[ v03 p724 ]
03:0724(116)CA
The decision of the Authority follows:
3 FLRA No. 116
UNITED STATES DEPARTMENT OF TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
CHICAGO, ILLINOIS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 94
Labor Organization
Case No. 5-CA-152
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS, 45 FED. REG. 3511(1980), AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SECTION 7101 ET
SEQ.), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE
OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTIONS 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE UNITED STATES DEPARTMENT OF THE
TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS
SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR
OTHERWISE, BARBARA J. JACOBS, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) POST AT ITS FACILITIES IN CHICAGO, ILLINOIS, 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 AREA
SUPERVISOR, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS,
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
AREA SUPERVISOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID 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 OF REGION 5, ROOM 1638,
DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS,
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 24, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS, OR
OTHERWISE, BARBARA J. JACOBS, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER 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 ANY 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 5, WHOSE ADDRESS IS: ROOM 1638 DIRKSEN FEDERAL BUILDING, 219
SOUTH DEARBORN STREET, CHICAGO, ILLINOIS 60604, AND WHOSE TELEPHONE
NUMBER IS: (312) 353-6746.
JOHN A. CHEVRIER, ESQUIRE
PHYLLIS POLLACK, ESQUIRE
OFFICE OF THE CHIEF COUNSEL
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
FEDERAL BUILDING
WASHINGTON, D.C. 20226
FOR THE RESPONDENT
BRENDA M. ROBINSON, ESQUIRE
REGIONAL ATTORNEY
GREGORY A. MIKSA, ESQUIRE
ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
ROOM 1638
219 S. DEARBORN STREET
CHICAGO, ILLINOIS 60604
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
SECTION 7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS ISSUED
THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER
XIV, PART 2411, ET SEQ.
THE CHARGE WAS FILED ON JUNE 27, 1979, AND A COMPLAINT, ALLEGING A
VIOLATION OF 5 U.S.C. SECTION 7116(A)(1) OF THE ACT /1/ AND A NOTICE OF
HEARING WERE ISSUED BY THE REGIONAL DIRECTOR ON AUGUST 21, 1979,
PURSUANT TO WHICH A HEARING WAS DULY HELD ON OCTOBER 4, 1979, IN
CHICAGO, ILLINOIS, BEFORE THE UNDERSIGNED.
PARAGRAPH IV OF THE COMPLAINT ASSERTED THAT ON, OR ABOUT, JUNE 6,
1979, RESPONDENT, BY A SUPERVISOR AND AGENT, WARNED A BARGAINING UNIT
EMPLOYEE THAT HER CAREER WITH RESPONDENT WOULD NOT GO MUCH FARTHER
BECAUSE OF HER FILING GRIEVANCES, WHICH CONDUCT VIOLATED SECTION
16(A)(1) OF THE STATUTE. PARAGRAPH V OF THE COMPLAINT REASSERTED THAT
BY THE ACTS DESCRIBED IN PARAGRAPH IV RESPONDENT DID ENGAGE IN, AND IS
ENGAGING IN, UNFAIR LABOR PRACTICES IN VIOLATION OF SECTION 16(A)(1) OF
THE STATUTE. RESPONDENT FILED A TIMELY ANSWER ON SEPTEMBER 6, 1979,
ADMITTING ALL ALLEGATIONS CONTAINED IN PARAGRAPHS I, II AND III OF THE
COMPLAINT BUT DENYING THE ALLEGATIONS SET FORTH IN PARAGRAPHS IV AND V
OF THE COMPLAINT.
FINDINGS
THERE IS LITTLE DISAGREEMENT AS TO THE FACTS. BARBARA J. JACOBS IS,
AND HAD BEEN FOR OVER THREE YEARS, EMPLOYED BY RESPONDENT AS AN
INSPECTOR. SHE IS A MEMBER OF THE BARGAINING UNIT REPRESENTED BY THE
NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER, ALSO REFERRED TO AS
"NTEU"). AS AN INSPECTOR, MS. JACOBS WORKS ABOUT HALF THE TIME UNDER
THE SUPERVISION OF MR. ROBERT E. ROGOWSKI, AREA SUPERVISOR; AND ABOUT
HALF THE TIME UNDER THE SUPERVISION OF MR. ARTHUR J. JEHLI,
OFFICER-IN-CHARGE OF DISTILLED SPIRITS PLANT. MR. JEHLI IS ALSO UNDER
THE SUPERVISION OF THE AREA SUPERVISOR, MR. ROGOWSKI.
MS. JACOBS RESPONDED TO A VACANCY NOTICE ANNOUNCING THE POSITION OF
MANAGEMENT ANALYST SOMETIME PRIOR TO MAY 8, 1979 (THE DATE OF HER
RESPONSE WAS NOT SHOWN AND IS NOT MATERIAL) AND ON MAY 8, 1979, MS.
