[ v11 p290 ]
11:0290(64)CA
The decision of the Authority follows:
11 FLRA No. 64
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
LOUISVILLE DISTRICT
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-882
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had violated
section 7116(a)(1) of the Federal Service Labor-Management Relations
Statute (the Statute) and recommending that it cease and desist
therefrom and take certain affirmative actions. Thereafter, the
Respondent filed exceptions to the Judge's Decision. /1A/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendation.
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 Department of the Treasury, Internal
Revenue Service, Louisville District shall:
1. Cease and desist from:
(a) Orally reprimanding Scott Hester, or any other steward of the
National Treasury Employees Union, the exclusive bargaining
representative of its employees, because the steward, on behalf of an
employee, contacted the personnel officer and asked questions concerning
established personnel policies and practices and other matters relating
to conditions of employment.
(b) Making any other statement or comment which interferes with,
restrains, or coerces Scott Hester or any other employee in the exercise
of the right accorded him by the Federal Service Labor-Management
Relations Statute to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the views of
the labor organization to appropriate authorities.
(c) 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) Post at its facilities 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 District Director, or his
designee, and shall be 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
District Director shall take reasonable steps 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 IV, 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.
Issued, Washington, D.C., February 10, 1983
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 orally reprimand Scott Hester, or any other steward of
the National Treasury Employees Union, the exclusive bargaining
representative of our employees, because the steward, on behalf of an
employee, contacted the personnel officer and asked questions concerning
established personnel policies and practices and other matters relating
to conditions of employment.
WE WILL NOT make any other statement or comment which interferes
with, restrains, or coerces Scott Hester or any other employee in the
exercise of the right accorded him by the Federal Service
Labor-Management Relations Statute to act for a labor organization in
the capacity of a representative and the right, in that capacity, to
present the views of the labor organization to appropriate authorities.
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
Statute.
(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 for the Federal Labor Relations Authority whose address is:
Suite 501, North Wing, 1776 Peachtree Street, N.W., Atlanta, Georgia
30309 and whose telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
George T. Bell, Esquire
For the Respondent
Barbara S. Liggett, Esquire
For the General Counsel, FLRA
Timothy C. Welsh, Esquire
For the Charging Party
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Four, Federal Labor Relations Authority,
Atlanta, Georgia, against the Department of the Treasury, Internal
Revenue Service, Louisville District (Respondent). The complaint
alleged, in substance, that Respondent violated section 7116(a)(1) of
the Federal Service Labor-Management Relations Statute (5 U.S.C. 7101 et
seq.) (the Statute) on or about March 18, 1981 when Richard Pooley,
Chief, Collection Division, reprimanded a unit employee and union
steward, Scott Hester, because he engaged in activities on behalf of a
unit employee in connection with the unit employee's dealings with
Respondent. Respondent's answer denied this allegation.
A hearing was held in Louisville, Kentucky. The Respondent, General
Counsel, and Charging Party were represented by counsel and afforded
full opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Based on the
entire record herein, including my observation of the witnesses and
their demeanor, the exhibits and other relevant evidence adduced at the
hearing, and the briefs, I make the following findings of fact,
conclusions of law, and recommendations.
Findings of Fact
The National Treasury Employees Union (Charging Party or the Union)
is the exclusive representative of an appropriate unit of Respondent's
employees. The Union and Respondent are parties to a collective
bargaining agreement which became effective on January 26, 1981.
(General Counsel's Ex. 2; Tr. 18, 80-81).
On March 16, 1981, Sharon Robinson, a group clerk at Respondent's
Owensboro, Kentucky post of duty, came to Scott Hester, a revenue
officer and Union steward, with a problem and a question. Robinson had
been notified of her selection for the position of revenue
representative in Respondent's Hopkinsville, Kentucky post of duty. She
had to let management know that day whether or not she would accept the
position, because a training class would start very soon. She told
Hester that it would be very difficult for her to accept the position
and move to Hopkinsville because of personal reasons, but before
declining the position, she would like to first propose that management
move the position to Owensboro. Before making this proposal to
management, she wanted to know from Hester what the procedures would be
in moving the position and whether this was something which management
could do legally. She did not want to ask for something that management
could not accomplish in any event.
Hester told Robinson that one way management could move the position
to Owensboro would be not filing it in Hopkinsville and reannouncing the
position for Owensboro. However, he said he didn't know whether there
were some other possibilities available, and would telephone Murray
Torrance, Chief of Personnel, in Louisville to find out what
possibilities existed under the rules.
