22:1037(101)CA - National Institute for Occupational Safety Health, Cincinnati, OH and AFGE Local 3840 -- 1986 FLRAdec CA
[ v22 p1037 ]
22:1037(101)CA
The decision of the Authority follows:
22 FLRA No. 101
NATIONAL INSTITUTE FOR OCCUPATIONAL
SAFETY AND HEALTH, CINCINNATI
OPERATIONS, CINCINNATI, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3840, AFL-CIO
Charging Party
Case No. 5-CA-50016
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
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to the Judge's
Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order as modified below.
In agreement with the Judge's conclusion, the Authority finds that
Respondent violated section 7116(a)(1) of the Statute, within the
totality of circumstances of this case, by coercively interrogating a
unit employee and thereafter proposing disciplinary action against the
employee in connection with her refusal to supply the names of employees
referenced in her court affidavit. /1/
In determining that the interrogation of employee Handke resulted
from her exercise of protected activity, we note particularly the
Judge's findings on page 12 of his decision:
The circumstances presented in this case indicate that the
affidavit was prepared by Handke while acting as a representative
of the Union. The questions posed and answered in the affidavit
reflect that it was executed by Handke in a representational
capacity in an effort to remedy discriminatory practices affecting
bargaining unit members. . . . Handke's representational activity
dominates the picture presented by the evidence. At the time the
affidavit was planned she was concluding her term as president of
the Union. She was a Union representative on the Respondent's EEO
Committee. Her work location was the focal point of Union
activity, and in 1981-1982, she had served as a Union steward.
Further, we fully agree with the Judge's findings on page 16 that
"(t)he conduct conveyed to Handke, and other bargaining unit members,
the clear message that discipline and/or harassment would follow as a
direct result of the pursuit of legitimate Union interests."
ORDER /2/
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the National Institute for Occupational Safety and Health,
Cincinnati Operations, Cincinnati, Ohio, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing Jan Handke, or
any other employee in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute, by conducting
interrogations concerning protected union activity, and by
threatening disciplinary action for failing to disclose details of
information relating to such protected union activity.
(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 Statute:
(a) Post at its facilities at the National Institute for
Occupational Safety and Health, Cincinnati Operations, Cincinnati,
Ohio, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by an appropriate official and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and all other places
where notices to employees are customarily posted. Reasonable
steps shall be taken 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 V, 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., July 31, 1986.
/s/ Jerry Lee Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce Jan Handke, or any
other employee, in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute, by conducting interrogations
concerning protected union activity, and by threatening disciplinary
action for failing to disclose details of information relating to such
protected union activity.
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 its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
175 Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604, and whose
telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-50016
NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND
HEALTH, CINCINNATI OPERATIONS, CINCINNATI, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3840,
AFL-CIO
Charging Party
Alan S. Dorn, Esquire
For the Respondent
Judith A. Ramey, Esquire
For the General Counsel
James P. Agee, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
"the Statute"), and the Rules and Regulations issued thereunder.
The complaint alleged that on or about June 19, 1984, and July 16,
1984, the National Institute for Occupational Safety and Health,
Cincinnati Operations, Cincinnati, Ohio (Respondent or NIOSH), through
the conduct of Philip J. Bierbaum and F. Sutton Kay, violated Section
7116(a) (1) of the Statute by interrogating a representative of American
Federation of Government Employees, Local 3840, AFL-CIO (Charging Party
or Union) concerning the identities of five NIOSH employees referred to
in an affidavit prepared by the representative in conjunction with a
pending court case, and in conjunction with representational duties
performed on behalf of the Union. The complaint also alleged that on
the same dates the Respondent, through Bierbaum and Kay violated Section
7116(a)(1) by threatening to discipline the Union representative for
failing to reveal the identities of the five NIOSH employees referred to
in the affidavit.
Counsel representing the Respondent contend that Respondent's
representatives were conducting a legitimate inquiry to help establish
evidence of discriminatory practices, and further that under the
circumstances presented herein the conduct outlined was not violative of
Section 7116(a)(1).
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including exhibits, and other relevant evidence adduced at the
hearing, and briefs filed by the parties, I make the following findings
of fact, conclustions and recommendations.
Findings of Fact
General Background Information
The record reveals that the Respondent's activities in Cincinnati are
operated and supervised by the Centers for Disease Control, Department
of Health and Human Services (CDC), through a facility in Atlanta,
Georgia known as Headquarters, National Institute for Occupational
Safety and Health. The Union is the exclusive representative of a unit
of Respondent's employees consisting of certain professional and
nonprofessional General Schedule and Wage Grade employees. /3/ Philip
J. Bierbaum has served as the Deputy Director of Respondent's Division
of Surveillance, Hazard Evaluations and Field Studies (DSHEFS) since
1976. F. Sutton Kay has been employed as Operation Management Officer
for DSHEFS, under Bierbaum, since 1977 or 1978.
