX SITUATIONS AND CALLS FOR AN INCUMBENT TO PERFORM WITH LESS
DIRECT SUPERVISION. FURTHER, I AM CONSTRAINED TO CONCLUDE THAT
MANAGEMENT MAY WELL ENLARGE ITS SLATE OF CANDIDATES FOR A POSITION WHERE
THE RECOMMENDING OFFICIAL IS HESITANT TO PROMOTE A PARTICULAR EMPLOYEE.
THIS IS ESPECIALLY SO WHERE, AS IN THE CASE AT BAR, A SUPERVISOR HAS
DETERMINED THAT FRAZIER'S WORK PERFORMANCE IS AVERAGE; AND, FURTHER,
WHERE THE SUPERVISOR COMMENTED IN WRITING THAT THE EMPLOYEE WOULD NEED
INTENSIVE TRAINING IF SELECTED AS THE GS-12 FILED REPRESENTATIVE.
NEITHER DO I DRAW ADVERSE INFERENCES, AS GENERAL COUNSEL REQUESTS,
FROM THE FACT THAT GRUNDER STATED IN 1978 THAT FRAZIER'S WORK
PERFORMANCE WAS NOT A DETERMINANT IN THE REGION'S REFUSAL TO PROMOTE HER
TO A GS-11, AND THEN CRITICIZED THE EMPLOYEE SEVERELY IN 1979. APART
FROM THE FACT THAT THE GS-12 WAS A HIGHER POSITION WITH ATTENDANT
COMPLEXITIES, THE PARTICULAR INTERVIEW IN MAY, 1979 WAS DETAILED AND
BROUGHT TO LIGHT CERTAIN DEFICIENCIES WHICH MIGHT NOT HAVE SURFACED
EARLIER. I CANNOT CONCLUDE THEREFORE THAT GRUNDER'S CRITICISMS IN 1979
WERE LEVELLED AT FRAZIER BY VIRTUE OF HER HAVING FILED A GRIEVANCE
AGAINST MANAGEMENT.
IT SHOULD ALSO BE NOTED THAT THE RECORD OF THE SELECTEE, PAUL KOCHIS,
REVEALS THE INDIVIDUAL HAD AN EXCEPTIONAL BACKGROUND IN PUBLIC
ADMINISTRATION; THAT HE HAD, AS REFLECTED IN HIS APPLICATION AND
INTERVIEW WITH GRUNDER, A FINE GRASP OF THE LEVELS OF GOVERNMENT, AND
THAT HE HAD BEEN HIGHLY RECOMMENDED FOR HIS DEALINGS WITH GRANTEES. IN
SUM, GRUNDER WAS SATISFIED THAT KOCHIS UNDERSTOOD THE COMPLEXITIES OF
GOVERNMENTAL UNITS AND THAT THE CANDIDATE WAS VERY ARTICULATE IN HIS
DISCUSSION THEREOF. WHILE IT IS NOT WITHIN MY PROVINCE TO DECIDE
WHETHER THIS INDIVIDUAL WAS SUITABLE FOR THE VACANCY, I AM SATISFIED
THAT GRUNDER UTILIZED OBJECTIVE CONSIDERATIONS IN HIS SELECTION.
FURTHER, IT BUTTRESSES THE CONCLUSION THAT HE WAS NOT BY-PASSING THE
GRIEVANT HEREIN BECAUSE OF HER UNION OR PROTECTED ACTIVITY.
THUS I AM CONVINCED, UPON THE BASIS OF THE FOREGOING, THAT RESPONDENT
DID NOT REFUSE OR FAIL TO PROMOTE JANICE S. FRAZIER TO A GS-12 FIELD
REPRESENTATIVE IN MAY, 1979 BECAUSE SHE FILED GRIEVANCES OR ENGAGED IN
ANY PROTECTED ACTIVITY UNDER THE ACT.
ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTIONS
7116(A)(1) AND (2) OF THE ACT. THEREFORE, IT IS RECOMMENDED THAT THE
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C)"
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 23-CA-512 BE, AND
THE SAME IS, HEREBY DISMISSED.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 25, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ SUBSEQUENT TO THE HEARING BOTH THE GENERAL COUNSEL AND THE
RESPONDENT FILED A MOTION TO CORRECT TRANSCRIPT. THE SAID MOTIONS,
WHICH IN EACH INSTANCE WERE UNOPPOSED, ARE HEREBY GRANTED AS REQUESTED.