JACOBS RECEIVED A PERFORMANCE (PROMOTION) EVALUATION, FOR THE ANALYST
JOB FOR WHICH SHE HAD APPLIED, WHICH HAD BEEN PREPARED BY MR. ROGOWSKI.
MS. JACOBS WAS DISSATISFIED WITH THE EVALUATION AND MET WITH MR.
ROGOWSKI THE FOLLOWING DAY, MAY 9, 1979, AND DISCUSSED THE EVALUATION.
REMAINING DISSATISFIED, ON MAY 21, 1979, MS. JACOBS PREPARED A
MEMORANDUM AUTHORIZING MR. ROBERT N. FORGERON, NTEU STEWARD, AS HER
REPRESENTATIVE AND AUTHORIZING MR. FORGERON TO HAVE ACCESS "TO ANY
WRITTEN DOCUMENTS THAT MAY HAVE A BEARING ON MY GRIEVANCE." (G.C. EXH.
2). MS. JACOBS AND MR. FORGERON MET WITH MR. ROGOWSKI ON MAY 21, 1979,
AT WHICH TIME THE MEMORANDUM (G.C. EXH. 2) WAS SUBMITTED TO MR.
ROGOWSKI, THE PROBLEMS MS. JACOBS HAD WITH THE EVALUATION WERE DISCUSSED
POINT BY POINT, AND MR. ROGOWSKI WAS INFORMED THAT THE EVALUATION
VIOLATED ARTICLE 8, SECTION 1, AND ARTICLE 9, SECTIONS 4C AND 4D OF
NTEU'S AGREEMENT WITH RESPONDENT, DATED SEPTEMBER 19, 1977. THE MEETING
OF MAY 21 WAS CONTINUED THE FOLLOWING MORNING, MAY 22. MS. JACOBS
TESTIFIED THAT, IN THE COURSE OF THE MAY 21-22 MEETING, MR. ROGOWSKI
AGREED TO GET INFORMATION SHE HAS REQUESTED TO SUPPORT THE EVALUATION,
BASICALLY INFORMATION CONCERNING ASSIGNMENTS ON WHICH MS. JACOBS HAD
WORKED, AND THAT THERE WAS SOME MENTION OF CHANGING SOME ASPECT OF THE
EVALUATION. NOT HAVING RECEIVED ANY RESPONSE, ON JUNE 1, 1979, MS.
JACOBS SUBMITTED A MEMORANDUM TO M#R. ROGOWSKI, "SUBJECT: INFORMAL
GRIEVANCE" IN WHICH SHE REQUESTED THAT "THE RESPONSE TO THE INFORMAL
GRIEVANCE, OUTLINED BELOW, AND DISCUSSED WITH YOU ON 5/21 AND 5/22/79,
BE SUBMITTED IN WRITING." (G.C. EXH. 3). THE JUNE 1, 1979, MEMORANDUM
ALSO OUTLINED THE RELIEF REQUESTED AND CITED ARTICLE 8, SECTION 1 AND
ARTICLE 9, SECTIONS 4C AND 4D OF THE NTEU AGREEMENT. MR. ROGOWSKI
TESTIFIED THAT HE HAD INFORMED MS. JACOBS BOTH ON MAY 9 AND AT THE MAY
21-22 MEETING THAT HE COULDN'T MAKE ANY CHANGES IN THE EVALUATION
ITSELF; BUT "DID INDICATE THAT SHOULD SHE APPLY FOR ANOTHER POSITION IN
THE FUTURE, I WOULD PREPARE A NEW EVALUATION." MR. ROGOWSKI ALSO
TESTIFIED THAT HE DID NOT CONSIDER THE MEETING OF MAY 21-22 TO BE THE
SECOND STEP IN THE GRIEVANCE PROCEDURES, BUT, RATHER "JUST A DISCUSSION
OF HER PERFORMANCE EVALUATION." (TR. 49). OTHERWISE, MR. ROGOWSKI DID
NOT DISPUTE, OR DISAGREE, WITH MS. JACOB'S TESTIMONY CONCERNING THE
MEETINGS OF MAY 9, 21 AND 22.
ON JUNE 7, 1979, IN RESPONSE TO MS. JACOBS' MEMORANDUM ON JUNE 1,
1979, MR. ROGOWSKI STATED:
". . . I FIND THAT I CANNOT CONSIDER YOUR GRIEVANCE BECAUSE IT WAS
NOT TIMELY FILED IN
ACCORDANCE WITH ARTICLE 34, SECTION 7 OF THE 'AGREEMENT BETWEEN BATF
AND NTEU', DATED
SEPTEMBER 19, 1977." (G.C. EXH. 4).
