10:0422(72)CA - Consumer Product Safety Commission, NY and AFGE Local 3477 -- 1982 FLRAdec CA
[ v10 p422 ]
10:0422(72)CA
The decision of the Authority follows:
10 FLRA No. 72
CONSUMER PRODUCT SAFETY
COMMISSION, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3477
Charging Party
Case No. 2-CA-294
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision 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 actions. 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 exceptions to the portion of the
Judge's Decision discussed below.
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 in this case, the Authority
hereby adopts the Judge's findings, conclusions and recommendations.
The complaint alleged that the Respondent violated section 7116(a)(1)
of the Statute by its actions in issuing to employee (and also Union
President) Louis L. Abramsky two communications which the General
Counsel contends were threatening in nature and interfered with rights
guaranteed under the Statute. The first of the two ("the Moore memo")
ostensibly was a demand by Respondent's Director, Division of Personnel
Management, Roland H. Moore, that Abramsky adhere to the terms of an
agreement between Abramsky and the Respondent reached in January 1979 in
settlement of a dispute relating to the withholding of a within-grade
increase from Abramsky and a disciplinary action taken against him.
Essentially, Abramsky had agreed to withdraw several pending actions and
to institute no further actions on the letters involved in the dispute.
Moore's memo, dated September 7, 1979, demanded that Abramsky withdraw
several actions, including an unfair labor practice charge, which
allegedly amounted to reinstitution of the actions which Abramsky had
agreed in January to withdraw. Moore further indicated he would take
"whatever legal steps are necessary to enforce the Agreement." The Judge
found that Moore's memo, in essence, sought only to enforce a commitment
made by Abramsky and did not otherwise attempt to proscribe his
utilization of processes available under the Statute. Accordingly, he
concluded that the Respondent did not violate the Statute as a result of
the Moore memo.
The General Counsel contends, in its exceptions, that the Judge has
mischaracterized the unfair labor practice charge which Moore demanded
be withdrawn. The General Counsel contends that the charge was not
merely an attempt to revive the dispute which Abramsky had previously
agreed to settle but, instead, challenged the validity of the settlement
itself which Abramsky alleged had been obtained by coercive means. As
the General Counsel acknowledges this intended challenge to the
settlement was not "readily apparent from the fact of the charge." /1A/
Additionally, Abramsky had instituted several other actions which the
Respondent viewed as an attempt to revive the dispute it believed had
been settled. Noting particularly that the memo is limited to a demand
that Abramsky abide by the terms of the January agreement and makes no
mention of precluding any challenge to the validity of that agreement
and given the context, the Authority views the Moore memo as being
non-coercive in nature. Under these circumstances, and absent any
evidence that the Respondent, through the Moore memo, sought to
accomplish anything other than enforcement of the January 1979
settlement agreement, the Authority finds, in agreement with the Judge,
that the Respondent's actions with respect to the Moore memo did not
violate the Statute.
Further, noting particularly the absence of exceptions, the Authority
additionally hereby adopts that part of the Judge's conclusion finding
that Respondent by its letter of January 15, 1980, which in effect
warned employees that they would be subject to discipline if they
resorted to, or invoked procedures protected under the Federal Service
Labor-Management Relations Statute, violated section 7116(a)(1) of the
Statute. See, e.g., United States Department of Treasury, Bureau of
Alcohol, Tobacco, and Firearms, Chicago, Illinois, 3 FLRA 723 (1980) and
Federal Election Commission, 6 FLRA No. 59 (1981).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Consumer Product Safety Commission, New York
shall:
(1) Cease and desist from:
(a) Warning employees that they will be subject to discipline
if they resort to, or invoke, procedures protected under the
Federal Service Labor-Management Relations Statute.
(b) 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 and expunge from its files any reference to the
January 15, 1980 warning letter issued to Louis Abramsky and
submit to Louis Abramsky a written acknowledgement of same.
(b) Post at its facilities at the Consumer Product Safety
Commission, New York, 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 the Director of the
Consumer Product Safety Commission, or his designee, and posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other 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.
(c) Notify the Regional Director, Region II, 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 complaint, insofar as it alleges a
violation as a consequence of issuance of the Moore memo, be, and it
hereby is, dismissed.
Issued, Washington, D.C., October 29, 1982
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, 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 warn employees that they will be subject to discipline if
they resort to, or invoke, procedures protected under the Federal
Service Labor-Management Relations Statute.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL remove and expunge from our files any reference to the
January 15, 1980 warning letter issued to Louis Abramsky and submit to
Louis Abramsky a written acknowledgment of same.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region II, whose
address is: 26 Federal Plaza, Room 241, New York, New York 10278, and
whose telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Ronald E. Deutsch, Esq.
