14:0499(80)CA - SSA, Baltimore, MD and AFGE -- 1984 FLRAdec CA
[ v14 p499 ]
14:0499(80)CA
The decision of the Authority follows:
14 FLRA No. 80
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case Nos. 8-CA-1187
8-CA-1188
8-CA-1190
8-CA-1219
8-CA-1223
8-CA-20048
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain of the unfair labor practices alleged in the consolidated
complaint and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. The Judge further found
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended dismissal of the complaint with respect
to them. The General Counsel filed timely exceptions limited to the
recommended remedy set forth in the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, and noting the absence of any
exceptions to the Judge's unfair labor practice determinations, the
Authority hereby adopts the Judge's findings, /1/ conclusions, /2/ and
recommended Order. /3/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Social Security Administration,
Baltimore, Maryland, shall:
1. Cease and desist from:
(a) Preventing representatives of the American Federation of
Government Employees, AFL-CIO, the exclusive representative of its
employees, from meeting with unit employees on representational matters,
or ordering them out of offices, or threatening to have them thrown out.
(b) Threatening unit employees by telling them that action would not
have been taken against them, or they would have been left alone, if
they had not sought the assistance of the American Federation of
Government Employees, AFL-CIO, or that as long as the employee continues
to request the assistance of the American Federation of Government
Employees, AFL-CIO, the employee would continue to receive memoranda
criticizing the employee's performance.
(c) Threatening unit employees by telling them that they would "pay"
for having gone to the American Federation of Government Employees,
AFO-CIO, or that management would "get even" with any employee who went
to the American Federation of Government Employees, AFL-CIO, or that
management would never allow the American Federation of Government
Employees, AFL-CIO, in its offices.
(d) Threatening unit employees by telling them that management will
not help them because they had filed unfair labor practice charges.
(e) Discriminating against unit employees by reassigning
redetermination caseloads to other employees, by placing memoranda in
any employee's personnel file admonishing the employee about the quality
of his or her work, or by giving the employee unsatisfactory ratings on
his or her performance evaluation because the employee seeks the
assistance of a union representative or gives information or testifies
in connection with the investigation of unfair labor practices.
(f) Changing the working conditions of employees in the Indio,
California, Branch Office by altering the procedures to be followed in
working overtime on Saturdays without first notifying the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to negotiate over that change.
(g) Holding formal discussions with unit employees concerning
grievances, personnel policies and practices or other conditions of
employment without first notifying the American Federation of Government
Employees, AFL-CIO, and affording it an opportunity to be present.
(h) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Remove from employee Carol Cofflin's personnel file a memorandum
dated October 21, 1981, admonishing her for the quality of her work, and
rescind her performance evaluation for the period October 1, 1980, to
September 30, 198,.
(b) Prepare a new performance evaluation for employee Carol Cofflin
for the period October 1, 1980, to September 30, 1981, without taking
into consideration any of her protected activities guaranteed by the
Federal Service Labor-Management Relations Statute.
(c) Rescind the requirement established on May 22, 1981, that
employees submit written requests each Friday in order to work overtime
on Saturday.
(d) Upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, over any intended changes in the
procedures to be followed in working overtime on Saturday.
(e) Post at its Social Security Branch Office facility in Indio,
California, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by an appropriate official, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and other places where notices to employees
are customarily posted. Reasonable steps shall be taken to ensure that
such Notices are not altered, defaced, or covered by any other material.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegation in Case No.
8-CA-1223 of the consolidated complaint, that the Respondent disparaged
a former Union representative, be, and it hereby is, dismissed.
Issued, Washington, D.C., May 11, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF 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 prevent representatives of the American Federation of
Government Employees, AFL-CIO, the exclusive representative of our
employees, from meeting with unit employees on representational matters,
or order them out of our offices, or threaten to have them thrown out.
WE WILL NOT threaten unit employees by telling them that action would
not have been taken against them, or they would have been left alone, if
they had not sought the assistance of the American Federation of
Government Employees, AFL-CIO, or that as long as the employee continues
to request the assistance of the American Federation of Government
Employees, AFL-CIO, the employee would continue to receive memoranda
criticizing the employee's performance.
WE WILL NOT threaten unit employees by telling them that they would
"pay" for having gone to the American Federation of Government
Employees, AFL-CIO, or that we would "get even" with an employee who
went to the American Federation of Government Employees, AFL-CIO, or
that we would never allow the American Federation of Government
Employees, AFL-CIO, in our offices.
WE WILL NOT threaten unit employees by telling them that we will not
help them because they had filed unfair labor practice charges.
WE WILL NOT discriminate against unit employees by reassigning
redetermination caseloads to other employees, by placing memoranda in
any employee's personnel file admonishing the employee about the quality
of his or her work, or by giving the employee unsatisfactory ratings on
his or her performance evaluation because the employee seeks the
assistance of his or her union representative or gives information or
testifies in connection with the investigation of unfair labor
practices.
WE WILL NOT change the working conditions of employees in the Indio,
California, Branch Office by altering the procedures to be followed in
working overtime on Saturdays without first notifying the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to negotiate over that change.
WE WILL NOT hold formal discussions with unit employees concerning
grievances, personnel policies and practices or other conditions of
employment without first notifying the American Federation of Government
Employees, AFL-CIO, and affording it an opportunity to be present.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights guaranteed under
the Federal Service Labor-Management Relations Statute.
WE WILL remove from employee Carol Cofflin's personnel file a
memorandum dated October 21, 1981, admonishing her for the quality of
her work, and will rescind her performance evaluation for the period
October 1, 1980, to September 30, 1981.
WE WILL prepare a new performance evaluation for employee Carol
Cofflin for the period October 1, 1980, to September 30, 1981, without
taking into consideration any of her protected activities guaranteed by
the Federal Service Labor-Management Relations Statute.
WE WILL rescind the requirement established on May 22, 1981, that
employees submit written requests each Friday in order to work overtime
on Saturday.
WE WILL, upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, over any intended changes in the
procedures to be followed in working overtime on Saturday.
(Activity)
Dated: . . . By: (Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, CA 90071, and
whose telephone number is: (213) 688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 8-CA-1187, 8-CA-1188,
8-CA-1190,
8-CA-1219, 8-CA-1223, 8-CA-20048
Patricia Mayer, Esq.
Joseph Swerdzewski, Esq.
For the General Counsel
Wilson Schuerholz
For the Respondent
Jeffrey Dasteel
For the Charging Party
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, hereinafter referred to as the Statute, 92 Stat.
1191, 5 U.S.C. 7101 et seq. It was instituted on December 11, 1981, by
the Regional Director for Region 8 of the Federal Labor Relations
Authority, herein called the Authority, pursuant to charges filed on
June 29, 1981, in Case Nos. 8-CA-1187, 8-CA-1188, and 8-CA-1190; on
July 7, 1981 in Case No. 8-CA-1219; originally filed on July 10, 1981,
and amended on July 30, 1981, in Case No. 8-CA-1223; and on November 3,
1981, in Case No. 8-CA-20048, by the American Federation of Government
Employees, AFL-CIO, herein called the Union, by an Amended Order
Consolidating Cases, Amended Consolidated Complaint and Notice of
Hearing, alleging that the Social Security Administration, herein called
Respondent, had engaged in, and is engaging in, unfair labor practices
in violation of section 7116(a)(1), (2), (4), (5), and (8), by the
following acts and conduct: Respondent through its agents and
supervisors made a unilateral change in working conditions of unit
employees in its Indio, California, Branch Office by requiring that
employees submit a written request to work overtime on Saturdays;
Respondent, through its agents, made statements to a unit employee who
was also a Union representative which threatened the Union
representative and prevented the Union representative from meeting with
a unit employee on a representation matter; Respondent, through its
supervisor and agent, threatened unit employees with retaliatory action
for seeking Union assistance; Respondent, through its agent told a unit
employee that harsher working conditions had been and would be applied
to those who sought the assistance of the Union, and refused to assist
the unit employee because that employee had sought the assistance of the
Union; Respondent, through its agent, made disparaging remarks about a
prior Union representative to a unit employee and threatened the
employee if she continued to request the assistance of the Union;
Respondent, through its agents, met with a unit employee and discussed
grievances and unfair labor practice charges which concerned that
employee, all in the absence of the Union representative; Respondent,
through its agents, discriminated against a unit employee because of her
actions in seeking the assistance of the Union, in filing several
grievances pursuant to the negotiated procedure, and for giving
testimony to the Authority in connection with unfair labor practice
investigations, by reassigning that employee's existing redeterminations
caseload to another unit employee; by issuing that employee a
memorandum, criticizing the quality of her work, and, by giving that
employee an unsatisfactory performance evaluation for the 1980-81 year.
/4/
Respondent filed Answers denying the commission of any unfair labor
practice.
On January 13, 1982, and February 2, 1982, respectively, a hearing
was held before the undersigned in Palm Springs, California, at which
all parties were represented by counsel and afforded full opportunity to
adduce evidence and call, examine and cross-examine witnesses and argue
orally. Briefs were filed by all parties concerned and have been duly
considered.
Upon consideration of the entire record in this matter, including my
evaluation of the testimony and evidence presented at the hearing, and
my observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommended order.
Statement of Facts
There is no question of jurisdiction in these matters.