The Union official referred to in the complaint was identified as Jan
Handke, an epidemiologist in DSHEFS. Handke served as President of the
Union for a one year period ending on May 7, 1984, when the position was
taken over by James P. Agee, Handke's successor (Tr. 17, 22-23). During
the preceding year (1982-1983), Handke served a term as the Union's
Vice-President, and during the year 1981-1982 she served as the Union's
Steward for DSHEFS (Tr. 22). Since October 10, 1982, Handke has served
as a Union representative on the Respondent's Equal Employment
Opportunity (EEO) Committee. The Committee was established under the
terms of the collective bargaining agreement governing the labor
relations of the Respondent and the Union (Jt. Exh. No. 1 at 9; Tr.
18-19). The EEO Committee meets quarterly for the purpose of assisting
the Respondent to develop and implement a more effective EEO program
(Jt. Exh. No. 1 at 10). The Committee deals generally with affirmative
action policy, and discusses individual problems at times (Tr. 133).
Hanke was also selected to serve as the Union's EEO Fair Practices
Coordinator. The selection was made at a Union meeting in June of 1984
by James P. Agee, the current Union President (Tr. 17).
Handke's identification with the Union was further established by the
fact that during the period that she served as President of the Union,
her office was enlarged to provide additional space for the Union as
required by the collective bargaining agreement (Tr. 23-24). Union
files were maintained at her office work location in space provided by
the Respondent, and Union business was conducted at her work location.
Handke's Association with Union Representational Duties on Behalf of
James E. Peguese
James E. Peguese was employed as an industrial hygienist in DSHEFS
from approximately 1981 until May of 1984 (Tr. 24-25). He filed two
grievances, both of which were handled by the Union (Tr. 152). The
first was filed in March of 1984 to protest an unsatisfactory
performance rating (Tr. 27, 116). /4/ The grievance interposed
objection to the rating and also alleged a failure to follow relevant
provisions of the collective bargaining agreement in the preparation of
Peguese's performance rating (Tr. 118). Peguese's second grievance
related to Respondent's denial of a within-grade pay increase (Tr.
27-28). It was not pursued to arbitration because it was felt that the
arbitrator's decision relating to the first grievance would dispose of
issues posed in the second (Tr. 28).
As President of the Union Handke discussed Peguese's grievances with
Union stewards assigned to handle them, and met with Peguese and
stewards on at least three occasions to discuss them (Tr. 29-31). She
was involved in decisions made at each step of the grievance procedure
(Tr. 30-31).
In the latter part of March 1984, after the initiation of the Peguese
grievances, Peguese was served with a letter of proposed separation (Tr.
31). Peguese retained Lee Thompson, a Columbus, Ohio attorney to
represent him in connection with this proposed adverse action (Tr.
37-38, 134). The removal action, like the two earlier grievances
involved the issue of poor performance (Tr. 118-119, 153).
In addition to Peguese's use of the adverse action procedure to
oppose Respondent's proposed letter of separation, Peguese also
initiated an EEO complaint in an attempt to defeat Respondent's efforts
to remove him (Tr. 33-34, 153). The complaint, based upon a charge of
racial discrimination, alleged that Bierbaum and Kay were the officials
responsible for the discriminatory conduct designed to effect his
removal (Tr. 72, 118, 150-151).
On March 30, 1984, Peguese designated the Union to represent him
during the informal stage of his EEO complaint, and Jan Handke was
designated to serve as his Union representative (G.C. Exh. No. 2, Tr.
33-34). Handke accompanied Peguese to a meeting with the EEO Counselor
assigned to the case, and her name appears on the "Designation of
Representative" form as well as other documents filed in connection with
the informal stages of the EEO proceeding (Tr. 34-35). As a result of
this Union representational activity, Handke was very familiar with the
issues raised in the Peguese EEO complaint (Tr. 151-152).
Circumstances Surrounding Preparation of Affidavit for Filing in James
E. Peguese v. United States, et al, Case No. C-1-84-896, Untied States
District Court, Southern District of Ohio
Following the issuance of the EEO Counselor's report in the latter
part of April 1984, Peguese retained his attorney Lee Thompson to
replace Handke as the representative of record for the formal stage of
the EEO proceeding (Tr. 33-34, 38). At about the same time Thompson
filed an action in the United States District Court for the Southern
District of Ohio to enjoin the adverse action proceeding brought to
remove Peguese (Tr. 41-42). At this point Thompson was acting as
Peguese's representative in defense of the removal action, as attorney
of record in the EEO proceeding, and as Peguese's attorney in the
District Court action. However, the Union continued to represent
Peguese in connection with grievances filed under the negotiated
grievance procedure.
