[ v05 p622 ]
05:0622(87)CA
The decision of the Authority follows:
5 FLRA No. 87
NATIONAL LABOR RELATIONS BOARD
REGION I
BOSTON, MASSACHUSETTS
Respondent
and
RONALD LASKY
Charging Party
Case No. 1-CA-28
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT CEASE
AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE RESPONDENT HAD
NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND
RECOMMENDED THAT THOSE PORTIONS OF THE COMPLAINT BE DISMISSED.
THEREAFTER THE RESPONDENT AND THE GENERAL COUNSEL FILED EXCEPTIONS TO
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER,
ACCOMPANIED BY BRIEFS. ADDITIONALLY, BOTH PARTIES FILED AN OPPOSITION
TO THE OTHER PARTY'S EXCEPTIONS.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS REVIEWED THE
RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THIS CASE, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE NATIONAL LABOR RELATIONS BOARD, REGION
I, BOSTON, MASSACHUSETTS, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED,
BY THREATENING RONALD LASKY, OR ANY OTHER EMPLOYEE WITH A POSSIBLE
INVESTIGATION FOR ASSERTING THEIR RESPECTIVE RIGHTS UNDER THE COLLECTIVE
BARGAINING AGREEMENT TO FILE CLAIMS FOR OVERTIME COMPENSATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THE RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS BOSTON, MASSACHUSETTS OFFICE COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED
BY THE REGIONAL DIRECTOR FOR REGION I, NATIONAL LABOR RELATIONS BOARD,
AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN BY RESPONDENT TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION I, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THIS ORDER.
ISSUED, WASHINGTON, D.C., MAY 15, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX 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 INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED,
BY THREATENING RONALD LASKY, OR ANY OTHER EMPLOYEE, WITH A POSSIBLE
INVESTIGATION FOR ASSERTING THEIR RESPECTIVE RIGHTS UNDER THE COLLECTIVE
BARGAINING AGREEMENT TO FILE CLAIMS FOR OVERTIME COMPENSATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUT EMPLOYEES IN THE EXERCISE OF THE RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
AGENCY OR 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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS, 02116, AND WHOSE
TELEPHONE NUMBER IS (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
PAUL K. TAMAROFF, ESQUIRE
FOR THE RESPONDENT
PETER F. DOW, ESQUIRE
CAROL A. WALLER, ESQUIRE
FOR THE GENERAL COUNSEL
WILLIAM G. KOCOL, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS MATTER COMES BEFORE THE UNDERSIGNED ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON NOVEMBER 1,
1979, BY THE REGIONAL DIRECTOR FOR REGION I, FEDERAL LABOR RELATIONS
AUTHORITY. SAID COMPLAINT IS BASED UPON A CHARGE FILED ON APRIL 18,
1979, BY RONALD LASKY, AN INDIVIDUAL, AGAINST THE NATIONAL LABOR
RELATIONS BOARD, REGION I, BOSTON, MASSACHUSETTS, HEREINAFTER CALLED THE
RESPONDENT OR ACTIVITY.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, BY VIRTUE OF ITS
ACTIONS IN THREATENING RONALD LASKY ON OCTOBER 12, 1978, WITH AN
INVESTIGATION AND THREATENING ROBERT KIEL ON OR ABOUT DECEMBER 13, 1978,
WITH DISCIPLINE BECAUSE OF THEIR ACTIONS IN ASSERTING AND/OR UTILIZING
CERTAIN RIGHTS ACCORDED THEM BY THE COLLECTIVE BARGAINING AGREEMENTS
CURRENTLY IN EFFECT. /2/
A HEARING WAS HELD IN THE CAPTIONED MATTER ON MARCH 5, 1980, IN
BOSTON, MASSACHUSETTS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUE HEREIN. ALL PARTIES SUBMITTED BRIEFS WHICH HAVE
BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
PROCEDURAL MATTERS
AT THE OPENING OF THE HEARING, COUNSEL FOR THE RESPONDENT MOVED FOR
DISMISSAL OF THE COMPLAINT ON THE FOLLOWING GROUNDS: (1) THAT ALLEGED
VIOLATIONS OF EXECUTIVE ORDER 11491, AS AMENDED, WHICH WERE NOT IN
PROCESS AS ON JANUARY 11, 9179, THE EFFECTIVE DATE OF THE FEDERAL LABOR
RELATIONS STATUTE,, ARE NOT ACTIONABLE; (2) THE GENERAL COUNSEL DOES
NOT HAVE AUTHORITY TO PROSECUTE ALLEGED VIOLATIONS OF THE EXECUTIVE
ORDER; AND (3) THAT, IN ANY EVENT, THE ALLEGATIONS CONCERNING RONALD
LASKY OCCURRED MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE CHARGE
WITH THE AUTHORITY.
WITH RESPECT TO GROUNDS (1) AND (2) SET FORTH ABOVE, I FIND LITTLE IF
ANY SUPPORT IN THE LEGISLATIVE HISTORY FOR THE POSITION OF COUNSEL FOR
THE RESPONDENT. MOREOVER, IN ANY EVENT, INASMUCH AS THE AUTHORITY, AS
EVIDENCED BY ITS INTERIM AND FINAL RULES AND REGULATIONS, HAS CONCLUDED
THAT IT DOES HAVE THE POWER TO PROCESS, THROUGH THE MEDIUM OF THE
GENERAL COUNSEL, EXECUTIVE ORDER CASES FILED AFTER JANUARY 11, 1979, I
AM CONSTRAINED TO FOLLOW SUCH INTERPRETATION UNTIL SUCH TIME AS THE
AUTHORITY IS OVERRULED BY A HIGHER TRIBUNAL. ACCORDINGLY, RESPONDENT'S
MOTION TO DISMISS ON THE GROUNDS SET FORTH IN (1) AND (2) ABOVE IS
DENIED.
WITH RESPECT TO RESPONDENT'S THIRD GROUND FOR DISMISSAL, I.E.