At the time of this conversation, Hester served as the Union steward
for bargaining unit employees in Owensboro, Paducah, Hopkinsville,
Bowling Green, and Elizabethtown. On a number of occasions in the past
he had discussed various problems in person and by telephone with Murray
Torrance, Chief of Personnel, concerning proper procedures under the
personnel regulations and the collective bargaining agreement. Torrance
is responsible for Respondent's administration of the agreement and
provides advice and assistance to division chiefs on labor relations
matters. Torrance had never discouraged Hester's contacts. (Tr. 18-19,
22-25, 74).
Hester telephoned Torrance, explained the situation to him, and noted
that Ms. Robinson had not yet discussed with management her proposal for
moving the position. He advised Torrance that he just wanted to know
what the rules and regulations provided, and whether, if management
could be persuaded to transfer the position from Hopkinsville to
Owensboro, there was a way to do this and still allow Robinson to meet
the deadline for the training class. Torrance stated at the outset that
the proper approach would be for Robinson to go to her supervisor with
the proposal. He added that, if management chose to move the position,
the proper way would be to make no selection for the position in
Hopkinsville and reannounce it in Owensboro. Torrance said that another
possibility, which might be explored, would be for management to go
ahead and select Robinson for the position in Hopkinsville, and before
expiration of the period during which Robinson was required to move to
the new post of duty, possibly her personal situation would change so
that she could make the move, or she could possibly then be transferred
from Hopkinsville to Owensboro. At no time during the telephone call on
March 15, 1981 did Hester ask Torrance to use his influence to get the
revenue representative position moved to Owensboro from Hopkinsville.
The conversation between Hester and Torrance lasted five to ten minutes
and was congenial as always. (Tr. 23-24, 48).
After concluding the telephone call to Torrance, Hester told Robinson
what Torrance had said. /1/ Hester had no further conversations with
anyone concerning Robinson's situation until March 18, 1981. (Tr. 25).
On March 18, 1981, personnel officer Torrance mentioned to Richard
Pooley, Chief Collections Division and Hester's third-line supervisor in
Louisville, that Hester had telephoned him. Pooley understood that
Hester had identified himself as a Union steward, had asked Torrance
some questions, and was "seeing what he could do to get the position
moved to Owensboro." (Tr. 56, 63). Hester had previously expressed to
Pooley his personal desire that the position of revenue representative
be placed in Owensboro so that he, as a revenue officer, could be
relieved of some of the routine and less difficult duties. Other
revenue officers had also expressed this opinion. Upon hearing of
Hester's telephone call to Torrance, Pooley became upset, because he
felt that Hester was interfering with his decision concerning the
placement of positions in the division. (Tr. 59).
Shortly thereafter, Pooley telephoned Hester. Pooley asked Hester to
look at Article 5 of the collective bargaining agreement. /2/ Pooley
stated that he understood Hester had been in contact with the personnel
office to get the position transferred to Owensboro. Pooley said, "I am
mad as hell. I reckon I am just pissed off at you. That is my
business. I decide where positions go in the Division, and I spent a
lot of time and effort, and it bugs me." Pooley stated that the
selection and placement of personnel positions is solely management's
prerogative and that Hester was "way out of line" in his involvement in
the selection of the revenue representative. Hester responded that
there was obviously some misunderstanding, because his only action had
been to call Torrance and inquire about the rules and regulations.
Pooley stated that Hester was out of line for even asking; that it was
improper for Hester to have called Torrance in this set of
circumstances; that he was considering filing an unfair labor practice
charge against Hester and also discussing the matter with the Union
chapter president. Hester reiterated his view concerning the need for
the position in Owensboro and Robinson's problems. Pooley responded,
"Even so, Scott, you know, in whatever capacity (you called Torrance),
to me you were way out of line. It really disturbed me." Pooley stated
That robinson should have called her group leader if she had any
questions, Hester had needlessly raised Robinson's hopes, and had done
her a disfavor. Pooley stated, "Scott, you know, very often you stick
your nose into things and cause troubles without knowing all the facts
and everything. Damn it, it looks like you have done it again." Hester
replied that he was sorry about any problems he might have caused and
would make it a point to find out exactly what his rights and
responsibilities were as a steward. (Tr. 25-28, 41-43, 62-66).
The conversation lasted from three to five minutes. (Tr. 28, 65).