Peguese advised Handke of Thompson's interest in Handke's preparation
of an affidavit relating to knowledge gained by Handke through her
representation of Peguese during the informal stage of the EEO
proceeding (Tr. 42). Upon the basis of knowledge gained as a Union
official Handke agreed to express her view that Peguese had been
subjected to racial discrimination (Tr. 151). On May 5, 1984, just
prior to the expiration of her term as Union President, Handke wrote
Thompson to confirm that she would prepare an affidavit as a witness in
the District Court proceeding, but noted that she would need a list of
questions Thompson wished to have answered in the affidavit (G.C. Exh.
No. 3).
Thompson's questions were delivered to Handke on May 7, 1984, and the
affidavit was prepared by Handke on May 7 and 8, 1984. She utilized
Union grievance files located in her office to verify some of the dates
incorporated into her responses (Tr. 45-46).
The affidavit, included in the record as G.C. Exh. No. 4, reflects
questions and answers relating to Handke's Union membership; Union
offices held during 1983 and 1984; /5/ responsibilities an duties
assumed as Union Vice-President, and President; Handke's personal
knowledge regarding Respondent's proposals to remove white and black
employees in 1983 and 1984; and whether Handke thought the Peguese
removal action involved unfair treatment.
Question (7) of the affidavit requests Handke to state her "personal
knowledge regarding management at NIOSH-Cincinnati Operations proposing
to remove white and black employees in 1983 and 1984." Handke's
affidavit reflected the following language relative to this inquiry:
In June 1983 Mr. Jon Ruse, head of the Personnel Office at
NIOSH-Cincinnati Operations gave the only black clerk-typist in
his office a letter stating she would be fired. The date of
implementation was about two days before she would have completed
her one-year probationary period as a permanent employee and have
the right to appeal to the Merit System Protection Board. She
refused to resign so that she would have the right to file a
formal EEO complaint and clear her name. As a result of pressure
on management at NIOSH-Cincinnati Operations by concerned
employees, she was then immediately rehired by another supervisor
as a temporary employee. Since then she has informed me she
received two "exceeded" ratings on her annual performance
evaluation in January, 1984.
In July 1984 /6/ a white clerk-typist in the Division of
Surveillance, Hazard Evaluations and Field Studies (DSHEFS)
discussed with me a letter she received proposing that she be
fired. This firing was reversed by officials in Atlanta and she
was allowed to transfer to another Division.
Around December 1983 a white health technician in DSHEFS
received a letter proposing that he be fired. This firing was
reversed by officials in Atlanta and he was given a 30-day
suspension.
In March 1984 a black industrial hygienist in DSHEFS received a
letter proposing that he be fired. This action is currently being
appealed to officials in Atlanta.
In April 1984 my immediate supervisor informed me he was going
to fire (sic) a black clerk-typist. I argued strongly that this
was unfair and discriminatory since she was being treated
differently from a white male doctor in the same Section who was
asked to resign by the Director of DSHEFS. (This white male
doctor subsequently transferred to a different supervisor.) My
immediate supervisor then reversed his decision and the
clerk-typist was laid off.
The affidavit reflects that Handke refused to name the individuals
referred to in Question (7). She repsonded that she could not reveal
the names because of "confidentiality." (G.C. Exh. No. 4 at Question
(8)). Her testimony at the hearing established that she did not intend
to conceal the identity of the individuals referred to from "NIOSH
management," and that she included sufficient detail for management to
identify the employees involved (Tr. 71, 109-110). To this end she
supplied relevant dates, and identifying data relating to employee job
titles, race, sex, and office location, together with descriptive
phrases about surrounding circumstances (Tr. 109-110). However, she did
not wish to disclose the names of employees publicly in the affidavit
because she wanted to protect the reputations of the employees who had
in the past been subjected to proposed removals, and because she had
been advised by the Union's District Office to consider the names
confidential until the District Judge ordered her to reveal the names
(Tr. 108-109). Her testimony established that these matters involved
Union grievances which were considered confidential by the Union (Tr.
110).
The record revealed the following relative to the Union's
representational interest in the episodes outlined in the Handke
affidavit:
In June 1983 Episode /7/ -- This episode involved Florence Darks, an
employee in Respondent's Personnel Office. She was not a member of the
bargaining unit. Handke became aware of the matter as a result of
employees reporting to her as the Union President, and then as a result
of Darks asking the Union to represent her in connection with an EEO
complaint arising out of management efforts to terminate her employment.
Handke was designated as her representative (G.C. Exh. No. 5, Tr.