A. The June 10, 1981, Incident
(Case No. 8-CA-1190)
In early June 1981, Charlotte Mendes, a unit employee in the Indio
Branch Office, was informed that she might be disciplined because she
was experiencing difficulties at work. Mendes requested assistance of a
Union representative Patricia Randles, particularly for a June 10, 1981
meeting which Mendes was to attend to discuss possible discipline with
her managers. Mendes also requested that employee Carol Cofflin
accompany her to the meeting with Randles in order to discuss problems
which Cofflin had experienced with Indio office supervisors Ramon
Velarde and Robert Fitzgerald. Cofflin arranged to meet with Randles
who thereupon submitted a separate official time form to meet with
Cofflin on June 10, 1981. Randles obtained permission to meet with
Cofflin and attend the meeting from District Manager Martin Semel. She
then proceeded to the Indio office on the morning of June 10.
When Randles arrived at the Indio office on the morning of June 10,
she approached Branch Manager Ramon Velarde. Randles told him she was
there for the meeting and that she wished to speak with Cofflin and
Mendes. Velarde told Randles he wanted to meet with Randles and Mendes
immediately and that Randles was not going to be allowed to meet ahead
of time with Cofflin and Mendes. Randles again stated her need to speak
with the two employees because Mendes had received two additional
memoranda in her file the previous day. At this point, Velarde yelled
at Randles, "get the hell out of my office," and "get the hell out of my
office or I'll have you thrown out." Although Randles reminded Velarde
that she was on official business and had a right to see Mendes, Velarde
continued to yell and repeated his threat several times. Randles then
asked Velarde to telephone District Manager Semel to verify her
permission, and when Velarde refused, she asked to use the telephone so
she could call Semel to resolve the problem. Velarde again refused her
request. This conversation occurred in the middle of the Indio office,
within hearing of the other office employees. The comments Velarde made
to Randles were partly corroborated by Cofflin who testified that she
observed Randles and Velarde engage in a discussion about five feet
behind her desk in the center of the office. She also heard Velarde
tell Randles she was limited to one-half hour of discussion and when
Randles objected to this, Velarde told her, "get the hell out of my
office." She further testified that Velarde locked the door behind
Randles.
Randles left the Indio office and returned to the Palm Springs
District Office. There Randles explained what had occurred to District
Manager Semel and later that day Semel set up the Indio meeting once
again. Randles thereupon returned to Indio and met with Mendes and
Cofflin and supervisors, Velarde and Fitzgerald, to discuss the
discipline of Mendes.
Velarde testified that his instructions from his supervisor were to
allow Randles 30 minutes only. He also asserts he did not call Semel
because Semel previously informed him he would be absent. It is noted
Velarde took no other action to resolve the dispute such as calling
other officials in the Palm Springs District Office or Randles'
supervisor who signed her official time form, nor did Velarde ask to see
Randles' official time form. Velarde's response was simply that no one
could act on Semel's behalf on labor relations matters. Velarde did not
deny that he ordered Randles to leave the office.
B. The June 24, 1981 Incident
(Case No. 8-CA-1188)
Shortly before June 24, Mendes received additional negative memoranda
in her file and was told to attend another disciplinary meeting with
Velarde on June 24. Mendes also asked Randles to represent her at this
disciplinary meeting. Velarde and Fitzgerald were also at that meeting
which took place in Fitzgerald's office. At the meeting, Fitzgerald
read a memorandum which was to be placed in Mendes' personnel file, and
then left the room to photocopy the document.
While Fitzgerald was out of the room, Velarde and Randles engaged in
a discussion, in the presence of Mendes. Randles told Velarde she was
surprised that he was treating Mendes so harshly. Velarde replied by
first stating that he wanted to go "off the record." He then told
Randles he felt she was out to "get him," that he was "surprised at
(Mendes) for requesting (Randles') assistance," and that it upset him
that Mendes went to Randles for help. He also stated he would "see to
it that life was miserable for (Mendes) because she had gone to the
Union," that Mendes would "pay" for going to the Union, and that she
would be sorry that she did. Velarde continued by stating that the
"district was a laughingstock because they had allowed the union," that
Semel was a "fool" for letting the Union into his office and, that
Velarde was "not going to allow the Union in his office." At that point,
Fitzgerald returned to the office, distributed the photocopies of the
memorandum and the meeting ended.
Velarde stated that he was at the June 24 meeting as an observer
only. Velarde denies making any of the statements attributed to him.
He later admits that he had "been told" that Randles is out to get him
and believed it to be so. I credit Randles account of this meeting.
C. The July 2, 1981, Discussion between Velarde and Cofflin
(Case No. 8-CA-1219)
On July 2, Fitzgerald had a meeting with Cofflin during which he
handed her several memoranda criticizing her performance. During that
meeting, Cofflin asked for a Union representative, and Fitzgerald denied
the request. Cofflin refused to sign the memoranda Fitzgerald gave her
and the meeting ended. Soon thereafter, both Velarde and Fitzgerald
approached Cofflin, telling her she had to sign the memoranda. Cofflin
agreed to talk with Velarde, so Velarde and Cofflin continued the
discussion in Velarde's office. No one else was present.
Cofflin began the discussion by explaining her view of the memoranda
Fitzgerald had given her. The discussion turned when Velarde asked
Cofflin why she had filed unfair labor practice charges. Cofflin asked
Velarde to keep Fitzgerald from harassing her. Velarde responded that
he could not do that, and when Cofflin asked why not, he said the
following: "Well, after all you've done for me, how do you expect me to
be good to you? . . . You went to the Union and you started all these
unfair labor practices . . . As long as you go to the Union you will
continue to receive memos." Velarde also told Cofflin that if she had
not gone to the Union, he would have left her alone, and then said " . .
. You set out to get me but I am going to get you instead." Velarde
denied making any of these statements. I credit Cofflin.
D. The July 6, 1981 Formal Discussion and Bypass
(Case No. 8-CA-1223)
During the month of June 1981, several grievances were filed on
Mendes behalf.
On the morning of July 6, Union representative Randles met with
Mendes and Cofflin. During her meeting with Mendes, Randles learned
that prior to July 6, Velarde had approached Mendes and asked her to
withdraw her grievances and unfair labor practice charges, adding that
if she did so, all the adverse memoranda previously issued to her would
be withdrawn. Mendes told Randles she did not wish to withdraw her
charges or grievances. Never, at any time during the meeting with
Randles, did Mendes indicate that she was dissatisfied with Randles as
her Union representative or the Union's actions on her behalf.
Velarde apparently contacted Cofflin during this same period and
attempted to obtain her cooperation in withdrawing the unfair labor
practice charges, and further attempted to discourage her from seeking
out the Union.
Shortly after her meeting with Randles, Mendes was summoned into
Velarde's office where she found Semel and Velarde. Semel stated that
he thought they could resolve the problems without the necessity of
having the Union involved. Semel and Mendes then discussed resolving
her grievances.
Cofflin was also called into Velarde's office by Semel and Velarde on
July 6, 1981. Semel said to Cofflin, "I see we have a problem here,
what do you think is the problem?" When Cofflin responded, Semel asked
her if she wanted to discuss it, and Cofflin told Semel that if he
wanted to discuss some kind of settlement or the unfair labor practice
charges, she would not do so without a Union representative.
According to Mendes, Semel initiated the idea of her submitting a
written request to withdraw her grievances, in her own handwriting. /5/
Semel denies making any arrangement with Mendes to remove the AWOL
and the memoranda, but did admit he suggested she write the letter.
When asked if Semel told Mendes to "drop the grievances," Velarde stated
that the meeting was about clearing her file. He also corroborates that
it was Semel who suggested Mendes write a letter withdrawing her
grievances. Although at trial, Mendes denied she wrote the letter in
order to get the memoranda out of her file and eight hours of AWOL
removed, her affidavit clearly set forth these facts. As they discussed
the grievances, Semel referred to a former Union representative, Vicky
Doyle, and told Mendes that Doyle's name was known throughout the region
and Doyle would never again be employed by Social Security. He also
left Mendes with the impression that if she continued to be represented
by the Union, her name would be "mud" like Doyle's.
Semel denies making the statements about Doyle. He admitted,
however, that Doyle was the Union representative for a long while, that
he had had significant disagreements with her and that he had testified
in an unfair labor practice case brought by her.
Within two days after this meeting Mendes wrote a letter requesting
withdrawal of her grievances. After she had written the letter, her
hours of AWOL were reinstated and the memoranda removed, but Mendes was
not certain of the date these acts occurred. It is noted that in her
affidavit, Mendes explained that Velarde directed her writing of the
letter by telling her what words to use and how she should phrase it.
Velarde admittedly reviewed the letter before it was put into final
form. Mendes also admitted at the hearing that she showed the letter to
Velarde before submitting it to Semel.
No union representative was present at any time during the meeting.
Mendes did not, either before or during the meeting, disaffirm Randles
as her representative. Semel, at the hearing, agreed that the meeting
was improperly conducted because of the absence of the Union
representative. A letter from Area Director McClure to Union
Representative Burrows also admits the error Respondent committed under
the Master Agreement by holding a meeting to adjust Mendes' grievances
in the absence of the Union.
E. Respondent's Unlawful Treatment of Carol Cofflin
(Case No. 8-CA-20048)
1. Incidents of May 12, 1981
On May 12, 1981, Supervisor Robert Fitzgerald called employee Carol
Cofflin, a Title XVI Claims Representative, into his office where he
proceeded to hand her, and discuss with her, six memoranda concerning
her job performance. The first memorandum he gave Cofflin concerned
hours of duty and the necessity of informing management of absences
during the day. Upon giving her this memorandum, Fitzgerald accused
Cofflin of returning too late from lunch earlier that day. There were
no formal procedures set up in the Indio office on lunches, and Cofflin
as well as others had previously taken late lunches without incident.