EXPIRATION OF MORE THAN SIX MONTHS BETWEEN THE DATE OF THE ALLEGED
ILLEGAL CONDUCT AGAINST MR. LASKY (OCTOBER 12, 1#78) AND THE FILING OF
THE CHARGE (APRIL 18, 1979), THE RECORD REVEALS THAT MR. LASKY FIRST
VISITED THE BOSTON REGIONAL OFFICE OF THE AUTHORITY IN FEBRUARY 1979, TO
DETERMINE THE PROCEDURE FOR THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT. HE WAS INFORMED AT THAT TIME BY AN AGENT OF THE AUTHORITY
THAT PURSUANT TO THE TRANSITION RULES AND REGULATIONS ISSUED BY THE
AUTHORITY ON DECEMBER 26, 1978, AND PUBLISHED IN THE FEDERAL REGISTER ON
JANUARY 2, 1979 (FED. REG. VOL. 4, NO.1) HE MUST FIRST FILE A CHARGE IN
WRITING WITH THE RESPONDENT AND THEN ALLOW THIRTY DAYS FOR INFORMAL
RESOLUTION. FAILING RESOLUTION, HE MUST THEN FILE A COMPLAINT WITH THE
AUTHORITY WITHIN SIXTY DAYS OF RESPONDENT'S ANSWER TO THE CHARGE. /3/
PURSUANT TO THE ADVICE FROM THE AUTHORITY, MR. LASKY FILED A COPY OF THE
UNFAIR LABOR PRACTICE CHARGE WITH RESPONDENT'S BOSTON REGIONAL OFFICE ON
MARCH 9, 1979. /4/
IN THE INTERIM, ON MARCH 7, 1979, THE AUTHORITY ISSUED A NOTICE
WHEREIN IT DID AWAY WITH THE PRACTICE OF REQUIRING THE FILING OF A
CHARGE WITH RESPONDENT PRIOR TO THE FILING OF A OF A FORMAL CHARGE OR
COMPLAINT WITH THE AUTHORITY. THE NOTICE, HOWEVER, WAS SILENT WITH
RESPECT TO THE NINE MONTH PERIOD ALLOWED FOR THE PERFECTION OF A
COMPLAINT UNDER THE EXECUTIVE ORDER. THE NOTICE WAS FORMALLY PUBLISHED
IN THE FEDERAL REGISTER ON MARCH 13, 1979. (FEDERAL REGISTER VOL. 44,
NO. 50). THE RECORD IS BARREN OF ANY EVIDENCE INDICATING THAT MR.
LASKY HAD BEEN INFORMED OF THE CHANGE IN THE REGULATIONS PRIOR TO MARCH
13, 1979, THE DATE THE CHANGE WAS PUBLISHED IN THE FEDERAL REGISTER.
CITING THE MARCH 7, 1979, NOTICE OF THE AUTHORITY AND ITS CONTENT,
COUNSEL FOR THE RESPONDENT CONTENDS THAT INASMUCH AS MR. LASKY'S FORMAL
CHARGES WERE NOT FILED WITH THE AUTHORITY WITHIN SIX MONTHS FROM THE
DATE OF THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE, SUCH
CHARGES ARE UNTIMELY AND MUST BE DISMISSED.
ACCORDINGLY, INASMUCH AS MR. LASKY HAD MET THE TIME LIMITS SET FORTH
IN THE INTERIM RULES AND REGULATIONS WHEN HE FILED THE PRE-COMPLAINT
CHARGE ON MARCH 9, 1979, WITH THE RESPONDENT, I FIND THAT HIS CHARGES
WERE TIMELY FILED.
ADDITIONALLY, IT IS NOTED THAT WHILE THE MARCH 7, 1979, NOTICE DID
AWAY WITH THE PRE-CHARGE ASPECT OF THE INTERIM RULES AND REGULATIONS, IT
IS SILENT WITH RESPECT TO THE NINE MONTH PERIOD ALLOWED FOR THE FILING
OF THE FORMAL COMPLAINT. LASTLY, UNDER ALL THE CIRCUMSTANCES PRESENT
HEREIN, PARTICULARLY THE FACT THAT MR. LASKY HAD MADE A TIMELY
APPEARANCE AT THE AUTHORITY'S BOSTON OFFICE IN FEBRUARY AND WAS ADVISED
TO FILE A PRE-COMPLAINT CHARGE WITH RESPONDENT PRIOR TO FILING A FORMAL
CHARGE WITH THE AUTHORITY, AND THE ABSENCE OF ANY SHOWING OF PREJUDICIAL
HARM TO RESPONDENT, I FIND RESPONDENT'S MOTION TO DISMISS TO BE WITHOUT
MERIT AND HEREBY DENY IT.
FINDING OF FACT
THE NATIONAL LABOR RELATIONS BOARD UNION IS THE EXCLUSIVE BARGAINING
AGENT OF ALL PROFESSIONAL EMPLOYEES EMPLOYED IN THE NATIONAL LABOR
RELATIONS BOARD'S REGIONAL, SUB-REGIONAL AND RESIDENT OFFICES. THE
NATIONAL LABOR RELATIONS BOARD AND THE UNION ARE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT COVERING THE AFOREMENTIONED OFFICES OF THE BOARD.
LOCAL ONE OF THE NLRB UNION IS A PARTY TO A LOCAL SUPPLEMENTARY
AGREEMENT WITH THE REGIONAL DIRECTOR OF THE NLRB'S BOSTON REGIONAL
OFFICE WHICH PROVIDES FOR THE PAYMENT OF COMPENSABLE OVERTIME SERVICES.
THE PAYMENT OF SUCH OVERTIME SERVICES MAY BE IN THE FORM OF LEAVE
CREDITS OR MONEY, TO THE EXTENT THAT FUNDS ARE AVAILABLE. THE
SUPPLEMENTARY AGREEMENT CONTAINS THE FORM WHICH THE EMPLOYEES ARE TO
USE
WHEN SUBMITTING THEIR OVERTIME CLAIMS.