47-48). Thereafter Handke represented her as a Union representative
during the informal stage of her EEO complaint, and as an individual
during the formal stage of the EEO proceeding (Tr. 50-51). The matter
was of special concern to the Union and was the subject of Union
Executive Committee discussion on more than one occasion (Tr. 52-53,
55). The informal stage of the EEO proceeding lasted many months (Tr.
54), and involved a number of Union sponsored initiatives (Tr. 56).
The July 1983 Episode -- This matter involved Linda Smith, a
bargaining unit employee in DSHEFS. Smith requested the Union to
represent her when management threatened to terminate her employment
(Tr. 58-60). Smith sought out Handke personally; and Handke and
another Union official served as designated Union representatives (G.C.
Exh. No. 6, Tr. 62, 127-128). Although Smith did not file a formal
grievance, the Union represented her interests in the matter through
informal contacts with management (Tr. 126-127, 131). The matter was
resolved by classifying Smith as a handicapped person with a learning
deficiency. She was demoted and retained as an employee (Tr. 63).
The December 1983 Episode -- This segment of the affidavit involved
Dorris Hale a bargaining unit employee in DSHEFS. Handke became aware
of the case when Hale received a letter indicating that management
planned to terminate Hale's employment. Hale contacted the Union and
requested representation, and a Union representative handled Hale's
administrative appeal (Tr. 64-65). Handke had conversations with Hale,
and discussed strategy with the designated Union representative (Tr.
66-67). As a Union representative Handke also had conversations with
Bierbaum, Kay and other management officials concerning the Hale matter
(Tr. 67-68).
The March 1984 Episode -- This paragraph of the affidavit refers to
the previously outlined efforts to terminate the employment of James E.
Peguese because of poor performance.
The April 1984 Episode -- This element of the affidavit refers to a
matter involving one Kim Gordon, a black clerk-typist who was not a
member of the bargaining unit. Handke became personnally aware of the
plan to terminate Gordon, and in a personal capacity, intervened on
Gordon's behalf with management officials (Tr. 69-70).
Handke Interrogated by Bierbaum and Kay Following Filing of Handke
Affidavit in United States District Court Action
On May 9, 1984, Lee Thompson, acting as Peguese's attorney, filed the
Handke affidavit in the United States District Court proceeding brought
to obtain a temporary restraining order in the Peguese adverse action
proceeding (Tr. 72). The affidavit was submitted to the District Court
as the statement of a witness testifying on behalf of Peguese to
establish an evidentiary basis for a temporary restraining order.
The filing of the affidavit came to the attention of Kay, who then
phoned Everett L. Martin, Chief of Labor and Employee Relations for CDC
in Atlanta (Tr. 160). Martin and Kay decided that it would be necessary
to interrogate Handke to obtain the exact identity of individuals that
Handke referred to in factual situations outlined in her affidavit.
According to Kay and Martin it was further determined that Kay should
undertake this assignment so that the names could be turned over to the
appropriate people at CDC for the purpose of initiating further
investigation to determine whether discriminatory actions had in fact
occurred (Tr. 161, 172-173, 186). /8/ However, as will be described in
more detail herein, Respondent's representatives were then completely
aware of the identity of individuals referred to in the affidavit. One
purpose of the interrogation was made clear. The interrogation was
proposed as part of Respondent's efforts to prepare a defense for the
use in the District Court action (R. Exh. No. 2 at 11).
Kay summoned Handke to his office on June 19, 1984. She attended the
meeting with C. K. Wang, Vice President of the Union, who acted as her
representative (Tr. 73). At the meeting Kay and Bierbaum advised Handke
that the allegations were serious, and that disclosure of the identity
of the individuals to Kay and Bierbaum was necessary to permit NIOSH to
initiate an investigation into discriminatory practices to see if they
existed, and to provide a basis for appropriate action (Tr. 105, 112,
162). Kay's testimony indicated that he and Bierbaum were the
individuals conducting the investigation (Tr. 166). They asked her if
she had prepared the affidavit, whether or not she had signed it, and
then requested her to identify the individuals referred to in the
document (Tr. 75-76, 163). The record as a whole indicates the first
two questions were unnecessary inasmuch as Kay and Bierbaum knew that
she had prepared the affidavit before Kay scheduled the interview. It
was also clearly established that Kay and Bierbaum, and/or other NIOSH
officials knew the identity of the individuals referred to in the
document. This fact was admitted during the interview (Tr. 77, 79, 143,
149, 173-175, 178-179, 181).