Gary Cheetam
For the Respondent
Allan W. Stadtmauer, Esq.
Steven Sharfstein, Esq.
For the General Counsel
Louis Abramsky
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding which arose under the Federal Service
Labor-Management Relations Statute (herein called the Act). Pursuant to
a Complaint and Notice of Hearing issued on May 30, 1980 by the Regional
Director, Federal Labor Relations Authority, New York, N.Y., a hearing
was held before the undersigned on October 7, 1980 at New York, N.Y.
The Complaint herein was based on a second amended charge filed on
May 22, 1980 by American Federation of Government Employees, Local 3477
(herein called the Union) against Consumer Product Safety Commission
(herein called the Respondent). It alleged, in substance, that
Respondent violated Section 7116(a)(1) of the Act by: (a) issuing a
memorandum on September 7, 1979 to employee Louis L. Abramsky
threatening reprisal unless the employee withdrew an unfair labor
practice charge; (b) issuing a letter on January 15, 1980 to employee
Louis L. Abramsky threatening him with disciplinary action if he
challenged a proposed suspension by means other than specified channels.
Respondent filed an answer to the complaint, dated June 11, 1980,
wherein it denied the commission of any unfair labor practices.
All parties were represented at the hearing. They were afforded full
opportunity to be heard, to adduce evidence and to examine as well as
cross-examine witnesses. Thereafter briefs /1/ were filed with the
undersigned which have been duly considered.
Upon the entire record in this case, from my observation of the
witnesses, and their demeanor, and from all of the testimony and
evidence adduced at the hearing, I make the following findings and
conclusions:
1. At all times material herein the Union has been, and still is,
the collective bargaining representative of Respondent's professional
and non-professional employees at its New York Area office.
2. In July, 1978 Respondent denied a within grade increase in salary
to Louis L. Abramsky, an employee-investigator who is also president of
the Union herein.
3. As a result of an incident between Abramsky and Gilbert Rodin,
Respondent's Director of Operations, which occurred on September 18,
1978, a three-day suspension was thereafter given to Abramsky.
4. Between July, 1978 and January 30, 1979 Abramsky filed several
grievances and unfair labor practice charges pertaining to the
aforementioned actions by Respondent directed against him. In
connection therewith he made a written request on November 28, 1978 for
data under the Freedom of Information Act.
5. On January 30, 1979 Respondent and Abramsky /2/ executed a
written agreement in an effort to resolve the pending disputes between
them. The Respondent, on its part, agreed to reduce the aforesaid
suspension to a written reprimand, and to grant Abramsky a within grade
increase no later than February 25, 1979. Abramsky, on his part, agreed
to withdraw, settle, or conclude (a) certain specified grievances
therefore filed by him, (b) appeals regarding his denial of the
within-grade increase, and (c) his requests under the Freedom of
Information Act. He also agreed not to file any administrative actions,
including unfair labor practice charges arising out of the September 18,
1978 incident and the withholding of his within-grade increase.
6. On February 7, 1979 Executive Director Michael A. Brown wrote
Abramsky that, in accordance with the January 30 agreement, the three
day suspension previously given the employee was reduced to a letter of
reprimand. The letter by Brown was, by its language, to serve as an
official reprimand for Abramsky's discourteous conduct toward Supervisor
Gilbert Rodin as well as for his failure to obey supervisory orders.
Further, it was stated that the letter would remain in Abramsky's
personnel file for one year.
7. On February 14, 1979 Respondent authorized in writing the
within-grade increase to Abramsky, effective on February 25, 1979, as
well as the cancellation of the three day suspension of the employee.
8. Subsequently, on July 19, 1979 Abramsky made a written request,
under the Freedom of Information Act, for data used by Respondent in
denying him a within-grade increase. Management replied by letter dated
August 2 wherein it informed Abramsky that he had agreed not to file any
actions or suits arising out of the denial of his within-grade increase
and the September 18, 1978 incident; that the employee entered into a
written agreement to that effect on January 30, 1978; and that
Respondent intended to enforce said agreement.