Cofflin tried to explain to Fitzgerald that because it was payday, and
employees were allotted 45 minutes for lunch that she was within the
given time. That explanation had no visible effect on Fitzgerald. That
same day another employee, Chuck Landis, took lunch at the same time as
Cofflin. Cofflin had never before been counseled by a supervisor that
she had taken too much time for lunch nor had she ever received such a
memorandum in her file.
Fitzgerald admitted he had never counseled Cofflin orally prior to
this date about her being late from lunch and that he had never
documented any other employee for taking too long a lunch despite the
fact that other employees had been late on their lunch hours.
Fitzgerald then handed Cofflin two other memoranda, one dated May 12
and one dated March 12, each containing several attachments. These
memoranda criticized Cofflin's work on the case of a claimant, Maria
Aguilar. Cofflin and Fitzgerald had disagreed on how to handle a
redetermination claim for Aguilar, and because Branch Manager Velarde
could not resolve the dilemma, Velarde instructed Cofflin to contact
Respondent's Baltimore headquarters. Cofflin was in contact with the
Baltimore office until the date Fitzgerald ordered Cofflin to resolve
the matter. Baltimore headquarters confirmed Cofflin's decision on the
Aguilar claim. Cofflin had not seen either of these memoranda prior to
that day. When Cofflin asked Fitzgerald why he had written a note to
himself on the Aguilar claim, he replied it was because she previously
had failed to do things he had asked of her. When she asked him to be
specific, Fitzgerald was not, stating it was the first time such an
instance had occurred.
Fitzgerald handed Cofflin two more memoranda, one dated February 26,
1981, and the other dated March 9, 1981, both entitled "Interpersonal
Relations." Despite their dates, Cofflin had never before seen the
documents. The February memorandum cited instances in which unit
employees Pat Black and Melva Aceves had complained about Cofflin's
behavior and accused her of being "harsh." The March memoranda recited
that both Service Representatives had complained that Cofflin had been
"abusive" to them. These instances were repeated on the previous
memorandum Fitzgerald handed Cofflin earlier that day. None of these
incidents were ever discussed with Cofflin prior to May 12, 1981.
Nonetheless, Fitzgerald apparently started keeping notes on Cofflin
on his desk calendar as early as February 26, one month after he began
supervising work in Indio. Although Fitzgerald admitted Black's
complaint was the first incident drawn to his attention concerning
Cofflin, he documented his calendar on Cofflin and only Cofflin, as
compared with other employees, because Cofflin's problems were allegedly
"ongoing." At their May 12 meeting, Fitzgerald also handed Cofflin a
copy of her February desk audit which he had conducted and which he had
originally given her on February 6, 1981. Cofflin was never counseled
on any of the subjects addressed in that document, a fact which
Fitzgerald denies. I credit Cofflin.
Cofflin further testified that she felt threatened by the meeting,
the memoranda, Fitzgerald's harsh and nasty tone, and his telling her to
sit down and shut up. Because of the setting and content of the
meeting, Cofflin requested a union representative. Fitzgerald denied
the request. Cofflin states that she did not understand why all of this
was occurring, particularly since Fitzgerald had been at the Indio
office for only a few months, she knew nothing about Fitzgerald when he
came to Indio, and had never had any previous confrontation with him.
According to Cofflin, her contact with him prior to this day was almost
exclusively limited to her desk audit and the Aguilar case.
Subsequent to her discussion, and in order to remedy the criticisms
Fitzgerald had made of her, Cofflin spoke with Service Representatives
Black and Aceves. Black told Cofflin she recalled an instance when
Cofflin had appeared to be in a bad mood and had made a remark in the
breakroom, but that it had been an insignificant remark, certainly not
meant as a complaint. Fitzgerald insists Aceves indeed complained to
Black and that Aceves would be "wrong" if she denied that she had.
Fitzgerald admits, however, that he never discussed the truth of the
matter with Aceves. Although one of her memoranda had stated that
Aceves had complained about her, when Cofflin spoke to Aceves, Aceves
said she had never complained to Fitzgerald and did not know what the
memorandum was referring to. Aceves herself confirmed that she never
complained to Fitzgerald about Cofflin and that the February 26, 1981,
memorandum was not true. I credit Aceves. Aceves, who had worked as
Cofflin's secretary for several lengthy periods over the last two years
did not have difficulty working with her, and Cofflin has never kept
Aceves from doing her job. Nevertheless, in the summer of 1981, Velarde
approached Aceves and asked her how she was getting along with Cofflin.
Although Aceves admittedly had arguments with several other Indio
employees, there is no indication that she ever engaged in an argument
with Cofflin. Aceves testified that Velarde and Fitzgerald treat
Cofflin more harshly than other employees in that they did not allow
Cofflin the same latitude accorded to other employees.
Cofflin explained, with regard to the complaints from the Service
Representatives that she had, on occasion, questioned them as to whether
they were correctly assigning particular cases to her or whether they
should have retained the case as a Service Representative case. Juanita
Cruz and Bernie Flores, both Service Representatives, recalled
discussing Cofflin with Fitzgerald around the time that Fitzgerald wrote
the March 9 memorandum. Cruz also noted that she did not recall
Cofflin's claimants waiting longer for interviews in comparison with
waiting times for claimants interviewed by the other claims
representatives. Similarly, Flores recalled Cofflin questioning whether
he was correctly referring cases to her. The Service Representatives
were covering the front or reception desk, as well as completing their
own duties, and the office workload was extremely heavy. The
redeterminations had recently come in (a caseload of approximately 500
cases for each claims representative), and the office was extremely
busy. Although she questioned the case assignments, Cofflin apparently
never refused to take a case. Cruz' particular concern and her reason
for going to Fitzgerald was that Cofflin's complaints were loud and
could be heard by the public. Otherwise, Cruz did not think much about
the problem personally. Cruz testified that she and Cofflin get along
fairly well and she has had no difficulty with her personality, but has
always been able to complete her work with Cofflin, and indeed found her
to be cooperative and helpful. According to Cruz, her intent in
mentioning the incident was to alert management to Cofflin's situation
so that Cofflin could receive assistance with interviews. Cruz stated
that this would be consistent with normal procedures used in Indio when
an employee was experiencing a problem. Neither Cruz nor Flores had
experienced any problem with Cofflin since March and both noticed
improvement in Cofflin's behavior thereafter. I credit Cruz, Black and
Flores.
2. Events of May 31, 1981
On May 13, Cofflin arrived at work at 7:59 a.m., arriving at the
employees' entrance at 8:00 a.m., the only entrance open between 8:00
and 9:00 a.m. Fitzgerald, the only individual with keys to the
employees' entrance locked the door at 8:00 a.m. Upon arriving, Cofflin
knocked loudly to gain entrance. Several minutes later the door was
opened by Fitzgerald, who told Cofflin, "You're late." Later that same
day, Cofflin received a memorandum reciting the incident and ordering
her to take 1/4 hour annual leave.
Flores, who witnessed this incident, related it as an example of how
management treated Cofflin differently from any other employees.
According to Flores, Fitzgerald had never dealt with any other employee
in this fashion. I credit Flores.
Fitzgerald admitted he locked the door for the express purpose of
catching Cofflin and that he had never locked the door against any other
employee, although other employees had also been late. Velarde, as
well, had never locked out any other employee in any of his offices
except Cofflin, although he too agreed other employees had been late.
The evidence reveals that employees Aceves, Flores, and Cruz have all
been late to work several times during 1981, particularly during the
first six months of 1981, and had never been locked out or received
memoranda in their files. Although Flores was once warned that in the
future he could be penalized for being late, neither Cruz nor Flores was
ever required to take 1/4 hour annual leave because of tardiness.
Aceves once took annual leave for being tardy in 1981. No employee,
other than Cofflin, was required to take annual leave for tardiness in
the Spring of 1981.
3. Other Events of May, June, July 1981
Later during the day of May 13, Cofflin met with Union representative
Hallin concerning the upcoming May 12 meeting, the memoranda, and her
difficulties with Fitzgerald.
On May 15, during another meeting with Fitzgerald, Cofflin was handed
yet another memorandum criticizing her job performance. Fitzgerald's
reason for issuing this May 15 memorandum, only three days after issuing
Cofflin six memoranda on May 12, was that Cofflin's problem was
"persisting." Although Cofflin again asked for a union representative,
Fitzgerald denied her request telling her to "sit down and shut up." The
memorandum Fitzgerald gave her during the meeting contained no new
criticism of her work, but was merely a restatement of what was said to
her on May 12 and what was contained in the memoranda previously issued
to her on May 12, a point which Fitzgerald admits.
In mid-June, Cofflin spoke and met with Union representative Randles
and employee Mendes on Mendes' behalf. On June 29, unfair labor
practice charge numbers 8-CA-1187, 1188, and 1190 were filed. On July
2, Cofflin was again called into a meeting with Fitzgerald and handed
two more memoranda. One of these memoranda, criticized Cofflin for her
failure to complete certain paperwork rejecting the Title XVI claim of a
Francisco Ponce, a Title II Spanish-speaking claimant who was referred
to Cofflin even though she did not take Spanish-speaking claimants and
even though Title II Claims Representatives were working in the Indio
office that day. Further, Ponce was not in Cofflin's alpha breakdown.
Due to the specialization between Title II and Title XVI Claims
Representatives, Cofflin had taken, at the most, two Title II claims
while in Indio. Moreover, Cofflin should not have interviewed Ponce for
eligibility, for the receptionist should have determined whether Ponce
met the Title XVI criteria and thus, should never have referred the case
to a Claims Representative.