ROBERT KIEL HAS BEEN A FIELD ATTORNEY WITH THE RESPONDENT SINCE 1974.
IN AUGUST OF 1978, MR. KIEL BEGAN WORKING UNDER THE SUPERVISION OF MS.
HELAINE SIMMONDS, A NEWLY APPOINTED SUPERVISOR. MR. KIEL WAS UNHAPPY
WITH BEING UNDER MS. SIMMONDS SUPERVISION FROM THE INCEPTION OF THE
RELATIONSHIP BECAUSE HE RESENTED HER "CONDESCENDING ATTITUDE" AND HER
INSISTENCE ON BEING INFORMED OF MR. KIEL'S METHOD OF OPERATION IN EACH
CASE ASSIGNED TO HIM FOR INVESTIGATION. FURTHER, ACCORDING TO MR. KIEL,
MS. SIMMONDS AND HE FOUGHT OVER LEGAL OPINIONS AND WHEN THEY DISAGREED
SHE LEFT HIM WITH THE IMPRESSION THAT SHE THOUGHT HE WAS A MORON.
IN NOVEMBER OF 1978, MR. KIEL AND MS. SIMMONDS HAD A DISCUSSION
CONCERNING AN OVERTIME VOUCHER SUBMITTED BY MR. KIEL. ACCORDING TO MR.
KIEL, THE DISCUSSION CONCERNED WHETHER OR NOT AN ATTORNEY HAD TO ASK FOR
PERMISSION TO WORK OVERTIME OR JUST INFORM THE RESPECTIVE SUPERVISOR
INVOLVED THAT HE WAS GOING TO WORK OVERTIME. MS. SIMMONDS TOOK THE
POSITION THAT THE FORMER WAS CORRECT AND MR. KIEL TOOK THE LATTER VIEW.
THE DISAGREEMENT WAS NEVER RESOLVED.
ON DECEMBER 12, 1978, MR. KIEL ALONG WITH ATTORNEY KIEVAL SUBMITTED
OVERTIME CLAIMS UNDER THE SUPPLEMENTAL AGREEMENT FOR WORK PERFORMED
TOGETHER THAT EVENING. THE CLAIMS WERE LEFT ON MS. SIMMONDS DESK. THE
NEXT MORNING, DECEMBER 13, 1978, MR. KIEL RECEIVED A TELEPHONE CALL FROM
MS. SIMMONDS WHEREIN SHE TOLD HIM THAT SHE HAD A QUESTION CONCERNING HIS
OVERTIME CLAIM AND REQUESTED THAT HE COME TO HER OFFICE TO DISCUSS SAME.
/5/ MR. KIEL WENT TO MS. SIMMONDS OFFICE AS REQUESTED AND THEY ENGAGED
IN A CONVERSATION CONCERNING HIS OVERTIME CLAIM. WHEN MS. SIMMONDS
ASKED FOR A COMPLETE BREAKDOWN WITH RESPECT TO THE WORK THAT MR. KIEL
HAD PERFORMED ON OVERTIME AND INDICATED THAT SHE INTENDED TO DEDUCT THE
TIME SPENT ON WRITING OUT THE SETTLEMENT AGREEMENT, MR. KIEL RESPONDED
THAT IT WAS A PROPER CLAIM AND THAT IF IT WAS DENIED HE WOULD FILE A
GRIEVANCE. MR. KIEL WENT ON TO SAY THAT HER STATEMENT RELATIVE TO
DEDUCTING MINUTES FROM THE OVERTIME CLAIM WAS A PERFECT EXAMPLE OF HER
CONDESCENDING AND BUREAUCRATIC TREATMENT OF HIM AND OTHER MEMBERS OF
THE
TEAM. MR. KIEL THEN ENUMERATED THE COMPLAINTS TO HIM FROM OTHER TEAM
MEMBERS ABOUT SIMILAR CONDUCT FROM MS. SIMMONDS THAT WAS UPSETTING THE
WHOLE TEAM. BOTH MR. KIEL AND MS. SIMMONDS BECAME ANGRY AND MS.
SIMMONDS STATED THAT "THESE ARE THE RULES." HE RESPONDED THAT THEY WERE
NOT THE RULES BUT ONLY HER INTERPRETATION OF THE RULES." MS. SIMMONDS
TOLD MR. KIEL THAT IF HE DID NOT LIKE THE RULES MAYBE HE SHOULD NOT BE
WORKING AT THE NLRB. MR. KIEL REPLIED, MAYBE SHE SHOULD NOT BE WORKING
AS AN NLRB SUPERVISOR BECAUSE SHE WAS NOT GOOD AT HANDLING PEOPLE. THE
CONVERSATION WENT ON FOR SOME FIFTEEN MINUTES WITH MR. KIEL SPEAKING IN
A LOUD VOICE AND POINTING OUT MS. SIMMONDS GENERAL VIOLATION OF THE
EMPLOYEES CONTRACTUAL RIGHTS, HER PAST ACTIONS IN REGARD TO HIM, HER
PAST UNREASONABLE CONDUCT, AND THE FACT THAT ALL THE OTHER TEAM MEMBERS
HAD SIMILAR COMPLAINTS. ACCORDING TO MR. KIEL, BOTH SPOKE IN LOUD
VOICES, BUT HIS VOICE WAS PROBABLY LOUDER SINCE HIS VOICE PROJECTS MORE.
THERE WAS NO PROFANITY OR THREATENING GESTURES. THE CONVERSATION ENDED
WITH MS. SIMMONDS STATING THAT THIS IS GOING TO HAVE TO BE WORKED OUT.
MR. KIEL RESPONDED BY SAYING THAT HE DID NOT SEE HOW IT COULD BE WORKED
OUT BECAUSE SHE WAS STICKING ADAMANTLY TO HER METHOD OF HANDLING THE
TEAM.