9. On August 7, 1979 Abramsky, as union president, filed an unfair
labor practice charge (2-CA-98) against Respondent alleging a violation
of Section 19(a)(2) and (4) of Executive Order 11491, as amended. It
was averred therein that on January 30, 1979 Buchanan informed Abramsky
he would be given a within-grade increase plus three days back pay if he
dropped a grievance, as well as all possible unfair labor practice
charges stemming from an assault upon him; that if he didn't drop the
charges and grievances he would not receive such benefits. /3/
10. Under date of September 7, 1979 Respondent's Director, Division
of Personnel Management, Roland H. Moore sent a memorandum to Abramsky
regarding his requests for information under the Privacy Act, which
related to the reprimand given him and the withholding of his
within-grade increase. In this letter it was stated that Abramsky had
agreed, under the January 30, 1979 agreement, not to pursue the
within-grade increase and reprimand controversies; that management in
return agreed to reduce the suspension and authorize the increase.
Further, the employer recited that Abramsky violated the said agreement
by filing an appeal to the Merit System Protection Board based on
withholding the increase, by filing an unfair labor practice charge
regarding this matter, and by requesting information under the Privacy
Act concerning this issue. Respondent stated in the memo that it
expected Abramsky to honor the agreement by withdrawing the
aforementioned appeal, unfair labor practice charges, and requests under
the Privacy Act; that if he failed to do so, Respondent would take
whatever legal steps were necessary to enforce the agreement.
11. Under date of January 15, 1980 Respondent's Director, Richard D.
Swackhammer, wrote Abramsky that management proposed to suspend the
employee without pay for 30 days. The proposed suspension was, as
stated, based upon (a)insubordination by Abramsky on October 26, 1979
resulting from his failure to follow orders of his supervisor and
initiate assigned inspection duties, (b) dishonesty and untruthfulness
in regard to statements made by him on October 25, 1979. The Director
informed Abramsky of his right to file answer to the proposed
suspension, and the employee was advised he could contact Daryl Stevens,
Division of Personnel Management regarding any questions as to his
procedural rights.
The final statement in the aforesaid letter apprised Abramsky that he
was expected to follow only those procedures as outlined and as set
forth in 5 CFR 752.301. Any deviation from said procedure, Swackhammer
stated, would not be acceptable and might be grounds for further
disciplinary action.
Conclusions
The issue presented for determination is simply stated: Whether the
written communications from Respondent to Abramsky, on September 7, 1979
and January 15, 1980 respectively, constituted a violation of Section
7116(a)(1) of the Act.
(a) In respect to the memorandum of September 7, 1979 (herein called
the Moore memo), General Counsel contends that it constitutes a threat
to invoke legal action if the individual did not withdraw his unfair
labor practice charge of August 7, 1979. As such, it is argued, the
memo interferes with employee rights and violates Section 7116(a)(1) of
the Act.
In support of its contention General Counsel cited cases in both the
private and public sectors wherein an employer was found to have engaged
in interfered by acts which hindered the assertion of employee rights.
Thus, in Mandel Security Bureau, Inc. 202 NLRB 117, an employer, who had
engaged in protected concerted activity, was transferred by the employer
to a different project. Thereafter he filed an unfair labor practice
charge with the National Labor Relations Board alleging that the
transfer was discriminatory. The employer offered to return the
individual to his former site provided the employee would "cease his
concerted activity, withdraw the charges . . . and refrain from future
charges". It was held that, by the imposition of such condition, the
employer engaged in acts of interference in violation of the National
Labor Relations Act. Likewise in the public sector the employer was
found to have violated Section 19(a)(1) of Executive Order 11491, as
amended, by threatening to discipline an employees who invoke the
grievance procedure improperly. Department of the Navy, Puget Sound
Naval Shipyard, Bremerton, Washington A/SLMR No. 582.
Although the General Counsel advances a seemingly tenable argument in
support of its position, I am persuaded that the cited cases are
distinguishable from the one at hand. In the Mandel case, supra, the
conditions imposed by the employer involved not only a cessation by the
employer of protected concerted activity and the withdrawal of charges,
but also a commitment by the employee not to file any future charges.
The Moore memo, by its language, was concerned with the charge filed the
previous month. It dealt solely with the commitment by Abramsky to
abide by the agreement made with management on January 15, 1979, viz.
the employer to grant the within-grade increase and reduce a
disciplinary action in return for the individual's promise not to file a
charge with respect to those matters. The memo does not purport to
outlaw the filing of any unfair labor practices in the future arising
out of other disputes between the parties. Neither does it state, as in
the Mandel case, that the employee must cease from engaging in all
protected concerted activities. The broad proscription in the cited
case makes the holding, in my opinion, inapplicable to the case at bar.
