[ v26 p890 ]
26:0890(104)CA
The decision of the Authority follows:
26 FLRA No. 104
U.S. DEPARTMENT OF JUSTICE
U.S. MARSHALS SERVICE AND
U.S. MARSHALS SERVICE,
DISTRICT OF NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, INTERNATIONAL
COUNCIL OF U.S. MARSHALS SERVICE LOCALS
Charging Party
Case No. 2-CA-60107
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that the Respondent be ordered to cease and desist from those practices
and take certain affirmative action. The Respondent filed exceptions to
the Judge's Decision and a supporting brief. The General Counsel filed
an opposition to the exceptions of the Respondent.
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), we have reviewed the rulings of the Judge made at
the hearing and find that no prejudicial error was committed. The
rulings are affirmed. In finding that no prejudicial error was
committed by the Judge, we do not pass upon the Judge's specific
rationale for refusing to admit into evidence the result of the
polygraph examination proffered by the Respondent. Upon consideration
of the Judge's Decision, and the entire record, we adopt the Judge's
findings, conclusions, and recommended Order.
ORDER
The U.S. Department of Justice, U.S. Marshals Service and U.S.
Marshal Service, District of New Jersey, shall:
1. Cease and desist from:
(a) Preventing representatives of American Federation of Government
Employees, AFL-CIO, International Council of U.S. Marshals Service
Locals, the exclusive representative of its employees, from meeting with
unit employees to confer about a grievance prior to arbitration, or
about other representational matters.
(b) Physically assaulting any representatives of American Federation
of Government Employees, AFL-CIO, International Council of U.S. Marshals
Service, Locals, the exclusive representative of its employees, who are
present to meet with unit employees in order to confer about a grievance
prior to arbitration, or about other representational matters.
(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
purposes and policies of the Statute:
(a) Post at its facilities throughout the U.S. Marshals Service,
District of New Jersey, 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 U.S. Marshal of the U.S.
Marshals Service, District of New Jersey, 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.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Reulgations, 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 with this Order.
Issued, Washington, D.C., April 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT prevent representatives of American Federation of
Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals, the exclusive representative of our employees, from
meeting with unit employees to confer about a grievance prior to
arbitration, or about other representational matters.
WE WILL NOT physically assault any representatives of American
Federation of Government Employees, AFL-CIO, International Council of
U.S. Marshals Service Locals, the exclusive representative of our
employees, who are present to meet with unit employees in order to
confer about a grievance prior to arbitration, or about other
representation matters.
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.
. . . (Activity)
Dated: . . . By: . . . (Signature) . . . (Title)
This Notice must remained 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 II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-60107
U.S. DEPARTMENT OF JUSTICE,
U.S. MARSHALS SERVICE AND U.S. MARSHALS
SERVICE, DISTRICT OF NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, INTERNATIONAL COUNCIL OF U.S.
MARSHAL SERVICE LOCALS
Charging Party
Ted Farfaglia, Esq.
For the Respondent
Allan W. Stadtmauer, Esq.
For the General Counsel
Wallace Roney
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on February 28,
1986 by the Regional Director for the Federal Labor Relations Authority,
Region II, a hearing was held before the undersigned on April 15, 1986
at New York, New York.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based
on a first Amended charge filed on February 7, 1986 by the American
Federation of Government Employees, AFL-CIO, International Council of
U.S. Marshal Service Locals (herein called the Union) against U.S.
Department of Justice, U.S. Marshals Service and U.S. Marshals Service,
District of New Jersey (herein called Respondent).
The Complaint alleged, in substance, that on or about September 26,
1985 Respondent, by its agent Eugene Liss, without provocation,
physically and verbally interfered with a representative of the Union
while he was engaged in protected activity on behalf of the Union -- all
in violation of Section 7116(a)(1) of the Statute.
Respondent's Answer, dated March 24, 1986, denied the aforesaid
allegations as well as the commission of any unfair labor practices.
Both parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered.