Handke acknowledged that the affidavit was hers but refused to name
the individuals because of possible civil liability related to her
disclosure under the circumstances; because she did not know the legal
basis for Kay and Bierbaum insisting upon disclosure, and lastly,
because the affidavit had been filed in connection with the then pending
Federal court case (Tr. 164). Bierbaum and Kay strongly disagreed with
her refusal and conveyed to Handke, erroneous information to the effect
that the court case had been settled (Tr. 77-78, 164). On behalf of
Handke, Wang informed Kay and Bierbaum that the Federal case was still
pending and that there were appropriate court procedures for
interrogating witnesses (Tr. 76-77). Kay and Bierbaum insisted that she
answer and threatened her with discipline for failing to reveal the
names (Tr. 78). Handke repeatedly stated that she would be willing to
provide the names "in the proper legal format." (Tr. 78-79). Kay and
Bierbaum became uncertain about the status and the effect of the Federal
case and decided to terminate the interrogation at this point (Tr. 166).
Following the meeting Handke wrote directly to the Director of DSHEFS
to express concern about Division policy concerning such interviews, and
to inquire whether he thought the meeting appropriate (Tr. 80, 83). Her
Union representative sent a similar letter to Kay and Bierbaum. He
noted objections to the questioning because of the pending court case,
and mentioned the need to follow appropriate civil procedure in such
cases (Tr. 83-84).
As a followup Kay contacted Everett Martin in Atlanta concerning the
interview. Martin stated that he would communicate with the Office of
the United States Attorney as they were handling Respondent's defense in
the District Court proceeding (Tr. 168). Martin called Kay back to
advise that Kay and Bierbaum should postpone any further questioning
(Tr. 168, 187). However, on July 13, 1984, Martin phoned Kay to advise
that he (Martin) had again discussed the matter with the United States
Attorney's Office and that an Assistant United States Attorney had
advised that they could resume their interview of Handke (Tr. 169,
187-188).
On July 16, 1984 Kay and Bierbaum again summoned Handke to a meeting
for the purpose of continuing the interrogation (Tr. 80-81). Bierbaum
conducted most of the interrogation on this occasion (Tr. 169). C. K.
Wang again represented Handke. In response to an inquiry from Wang
concerning a failure to reply to Handke's and Wang's letters concerning
the propriety of the June 19th meeting, Bierbaum stated that the letters
were not worthy of a response (Tr. 83-84). Bierbaum stated that the
United States Attorney's Office had advised that the questions
previously posed would have to be answered, and repeated the three
questions asked on June 19th even though Handke had previously stated
that she had prepared and signed the affidavit, and even though they
knew the identity of the individuals referred to therein (Tr. 86-87,
169-170). He and Kay repeatedly demanded answers, and at 3:20 P.M.
threatened her with discipline based upon insubordination if she did not
respond by 3:30 P.M. (Tr. 87-88, 89). Again Handke stated that she
would cooperate in an appropriate legal setting (Tr. 89). At 3:30 P.M.
Bierbaum declared that the meeting was over (Tr. 89).
Wang again addressed letters to NIOSH on behalf of Handke after this
meeting, and Bierbaum had verbal conversations with Wang about the
matter (Tr. 182). Bierbaum indicated that there would be no response to
his letters, because the Respondent's position had been stated (Tr.
182-183).
On August 7, 1984, Handke was served with a notice that NIOSH
intended to suspend her for a period of six months for her refusal to
identify the individuals referred to in the affidavit (G.C. Exh. No. 7).
The notice stated that Handke's refusal to answer questions by
management representatives, "cannot be tolerated." On August 12, 1984,
Handke wrote to a representative of the Respondent and provided the
information demanded (G.C. Exh. No. 9).
As a result of the proposal to suspend, Handke wrote to United States
District Court Judge S. Arthur Spiegel, who was handling the District
Court proceeding, and requested a protective order to prevent further
interrogation by Kay and Bierbaum, and to effect a withdrawal of the
proposed six-month suspension (Tr. 96). The Charging Party also sought
to intervene in the proceeding to protect from harassment, Union members
who had filed affidavits in the District Court proceeding, as well as
others who might be called as witnesses (R. Exh. No. 2, at 2). Judge
Spiegel issued a show cause order requiring that NIOSH establish why
such an order should not be granted (Tr. 96-97, G.C. Exh. No. 10).
At a scheduled hearing before Judge Spiegel on October 12, 1984, it
was argued that Handke and Wang had been subjected to harassment and
interrogations outside of the regular procedures of the court, that
NIOSH had sought to circumvent discovery procedure, and had conspired to
deter witnesses from testifying fully and truthfully in violation of 42
U.S.C. Section 985. It was argued that threats of discipline and
suspension were improper under the circumstances presented, and could
materially affect the testimony of the witnesses in the District Court
proceeding. It was argued that Handke had not refused to answer in an
appropriate forum; and that since Kay and Bierbaum were officials
alleged to have been guilty of discriminatory practices in the District
Court action, and in the Handke affidavit, serious questions were posed
concerning the legitimacy and real intent of their interrogations.