Fitzgerald maintains that it is "office policy" to have the SSA L991
form completed. He admitted, however, that where a Service
Representative makes an error in a referral, the Title XVI claims
representative would not complete the paperwork and an L991 form would
not be required.
Also during the July 2, 1981, meeting with Fitzgerald, Cofflin was
handed a memorandum criticizing her rate of completion of her assigned
redeterminations. Cofflin, who completed on an average of 15
redeterminations each week, exceeded the national standards for the
completion of redeterminations in each month of 1981. In particular,
the par (goal) for the end of May was 21 percent, and Cofflin's June 3
redeterminations report shows that she completed 52.3 percent. The par
for the end of June was 30 percent, and Cofflin had completed 62.14
percent by July 3, 1981. Although Cofflin had discussed progress on her
redeterminations with her supervisors prior to July 2, she had never
been admonished or warned that her performance was unsatisfactory.
Cofflin had never previously received any negative documentation
concerning progress on her redeterminations and, in fact, was told at
one time her performance was improving. Fitzgerald admits that Cofflin
was improving in June. During the meeting with Fitzgerald, his tone,
according to Cofflin, was hard and abusive. He ordered Cofflin to sit
down and shut up. Again Cofflin made a request for a union
representative which was denied. When Cofflin refused to sign the
memoranda and left the meeting, she encountered Velarde who held the
discussion with her detailed, supra, p. 5.
4. The August 28, 1981 Incident
On July 7 and 10, the unfair labor practice charges in Case Nos.
8-CA-1219 and 8-CA-1223 were filed. The Authority investigation on
these cases was conducted in August. As part of that investigation,
Cofflin gave a rather lengthy statement to Authority investigators.
Again on August 28, Fitzgerald reprimanded Cofflin for taking her lunch
hour at the wrong time. He ordered her abruptly and loudly back to work
before she had finished her lunch. Cofflin returned to her desk after
taking 20 minutes of her allotted 30-minute lunch. That day Cofflin had
a late interview and in order to get a "zero-day" claim, which is
helpful for office statistics, she processed the claim through
immediately, and, following that went to lunch at 1:20 p.m. Although
Cofflin attempted to explain the circumstances to Fitzgerald, the
incident resulted in her receiving: on August 28, a memorandum
informing her that discipline was being contemplated; a second
memorandum dated September 3, reciting the incident, accusing her of
insubordination, and stating discipline was being considered; a meeting
attended by Fitzgerald, Cofflin and Randles at which discipline was
discussed; /6/ a September 8 memorandum advising Cofflin of an
admonishment interview; and a September 9 admonishment memorandum.
Cofflin filed a grievance on all the above memoranda and received the
relief she requested (removal of memoranda from her file and an extra 15
minutes for lunch) at the third step. It should also be noted that
between September 3, when she received the first disciplinary memorandum
concerning the August 28 incident and September 9, when she received the
second memorandum, Cofflin was not criticized for any other instances of
alleged abuse of her lunch time. The action of Fitzgerald in
disciplining Cofflin was subsequently overturned by Respondent's Area
Director. When questioned about the fact that his actions in
disciplining Cofflin were deemed by the Area Director to be improper,
Fitzgerald's only comment was that the Area Director was "wrong" to
overturn him, a belief also held by Velarde.
5. September Transfer of Cofflin's Redetermination Case Load
On September 2, Fitzgerald handed Cofflin a memorandum ordering her
to transfer her outstanding redeterminations cases to employee Robert
Nunez. This action was given with no warning that it was being
contemplated by management. When Cofflin tried to arrange the transfer
with Nunez, both employees were unsure as to whether to actually
transfer the cases and record the transfer that week, or record the
transfer on the following week's work report (DOWR). Nunez checked with
Velarde who instructed them to show the transfer on the DOWR the
following week. The DOWR was completed in accordance with Velarde's
instruction. Later that morning, Cofflin was loudly admonished by
Fitzgerald and Velarde in the presence of a claimant for processing the
transfer incorrectly. Nunez explained to the supervisors that Cofflin
had acted in accordance with Velarde's instruction, and the conversation
ceased. At the time the redeterminations were transferred to Nunez,
Cofflin had 37 remaining redeterminations, having completed over 90
percent of her redetermination caseload of approximately 490 cases. The
national par for the end of August was 48 percent. /7/ On September 8,
the consolidated complaint was issued in Cases Nos. 8-CA-1187,
8-CA-1190, 8-CA-1219, and 8-CA-1223.
6. Memoranda of October 1981
During the month of October, the month she was to receive her
performance appraisal for the 1980-81 year, Cofflin received a series of
critical memoranda. The first, dated October 2, warned Cofflin to
conserve her leave, advised her of her sick and annual leave balances
and alerted her to the possibility of further action. /5/ Cofflin
allegedly had several bouts of illness (flu, tonsillitis) during the
1981 year which caused her to use her sick leave. Cofflin also has
colitis which requires the care of specialists. Cofflin had never, in
Indio or at any other Social Security Office, been previously admonished
or disciplined for taking leave. Her leave record, in fact, for the
1981 year was the same as it had been in prior years, including the
first year she worked in the Indio office. There had never been any
rule in Indio as to what constituted abuse of leave and Cofflin was not
aware of a single other instance when an employee was disciplined for
improper use of leave. Several other Indio employees took substantial
amounts of leave including Rebecca Espinosa who took more hours of sick
leave than Cofflin and never received documentation for abuse of leave;
Melva Aceves, who was never issued any memoranda disciplining her for
abuse of leave although she had to take leave without pay in 1980 and
was out of work for over a month in 1981; and, Juanita Cruz, who used
140 hours of sick leave in 1981 and received no memoranda in her file.
Fitzgerald admits that he never made any determination as to whether
Cofflin's sick leave use was legitimate. He never asked Cofflin for
documentation such as a leave excuse, and stated he based the issuance
of the October 2 document solely on the number of hours used. He
insists that Cofflin had a chronic leave problem, but admits that prior
to this time he had never issued her a letter indicating even the
possibility that abuse existed. Fitzgerald also admits that no other
employee ever received a sick leave letter like the one issued to
Cofflin. Velarde admits that the restriction on Cofflin occurred just
after her grievances were filed.
On October 21, Cofflin received another memorandum which restricted
her use of leave and required that she comply with several sets of
procedures before taking leave. Cofflin was not reprimanded, either
formally or informally, or otherwise apprised of any new problem with
her use of leave between October 2, the date she received the warning
memorandum, and October 21, the date Fitzgerald issued her the sick
leave restriction letter. /9/ Cofflin filed grievances through the
Union, on both the October 2 and October 21 leave restriction memoranda.
That same day, October 21, Cofflin received another memorandum to her
personnel file criticizing her performance on a redetermination case.
Unknown to Cofflin, correspondence had come into the office reporting
the receipt of funds, which had the effect of placing the case in an
overpayment status. Cofflin's clerk placed the check in the case file
in a drawer without calling it to Cofflin's attention. The case was
transferred to Nunez and five weeks later he discovered the
correspondence. Fitzgerald issued the memorandum to Cofflin without
discussing it with her or allowing her to present her side of the
matter. Fitzgerald maintains he did discuss this matter with Cofflin.
I credit Cofflin that he did not.
On October 16, also Cofflin received a memorandum from Fitzgerald
recommending that she seek psychological counseling. Cofflin had never
discussed any psychological or personal problems with Fitzgerald, in
fact had never discussed her mental state with him. According to her,
the only problem she ever mentioned to Fitzgerald was financial. She
had no warning that this memorandum was being contemplated and was
unaware of any incident or action on her part which would have caused
Fitzgerald to issue such a memorandum. Cofflin filed a grievance on
this memorandum shortly after receiving it.
Respondent's reasoning for issuing the October 16 psychological
counseling memorandum was apparently based on the fact that on one
occasion Cofflin told Fitzgerald her ex-husband wished to see her
children. This, in addition to the fact that Cofflin had colitis,
"indicated a problem" to Fitzgerald. Fitzgerald maintained that the
Personnel Guide for Supervisors supported the issuance of the October 16
letter. That guide, however, provides no such support. Section E(2) it
states only that:
. . . employees with emotional or physical problems which would
require detailed medical attention should be referred to
counselors in the servicing personnel office if available.
Nowhere does it provide authority for referring an employee for
psychological counseling. On cross-examination, Fitzgerald admitted
that the reason he contacted the Regional office to refer Cofflin for
counseling was because he and Velarde were having problems with Cofflin.
Velarde was aware of the issuance of the October 16 memorandum and
thought counseling was "appropriate", but at the same time did not know
why she was referred for psychological counseling and stated he did not
know whether she had a mental problem.
7. Cofflin's Performance Appraisal
On October 30, Cofflin received her performance appraisal for 1981.
Cofflin's ratings were remarkably dissimilar to those she received in
each of the prior years she worked for the Respondent. Her ratings show
a sudden drop from the previous year's ratings as follows:
Interviewing Skills: From E to B
Functioning in Interpersonal Situations: From D to A
Negotiating: From D to A
Quantity and Timeliness: From D to B
Quality and Work Products: From E to B
Job Knowledge: From E to D
Initiative: From E to C
Adaptability: From D to C
Resourcefulness: From E to C
Planning, Organizing, Priorities: From D to C
Writing Skills: From E to D
Analytical Reasoning: From E to D
While her overall rating was "satisfactory," the existence of "A"
ratings normally signal that an employee can be terminated, and because
each category carries "points" toward promotion, a poor appraisal would
almost assuredly prevent her from being promoted.