Subsequent to the filing of briefs the General Counsel filed on June
30, 1986 a motion to strike portions of Respondent's brief referring to
facts not contained therein. A response to said motion was filed on
July 3, 1986 by Respondent.
General Counsel moves to strike from Respondent's brief three
assertions of fact on the ground that no testimony or documents supports
them. In respect to the assertion that "Deputy Baptiste and Mr. Lazar
had already arrived and were at the hearing room waiting for Messrs.
Roney and Pickett," /1/ the record contains no such factual statement.
Accordingly, the motion to strike such quoted assertion is granted and
it is stricken from Respondent's brief. In respect to the statement in
Respondent's brief that "In fact, Liss on his own informed Roney the
hearing was on the fourth floor," /2/ the record likewise does not
support such assertion. Accordingly, the motion to strike this quoted
statement is granted and it is stricken from Respondent's brief. In
respect to the assertion in Respondent's brief that "At all pertinent
times, Baptiste was on the fourth floor," /3/ the motion to strike is
denied. Record testimony reflects Baptiste was on the fourth floor on
the morning of September 26, 1986 (ranscript, pages 31 and 77). Whether
his presence thereat was at "pertinent" times in arguable and
conclusionary in nature. It does not necessarily amount to an
uncontroverted factual assertion.
General Counsel also moves to strike from Respondent's brief all
references to two decisions: (a) Raymond J. Miller, Department of
Justice, MSPB, No. DL07528210416, April 9, 1982, 83 FMSR 1475, wherein
the presiding official made a determination as to the credibility in
that proceeding of Wallace Roney; (b) U.S. Department of Justice, U.S.
Marshal Service, and International Council of U.S. Marshals Service
Locals, AFGE, wherein an Arbitration Opinion and Award was rendered,
FMCS 84K/19897, April 17, 1983, 85 FLRRz-409, LAIRS 16654. The
arbitrator therein, as recited in Respondent's brief, found that
Starlord Pickett made statements which, though due to exuberance, were
false.
Respondent insists that, since credibility is an issue herein and
involves both Roney and Pickett who were also witnesses in the cited
cases, judicial notice should be taken of those decisions and the
findings with respect to those individuals' credibility. I disagree.
While it may be appropriate to take judicial notice of a published
decision in respect to the law, I do not consider it proper to take such
notice of this type of factual findings made in cases involving
different issues. This is especially true of credibility findings made
by other officials. In Paridy, Caterpillar Traitor Co., 48 F.2d 166,
169 the court stated that a decision in a particular case must depend
upon the evidence introduced thereat. Further, that if the courts
should recognize judicially facts adjudicated in another case, it makes
those facts, though unsupported by the evidence in the case at hand,
conclusive evidence against the opposing party. /4/
The undersigned would agree that judicial notice could be taken of
facts concerning which there is universal agreement, i.e. the existence
of a country, state, or other well known entities, as well as the
existence of matters that are of common knowledge. Credibility findings
in other cases are not traditional matters that, under Section 2423.19
of the Rules and Regulations, should be judically noticed. Accordingly,
I shall grant General Counsel's motion to strike references to the
credibility findings and testimonies of both Roney and Pickett in the
aforesaid decisions. /5/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduce at
the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the exclusive bargaining representative of all nonprofessional employees
of the United States Marshals Service, including intermittent and term
deputies with specific exclusions from said unit.
2. Included within the aforesaid unit of exclusive recognition are
those employees who work in the District of New Jersey. /6/
3. At all times material the Union and Respondent have been, and
still are, parties to a national collective bargaining agreement
governing employees of the District of New Jersey. Article 21 of said
agreement provides, in substance, that, upon request, employees acting
as an AFGE Union representative requiring his absence from the job, will
be granted annual and/or leave without pay up to 3 years. Article 25 of
the agreement, Section 3, deals with Arbirtration. It provides that a
grievant and employees called as witnesses shall be excused from their
duties to the extent necessary to participate in the arbitration without
loss of pay or charge to leave.