Moreover, the Puget Sound Naval Shipyard case, supra, involves a threat
in regard to the use of the grievance process by employees. As such,
the remarks clearly interfere with rights assured under the Order, and
they are neither restrictive nor pegged to a specific agreement on the
part of the employee.
The distinction between the broad limitation laid down by the
employer in the Mandel case and the inspection of a more limited
condition was recognized by the National Labor Relations Board in U.S.
Postal Service, 234 NLRB No. 116. In the latter case the employer
reduced a disciplinary action from discharge to suspension conditioned
upon the employer's promise not to grieve or appeal the suspension
before various agencies. The General Counsel contended that Section 7
of the Act protected the rights of employees to use the processes of
such agencies when protesting actions by management. The Board
distinguished the Mandel case and acknowledged that the employee could
bind himself not to overturn settlement of the dispute with the
employer. Further, the condition laid down by the employer did not
preclude the individual from filing charges or appeals in respect to any
future matters.
Respondent argues that, by the term of the January 30, 1979
agreement, Abramsky waived his right to file a charge regarding the two
matters which were the subject of the instrument. It insists that the
Moore memo reflected an intention to enforce that commitment, and not to
prescribe the utilization of the Act's protective processes as to other
disputes. I agree. It is true that a waiver of an existent right under
the Act should be clear and unmistakable. /4/ I am convinced Abramsky
manifested clearly that he would accept the benefits from management and
thereby "settle" the dispute between them. As such, the commitment, on
his part, not to file a charge or grievance with respect to the disputed
issues which were resolved constitutes a clearly expressed waiver in
that regard. Further, I am in accord with Respondent's contention that
the January 30, 1979 agreement comports with the attempt, in the public
sector, to encourage parties to resolve disputes before filing charges
under the Act. See Section 2423.2(a) of the Rules and Regulations.
Accordingly, and for reasons expressed hereinabove, I am constrained
to conclude that the Moore memo of September 7, 1979 did not constitute
interference, restraint, or coercion under Section 7116(a)(1) of the
Act. Therefore, I shall dismiss that portion of the complaint which
involves an obligation in that regard.
(b) In respect to the letter of January 15, 1980 (Swackhammer letter)
directed to Abramsky, Respondent maintains that no attempt was made
therein to inform Abramsky of his rights, remind him of the established
negotiated procedure under the collective bargaining agreement, and to
remind the employee to follow established legal procedures for adverse
action under 5 CFR 752.
While the foregoing intentions may have motivated the Swackhammer
communication, it is clear that the language contained therein was not
so limited. Thus, while Respondent informed Abramsky he could file an
answer to management's proposed suspension, he was expected to follow
only certain procedures in the event he contested the employer's
disciplinary action. Such procedures were restricted to those set forth
for adverse actions in the code. As set forth in the Swackhammer
letter, Abramsky would be subject to further discipline should he invoke
any other procedure to obtain redress for management's action in
suspending him for 30 days.
The broad proscription set forth in the aforesaid letter would
apparently render unacceptable the filing of an unfair labor practice
charge against management. Such a filing is not one of the established
procedures to correct adverse actions under 5 CFR 752, and thus would
not be acceptable to management. Moreover, the cited Section of the
Code limits the filing of grievances to those established under an
administrative agency grievance procedure. This particular grievance
procedure, with its exceptions and limitations as set forth in 5 CFR 752
et seq., does not afford a bargaining unit employee the same rights to
which he is entitled under the Act in respect to filing contract
grievances. An employer may not, under threat of retaliation, foreclose
or preclude an employee from filing a grievance under a negotiated
grievance procedure. See Federal Aviation Administration, Air Traffic
Control Tower, Greater Pittsburgh Airport, Pittsburgh, Pa., A/SLMR No.
90. In the cited case the employer informed the employee it would take
a strict interpretation of a disputed grievance which he had filed. The
Assistant Secretary held this statement had the effect of interfering
with, restraining and coercing the individual in the exercise of his
right under the Executive Order, including the right to invoke the
negotiated grievance machinery.
In my view an employee must feel free to file an unfair labor
practice charge, or resort to the negotiated grievance procedure, when
he deems action by management to be inimical to his interests. An
employee may neither impede the employee in seeking redress, nor may it
warn him that unfavorable consequences will ensue if he pursues his
rights under the Act. Thus, management may not threaten to, or impose,
discipline in the event an employee files an unfair labor practice
charge against it. Airway Facilities Field Office, Federal Aviation
Administration, St. Petersburg, Fla., A/SLMR No. 776. In the case at
bar I am persuaded that the Swackhammer letter, by warning Abramsky that
if he sought redress for the discipline imposed by Respondent through
any channels other than those prescribed in 5 CFR 752, was violative of
the Act. It constituted a threat by management in the event he pursued
such other procedures, and the latter could well include invoking his
rights under the Act herein. Accordingly, I find that by issuing said
letter Respondent has interfered with, restrained and coerced its
employees in violation of Section 7116(a)(1) of the Act.