As a result of argument presented to District Court Judge Spiegel
during the October 12th hearing, the need for a protective order was
recognized by the District Court (R. Exh. No. 2 at 11-13, 16, 19-20).
However, the protective order became unnecessary by reason of NIOSH
assurances that the proposed six-month suspension would be revoked, that
all reference to insubordination in relation to the Peguese case would
be deleted from Handke's personnel file, that Mrs. Handke would be
deposed by the Government in accordance with the Federal Rules of Civil
Procedure; and lastly that no alleged discriminating official would be
permitted to conduct any hearing, investigation, or interrogation of Ms.
Handke in regard to the NIOSH investigation of Peguese's charges of
discrimination, or in regard to the allegations made in the Handke
affidavit submitted to the District Court. An order providing a basis
for the resolution of the matter along the foregoing lines was entered
by Judge Spiegel on October 19, 1984 (G.C. Exh. No. 11).
Discussion and Conclusions
Counsel representing the General Counsel contends that the
Respondent, through the conduct of Bierbaum and Kay on June 19th and
July 16th, violated Section 7116(a)(1) of the Statute by interfering
with, restraining or coercing Handke in the exercise of rights accorded
to her under Section 7102 of the Statute.
Section 7116(a)(1) provides in pertinent part:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter . . .
Section 7102(1) of the Statute provides:
"Each employee shall have the right to form, join, or assist
any labor organization, or to refrain from any such activity,
freely and without fear of penalty or reprisal, and each employee
shall be protected in the exercise of such right. Except as
otherwise provided under this chapter, such right includes the
right --
(1) 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 other
officials of the executive branch of the Government, the Congress,
or other appropriate authorities . . .
A determination of whether a statement violates Section 7116(a)(1)
must take into consideration all of the circumstances surrounding the
making of the statement. Internal Revenue Service, Mid-Atlantic Service
Center, 4 A/SLMR 519, A/SLMR No. 421 (1974); U.S. Customs Service,
Region IV, Miami, Florida, 1 FLRA No. 108 (1979), 1 FLRA 942; Veterans
Administration Medical Center, Shreveport, Louisiana, 3 FLRA No. 65
(1980), 3 FLRA 429.
That standard by which one may determine interference, restraint or
coercion, is not the subjective perceptions of the employee, nor is it
the intent of the employer. Rather the test is whether, under the
circumstances of the case, the employer's conduct may reasonably tend to
coerce or intimidate the employee, or, in the case of a statement,
whether the employee could reasonably have drawn a coercive inference
from the statement. The effect of the employer's statements must be
judged in light of circumstances in which words, innocent in and of
themselves, may be understood as threats. Federal Mediation and
Conciliation Service, 9 FLRA No. 31 (1982), 9 FLRA 199; Department of
the Treasury, Internal Revenue Service, Louisville District, 11 FLRA No.
64 (1983), 11 FLRA 290.
The circumstances presented in this case indicate that the affidavit
was prepared by Handke while acting as a representative of the Union.
The questions posed and answered in the affidavit reflect that it was
executed by Handke in a representational capacity in an effort to remedy
discriminatory practices affecting bargaining unit memebers,
particularly James Peguese. Handke's representational activity
dominates the picture presented by the evidence. At the time the
affidavit was planned she was concluding her term as president of the
Union. She was a Union representative on the Respondent's EEO
Committee. Her work location was the focal point of Union activity, and
in 1981-1982, she had served as a Union steward.
The Union acted as Peguese's representative in connection with two
grievances which arose out of personnel actions relating to an
unsatisfactory performance rating, and denial of a within-grade pay
increase. These grievances had not been resolved as of the date of the
alleged unfair labor practice herein, and were then being handled by the
Union. As the Union president, Handke played an important role in the
formulation of Union decisions relating to the processing of these
grievances.
The Respondent's action to remove Peguese in the latter part of March
1984, was the culmination of Respondent's efforts against Peguese. Like
the grievances, the removal action turned upon allegations of poor
performance. Although, Peguese retained private counsel to represent
him in the removal action, he resorted to the Union to help him through
the filing of an EEO complaint alleging that Bierbaum and Kay had
discriminated against him in connection with the removal action. Handke
was Peguese's designated Union representative during the informal stage
of the EEO proceeding.
Although Peguese retained a private attorney to represent him during
the formal stage of the EEO proceeding, Handke was called upon to assist
Peguese's attorney in his handling of Peguese's effort to resist
removal. These efforts finally assumed the form of an injunction
proceeding initiated by Peguese in the United States District Court.