4. Under date of August 30, 1985 Wallace Roney, President of the
Union, wrote a letter to Joseph Lazar, Associate Legal Counsel for
Respondent. In said letter Roney informed Lazar that the witnesses for
the Union in the arbitration hearing set for September 26-27, 1985 would
be Ivan Baptiste /7/ and Starlord Pickett. /8/ He also requested that
said witnesses be placed on official time and be available for the
hearing. Roney stated he would like to see the witnesses prior to the
arbitration, and he asked Lazar to arrange privacy therefore.
5. In mid-September, 1985 Pickett was granted annual leave by his
supervisor to attend the arbitration hearing in Newark, New Jersey.
Both Pickett and Roney arrived at the District Office at about 10:25
A.M. on September 26, 1985. It was expected that Pickett would assist
the Union president at the hearing which was scheduled to begin at 10:00
A.M. on that date. Both men went to the fifth floor in order to confer
with Chief Deputy Marshal, Lonnie Harris re the location of the hearing
room. They also wanted to have Harris arrange a meeting between the
union representatives and Baptiste prior to the arbitration. Pickett
and Roney entered the office into the reception area, and they
approached the counter which separates that area from the Civil Section.
Assigned to the Civil Section, which is adjacent to Harris' office, are
Selma R. Edwards, Administrative Clerk, and Ezra Nolan, who performs
certain clerical duties. Both individuals have desks in this Section,
and Edwards' desk is just outside Harris' office. /9/
6. The Union officials spoke to Edwards and were overheard by Chief
Deputy Harris who greeted and escorted them into his office. Harris
mentioned he was sorry they had to meet on such an occasion. Pickett
then left the office in order to submit a travel voucher to Joan Cobb, a
Supervisory Administrative Clerk. Harris conferred with Roney and
agreed to get Baptiste as well as provide a room whereat Roney could
speak to the grievant.
7. Pickett returned shortly and started to enter Harris' office. He
was met at the door by Eugene Liss, U.S. Marshal for the District of New
Jersey, at which time an incident occurred between them during their
encounter. /10/ As Pickett attempted to enter the office, Liss
confronted him and asked why Pickett was there and whether he was on
annual leave. The Union president said he had a right to be there and
that the Chief Deputy invited him in. Liss pushed and shoved Pickett
out of the doorway. Whereupon Pickett asked Selma Edwards if she had
seen Liss push him, and the Administrative Clerk replied that she did
see it. Liss then opened Harris' door, which he had just closed, and
said he didn't want Pickett in that area. He then pushed and shoved
Pickett toward the counter and to the other side of the public area.
The marshal tried to force Pickett physically into a chair, but the
latter resisted and finally stated, "Enough is enough." Pickett then
went out into the hall.
8. After the foregoing incident Harris arranged for Baptiste to be
brought to the fifth floor. Both individuals along with Pickett
proceeded to the fourth floor where the arbitration hearing took place.
Pickett testified at the hearing and also acted as a Union
representative. Management granted Pickett official leave for the time
spent testifying as a witness, and he was accorded annual leave for the
period he performed as Union representative.
Conclusion
There are two primary issues for consideration herein: (1) whether
Deputy Marshal Starlord Pickett, while acting as Union representative,
was engaged in protected activity when he visited the District office on
September 26, 1985 to attend and participate in the arbitration hearing
involving Deputy Marshal Ivan Baptiste; (2) if so, whether the conduct
of Marshal Liss, Respondent's representative, in denying employee
Pickett access to the office of Chief Deputy Lonnie Harris prior to the
hearing on September 26, 1985, as well as physically abusing Pickett,
constituted interference under Sections 7116(a)(1) of the Statute.
(1) Certain fundamental rights are accorded employees under Section
7102 of the Statute. An employee is granted protection thereunder to
form, join, or assist a labor organization. Moreover, he may act for a
labor organization as a representative in presenting views of that body
to agencies and proper authorities. Included within this protection is
the right to process and pursue grievances on behalf of any unit
employees. Federal Election Commission, 6 FLRA No. 59. An infringement
of those rights will constitute interference under Section 7116(a)(1) of
the Statute.