SEVERAL HOURS LATER MS. SIMMONDS SUMMONED MR. KIEL TO HER OFFICE AND
TOLD HIM THAT SHE HAD BEEN THINKING OVER THEIR EARLIER CONVERSATION AND
THAT IT WAS TOTALLY UNACCEPTABLE. SHE THEN INFORMED MR. KIEL THAT IF HE
EVER SPOKE TO HER AGAIN LIKE THAT HE WOULD BE IN SERIOUS TROUBLE. HE
REPLIED THAT SHE HAD SPOKEN TO HIM IN IDENTICAL TERMS AND THAT HE
THOUGHT IT VERY HYPOCRITICAL THAT THEY WERE BOTH WORKING FOR AN AGENCY
DESIGNED TO PROTECT EMPLOYEES RIGHTS AND HE WAS BEING THREATENED FOR
ASSERTING SAME.
RONALD LASKY HAS BEEN EMPLOYED AS AN ATTORNEY WITH THE RESPONDENT
SINCE 1977. HIS IMMEDIATE SUPERVISOR WAS MS. SIMMONDS.
MR. LASKY WAS NOT HAPPY WORKING UNDER THE SUPERVISION OF MS.
SIMMONDS AND HAD IN THE PAST UNSUCCESSFULLY ATTEMPTED TO ACHIEVE A
TRANSFER TO ANOTHER TEAM. HE RESENTED THE FACT THAT MS. SIMMONDS
CLOSELY MONITORED HIS WHEREABOUTS AND HIS WORKING HOURS. IN THIS LATTER
RESPECT, HE HAD BEEN UNABLE TO CONVINCE MS. SIMMONDS THAT THE SET HOURS
OF WORK SHOULD BE LOOSELY ADHERED TO IN VIEW OF THE FACT THAT A LOT OF
THE AGENCY'S WORK WAS PERFORMED AT HOME BY THE ATTORNEYS ON THEIR OWN
TIME.
IN EARLY OCTOBER 1978, MR. LASKY RECEIVED A VERBAL INTERIM APPRAISAL
FROM MS. SIMMONDS. BEING CONCERNED ABOUT SUCH APPRAISAL AND WHAT WAS
NECESSARY TO CURE THE DEFECTS THEREIN PRIOR TO RECEIVING HIS FINAL
WRITTEN APPRAISAL, MR. LASKY APPROACHED THE LOCAL UNION PRESIDENT,
BARBARA DEINHARDT, AND THE DISTRICT VICE-PRESIDENT OF THE NATIONAL
UNION, JOSEPH FEASTER, AND REQUESTED THAT THEY SET UP A MEETING WITH
MANAGEMENT TO DISCUSS ALL HIS PROBLEMS AND SEEK A TRANSFER FOR HIM FROM
MS. SIMMONDS' TEAM.
ON OCTOBER 12, 1978, MR. LASKY, MR. FEASTER AND MS. DEINHARDT MET
WITH MS. SIMMONDS, MR. GARNER, THE ASSISTANT TO THE REGIONAL DIRECTOR,
AND SUPERVISORY ATTORNEY JOEL GARDINER. AT THE START OF THE MEETING MS.
DEINHARDT MADE IT CLEAR THAT THE MEETING WAS NOT A NEGOTIATING OR
GRIEVANCE SESSION AND THAT THEY WERE THERE ONLY TO DISCUSS A FEW OF MR.
LASKY'S PROBLEMS, NAMELY HIS HOURS OF WORK, HOW WORK WAS TO BE PERFORMED
AND A POSSIBLE TRANSFER FROM MS. SIMMONDS TEAM.
WHILE THEY WERE DISCUSSING THE HOURS OF WORK AND THE FACT THAT OTHER
SUPERVISORS WERE MORE LIBERAL WITH RESPECT TO STARTING AND QUITTING
TIMES, MR. GARNER STATED, ACCORDING TO MR. LASKY, /6/ YOU ARE NUMBER ONE
ON THE HIT PARADE, YOU ARE NUMBER ONE IN OVERTIME IN THE OFFICE. MR.
GARNER FURTHER STATED THAT HE KEPT RECORDS ON PRODUCTIVITY AND THAT MR.
LASKY WAS NOT IN THE TOP HALF OF THE OFFICE IN PRODUCTIVITY. IN
RESPONSE TO MR. LASKY WAS NOT IN THE TOP HALF OF THE OFFICE IN
PRODUCTIVITY. IN RESPONSE TO MR. GARNER'S STATEMENT, MS. DEINHARDT
ASKED MR. GARNER IF HE WAS ALLEGING FRAUDULENT OVERTIME CLAIMS BY MR.
LASKY OR IF MR. LASKY WAS UNDER INVESTIGATION. MR. GARNER REPLIED THAT
THEY WERE NOT ALLEGING FRAUDULENT OVERTIME CLAIMS AND THAT MR. LASKY WAS
NOT UNDER INVESTIGATION, "NOT YET." MR. GARNER THEN TURNED TO MS.
SIMMONDS AND SAID "WOULDN'T IT BE FAIR TO SAY THAT IF YOU WERE WRITING
RON'S APPRAISAL TODAY, OVERTIME WOULD NOT BE A CONSIDERATION IN THAT
EVALUATION." MS. SIMMONDS REPLIED "THAT WOULD BE A FAIR STATEMENT IF WE
WERE WRITING IT TODAY." THE MEETING ENDED SHORTLY THEREAFTER.
FOLLOWING THE MEETING, MR. LASKY WENT TO MR. GARNER'S OFFICE AND TOLD
HIM THAT HE "HOPED THE AIR WAS CLEARED" AND INQUIRED IF RECORDS WERE
BEING KEPT WITH RESPECT TO PRODUCTIVITY. MR. GARNER LAUGHED AND SAID
"NO SUCH RECORDS EXIST, I MADE IT UP."