Having found that Respondent violated Section 7116(a)(1) of the Act
by virtue of the letter it sent to Louis Abramsky on January 15, 1980, I
recommend the Authority issue the following order.
ORDER
Pursuant to Section 7118(e) of the Federal Labor-Management Relations
Statute and Section 2423.29 of the Rules and Regulations, it is hereby
ordered that the Consumer Product Safety Commission shall:
1. Cease and desist from:
(a) Warning employees that they will be subject to discipline
if they resort to, or invoke, procedures protected under the
Federal Service Labor-Management Relations Statute in order to
redress any action directed against them by management.
(b) 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
policies of the Federal Service Labor-Management Relations Statute:
(a) Remove and expunge any reference to the January 15, 1980
warning letter issued to Louis Abramsky from its files and submit
to Louis Abramsky a written acknowledgement of same.
(b) Post at its facilities at Consumer Product Safety
Commission, New York, N.Y., 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 Director of Consumer Product Safety Commission, and shall be
posted and maintained by him for 60 consecutive days thereafter in
conspicuous places where notice 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.
(c) Notify the Federal Labor Relations Authority in writing,
within 30 days from the date of this order, what steps have been
taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: January 26, 1981
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 FEDERAL
SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT warn employees that they will be subject to discipline if
they resort to, or invoke, procedures protected under the Federal
Service Labor-Management Relations Statute.
WE WILL NOT, in any like or related manner, interfere with, restrain
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL remove and expunge any reference to the January 16, 1980
warning letter issued to Louis Abramsky from its files and submit to
Louis Abramsky a written acknowledgement of same.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 2, whose
address is: 26 Federal Plaza, Room 241, New York, New York 10278.
/1A/ The charge in question stated the "Basis of Complaint" as
follows:
On January 30, 1979, the U.S. Consumer Product Safety
Commission (CPSC) by its agent and representative, Roger Buchanan,
Chief, Labor Relations Branch, CPSC, informed Louis L. Abramsky,
President, American Federation of Government Employees, AFL-CIO,
Local 3477, that CPSC will give Louis L. Abramsky, President a
within-grade salary increase plus three (3) days of back pay, if
Louis L. Abramsky, President drops a grievance filed under the
Union Contract and any possible Unfair Labor Practice charges in
connection with an assault and battery inflicted on the President
by the Director of Operations, New York Area Office, CPSC. The
President was also told that if he does not drop these said
charges (grievance under the Union Contract and possible Unfair
Labor Practice charges), he will not receive a within-grade
increase and three days of back pay.
The President is also an employee of the U.S. Consumer Product
Safety Commission.
Note: Mr. Buchanan followed the orders of the Executive
Director and possibly other officials within the U.S. Consumer
Product Safety Commission.
--------------- FOOTNOTES$ ---------------
/1/ In the brief Respondent contends that, while paragraph 7 of the
Complaint was based on an allegation in the second amended charge, the
Respondent did not receive that charge until one day before the
complaint was received. Thus it argues the employer was not afforded an
opportunity to reply to said charge. Since the Authority's own Rules
and Regulations (2423.7) was not followed, it is moved that, at least,
paragraph 7 of the complaint be dismissed. Motion is denied. Apart
from the fact that I do not deem it within my province to pass upon the
propriety of the regional investigation, the matter was fully litigated
at the hearing. Note is taken of a recent decision in the private
sector Newport News Shipbuilding and Dry Dock Co., et al. v. NLRB et al.
80-1342 (October 9, 1980). The 4th Circuit ruled that it could not
interfere with the Board's investigation of a case unless its action was
arbitrary. I do not view the actions of the regional office to have
been arbitrary. Moreover, paragraph 7 of the complaint is supported by
an allegation to the same effect in the second amended charge. Thus
DHEW, SSA, 1 FLRA No. 37 is inapposite.
/2/ The agreement was entered into with Abramsky as
employee-investigator and as President of the Union.
/3/ The charge was dismissed on February 13, 1980 as being untimely
filed.
/4/ NASA Kennedy Space Center, Florida, A/SLMR No. 223.