/2/ THE AGREEMENT, WHICH WAS EXECUTED ON MARCH 31, 1972, WAS MADE
BETWEEN THE OFFICE OF ECONOMIC OPPORTUNITY AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO. OFFICE OF ECONOMIC OPPORTUNITY IS NOW
DESIGNATED AS COMMUNITY SERVICES ADMINISTRATION. THE AGREEMENT COVERS
VARIOUS REGIONAL OFFICERS, INCLUDING THE ONE INVOLVED HEREIN, WHICH ARE
REPRESENTED BY SEPARATE AFGE LOCALS. THE CHARGING PARTY REPRESENTS THE
UNIT EMPLOYEES AT THE REGIONAL OFFICE WHEREAT FRAZIER IS EMPLOYED.
/3/ PERFORMANCE RATINGS BY SUPERVISORS ARE MADE ANNUALLY FOR THE
FIELD REPRESENTATIVES.
/4/ NO GRIEVANCE WAS FILED BY CROLL, BUT HE WAS UPGRADED ALONG WITH
FRAZIER BY VIRTUE OF THE REVERSAL OF THE REGIONAL OFFICE'S DECISION.
/5/ ROBERT L. DAVIS, PRESIDENT OF THE UNION HEREIN, TESTIFIED THAT
MILLS DID TALK TO HIM REGARDING FRAZIER'S RELUCTANCE TO TRAVEL. HE
FURTHER CHARACTERIZED FRAZIER AS STRONG-WILLED, ALBEIT CONSCIENTIOUS,
AND THAT HER BEHAVIORAL ATTITUDES RESULTED IN DISAGREEMENTS BETWEEN THE
EMPLOYEE AND MANAGEMENT.
/6/ NO WRITTEN REPRIMANDS OR CAUTIONARY LETTERS WERE EVER SENT BY
MANAGEMENT OFFICIALS TO FRAZIER. IN AN OFFICIAL PERFORMANCE RATING
DATED OCTOBER 11, 1978, WHICH COVERED THE PERIOD FROM FEBRUARY 12,
1978-- FEBRUARY 11, 1979, MILLS RATED FRAZIER AS 'SATISFACTORY.'
/7/ DESPITE THE FACT THAT THE CLOSING DATE FOR APPLICATION WAS
JANUARY 29, 1979, RESPONDENT OFFERED FRAZIER THE OPPORTUNITY TO APPLY
FOR THE GS-12 POSITION.
/8/ THE RECORD INCLUDES LETTERS FROM GRANTEES COMPLIMENTING FRAZIER
AS WELL AS THOSE OF A COMPLAINING NATURE. SINCE FRAZIER RECEIVED A
SATISFACTORY RATING AND NONE OF THESE LETTERS WERE ADVERTED TO BY
MANAGEMENT, I CONCLUDE THAT NONE OF THEM WAS RELIED UPON BY MANAGEMENT
IN ITS REJECTION OF THIS EMPLOYEE FOR THE GS-12 POSITION.
/9/ A RANKING SHEET SHOWING CANDIDATES ELIGIBLE FOR THE POSITION IS
PREPARED BY THE PROMOTION COMMITTEE. WHILE FRAZIER'S SCORE IS THIRD
HIGHEST (FOLLOWING BARNHOUSE AND LAMB), RECORD FACTS REVEAL GRUNDER DID
NOT GET THESE RANKINGS BEFORE MAKING HIS RECOMMENDATION FOR THIS
POSITION.
/10/ NO INQUIRIES WERE MADE BY GRUNDER OF ANY APPLICANT AS TO WHETHER
HE FILED GRIEVANCES OR ENGAGED IN ANY UNION ACTIVITY.
/11/ WHILE OTHER WITNESSES TESTIFIED THERE IS NO DIFFERENCE BETWEEN
THESE POSITIONS, I AM PERSUADED THEY DO DIFFER SOMEWHAT AND CALL FOR
VARYING DEGREES OF RESPONSIBILITY.
/12/ THE RECORD DOES REVEAL THAT IN THE SPRING OF 1980, MILLS
REMARKED TO FIELD REPRESENTATIVE ESTELLE MOSLEY THAT FRAZIER "ALWAYS
RUNS TO THE UNION." THIS COMMENT WAS MADE DURING A CONVERSATION IN WHICH
MILLS MENTIONED HE WAS HAVING PROBLEMS WITH FRAZIER. I DO NOT CONSTRUE
IT AS AN IMPLIED OR EXPRESS THREAT BY THE SUPERVISOR.