THE NEXT DAY MR. LASKY WENT TO SEE MS. DEINHARDT AND TOLD HER THAT HE
WAS CONCERNED ABOUT MR. GARNER'S REMARK THAT HE WAS CONCERNED ABOUT MR.
GARNER'S REMARK THAT HE WAS NUMBER ONE IN OVERTIME CLAIMS /7/ AND THAT
HE HAD NOT BEEN INVESTIGATED AS YET. HE ASKED MS. DEINHARDT TO SPEAK TO
MR. GARNER. MS. DEINHARDT WENT TO SEE MR. GARNER AND RELATED MR.
LASKY'S CONCERNS. MR. GARNER STATED THAT HE WAS NOT ALLEGING FRAUDULENT
OVERTIME CLAIMS AND THAT "HIS REASON FOR MAKING THE STATEMENT WAS THAT
IT WAS HIS WAY OF BEING AN ASS HOLE." /8/
DISCUSSION AND CONCLUSIONS
BOTH THE GENERAL COUNSEL AND COUNSEL FOR THE CHARGING PARTY TAKE THE
POSITION THAT THE THREAT TO MR. KIEL BY MS. SIMMONDS WAS VIOLATIVE OF
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, SINCE IT OCCURRED
AT A TIME WHEN MR. KIEL WAS ASSERTING A CONTRACTUAL RIGHT AND/OR
PRESENTING, IN HIS CAPACITY AS UNION STEWARD, THE GRIEVANCES OF HIS
FELLOW TEAM MEMBERS. IN SUPPORT OF THIS POSITION THEY CITE A NUMBER OF
CASES BY THE COURTS, THE ASSISTANT SECRETARY AND THE NLRB WHEREIN ROBUST
DEBATE AND DEROGATORY ACTIONS BY UNION REPRESENTATIVES WERE FOUND NOT TO
EXCEED THE BOUNDS OF PROPRIETY.
COUNSEL FOR THE RESPONDENT, ON THE OTHER HAND, WHILE ACKNOWLEDGING
THAT THE ASSERTION OF A CONTRACTUAL RIGHT AND/OR THE PRESENTATION OF
GRIEVANCES BY A UNION STEWARD IS PROTECTED ACTIVITY, TAKES THE POSITION
THAT THE THREAT TO MR. KIEL WAS UNRELATED TO MR. KIEL'S ACTIVITIES IN
THE AFOREMENTIONED RESPECTS, AND HENCE WAS UNPROTECTED.
AS MORE FULLY SET FORTH IN THE FACTUAL PORTION OF THE INSTANT
DECISION, THE MEETING OR DISCUSSION BETWEEN MR. SIMMONDS AND MR. KIEL
WAS NEITHER A GRIEVANCE SESSION NOR A MEETING CALLED TO DISCUSS MR.
KIEL'S RIGHT TO SUBMIT AN OVERTIME CLAIM UNDER THE SUPPLEMENTARY
AGREEMENT. THE SOLE PURPOSE OF THE MEETING INVOLVED THE VALIDITY OF MR.
KIEL'S OVERTIME CLAIM. HIS RIGHT TO FILE SUCH A CLAIM WAS NEVER IN
DISPUTE. THE ONLY THING IN DISPUTE WAS THE CORRECTNESS OF THE CLAIM.
UPON BEING INFORMED BY MS. SIMMONDS THAT, PURSUANT TO THE
RESPONSIBILITIES IMPOSED UPON HER, SHE INTENDED TO DISALLOW A PORTION OF
THE OVERTIME CLAIM IN ACCORDANCE WITH HER UNDERSTANDING OF THE
SUPPLEMENTARY AGREEMENT, MR. KIEL TOOK EXCEPTION AND PROCEEDED, WITHOUT
INVITATION, TO RECITE CHAPTER AND VERSE OF BOTH HIS AND HIS FELLOW
TEAMMATES' GRIPES ABOUT THE MANNER IN WHICH MS. SIMMONDS CHOSE TO
CONDUCT OR CARRY OUT HER DUTIES AS A TEAM SUPERVISOR. SUCH CRITICISM
WAS MADE IN A LOUD AND INSUBORDINATE MANNER.
IN VIEW OF THE CIRCUMSTANCES UNDER WHICH THE REMARKS, ETC. WERE MADE,
I.E. DISCUSSION WITH AN INDIVIDUAL EMPLOYEE CONCERNING THE VALIDITY OF
THE EMPLOYEE'S OVERTIME CLAIM, I FIND THAT MS. SIMMONDS' ADMONITION TO
MR. KIEL ABOUT THE POSSIBLE CONSEQUENCES OF A REPETITION OF HIS CONDUCT
AT THE EARLIER MEETING NOT TO BE VIOLATIVE OF SECTION 19(A)(1) OF
EXECUTIVE ORDER 11491, AS AMENDED. ALTHOUGH MR. KIEL WAS A UNION
STEWARD, HE WAS NOT APPEARING IN SUCH CAPACITY AT THE DECEMBER 13, 1978,
MEETING. HE WAS THERE SOLELY IN HIS CAPACITY AS AN EMPLOYEE TO DISCUSS
THE MERITS OF HIS OVERTIME CLAIM AND NOT THE RIGHT TO FILE SAME. THE
FACT THAT HE UNILATERALLY DECIDED TO BRING UP BOTH HIS OWN AND FELLOW
TEAM MEMBERS' GRIPES DOES NOT ALTER THIS CONCLUSION. TO HOLD OTHERWISE
WOULD ALLOW A UNION STEWARD OR ANY OTHER UNION OFFICIAL TO INSULATE
THEMSELVES FROM POSSIBLE DISCIPLINE FOR INSUBORDINATION BY MERELY
INSERTING VARIOUS COMPLAINTS ABOUT WORKING CONDITIONS INTO THEIR
DEROGATORY REMARKS UTTERED IN RESPONSE TO A SUPERVISOR'S ACTION WHICH
MET WITH THEIR PERSONAL DISPLEASURE.