The narrative comments appearing in the appraisal restate exactly the
matters which formed the basis of the memoranda previously handed to and
discussed with Cofflin in May. It is these upon which Fitzgerald, the
rater, based his rating of "A" in categories 7 and 13, "Functioning in
Interpersonal Relationships," and "Negotiating." Cofflin had never
previously received any comments from her supervisors that her
timeliness or the quality of her work were unsatisfactory.
While Fitzgerald and Velarde had received interpersonal complaints
about other Indio employees there is no evidence that these were
referred to on the performance appraisals of those employees or that
memoranda was ever issued to those employees. For example, employees
Flores and Cruz had made separate complaints to their supervisors about
employee Aceves; Flores to Fitzgerald in summer 1981, when he felt
Aceves was interfering with his work, and Cruz to Velarde in 1980 when
Aceves was degrading and criticizing another employee, Espinosa. Aceves
was never criticized by Fitzgerald or Velarde about her personal
relations, and never received any negative memoranda about her behavior
or her work. On her performance appraisal for 1981, Aceves received the
rating of "D" in the categories of "Interpersonal Relations" and
"Negotiating." No negative comments appeared on her evaluation.
Fitzgerald denied ever receiving any complaints about Aceves from
Flores, stating that if Flores said he had complained, he would be
lying. Fitzgerald stated he based Cofflin's ratings on interpersonal
relationships on the two documented instances in February and March and
on a third, but undocumented, incident in May. He admits he received no
other complaints from employees about Cofflin after May. In the face of
this, he maintained, however, that Cofflin did not improve her
performance in the "interpersonal relationships" category. Regarding
the category "Negotiating," Cofflin's rating was due to the fact that
she and the Service Representatives could not agree among themselves on
who would handle a particular interview. Fitzgerald rated Cofflin
poorly because she did not come to him, her supervisor, to resolve the
problem.
Cofflin's claimant interviewing and employee training evaluations
from as far back as October 1980 were "good" evaluations. Fitzgerald
confirms that the training Cofflin gave was "outstanding", "above
average," and that her interview audit was "superior" and "positive."
Fitzgerald, however, rated Cofflin with a "B" in interviewing.
Fitzgerald also asserted that Claims Representatives who interview
more quickly do better work. He then retracted that statement but
insisted Cofflin's slow speed in interviewing was the basis for her low
rating (B) in the category of "interviewing." According to Cofflin, her
practice is to take as thorough an initial interview as possible, a
practice which she has found effective in assisting her in obtaining all
necessary information while eliminating repeat interviews. She
consequently has fewer interviews than other claims representatives.
While Fitzgerald insisted that her speed in interviewing was the basis
for her rating, he admitted that he kept no statistics on Cofflin's
number of return interviews, on the length of her interviews, or how
they compared with those of other Claims Representatives. He also
admits that interviews must vary in length due to complexity and that
the lower the number of return interviews, the more efficient the
interviewer. He insists that Cofflin's prior evaluator was "wrong" when
he rated her as "E" in interviewing.
Cofflin's desk audit of February 9, 1981, was similar to those she
had received in the past. When Fitzgerald gave it to her he made no
comments indicating her audit or performance were poor in any area.
Because four of the cases audited were of claims taken by other Claims
Representatives, many of the comments were regarding actions taken by
others.
In late October or early November, Velarde had a conversation with
Cofflin during which he told her that her processing times on disability
claims for the months of July and August of 1981 were the best among all
the Claims Representatives, and that if it were not for her performance
the office would not have met its goals, facts which Respondent
concedes. The par or goal for disability claims at that time was 45 or
48 days and 18 days for aged claims. Cofflin's processing times for
disability claims was 19.5 days in July and 38.33 days in August. Her
processing time for aged claims, calculated by management in August
only, was 11.5 days. Although Respondent maintains Cofflin's initial
claim performance was inferior, a review of Respondent's Exhibit 3
demonstrates the opposite: From the period January through September
1981, clearances for initial claims (aged plus disability) were as
follows: Cofflin 96, Black 88, Nunez 130, Landis 144.
Contrary to Cofflin, Fitzgerald testified that he spoke to Cofflin
about her work speed at this time, which Cofflin denies. In late
November or early December, when Velarde discovered that Cofflin was
noting or tallying, and then working on unscheduled overpayment cases
and that other employees were not, he used her example to tell all the
other employees to tally their unscheduled overpayment cases. Despite
the fact that Cofflin exceeded the national pars for completion of her
redeterminations caseload, Fitzgerald based his "B" rating, in part, in
the category of "Timeliness" on her redetermination performance and on
the fact she had not completed them by August. Her redetermination
performance also influenced his assessment of her ratings overall. I
credit Cofflin.
Fitzgerald admits that of a total of 19 memoranda issued to
employees, Cofflin received 16. Fitzgerald admits also that Cofflin and
Mendes were the only employees who filed grievances against him and
sought Union representation, and were also the only employees who
received numerous letters, in their files. Velarde insists that the
evaluation completed by Cofflin's previous supervisor Freeland was valid
even though it was vastly different from the one issued by Fitzgerald
just one year later. Velarde's explanation was that such a discrepancy
is acceptable to him because "that was the way the supervisor worked."
Velarde notified Freeland that he disagreed with him on the appraisal,
but admits he never told Cofflin she was not performing adequately. In
spite of all prior evaluations and despite the fact Cofflin was never
documented prior to May 1981, Velarde now believes the ratings on
Cofflin's 1980-81 evaluation were those she should have received all
along.
F. Saturday Overtime Procedures and the May 22, 1981, Memorandum
(Case No. 8-CA-1187)
Since at least November 1979, the procedure followed by Indio, office
supervisors to organize overtime work on Saturdays was for some
supervisor to informally announce the Saturday overtime to the staff,
and orally and informally inquire of employees whether they intended to
work the following Saturday. If an employee had indicated he or she
would work on Saturday, and failed to appear, there was no problem;
conversely, if the employee had not previously told the supervisor he or
she would work Saturday overtime, and then appeared to work on Saturday,
such work was allowed. The employees were not required to fill out
anything in writing.
Fitzgerald confirmed this, but contradicted Cofflin by asserting that
prior to May 22, overtime was announced at staff meetings. Fitzgerald
admitted that previously no punitive action was taken against an
employee who indicated they would perform overtime work, but who then
failed to appear at the appointed time.
On May 22, 1981, during a staff meeting conducted by Velarde and
attended by Fitzgerald, Saturday overtime was discussed. A memorandum
dated May 22, 1981 was distributed to the employees. The employees were
then told that they would thereafter have to fill out that memorandum
and submit it to management by Friday afternoon whenever they wished to
work overtime on Saturdays. If an employee failed to complete and
submit the form for Saturday overtime work they would not be permitted
to work that Saturday and would not be paid if they did work. The
document itself, entitled, "Change in Policy, Saturday Overtime"
reaffirms the above. This procedure remained in effect after May 22,
1981, and was never altered or abandoned. Both Fitzgerald and Velarde
testified that their reason for changing the procedures for Saturday
over time work was because previously employees would respond
affirmatively that they would work Saturday, but then would fail to
appear or conversely, would not respond and would appear for work. The
managers wanted to extract a commitment in advance from the employees.
Although Fitzgerald purported to say management had made exceptions to
the new requirement, he could not recall when he informed the staff of
this fact. The decision to make this change was Velarde's. The Union
was not notified in advance of the issuance of the May 22, 1981,
memorandum that employees in the Indio office would be required to
submit a written request for Saturday overtime work.
G. Unfair Labor Practice History of Velarde
Because of the remedy requested by the General Counsel, it is
necessary to review the labor relations history of the Indio office and
specifically the actions of Branch Manager Velarde.
In 1979, the Union filed unfair labor practice charges with the
Authority against Velarde concerning the Indio office which involved
alleged harassment of a Union representative, intimidation of unit
employees, and threats against employees for seeking the assistance of
the Union. After investigation by the Authority, the matter was
settled, a Notice was posted and Settlement Agreement signed in that
matter. Velarde apparently admits that he made the alleged statements
against the Union and that he attempted to bypass the Union as charged
in that matter.
Velarde also testified at a hearing in another unfair labor practice
matter, Case No. 8-CA-366, in which a decision was rendered by an
administrative law judge on May 19, 1981, finding that the Respondent
had violated the Statute by instituting a unilateral change, bypassing
the Union and discussing the change directly with unit employees.
H. Connection between Fitzgerald and Velarde
Ramon Velarde has been the Branch Manager in the Indio office since
March 1979. Robert Fitzgerald, who reports to Velarde, became the
operations supervisor in Indio on January 26, 1981, having previously
been a unit employee, but never a supervisor. Velarde insisted that
"how the operations runs" was Fitzgerald's responsibility and that he
has never instructed any of his supervisors, including Fitzgerald, to
take a specific action or "do it his way." Contrary to this, Velarde
also explained that it was his responsibility to train Fitzgerald
because he was new. Velarde noted that in the beginning, Fitzgerald was
"wet behind the ears," and needed a lot of direction, guidance and
instruction from Velarde on taking various personnel and supervisory
actions. Although he maintains that Fitzgerald took responsibility for
all personnel actions, when questioned further, Velarde disclosed that
Fitzgerald discussed all supervisory and personnel actions he took with
Velarde, including each of the memoranda given to Cofflin. Fitzgerald
confirms that he conferred with Velarde on every action he took
concerning the Indio employees, and that Velarde fully supported him in
every action against Cofflin up through September 2, 1981. Fitzgerald
added that he and Velarde discussed the letter referring Cofflin to
counseling prior to issuing it. However, beginning with the May
memoranda, Fitzgerald, not Velarde, issued each of the memoranda
received by Cofflin with one exception, where Velarde issued the
memorandum because Fitzgerald was in San Francisco. Without question,
Fitzgerald and Velarde were in frequent communication regarding the
running of the Indio office. This was confirmed by the unit employees
who described Fitzgerald and Velarde variously as "always together" that
"a path is run between the two offices" and "Velarde as the head and
Fitzgerald as the hand."