While not disputing the general principle of law, as aforesaid,
Respondent contends that Pickett was not engaged in protected activity
while on the fourth floor in the U.S. Marshal's office area on September
26. It is argued that his protected activity occurred at the
arbitration hearing after the incident in the office; that there was no
discussion of any union protected matter before the arbitration hearing.
Thus, Respondent insists any action taken by Liss in respect to Pickett
prior to the arbitration did not interfere, restrain or coerce employees
in violation of 7116(a)(1).
Respondent's contention in this regard is too simplistic and
misconceives the concept of protected activity. The right to represeent
employees concerning grievances includes the presentation and processing
thereof. In coming to Chief Deputy Harris' office on September 26 just
before attending the arbitration hearing, Pickett was engaged in his
representational duty to act on behalf of employee Baptiste. Liss
admits he knew that Pickett and Roney were there for the arbitration.
Further, management had been advised in writing that Pickett would be a
witness thereat. It is scarcely logical to conclude that Pickett was
acting on behalf of Baptiste on the fourth floor at the hearing, but not
representing the employee when the union officials came to the office
just beforehand. Such a conclusion would leave one pondering whether
Pickett was representing Baptiste as he opened the door of the hearing
room. In my opinion Pickett was performing his representational
function in the pursuance of the grievance to arbitration when he was
confronted by Marshal Liss in the office before meeting with Chief
Deputy Harris. As such, Pickett was engaged in protected activity. See
Department of the Treasury, Internal Revenue Service, Louisville
District, 11 FLRA No. 64.
(2) Respondent takes the position that Marshal Liss acted properly
when he restricted Pickett's access at the office area. Further, that
such restriction did not interfere with Pickett attendance and
representation at the arbitration hearing. Record facts reflect,
however, that when Roney and Pickett arrived at the District on
September 26, Chief Deputy Harris invited them into his office. Apart
from not intruding himself at the time, Pickett neither provoked any
harsh action by Liss nor did his behavior warrant any physical reaction
by the Marshal.
The Authority has taken a dim view of physical assaults upon
employees engaged in fulfilling their union representational function.
A physical response, in the context of a labor-management dispute, by
either the union representative or a manager is deemed beyond the limits
of acceptable behavior. See and Compare U.S. Department of Labor,
Employment and Training Administration, 20 FLRA No. 69. In the cited
case, however, the physical contact was not only found to be spontaneous
but was provided by the union representative. Accordingly, the reaction
by management did not rise to the level of an unfair labor practice.
In the case at bar the record reflects that Pickett neither provoked
Liss nor conducted himself in any manner which warranted physical
assault. Moreover, I am persuaded that, in pushing and shoving Pickett
out of the office area and physically attempting to force the union
representative to sit in the reception area, the marshal was engaged in
behavior not condoned. The actions taken by Liss resulted in excluding
Pickett from the office and preventing the pre-arbitration meeting with
Chief Deputy Harris, Roney and Baptiste. Such conduct clearly
interfered with rights protected under the Statute. Social Security
Administration, Baltimore, Maryland, 14 FLRA No. 80. Further, although
it may not have been the intent of Marshal Liss to coerce Pickett, but
merely to secure the Civil Section area, the standard by which one
determines interference, restraint or coercion is not a subjective one.
The text is whether, under the circumstances, an employer's conduct may
reasonably tend to intimidate employees. Department of the Treasury,
United States Customs Service, Region IV, Miami, Florida, 19 FLRA No.
114. I am satisfied, based on the evidence herein, that the action by
Liss in pushing and shoving Pickett out of the office area in the
presence of another employee, and at a time when Pickett had appeared to
attend an arbitration hearing as a witness and union representative, was
intimidatory in nature. As such, it constituted interference, restraint
and coercion in violation of Section 7116(a)(1) of the Statute.
Having concluded that Respondent violated Section 7116(a)(1) of the
Statute, it is recommended that the Authority issue 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 U.S. Department of Justice, U.S.