Handke was specifically asked to provide, in affidavit form, information
of value which she had gathered through her handling of the informal
stage of the EEO proceeding as a Union official. In effect she was
assisting Peguese's attorney in the transition required as a result of
Peguese's change in designated representatives, and she was at the same
time stating, in an appropriate forum, the official position of the
Union regarding Respondent's efforts to remove Peguese.
In addition to the Union's deep interest and involvement in Peguese's
grievances, Peguese's EEO complaint, and court proceedings, the Union
and/or Handke had vital representational interests in other episodes of
alleged discrimination referred to by Handke in her affidavit.
Specifically, this interest stemmed from the designation of Handke
and/or others as Union representatives assigned to assist other alleged
discriminatees referred to in the affidavit.
There was no legitimate basis for the Bierbaum and Kay
interrogations. It was acknowledged that Respondent's representatives
were aware of the identity of the individuals referred to in the
affidavit. This circumstance gives rise to considerable inquiry, as do
repetitive efforts to establish Handke's authorship of the affidavit
filed in the District Court proceeding. Even though she acknowledged
her authorship and her signature during the June 19, 1984 meeting, she
was again subjected to interrogation concerning these elements on July
16, 1984.
A number of reasons may be cited to establish the absence of any
legitimate basis for conducting the interrogations described, or for
using threats of discipline for refusal to respond to questions.
Perhaps the most glaring and noticeable is the fact that Handke was
either a witness, or a prospective witness in a pending District Court
proceeding. The Bierbaum and Kay confrontations with Handke were
extra-judicial in nature and outside the purview of discovery procedures
prescribed in the Federal Rules of Civil Procedure. This element was
clearly recognized by United States District Court Judge Spiegel (G.C.
Exh. No. 10, R. Exh. No. 2, G.C. Exh. 11).
Discriminatory practices in the Federal Government are prohibited by
42 U.S.C.A. Section 2000e-16(a). Section 2000e-16(b) of Title 42 grants
authority to the Equal Employment Opportunity Commission (EEOC) to
enforce the policy of nondiscrimination in the Federal Government; and
instructs the EEOC to issue rules and regulations necessary to carry out
its responsibilities under Section 2000e-16. The EEOC has issued
regulations requiring Federal agencies to establish programs for equal
opportunity in employment. 29 C.F.R. Section 1613.201 et seq. Section
1613.203(k) of Title 29 C.F.R. requires agencies to "(P)rovide for the
prompt, fair, and impartial consideration and disposition of complaints
involving issues of discrimination on grounds of race, color, religion,
sex or national origin." The EEOC mandates specific procedures and
requires agencies to attempt to resolve complaints of discrimination on
an informal basis according to established EEOC guidelines before a
formal complaint of discrimination can be filed. 29 C.F.R. Section
1613.204(d)(4), Section 1613.213, and Section 1613.214.
The interrogations utilized by Respondent's representatives in this
case contravened established EEOC procedures, and were not authorized by
law. Even assuming a legitimate intent to develop evidence of the
discriminatory practices alluded to in Handke's affidavit, Respondent's
representatives should have referred the matter to appropriate
investigatory officials and should have avoided the Bierbaum-Kay
confrontations with Handke. /9/
It is also well-settled that an agency may not conduct fact-gathering
sessions without limitation when preparing for third party proceedings.
In Internal Revenue Service and Brookhaven Service Center, 9 FLRA No.
132 (1982), 9 FLRA 930 the Authority held:
. . . Thus, while management may ascertain facts in preparing
its case for third-party proceedings without the presence of the
exclusive representative, the unit employees have the right under
section 7102 of the Statute to 'form, join, or assist any labor
organization, or to refrain from such activity, freely and without
fear of penalty or reprisal(.)' Accordingly, where management
exercises its right to interview unit employees in preparation for
third-party proceedings, but does not take necessary precautions
to preserve employees' protected rights, and instead acts in a
manner which 'interferes with, restrains, or coerces' the
employees, it violates section 7116(a)(1) of the Statute. To
protect employees' rights under section 7102 while management
attempts to ascertain necessary facts, the Authority concludes
that (1) management must inform the employee who is to be
questioned of the purpose of the questioning, assure the employee
that no reprisal will take place if he or she refuses, and obtain
the employee's participation on a voluntary basis; (2) the
questioning must occur in a context which is not coercive in
nature; and (3) the questions must not exceed the scope of the
legitimate purpose of the inquiry or otherwise interfere with the
employee's statutory rights. In this manner, the necessary
balance between the rights of management and the rights of
employees and their exclusive representatives will best be
preserved.
This rule may appropriately be applied to the facts of this case.
The record disclosed that the interrogations and threats did in part
relate to Respondent's preparations for the District Court proceeding.