HAD MS. SIMMONDS INVITED THE DISCUSSION OF THE GRIEVANCES I MIGHT
WELL REACH A DIFFERENT CONCLUSION. HOWEVER, SUCH IS NOT THE CASE.
MS. SIMMONDS WAS CARRYING OUT HER FUNCTIONS AND RESPONSIBILITIES AS A
SUPERVISOR WHEN SHE CALLED MR. KIEL IN AND INFORMED HIM THAT BASED UPON
HER INTERPRETATION OF THE SUPPLEMENTARY AGREEMENT, SHE WAS DISALLOWING A
PORTION OF HIS OVERTIME CLAIM. TO THE EXTENT THAT MR. KIEL DISAGREED
WITH HER ACTIONS OR INTERPRETATION OF THE SUPPLEMENTARY AGREEMENT, HE
WAS FREE TO FILE A GRIEVANCE THEREON. HE WAS NOT, HOWEVER, FREE TO
DISAGREE IN AN INSUBORDINATE AND DEROGATORY MANNER. AN EMPLOYEE WHO IS
ALSO A UNION OFFICIAL DOES NOT ENJOY ANY GREATER RIGHTS THAN OTHER
RANK-AND-FILE EMPLOYEES DURING HIS NORMAL DAY TO DAY WORK ACTIVITIES.
IT IS ONLY WHEN HE IS ACTING IN HIS OFFICIAL CAPACITY THAT HE IS
ENTITLED TO GREATER LATITUDE IN SPEECH AND ACTION. ACCORDINGLY, IN VIEW
OF THE FOREGOING CONSIDERATIONS, I SHALL RECOMMEND THAT THE PORTION OF
THE COMPLAINT PREDICATED UPON THE THREAT TO MR. KIEL BE DISMISSED.
WITH RESPECT TO THE ALLEGATIONS CONCERNING MR. LASKY, GENERAL COUNSEL
AND COUNSEL FOR THE CHARGING PARTY CONTEND THAT RESPONDENT VIOLATED
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, BY VIRTUE OF MR.
GARNER'S ACTION IN REPLYING "NOT YET" TO MS. DEINHARDT'S INQUIRY
CONCERNING WHETHER MR. LASKY WAS UNDER INVESTIGATION FOR FRAUDULENT
OVERTIME CLAIMS. THUS, THEY ARGUE THAT THE "NOT YET" REMARK TENDED TO
RESTRAIN AND COERCE MR. LASKY IN THE ASSERTION OF HIS CONTRACTUAL
RIGHTS.
COUNSEL FOR THE RESPONDENT TAKES THE POSITION THAT INASMUCH AS
RESPONDENT HAS A RIGHT TO INVESTIGATE OVERTIME CLAIMS, AND INDEED IS
UNDER A RESPONSIBILITY TO DO SO, THE "NOT YET" REMARK IS NOT VIOLATIVE
OF THE EXECUTIVE ORDER. ADDITIONALLY RESPONDENT TAKES THE POSITION THAT
EVEN IF THE REMARK IS CONSIDERED A THREAT, SUCH THREAT IS NOT UNLAWFUL
IN VIEW OF THE CONTEXT IN WHICH IT WAS MADE, DISCUSSION OF MR. LASKY'S
PRODUCTIVITY IN RELATION TO HIS REQUEST FOR MORE LIBERAL HOURS OF WORK.
LASTLY, RESPONDENT TAKES THE POSITION THAT THE THREAT WAS DISSIPATED BY
THE SUBSEQUENT ACTION OF MR. GARNER IN ACKNOWLEDGING THAT IT WAS A
STUPID REMARK AND THAT HE WAS NOT ALLEGING FRAUDULENT OVERTIME.
THE EXECUTIVE ORDER GIVES EMPLOYEES THE RIGHT TO JOIN, FORM AND
REPRESENT A UNION. THE ASSISTANT SECRETARY HAS INTERPRETED THE
FOREGOING TO INCLUDE THE ASSERTION OF THE BENEFITS FLOWING FROM ANY
COLLECTIVE BARGAINING AGREEMENT REACHED AS A RESULT OF SUCH ACTIVITY.
IN THIS LATTER REGARD, THREATS OR ACTIONS IN RESPONSE TO THE ASSERTION
OF CONTRACTUAL RIGHTS HAVE BEEN FOUND TO BE VIOLATIVE OF THE EXECUTIVE
ORDER. THUS, IN DEPARTMENT OF NAVY, PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON, A/SLMR NO. 582, THREATS FOR INCORRECTLY INVOKING
THE GRIEVANCE PROCEDURE IN THE COLLECTIVE BARGAINING CONTRACT WERE FOUND
TO BE A VIOLATION OF SECTION 19(A)(1). ALTHOUGH NOT CONTROLLING,
SIMILAR RESULTS HAVE BEEN REACHED IN THE PRIVATE SECTOR BY THE NATIONAL
LABOR RELATIONS BOARD. IN BUNNY BROTHERS CONSTRUCTION, 139 NLRB 1516,
THE BOARD FOUND THAT THE DISCHARGE OF AN EMPLOYEE FOR FILING A CLAIM FOR
SHOW UP TIME UNDER THE COLLECTIVE BARGAINING AGREEMENT TO BE VIOLATIVE
OF SECTION 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT. IN LANE
TRENCHING INC., 247 NLRB NO. 183, A CASE DIRECTLY IN POINT, THE BOARD
FOUND THAT A THREAT TO DISCHARGE AN EMPLOYEE IF HE CONTINUED TO FILE
OVERTIME CLAIMS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT WAS A
VIOLATION OF THE ACT. A SUBSEQUENT DISCHARGE PREDICATED UPON THE FILING
OF OVERTIME CLAIMS WAS FOUND VIOLATIVE OF SECTION 8(A)(3) OF THE ACT.