Marshals Service and U.S. Marshals Service, District of New Jersey,
shall
1. Cease and desist from:
(a) Preventing representatives of American Federation of
Government Employees, AFL-CIO, International Council of U.S.
Marshal Service Locals, the exclusive representative of its
employees, or any representatives of a designated agent, from
meeting with unit employees to confer about a grievance, prior to
arbitration, or about other representational matters.
(b) Physically assaulting any representatives of American
Federation of Government Employees, AFL-CIO, International Council
of U.S. Marshal Service Locals, the exclusive represetnative of
its employees, or any representatives of a designated agent, who
are present to meet with unit employees in order to confer about a
grievance, prior to arbitration, or about other representational
matters.
(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:
(a) Post at its facilities throughout the U.S. Marshals
Service, District of New Jersey, copies of the attached Notice on
forms to be furnished by the Authority. Upon receipt of such
forms, they shall be signed by an appropriate official, and shall
be posted for 60 consecutive days thereafter, in conspicuous
places, including all 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.
(b) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, 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.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: October 8, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Page 3, lines 10-12 of Respondent's brief.
(2) Page 8, lines 22-23 of Respondent's brief.
(3) Page 8, lines 23-24 of Respondent's brief.
(4) See also Wilson v. Volkswagon of America, Inc., 561 F.2d 494 (5th
Cir. 1977), cert. denied, 98 S. Ct. 744 (1978).
(5) Respondent's request to reopen the record is also denied. Apart
from the issue as to the admissibility of the two decisions at the
hearing herein, both decisions pre-dated this hearing and were available
for presentation thereat. No attempt to do so was made by Respondent.
(6) The delegated representative of the employees of the Respondent's
District of New Jersey is American Federation of Government Employees,
AFL-CIO, Lcoal 2837.
(7) The arbitration hearing involved disciplinary action taken by
Respondent against Baptiste, a Deputy U.S. Marshal assigned to Trenton,
New Jersey, but working at Newark, New Jersey.
(8) Pickett is a Deputy U.S. Marshal at Camden, New Jersey. He is
President of AFGE Local 2837, as well as Regional Vice-President of the
Union herein.
(9) A diagram of the reception area, counter, Civil Section and
offices is found in Joint Exhibit 1.
(10) The facts as set forth by the undersigned, though in dispute,
represent the credited version of what occurred. The essential details
in regard to the physical contact by Liss of Pickett -- as testified to
by Pickett -- were corroborated by Roney and Selma Edwards. Record
facts disclose Ezra Nolan was not at his desk all of the time between
10:00 A.M.-10:45 A.M. on September 26, and he does not recall seeing
Roney at all.
In respect to the denial by Liss that he physically abused or
assaulted Pickett, Respondent's counsel called Michael J. Parker, a
polygraphist, as a witness. Parker administered a polygraph test to
Liss, and Respondent attempted to introduce the results thereof to
support the Marshal's credibility. This exhibit was rejected. In
exercising my discretion not to admit the results of this test, in
accordance with the decisions of several Circuit Courts, I note Parker
testified that if a polygraph was taken of Pickett in regard to the same
events, it could also be concluded that the latter was telling the truth
if the test were not administered properly. Apart from the fact that no
polygraph tests were given to Edwards and Roney, who confirmed that
physical encounter, I do not deem such tests so scientifically
acceptable as to be beyond question.
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
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT prevent representatives of American Federation of
Government Employees, AFL-CIO, International Council of U.S. Marshal
Service Locals, the exclusive representative of its employees, or any
representatives of a designated agent, from meeting with unit employees
to confer about a grievance, prior to arbitration, or about other
representational matters.
WE WILL NOT physically assault any representative of American
Federation of Government Employees, AFL-CIO, International Council of
U.S. Marshal Service Locals, the exclusive representative of its
employees, or any representatives of a designated agent, who are present
to meet with unit employees in order to confer about a grievance, prior
to arbitration, or about other representational matters.
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.
. . . (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 of the Federal Labor Relations Authority, Region II,
whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278 and
whose telephone number is: (212) 264-4934.