Evidence introduced by the Respondent reflects that they arose in part
out of Respondent's effort to prepare a defense concerning evidence
introduced through a Union official in the District Court case (R. Exh.
No. 2 at 11). The Union's involvement, interest, and participation in
the litigation initiated on behalf of Peguese was obvious. Respondent
was under an obligation to comply fully with the carefully established
guidelines in Internal Revenue Service and Brookhaven Service Center.
It is clear that the Respondent failed to do so.
On the basis of the foregoing it is concluded that interrogations and
threats would necessarily have had a chilling effect on Handke's
continued participation in Union activity. The conduct conveyed to
Handke, and other bargaining unit members, the clear message that
discipline and/or harassment would follow as a direct result of the
pursuit of legitimate Union interests. It operated to interfere with,
restrain, and coerce her and other bargaining unit members in the
exercise of the statutory right to engage in Union activity.
Accordingly, it is concluded that the Respondent violated Section
7116(a)(1) by subjecting Handke to interrogation and threats as alleged
in the complaint.
Having found that the 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 Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the National Institute for Occupational Safety and Health,
Cincinnati Operations, Cincinnati, Ohio, shall;
1. Cease and desist from:
(a) Interfering with, restraining or coercing Jan Handke, or
any other employee in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute, by conducting
interrogations concerning protected union activity, and by
threatening disciplinary action for failing to disclose details of
information relating to such protected union activity. /10/
(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
purpose and policies of the Statute:
(a) Post at its facilities at the National Institute for
Occupational Safety and Health, Cincinnati Operations, Cincinnati,
Ohio, 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, Division of Surveillance,
Hazard Evaluation, and Field Studies, National Institute for
Occupational Safety and Health, Cincinnati Operations, Cincinnati,
Ohio, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, where notices to employees are
customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by other
material.
(b) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V. 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/ LOUIS SCALZO
Administrative Law Judge
Dated: May 23, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In so concluding the Authority finds it unnecessary to pass upon
whether the Respondent contravened established Equal Employment
Opportunity Commission (EEOC) regulations and other laws cited by the
Judge.
(2) The Authority agrees with the Judge that, in light of the
District Court Order providing for the revocation of Handke's suspension
and for deletion of all relevant references to insubordination in
Handke's personnel file, a cease and desist order, together with a
posting, would best effectuate the purposes and policies of the Statute.
(3) The Union represents about 300 bargaining unit members out of a
total of approximately 500 to 600 employees engaged on behalf of the
Respondent in Cincinnati.
(4) This grievance eventually went to arbitration and was pending
decision at the time of hearing.
(5) The affidavit indicates that she served as President during the
period "May 1983-April 1984"; however, it appeared from the record that
Handke's successor was the President Elect until he assumed office on
May 7, 1984, and that Handke's term of office did not technically
terminate until May 7, 1984 (Tr. 17, 22-23).
(6) Handke's testimony established that the date used in the
affidavit was a typographical error, and that "July 1983" was intended
(Tr. 58).
(7) For convenience the five episodes mentioned by Handke in reply to
Question (7), are referred to by dates used in the Handke affidavit.
(8) Martin's testimony established that neither Handke nor Peguese
were suspected of any criminal activity or wrongdoing in connection with
the information presented in the affidavit (Tr. 203-204).
(9) Although it would be inappropriate within the context of this
case to determine the applicability of federal criminal statutes, it is
noted that the interrogation and threats might be considered as possible
violations of 18 U.S.C. Section 1512. Among other things this Section
prohibits tampering with a witness in a United States District Court
proceeding.
Furthermore, under the provisions of Section 2302(b)(8) (A)(i) of
Title 5, United States Code, it is a "prohibited personnel practice" to
take disciplinary action against any employee as reprisal for disclosing
information which an employee reasonably believes evidences a violation
of any law, rule or regulation.
It is also noted that this policy is reflected in the collective
bargaining agreement governing the labor relations of the parties (Jt.
Exh. No. 1, at 11).
(10) Counsel representing the Respondent seeks a cease and desist
order and an appropriate posting, together with any further relief
deemed just and proper. In light of the District Court Order providing
for the revocation of Handke's suspension, and for deletion of all
relevant references to insubordination in Handke's personnel file, it is
determined that a cease and desist order, together with a posting would
best effectuate the purposes and policies of the Statute.
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 interfere with, restrain, or coerce Jan Handke, or any
other employee, in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute, by conducting interrogations
concerning protected Union activity, and by threatening disciplinary
action for failing to disclose details of information related to such
protected Union activity.
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 V,
whose address is: 175 Jackson Boulevard, Suite 1359-A, Chicago,
Illinois 60604 and whose telephone number is: (312) 353-6306.