Pooley's tone was abrupt, curt, and angry, but became less severe toward
the end of the conversation. (Tr.28, 42) Hester advised his group
manager and the Union's chief steward of his conversation with Pooley.
(Tr. 29-30).
Pooley and Hester had previously had personal, candid discussions in
business and social meetings. Such discussions, however, did not
involve Union matters. Twice in 1979 Hester advised Pooley that he
would appreciate it if Pooley would speak to him directly about any
problems with his work or behavior rather than having Pooley's concerns
come down through the chain of command. (Tr. 68-71). In a third
situation in 1980, again before Hester was a Union steward, Hester
requested a candid discussion with Pooley about his work problems, and
they held such an open and frank discussion. (Tr. 67-68, 71-71).
Discussion and Conclusions
The General Counsel and Charging Party contend that Union steward
Hester was engaged in protected activity when he telephoned Respondent's
personnel officer on behalf of a unit employee and that Respondent,
through Mr. Pooley, violated section 7116(a)(1) of the Statute by orally
reprimanding Hester because he had engaged in such protected activity.
Respondent defends on the basis that Union steward Hester was not
engaged in protected activity when he contacted the agency's personnel
officer; that the agency had no obligation to provide him technical
advice on the proper procedures for moving a position; that Hester's
action was an attempt to interfere with the managerial prerogative of
determining where to locate a position; that management officials have
the right under the Statute to express their opinions; and that Mr.
Pooley's telephone conversation did not tend to coerce Mr. Hester in the
exercise of protected rights in view of the nature of the conversation,
the circumstances, and the prior open relationship between Mr. Pooley
and Mr. Hester.
Section 7116(a)(1) of the Statute provides that it shall be an unfair
labor practice for an agency to interfere with, restrain, or coerce any
employee in the exercise of any right provided by the Statute.
Consistent with the findings and purpose of Congress as set forth in
section 7101, section 7102 of the Statute sets forth certain employee
rights including the right to form, join, or assist any labor
organization freely and without fear of penalty or reprisal and that
each employee shall be protected in the exercise of such right. Such
right includes the right to act for a labor organization in the capacity
of a representative and the right, in that capacity, to present the
views of the labor organization to heads of agencies and to engage in
collective bargaining with respect to conditions of employment through
representatives chosen by employees. The exclusive representative,
pursuant to section 7114(a)(1), "is entitled to act for, and negotiate
collective bargaining agreements covering all employees in the unit."
The right of the exclusive representative to act for all unit employees
also includes the right, pursuant to section 7121(b)(3), to present and
process grievances on its own behalf or on behalf of any employee in the
unit. Section 7103(a)(9) defines "grievance" to include any complaint
"by any employee concerning any matter relating to the employment of the
employee" or "by any labor organization concerning any matter relating
to the employment of any employee."
Union steward Hester was exercising his section 7102 right to assist,
act for, and present the views of a labor organization in the capacity
of a representative when he telephoned and spoke with the personnel
officer. As such representative, he was acting for and on behalf of a
unit employee. The unit employee's complaint concerned whether a move
was really necessary in order for her to accept a new position. It was
obviously a matter relating to her employment. Although no formal
grievance had been filed, the employee and steward were making
preliminary inquiries into the established personnel policies,
practices, and procedures, the results of which could resolve the matter
without further effort. The objectives of the collective bargaining
process are furthered when a Union takes action after at least giving
ear to the employer's advice and counsel. /3/ In my view, Hester was
engaged in representational activity protected by the Statute.
Even though Pooley's remarks to Hester were devoid of any explicit
threats of possible retaliation for his Union activities, the remarks
were coercive in nature and would tend to interfere with the performance
of Hester's functions as a Union steward. See U.S. Department of the
Treasury, Internal Revenue Service, 4 FLRA No. 87 (1980); United States
Marine Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA
No. 97, p. 14, fn. 13 (1981). Pooley was upset and angry. He told
Hester that he was "mad as hell." He did not limit his remarks or
criticism to his understanding that Hester was attempting to interfere
with management's selection and placement of personnel. /4/ Even after
Hester explained that he had only called to inquire about the rules and
regulations, Pooley continued his broad-based reprimand that Pooley was
"out of line" for even asking; that Hester was "out of line" in
whatever capacity he had called the personnel officer; and that Hester
had once again stuck his nose into things, caused troubles, and had done
the employee a disservice. Such remarks, delivered by a third-level
supervisor in anger, would be interpreted by a reasonable employee as a
display of management hostility toward his contacting the personnel
officer in particular on behalf of an employee and toward his other
representational activities in general. He would "think twice" before
becoming associated with other employee concerns and grievances. If an
employee has to think twice before exercising a statutory right, the
employee's right has been interfered with. See Naval Resale System
Field Support Office Commissary Store Group, 5 FLRA No. 42 (1981);
National Labor Relations Board, Region 1, Boston, Massachusetts, 5 FLRA
No. 87 (1981).