Discussion and Conclusions
1. Credibility Determination of Charlotte Mendes
Charlotte D. Mendes, is a Data Review Technician at the Indio Office
and critical witness in the General Counsel's case. Her testimony is
necessary in either establishing or corroborating events which would
show violations of the Statute. Mendes, although under subpoena,
refused to appear at the hearing when it was initially convened on
January 13, 1981. However, without any real explanation she
involuntarily appeared and testified at the February 2, 1981 hearing.
Because her testimony, at that time, was contrary to the sworn statement
given to an Authority agent, in Mendes' own home under circumstances
which appear on the surface rather ordinary, on or about August 13,
1980, the General Counsel moved to have Mendes' sworn statement given to
the Authority agent "utilized and credited as substantive evidence."
Citing Alvin J. Bart and Co., Inc., 236 NLRB No. 242 (1979). Respondent
objected at the hearing to admission of the sworn statement and
conducted a voir dire examination to determine whether or not Mendes was
perhaps under pressure when she signed the documents. Based on her
responses, the undersigned saw no reason to find that the statement was
given under duress or that any pressure was applied in order to obtain
that statement.
At the hearing, Mendes was carefully observed. On the basis of her
demeanor; the evasive nature of her answers to both the General Counsel
and myself; and the sudden shift in her character when responding to
questions from Respondent's Counsel; her shifting reasons for some
actions taken by her and management officials; her apparent concern not
to offend Respondent; and, above all her frank admission that she had
lied about certain areas in the sworn statement, I cannot credit her
testimony or the sworn statement. Even if these observations were only
partially correct, they would result only in the impeachment of Mendes'
general capacity for truth and veracity. It would not warrant, however,
a further inference that any statement made by her, whether at or before
the hearing was true, for here her credibility is in serious doubt, and
there is no reason to believe that her earlier statements are more
accurate than her later testimony. Moreover, she admittedly lied with
respect to certain areas of the sworn statement. Accordingly, I find
only that Mendes cannot be credited in this matter and that her sworn
statement, although admitted into evidence, serves only to substantiate
my view that she is not a credible witness. Thus, I am unwilling to
credit a sworn statement in which the witness giving the statement
maintains that it contains statements which are absolutely not true.
2. Saturday Overtime
(Case No. 8-CA-1187)
It is well established in the public sector that an employer may not
change personnel policies, practices or working conditions without first
providing an exclusive representative advance notice of the change and
an opportunity to negotiate concerning the change and the impact of such
change. Department of Treasury, Internal Revenue Service, Jacksonville
District and National Treasury Employees Union, 3 FLRA 631 (1980); 78th
Division (Training), Kilmer USAR Center, Edison, New Jersey, 1 FLRA 836
(1979).
It is undisputed that no formal procedure existed at the Indio office
prior to May 22, 1981 for the organization of Saturday overtime work.
Employees prior to that time were admittedly free to show up or stay
away as desired, whether or not they had previously indicated they would
work on the Saturday. It is also undisputed that after May 22,
employees were required to fill out a slip indicating that they would
perform Saturday overtime work or they were not admitted to work or paid
for the work even though they altered.
Clearly, employees here had a certain amount of flexibility with
regard to whether or not they would work on Saturday overtime.
Requiring employees to submit a slip informing management whether they
would work most certainly restricted that flexibility. This restriction
without question constitutes a change in the procedures for reporting
Saturday overtime work. Such a change under existing law requires
advance notification to the exclusive representative and at least an
opportunity to bargain on the impact of the change. Failure to give
such notification and the opportunity to bargain violates section
7116(a)(1) and (5) of the Statute. Accordingly, it is found that
Respondent's conduct in changing the procedure for organization of
Saturday overtime, violates section 7116(a)(1) and (5) of the Statute as
alleged.
3. June 10, 1981 Incident
(Case No. 8-CA-1190)
The following account of this particular incident is based on the
credited testimony of Union representative Patricia Randles and partial
corroboration by Carol Cofflin. As previously noted, Charlotte Mendes,
around whom much of the incident involved, is specifically discredited.
Furthermore, based on the demeanor of other witnesses and the many
conflicts in statements, I am unable to credit such witnesses as Ramon
Velarde and Robert Fitzgerald.
In early June, Mendes asked the Union for assistance because she was
experiencing difficulties at work and had been informed by management
that she might be disciplined. Randles, the Union representative then
requested, from District Manager Martin Semel permission to meet with
Mendes and to attend a meeting with Mendes' managers to discuss the
situation.
On the morning of June 10, Randles went to the Indio office and
informed Office Manager Velarde of her purpose for being there.
Although she requested to speak with Mendes prior to their meeting with
management and had received permission to do so from Semel, Velarde
refused. Velarde yelled at Randles telling her to "get the hell out of
my office," and "get the hell out of my office or I'll have you thrown
out." Randles reminded him that she was on official business and
requested that he telephone Semel to verify her permission. Velarde
refused this request and also refused to allow Randles to use the
telephone to call Semel. According to Randles, this entire conversation
occurred in the middle of the Indio office, within the earshot of other
office employees.
Randles subsequently returned to the Palm Springs Office, talked with
Semel and the meeting set for that morning was eventually held that
afternoon in the Indio office. Semel states that the original agreement
for official time with Randles was for less time, but that she decided
that she needed or wanted more time and that he, because of an awful lot
of confusion did not notify Velarde of the change.
There is no dispute that Velarde verbally threw Randles out of his
office on this occasion. Respondent argues only that it was a mistake.
In my view, the mistake herein offers no excuse for the violation. As
the record shows, this occurrence is not an isolated incident but, part
of a larger problem in the Indio office. Randles sought to have Velarde
telephone Semel and even offered to do so herself to rectify this
misunderstanding. Velarde refused, but in a tone and before other unit
members that unquestionably belittled Randles.
I agree with the General Counsel that Velarde's actions in preventing
the grievance meeting, limiting Randles to 30 minutes and throwing her
out of his office interfered with protected rights and constitutes a
violation of section 7116(a)(1) of the Statute. Cf. Internal Revenue
Service and Brooklyn District Office, 6 FLRA No. 111 (1981); United
States Marine Corps, Marine Corps Logistics Base, Barstow, California, 5
FLRA No. 97 (1981).
4. June 24, 1981 Incident
(Case No. 8-CA-1188)
Again, the credited testimony of Randles must be relied upon to
establish a violation, if any. For the same reasons already stated, the
testimony of both Mendes and Velarde is not credited. Fitzgerald, while
not specifically discredited, testified only that while he was at the
meeting he did not hear certain things said. Such testimony is of
little value in resolving the issue at hand. Moreover, Randles'
credited testimony is, that Fitzgerald was not present at the time
several statements pertinent to this violation were made.
The credited evidence reveals that in "off the record" statements,
Velarde told Randles that he felt she was out to "get him", that he was
"surprised at (Mendes) for requesting assistance," and that it upset him
that Mendes went to Randles for help. He further stated that he would
"see to it that life was miserable for (Mendes) because she had gone to
the Union," that Mendes would "pay" for going to the Union, and that she
would be sorry that she did.
During this conversation Velarde added that the "District was a
laughingstock because they had allowed the union," that semel was a
"fool" for letting the Union into his office and that he was "not going
to allow the Union in his office."
The substance of the above comments, although "off the record", were
made to Randles, the Union representative, and to a unit employee. The
statements contain threats of reprisal because an employee had gone to
the Union and threats of future reprisal for further contact with the
Union. Such conduct must be assumed to have influenced on Mendes, and
no doubt on other bargaining unit employees. Soon thereafter Mendes
apparently became involved in a scheme to extricate herself from this
unpleasant situation and Velarde's anger, as she sought to place a
considerable amount of distance between herself and the Union.
Based on the foregoing, it is found that Velarde's comments to
Randles and Mendes were impermissible and constitutes a violation of
section 7116(a)(1) of the Statute.
5. July 2, 1981 Incident
(Case No. 8-CA-1219)
Sometimes during the day of July 2, Cofflin met with Fitzgerald and
refused to sign a memorandum criticizing her work. Through Fitzgerald's
efforts Cofflin subsequently met with Velarde.
During their discussion, Velarde inquired of Cofflin, why she had
filed unfair labor practice charges. She asked Velarde to keep
Fitzgerald from harassing her. Velarde at one point told Cofflin,
"Well, after all you've done for me, how do you expect me to do good to
you? . . . You went to the Union and you started all these unfair
labor practices . . . As long as you go to the Union you will continue
to receive (memoranda)." Such a statement of future actions to be taken
against an employee on the heels of questioning her about having filed
unfair labor practice charges is without doubt threatening and coercive
in nature.
Accordingly, it is found that Velarde did indeed threaten Cofflin
with adverse memoranda for her participation in the filing of unfair
labor practice charges and that such conduct violates section 7116(a)(1)
of the Statute.