ACCORDINGLY, IN VIEW OF THE FOREGOING, THE SOLE ISSUE TO BE DECIDED
IS WHETHER OR NOT MR. GARNER'S REMARKS CONSTITUTED A THREAT TO MR. LASKY
AND THEREBY COERCED AND RESTRAINED HIM IN THE EXERCISE OF THE RIGHTS
ACCORDED TO HIM BY THE ORDER, NAMELY THE RIGHT TO FILE OVERTIME CLAIMS
UNDER THE SUPPLEMENTARY AGREEMENT. UNDER THE CIRCUMSTANCES PRESENT
HEREIN, I FIND MR. GARNER'S REMARK TO BE VIOLATIVE OF SECTION 19(A)(1)
OF THE ORDER.
IN REACHING THE ABOVE CONCLUSION, IT IS NOTED THAT MR. LASKY WAS
SEEKING, AMONG OTHER THINGS, TO REACH SOME SORT OF UNDERSTANDING WITH
HIS SUPERVISOR CONCERNING A MORE LIBERAL APPLICATION OF THE STARTING AND
QUITTING TIMES WHEN AN EMPLOYEE PERFORMED NON-COMPENSABLE OVERTIME.
SUCH NON-COMPENSABLE OVERTIME APPEARS TO BE SUBSTANTIALLY DIFFERENT FROM
THE COMPENSABLE OVERTIME COVERED BY THE SUPPLEMENTARY AGREEMENT SINCE
THE LATTER APPLIES TO OVERTIME WORK OVER WHICH THE ATTORNEY INVOLVED HAS
NO CONTROL, SUCH AS THE UNAVAILABILITY OF WITNESSES DURING NORMAL
WORKING TIME. WHILE THERE MIGHT WELL BE A CONNECTION BETWEEN PRODUCTION
AND VOLUNTARY OVERTIME, NO SUCH NEXUS IS APPARENT WITH RESPECT TO
INVOLUNTARY COMPENSABLE OVERTIME. A LOW PRODUCER MIGHT WELL HAVE BEEN
ASSIGNED CASES WHICH CONSISTENTLY INVOLVED WITNESS INTERVIEWS OR
ACTIVITIES IN CONNECTION THEREWITH WHICH COULD NOT BE PERFORMED DURING
WORKING HOURS. ACCORDINGLY, CONTRARY TO THE CONTENTION OF RESPONDENT, I
FIND THAT MR. GARNER'S COMMENTS AND/OR ACTIONS IN COUPLING MR. LASKY'S
PRODUCTION WITH HIS OVERTIME CLAIMS TO BE UNRELATED TO MR. LASKY'S
REQUEST FOR A MORE LIBERAL APPLICATION OF THE STARTING AND QUITTING
HOURS. MOREOVER, AND IN ANY EVENT, I FIND THAT THE "NOT YET" QUALIFYING
REMARK TO BE A SUPERFLUOUS COMMENT. COUPLING THE REMARK WITH THE
QUESTION PUT TO MS. SIMMONDS, I.E. WHETHER OR NOT HIS OVERTIME CLAIMS
WOULD BE CONSIDERED IF AN EVALUATION OF MR. LASKY WAS MADE "TODAY,"
INDICATES MANAGEMENT'S INTENT TO TAKE SOME FUTURE ACTION AGAINST MR.
LASKY IF HE CONTINUES TO EXERCISE THE RIGHT ACCORDED HIM UNDER THE
SUPPLEMENTARY AGREEMENT. IF AN EMPLOYEE HAS TO THINK TWICE BEFORE
PUTTING IN AN OVERTIME CLAIM IRRESPECTIVE OF THE VALIDITY OF SUCH CLAIM,
THE EMPLOYEE'S RIGHT TO FILE FOR THE CLAIM HAS BEEN INTERFERED WITH.
IN REACHING THE ABOVE CONCLUSION, I AM NOT UNMINDFUL OF THE
OBLIGATIONS IMPOSED UPON MANAGEMENT TO PROTECT U.S. TREASURY FUNDS FROM
FRAUDULENT CLAIMS AND MONITOR THEIR NEGOTIATED AGREEMENT. HOWEVER, SUCH
OBLIGATION MUST ACCOMMODATE THE EMPLOYEES RIGHTS TO FILE FOR, OR ENJOY
THE BENEFITS OF, COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED ON THEIR
BEHALF. THREATS TO INVESTIGATE A PARTICULAR EMPLOYEE FOR FRAUDULENT
CLAIMS WITHOUT ANY PRIOR BASIS THEREFORE EXCEEDS THE RIGHTS AND
RESPONSIBILITIES ACCORDED MANAGEMENT TO POLICE THE OVERTIME CLAIMS OF
ITS EMPLOYEES.
FINALLY, CONTRARY TO THE CONTENTION OF RESPONDENT, I FIND THAT A
REMEDY FOR THE THREAT TO MR. LASKY IS IN ORDER.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 19(A)(1) OF EXECUTIVE
ORDER 11491, AS AMENDED, I RECOMMEND THAT THE AUTHORITY ISSUE THE
FOLLOWING:
ORDER
PURSUANT TO SECTIONS 2400.1 AND 2400.2 OF THE RULES AND REGULATIONS
OF THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE NATIONAL LABOR RELATIONS BOARD, REGION I, BOSTON,
MASSACHUSETTS, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING, RESTRAINING OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS GUARANTEED IN SECTION 1(A) OF EXECUTIVE ORDER
11491, AS AMENDED, BY THREATENING RONALD LASKY, OR ANY OTHER EMPLOYEE
WITH A POSSIBLE INVESTIGATION FOR ASSERTING THEIR RESPECTIVE RIGHTS
UNDER THE COLLECTIVE BARGAINING AGREEMENT TO FILE CLAIMS FOR OVERTIME
COMPENSATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN
SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS BOSTON, MASSACHUSETTS OFFICE COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE REGIONAL
DIRECTOR FOR REGION I, NATIONAL LABOR RELATIONS BOARD, AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE 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 19(A)(1) ALLEGATION OF THE COMPLAINT
INVOLVING MR. ROBERT KIEL, WHICH HAS BEEN FOUND SUPRA NOT BE BE
VIOLATIVE OF THE EXECUTIVE ORDER, BE, AND HEREBY IS, DISMISSED.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: MAY 14, 1980
WASHINGTON, D.C.