Pooley's remarks were not protected as free speech under section
7116(e) since they were made under coercive conditions. See Oklahoma
City Air Logistics Center (AFLC) Tinker Air Force Base, Oklahoma, 6 FLRA
No. 32 (1981). Pooley's previous candid conversations with Hester in
other settings, and the common recognition that candid comments and
frank opinions are to be anticipated in labor relations discussions,
while important factors to be considered, do not, in my opinion, serve
to insulate Pooley's improper remarks to Hester concerning his
representational activities in this instance.
Having concluded that Respondent violated section 7116(a)(1), as
alleged in the Complaint, it is recommended that the Authority adopt the
following Order:
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 Department of the Treasury, Internal
Revenue Service, Louisville District shall:
1. Cease and desist from:
(a) Orally reprimanding Scott Hester, or any other steward of
the National Treasury Employees Union, the exclusive bargaining
representative of its employees, because the steward, on behalf of
an employee, contacts the personnel officer and asks him questions
concerning established personnel policies and practices and other
matters relating to the employment of an employee.
(b) Making any other statement or comment which interferes
with, restrains, or coerces Scott Hester or any other employee, in
the exercise by the employee of the right accorded him by the
Federal Service Labor-Management Relations Statute to act for a
labor organization in the capacity of a representative and the
right, in that capacity, to present the views of the labor
organization to appropriate authorities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute.
(a) Post at its facilities 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 District
Director and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The District Director shall take reasonable
steps to insure that such notices are not altered, defaced, or
covered by any other material.
(b) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional
Director, Federal Labor Relations Authority, Region Four, in
writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: January 13, 1982
Washington, D.C.
APPENDIX
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 orally reprimand Scott Hester, or any other steward of
the National Treasury Employees Union, the exclusive bargaining
representative of our employees, because the steward, on behalf of an
employee, contacts the personnel officer and asks him questions
concerning established personnel policies and practices and other
matters relating to the employment of an employee.
WE WILL NOT make any other statement or comment which interferes
with, restrains, or coerces Scott Hester or any other employee, in the
exercise by the employee of the right accorded him by the Federal
Service Labor-Management Relations Statute to act for a labor
organization in the capacity of a representative and the right, in that
capacity, to present the views of the labor organization to appropriate
authorities.
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
Statute.
(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 Four, 1776
Peachtree Street, N.W., Suite 501, North Wing, Atlanta, Georgia;
telephone (404) 881-2324.
/1A/ The Charging Party's exceptions were untimely and have not been
considered.
--------------- FOOTNOTES$ ---------------
/1/ Robinson declined the revenue representative position in
Hopkinsville on March 16, 1981. However, she later reconsidered and
accepted the position when she was advised that her position as a group
clerk in Owensboro would have to be converted to a part-time position.
The revenue representative position, although located in Hopkinsville,
includes work in, and servicing of, the Paducah and Owensboro posts of
duty. (Tr. 44-45).
/2/ Article 5 of the collective bargaining agreement is, in pertinent
part, a restatement of management rights set forth in section 7106 of
the Statute. (General Counsel's Ex. 2, p. 2.).
/3/ In my view, no issue is presented in this case concerning the
scope of the duty of a personnel officer to provide the Union technical
advice, or other data pursuant to section 7114(b)(4). Hester's version
of the personnel officer's response to his inquiry was not rebutted.
The substance of the conversation is not in dispute. As noted, the
record does establish that Hester had previously contacted the personnel
officer on other matters for his views concerning the proper procedures
under Respondent's regulations and the collective bargaining agreement
without incident.
/4/ Had Pooley limited his remarks to his understanding that Hester
was interfering with management prerogatives in the selection and
placement of personnel, and that he was considering filing an unfair
labor practice charge and discussing the matter with the Union chapter
president, I would consider such remarks protected and find no
violation.