6. Whether Anti-Union Considerations Were a Motivating Factor in
Respondent's Actions Concerning Carol Cofflin
(Case No. 8-CA-20048)
Against the above background of unfair labor practices we turn to the
incidents involving Carol Cofflin. The record reveals that Carol
Cofflin is a Claims Representative in Respondent's Indio office and,
that Cofflin held several positions in other Social Security offices
before transferring to Indio in 1980. The record also disclosed that
prior to that time Cofflin had few complaints about her work
performance, absences, etc. In fact, Cofflin's performance evaluations,
prior to October 1981 revealed that she received no poor ratings in any
categories. Furthermore, the record did not establish, and Respondent
did not attempt to prove, that Cofflin's work was unsatisfactory prior
to her supervision by Robert Fitzgerald in the Indio office. Finally,
there is no question that Cofflin was engaged in protected activity for
sometime and that respondent's agents were aware of all of these
activities including testimony at a hearing on an unfair labor practice
case involving that office, grievances, unfair labor practice charges,
and giving statements to Authority agents.
The credited facts establish that starting around February 1981,
Cofflin could apparently do nothing right in the eyes of Fitzgerald. I
view many of the actions issued by Fitzgerald under Velarde's auspice,
such as constant memoranda to her personnel file, complaints about
interpersonal relations (particularly where the record reveals several
other such personal disputes between employees), complaints about her
work load, shifting redeterminations of Cofflin to another employee,
without any previous warning or for that matter without any particular
logic as an indication that someone in that office had a problem with
Cofflin, for some reason. These actions, as set out above, are indeed
punitive in nature but could well be management tools used to straighten
out Cofflin's work performance. I note in this respect that Fitzgerald
on one occasion locked Cofflin out of the building for being, as the
credited evidence shows, one minute late. On another occasion,
Fitzgerald recommended psychological counseling for Cofflin although
there is no apparent evidence on the record to indicate a justification
for such an extreme measure, particularly where Fitzgerald had been her
supervisor for only a very short period of time. A careful examination
of the record disclosed no reason for Respondent's motivation in
pursuing Cofflin with such diligence other than that she was engaged in
protected activity.
Respondent, of course, urges that Cofflin was being documented
because of work related shortcomings, including her performance, but
that no action was ever taken against her because of her performance or
lack of performance. In response to this, one need only point to
Cofflin's most recent performance evaluation by Fitzgerald and ask only,
what is her promotion or transfer potential with such a performance
evaluation.
Without recounting the numerous actions taken against Cofflin by a
supervisor who had only recently come into the office in that position
and who had only recently begun to supervise Cofflin, it is clear that
the record as a whole in this matter establishes a prima facie case that
Cofflin had engaged in protected activities, that Respondent was aware
of those activities and that, at least some of its actions against her
were motivated by anti-union consideration.
However, under Internal Revenue Service, Washington, D.C. 6 FLRA 23
(1981) Respondent has the opportunity to show by a preponderance of the
evidence that it would have taken the actions against Cofflin even in
the absence of union or protected activities. It is found that
Respondent did not, on this record, meet that burden. There are
numerous instances, in the record of interpersonal relationship
difficulties, tardiness, lateness, absences by other unit employees,
none of whom were documented, or locked out of the office or even
demeaned by a suggestion, on the record, that they undergo psychological
counseling. Only Cofflin and Mendes were documented during this period,
and when Mendes finally succumbed to Velarde's berating, even she was no
longer documented. In further support, it is noted, that Cofflin's
record differed little from her previous work and leave record in Indio
and that record, although not found to be exemplary by her previous
supervisor, was no reason to show the type concern that Fitzgerald found
with her work or absences almost immediately after he assumed his
position in Indio. Moreover, the timing of all Fitzgerald's actions in
relation to Cofflin's participation in protected activities leaves
little doubt that such actions were in retaliation for Cofflin's
engaging in some form of protected activity.
While it is true that Cofflin experienced difficulties in work
performance, and in her personal and medical life during 1981,
Respondent did not present one iota of evidence to suggest that her work
performance was affected to the extent that she should have been treated
any differently than any of the other employees who were late or absent
or even deficient in one work area or another. Record testimony of
other employees clearly indicates that Cofflin was indeed treated
differently. Furthermore, her supervisor Fitzgerald admittedly had not
documented other employees in his short tenure as a supervisor in Indio.
The question thus becomes whether she was treated differently because
of her union or protected activities or for some other reason, i.e.,
Fitzgerald did not like her personally. It is noted that Cofflin and
others testified at the unfair labor practice proceeding alleged to be
one of her protected activities, but that no action was taken against
the other employees who testified. Cofflin, however, is the only one of
those employees who continued to participate in protected activities
during 1981 and this made her a target for management retaliation.
The total circumstances of this matter leave no doubt that Respondent
has failed to demonstrate any real basis for many of its actions taken
against Cofflin. Further, it has failed in its attempt to show that
"but for" her protected activity, Cofflin would have received the
memoranda or the poor performance appraisal. Absent such a showing, it
is incumbent on the undersigned to find that Respondent's actions taken
against Cofflin were violative of section 7116(a)(1), (2), and (4) of
the Statute.
7. Disparaging Remarks about Union Representative
(Case No. 8-CA-1223)
It is alleged that Mendes met with District Manager Semel on July 6,
1981 and that during the course of that meeting Semel made disparaging
remarks about a prior union representative who was no longer employed by
Respondent and, in addition, told Mendes that if she continued to
request union assistance she would not be treated well.
Semel denies that either of these statements was made during the
course of the meeting. Mendes, of course, has not been credited in this
matter. Based on the record evidence this allegation of the complaint
must be dismissed. Accordingly, it is found that the evidence is
insufficient to establish that Respondent violated section 7116(a)(1) by
the statements alleged above.
8. Formal Discussion of July 6, 1981, Mendes Withdraws Her Grievance
(Case No. 8-CA-1223)
Semel testified that he held that meeting pursuant to a request from
Mendes. Semel also stated that Mendes never disavowed her Union
representative but that he "received word that (Mendes) was interested
in talking to me about some grievances" and, that while in Indio on
other matters he met with Mendes and Velarde, in Velarde's office.
According to Semel, Mendes merely stated that she wanted to withdraw the
grievances that she had at that time. He told Mendes that "if that's
all she wanted, she should put it in writing in a (memorandum) to me."
Several days thereafter Mendes with the help of Velarde prepared a
memorandum to Semel which was subsequently accepted. Mendes memorandum
apparently accomplished what she had set out to do.
Velarde's testimony reveals that Mendes had become dissatisfied with
the Union. Absent her testimony we can only suspect Mendes motives.
Had her dealings with Velarde, in which he expressed his disdain for the
Union, convinced her that it really was unsound to deal with management
through the Union. This is one plausible explanation for Mendes action
in approaching management, on her own, after she had become heavily
involved with the Union. Could Mendes have advanced a scheme to
ingratiate herself with Velarde, her Branch Manager? If so, where did
she start? With the benevolent Semel, who, after all, Velarde had
labeled a "fool". In any event this entire scenario was without doubt
orchestrated by Mendes. Semel used bad judgment in dealing with her
directly, as he was subsequently informed by other Respondent officials
and Velarde, was also a willing pawn in Mendes scheme to extricate
herself from a situation which had, probably in her mind gotten out of
hand.
Even if the actions of Velarde and Semel were good intentioned, it is
found that based on their testimony they did indeed deal directly with
Mendes concerning a grievance.
The General Counsel alleges that Mendes' discussion of her grievance
with Semel and Velarde without the presence of her Union representative
was a formal discussion and that the discussion was indeed violative of
the Statute.
Section 7114(a)(2)(A) states:
An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices. . . .
Discussion of a grievance with an employee where the exclusive
representative is not afforded an opportunity to be present although
that representative initiated the process is in derogation of its status
as the employees' representative. Conduct such as occurred between the
employee and management officials where management officials offer to
resolve a pending grievance without the presence of the exclusive
representative also in my view, constitutes a bypass of the Union as
exclusive representative. Furthermore, the method by which Mendes
agreed to write a memorandum to Semel constituted negotiations on how
her grievance would be resolved. Negotiations such as occurred here are
expressly prohibited by the Statutory language found in 7114(a)(2)(A).
This discussion dealt with a specific employee grievance and to
proceed without the exclusive representative being involved contravenes
section 7114(a)(2)(A) and clearly evidenced the need for the exclusive
representatives presence. As such the discussion constituted a formal
discussion without the Union's presence in violation of section
7116(a)(1), (5), and (8) of the Statute. Such a violation would lie
even where the discussion or request for discussion is initiated by an
employee.
REMEDY
Having found that Respondent violated section 7116(a)(1), (2), (4),
(5), and (8) of the Statute, an appropriate remedy must be considered.
The General Counsel urges that an extraordinary remedy is necessary
because of the serious nature of repeated conduct by Branch Manager
Ramon Velarde. In support of its position the General Counsel cites
what it considers repetitive and blatant acts of misconduct by Velarde,
including a breach of a Settlement Agreement and Notice Posting
involving violative statements similar to those in this matter and an
administrative law judge's decision finding the Indio office in
violation of the Statute, by making a unilateral change in working
conditions and by conducting a formal discussion. The General Counsel
contends that the normal remedies afforded by the Statute would not
deter Velarde from repeated misconduct.
The General Counsel also requests a broader posting than the Indio
office and other extraordinary actions ostensibly to correct the
violations herein.