APPENDIX 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 INTERFERE, RESTRAIN OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS GUARANTEED IN SECTION 1(A) OF EXECUTIVE ORDER
11491, AS AMENDED, BY THREATENING RONALD LASKY, OR ANY OTHER EMPLOYEE,
WITH A POSSIBLE INVESTIGATION FOR ASSERTING THEIR RESPECTIVE RIGHTS
UNDER THE COLLECTIVE BARGAINING AGREEMENT TO FILE CLAIMS FOR OVERTIME
COMPENSATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION
1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
(AGENCY OR ACTIVITY)
DATED: BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACE, 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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 441
STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS, AND WHOSE TELEPHONE
NUMBER IS (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978(92 STAT.1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ ALTHOUGH THE COMPLAINT ALLEGES VIOLATIONS OF EXECUTIVE ORDER
11491, AS AMENDED, IT WAS ISSUED PURSUANT TO SECTIONS 7104(F) AND 7134
OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (92 STAT.1196,
1215), IN ACCORDANCE WITH PARTS 2423 AND 2429 OF THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FR 44740) WHICH
PROVIDES THAT ALL CHARGES OF ALLEGED UNFAIR LABOR PRACTICES UNDER
SECTION 19 OF EXECUTIVE ORDER 11491, AS AMENDED, WHICH ARE FILED WITH
THE FEDERAL LABOR RELATIONS AUTHORITY ON OR AFTER JANUARY 11, 1979,
SHALL BE PROCESSED BY THE GENERAL COUNSEL OF THE AUTHORITY.
/3/ THE TRANSITION RULES AND REGULATIONS ADOPTED THE THEN EXISTING
RULES AND REGULATIONS OF THE ASSISTANT SECRETARY WITH RESPECT TO THE
TIME LIMITS FOR FILING UNFAIR LABOR PRACTICE CHARGES AND COMPLAINTS
UNDER EXECUTIVE ORDER 11491, AS AMENDED. THE ASSISTANT SECRETARY'S
RULES AND REGULATIONS PROVIDED THAT CHARGES OF UNFAIR LABOR PRACTICES
WERE TO BE FILED WITH A RESPONDENT WITHIN SIX MONTHS OF THE OCCURRENCE.
FAILING RESOLUTION, COMPLAINTS WERE TO BE FILED WITHIN SIXTY DAYS OF
RESPONDENT'S ANSWER. IN NO EVENT WERE COMPLAINTS ACTIONABLE IF FILED
OVER NINE MONTHS AFTER THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR
PRACTICE.
/4/ AS NOTED ABOVE, THE FORMAL COMPLAINT WAS FILED WITH THE AUTHORITY
ON APRIL 18, 1979, LESS THAN SIXTY DAYS AFTER SERVICE ON THE RESPONDENT
AND/OR LESS THAN NINE MONTHS FROM THE OCCURRENCE OF THE ALLEGED UNFAIR
LABOR PRACTICE.
/5/ ACCORDING TO MR. KIEL'S RECOLLECTION, THIS WAS THE FIRST
CONVERSATION THAT HE HAD WITH MS. SIMMONDS ON DECEMBER 13, 1978. MS.
SIMMONDS CLAIMS THAT SHE HAD SPOKEN TO MR. KIEL EARLIER IN THE DAY AND
INFORMED HIM THAT SHE FELT THAT CERTAIN PARTS OF HIS CLAIM WERE
NON-COMPENSABLE AND THAT SHE WOULD CHECK WITH OTHER MANAGEMENT
OFFICIALS
WITH RESPECT TO HER INTERPRETATION. ACCORDING TO MS. SIMMONDS, HE
BECAME "TESTY" AND SAID "WELL JUST DENY THE WHOLE THING."
/6/ MS. DEINHARDT, THE ONLY OTHER WITNESS TO TESTIFY WITH RESPECT TO
THE OCTOBER 12, 1978 MEETING, CORROBORATED MR. LASKY'S TESTIMONY ON
VIRTUALLY ALL THE PERTINENT ISSUES.
/7/ THE RECORD INDICATES THAT MR. LASKY WAS THE FOURTH HIGHEST IN
OVERTIME CLAIMS.
/8/ MS. DEINHARDT, THE ONLY OTHER WITNESS TO TESTIFY WITH RESPECT TO
THE OCTOBER 18, 1978, MEETING, CORROBORATED MR. LASKY'S TESTIMONY WITH
RESPECT TO THE "NOT YET" REMARK AND THE SUBSEQUENT EVENTS. MS.
DEINHARDT'S RECOLLECTION OF THE CONVERSATION LEADING UP TO THE "NOT YET"
REMARK IS AS FOLLOWS: "MR. GARNER STATED WITH REGARD TO MR. LASKY'S
WISH FOR LOOSE HOURS OF WORK AND YOU WERE DOING A WHOLE LOT OF WORK
WELL, IF YOU WERE DOING SO MUCH WORK, WE COULD UNDERSTAND MORE THAT YOU
NEEDED OR COULD TAKE TIME OFF. BUT HERE YOU ARE SO HIGH ON THE
OVERTIME, YOU HAVE SO MANY OVERTIME HOURS, AND YET YOUR PRODUCTIVITY
DOES NOT REALLY REFLECT THAT MUCH OVERTIME. SO WE ARE RELUCTANT TO GIVE
YOU EVEN MORE TIME." MS. DEINHARDT THEN ASKED IF THEY WERE ALLEGING
FRAUDULENT OVERTIME CLAIMS.