I see no necessity for such a remedy at this time. It is noted that
the General Counsel cites such cases as J.P. Stevens and Co., Inc., 157
NLRB No. 869, 61 LRRM 1437 (1966) to support its position. Surely the
General Counsel is aware that the National Labor Relations Board took
many years and many violations by J.P. Stevens to arrive at a remedy of
the significance and impact which it finally approved in the J.P.
Stevens, case, supra.
Taking this matter in its proper focus, there have indeed been
numerous unfair labor practices committed, in my view, in the Indio,
California office. Rather severe violations, but over a short period of
time and all with an outgrowth from a limited number of incidents. I
see no violations of the magnitude or in a time frame set out in the
cases cited by the General Counsel. It has not been established that
Velarde is a recidivist or that such actions will indeed recur. Thus, I
see no reason to treat this matter as other than a consolidated group of
cases which occurred during a short period of time and which do not
establish any clear tendency to violate the Statute by Velarde or any
other management member of the Indio office.
In any event, the Indio office should be clearly aware that such
extraordinary remedies are available; that employee rights will indeed
be protected; and, that a continued course of conduct such as found in
this matter could result in the imposition of an extraordinary remedy to
prevent recurrence of such violations in its Indio office.
Based on the foregoing, it is recommended that the Authority adopt
the following Order. /10/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Social Security Administration,
Baltimore, Maryland:
1. Cease and desist from:
(a) Preventing representatives of the American Federation of
Government Employees, AFL-CIO, the exclusive representative of our
employees from meeting with unit employees on representational matters,
or ordering them out of offices, or threatening to have them thrown out.
(b) Threatening unit employees by telling them that action would not
have been taken against them, or they would have been left alone, if
they had not sought the assistance of the American Federation of
Government Employees, AFL-CIO, or that as long as the employee continues
to request the assistance of the American Federation of Government
Employees, AFL-CIO, the employee would continue to receive memoranda
criticizing the employee's performance.
(c) Threatening unit employees by telling them that they would "pay"
for having gone to the American Federation of Government Employees,
AFL-CIO, or that we would "get even" with any employee who went to the
American Federation of Government Employees, AFL-CIO, or that we would
never allow the American Federation of Government Employees, AFL-CIO, in
our offices.
(d) Threatening unit employees by telling them we will not help them
because they had filed unfair labor practice charges.
(e) Discriminating against unit employees by reassigning
redetermination caseloads to other employees, by placing memoranda in
the employee's personnel file admonishing the employee about the quality
of his or her work, or by giving the employee unsatisfactory ratings on
her performance evaluation because the employee seeks the assistance of
a union representative or gives information or testifies in connection
with the investigation of unfair labor practices.
(f) Changing the working conditions of employees in the Indio,
California, Branch Office by altering the procedures to be followed in
working overtime on Saturdays without first notifying the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to negotiate over that change.
(g) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Remove from employee Carol Cofflin's personnel file a memorandum
dated October 21, 1981, admonishing the quality of her work, and rescind
her performance evaluation for the period October 1, 1980 to September
30, 1981.
(b) Prepare a new performance appraisal for employee Carol Cofflin
for the period October 1, 1980 to September 30, 1981, without taking
into consideration any of her protected activity guaranteed by the
Federal Service Labor-Management Relations Statute.
(c) Rescind the requirement established on May 22, 1981, that
employees submit written requests each Friday in order to work overtime
on Saturday.
(d) Upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, over any intended changes in the
procedures to be followed in working overtime on Saturday.
It is further Ordered, that the allegation in Case No. 8-CA-1223,
that Respondent disparaged a former Union representative, be and it
hereby is Dismissed.
ELI NASH, JR.
Administrative Law Judge
Date: September 30, 1982
Washington, D.C.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF 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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT prevent representatives of the American Federation of
Government Employees, AFL-CIO, the exclusive representative of our
employees from meeting with unit employees on representational matters,
or order them out of our offices, or threaten to have them thrown out.
WE WILL NOT threaten unit employees by telling them that action would
not have been taken against them, or they would have been left alone, if
they had not sought the assistance of the American Federation of
Government Employees, AFL-CIO, or that as long as the employee continues
to request the assistance of the American Federation of Government
Employees, AFL-CIO, the employee would continue to receive memoranda
criticizing the employee's performance.
WE WILL NOT threaten unit employees by telling them that they would
"pay" for having gone to the American Federation of Government
Employees, AFL-CIO, or that we would "get even" with an employee who
went to the American Federation of Government Employees, AFL-CIO, or
that we would never allow the American Federation of Government
Employees, AFL-CIO, in our offices.
WE WILL NOT threaten unit employees by telling them we will not help
them because they had filed unfair labor practice charges.
WE WILL NOT discriminate against unit employees by reassigning
redetermination caseloads to other employees, by placing memoranda in
the employee's personnel file admonishing the employee about the quality
of his or her work, or by giving the employee unsatisfactory ratings on
his or her performance evaluation because the employee seeks the
assistance of his or her union representative or gives information or
testifies in connection with the investigation of unfair labor
practices.
WE WILL NOT in any manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed under the Federal
Service Labor-Management Relations Statute.
WE WILL NOT change the working conditions of employees in the Indio,
California, Branch Office by altering the procedures to be followed in
working overtime on Saturdays without first notifying the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to negotiate over that change.
WE WILL NOT hold meetings with unit employees concerning grievances,
personnel policies, or practices or other conditions of employment and
thereby deal directly with employees concerning settlement of grievances
or complaints without first notifying the American Federation of
Government Employees, AFL-CIO, and affording it an opportunity to be
present.
WE WILL remove from employee Carol Cofflin's personnel file a
memorandum dated October 21, 1981, admonishing the quality of her work,
and will rescind her performance evaluation for the period October 1,
1980 to September 30, 1981.
WE WILL prepare a new performance appraisal for employee Carol
Cofflin for the period October 1, 1980 to September 30, 1981, without
taking into consideration any of her protected activities guaranteed by
the Federal Service Labor-Management Relations Statute.
WE WILL rescind the requirement established on May 22, 1981, that
employees submit written requests each Friday in order to work overtime
on Saturday.
WE WILL, upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, over any intended changes in the
procedures to be followed in working overtime on Saturday.
(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 question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region 8 for the Federal Labor Relations Authority whose
address is: 350 South Figueroa Street, 10th Floor, Los Angeles, CA,
90071, and whose telephone number is: (213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ Noting particularly the absence of any exceptions thereto, the
Authority adopts the Judge's conclusion in Case No. 8-CA-1223 that the
Respondent failed to comply with section 7114(a)(2)(A) of the Statute by
holding a formal discussion with a unit employee concerning her
grievance without notifying her exclusive representative of the meeting
and affording the latter an opportunity to be present. In this regard,
however, we do not adopt the Judge's additional statements concerning
the existence of a bypass and prohibited negotiations which he made in
connection with his finding that the Respondent had failed to comply
with section 7114(a)(2)(A) in the circumstances of this case.
/2/ The Authority agrees with the Judge that while a recurrence of
the unlawful conduct found to have been committed by the Respondent may
warrant in some future case, the issuance of an extraordinary remedy
pursuant to the Authority's broad remedial discretion under the Statute,
such a remedy as sought by the General Counsel is not warranted in the
circumstances herein where such a recurrence is not involved.
/3/ The Judge's recommended Order has been amended to correct certain
inadvertent omissions and to modify the Judge's recommended Order and
Notice to be consistent with his findings.
/4/ The Amended Consolidated Complaint also consolidated Case No.
8-CA-20054, however, that matter was settled prior to hearing.
/5/ Mendes' affidavit points out that she was still under the belief
that the letter she had written was ineffective in getting the memoranda
removed from her file and the AWOL removed from her record. It was not
until November 1981 that Mendes learned that these corrective actions
had been taken.
/6/ The memorandum Fitzgerald issued Cofflin dated September 3 was
inaccurate in that it stated Cofflin remained at lunch in the breakroom
for the entire 30 minutes, completed her lunch and that no interview
prevented her from going to lunch earlier.
/7/ Cofflin estimated that she would have been able to complete these
redeterminations within one and a half to two months. Nunez started the
redeterminations four weeks after they were transferred and was still
working on them the week before the trial. Fitzgerald, first testified
that there is no specific percentile goal for redetermination completion
which an employee must meet. He admitted that Cofflin exceeded the
national goals, but that Semel had set a goal of 100 percent completion
of redeterminations by the end of August, and because she failed to
complete her redeterminations by August she was therefore not timely.
He then stated that meeting the national standards was irrelevant to a
determination of whether she was slow in processing her
redeterminations. Fitzgerald admitted that Cofflin's redetermination
cases were very difficult.
/8/ Although Cofflin who obviously had a continuing medical problem
had previous discussions with her supervisors concerning the subject of
leave, the substance of those talks was simply to encourage her to
conserve leave in case she would need it. Although Cofflin asked her
supervisors, at those times, whether she was abusing her leave, their
response was that she was not. Although she offered information such as
receipts and doctor's certificates to Fitzgerald and Velarde to justify
her use of leave, they told her they did not want the proofs and that
they were not necessary.
/9/ Cofflin used 2 3/4 hours emergency leave allegedly to go to her
daughter's school between October 2 and 21, but apparently was given
permission to do so by her supervisor, took that leave without incident
and received no notice from her supervisors that it was improper or
would be used against her.
/10/ The General Counsel's unopposed motion to correct the transcript
is granted as reflected in APPENDIX B.