ON JUNE 7, 1979, MS. JACOBS DELIVERED A LETTER TO MR. JOHN K.
HAUSCHILDT, CHIEF OF FIELD OPERATIONS FOR THE MIDWEST REGION, TOGETHER
WITH A DETAILED "DESCRIPTION OF GRIEVANCES: PERFORMANCE EVALUATION (ATF
F 2430.1)" (G.C. EXH. 6); AND BY LETTER DATED JUNE 14, 1979,
MR.HAUSCHILDT STATED:
"YOUR GRIEVANCE OF YOUR PERFORMANCE EVALUATION WAS DENIED BECAUSE IT
WAS NOT TIMELY FILED
. . . FOR THIS REASON, I CANNOT CONSIDER YOUR GRIEVANCE OR GRANT THE
REMEDIES YOU
REQUEST." (G.C. EXH. 5). /2/
THE VIOLATION CHARGED IN THE COMPLAINT CONCERNS THE STATEMENTS MADE
BY MR. JEHLI TO MS. JACOBS ON JUNE 6, 1979. MS. JACOBS TESTIFIED THAT
MR. JEHLI, AFTER DISCUSSING OTHER MATTERS, SAID THAT HE WOULD LIKE TO
DISCUSS SOMETHING WITH HER "OFF THE RECORD" AND THEN, INTER ALIA, STATED
THAT HE RECOMMENDED THAT SHE "DROP THE WHOLE THING" BY WHICH, HE STATED,
HE MEANT HER GRIEVANCE; THAT SHE COULD PROCEED WITH THE GRIEVANCE, AS
SHE WAS DOING, BUT, ALTHOUGH MR. ROGOWSKI WOULD CHANGE THE EVALUATION,
SHE WOULD NOT REALLY GAIN ANYTHING IN THE LONG RUN; AND THAT MR. JEHLI
FURTHER STATES THAT "SHOULD I ACQUIRE A REPUTATION AS A 'BITCHER' OR A
COMPLAINER, THAT MY CAREER REALLY WOULDN'T GO MUCH FURTHER." (TR. 23,
24-25; SEE, ALSO, TR. 34, 35). MR. JEHLI DID NOT DENY, OR DISPUTE, THAT
HE MADE THE "BITCHER" OR "COMPLAINER" REMARK AND, WHILE HE TESTIFIED
THAT HE DID NOT RECALL USING THE WORD "DROP", READILY ADMITTED THAT HE
TOLD MS. JACOBS THAT HE "DIDN'T THINK THE PURSUANCE OF THIS THING TO GET
AN EVALUATION CHANGED WAS WORTH ALL THE TROUBLE SHE WAS GOING THROUGH"
AND THAT HE "COULDN'T SEE HOW SHE COULD BENEFIT EVEN IF SHE HAD SOME OF
THE WORDING CHANGED" (TR. 42). I FOUND MS. JACOBS TO BE A WHOLLY
CREDIBLE WITNESS; HER TESTIMONY, IN ALL SIGNIFICANT RESPECTS, WAS
EITHER ENTIRELY UNCHALLENGED OR WAS FULLY CONFIRMED BY THE TESTIMONY OF
MR. JEHLI; AND, ACCORDINGLY, I CREDIT HER TESTIMONY AND FIND THAT MR.
JEHLI DID RECOMMEND THAT SHE DROP HER GRIEVANCE; THAT IF SHE PROCEEDED
WITH THE GRIEVANCE AND SUCCEEDED IN HAVING THE EVALUATION CHANGED SHE
WOULD NOT REALLY GAIN ANYTHING IN THE LONG RUN; AND THAT MR. JEHLI
STATED THAT SHOULD SHE ACQUIRE A REPUTATION AS A "BITCHER" OR A
"COMPLAINER" HER CAREER REALLY WOULDN'T GO MUCH FURTHER.
CONCLUSIONS
IT IS ELEMENTAL THAT PROTECTED ACTIVITY FLOWING FROM EXCLUSIVE
REPRESENTATION BY A LABOR ORGANIZATION INCLUDES THE PROCESSING OF
GRIEVANCES. IN ONE OF THE EARLY CASES DECIDED UNDER EXECUTIVE ORDER
11491 IT WAS HELD THAT ANY INTERFERENCE WITH THE RIGHT TO FILE
GRIEVANCES TENDED TO DISCOURAGE EXERCISE OF THE FREEDOM OF EMPLOYEES TO
FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, RIGHTS WHICH WERE GUARANTEED
BY SECTION 1(A) OF EXECUTIVE ORDER 11491. DEPARTMENT OF DEFENSE,
ARKANSAS NATIONAL GUARD, A/SLMR NO. 53, 1 A/SLMR 274 (1971) (AGENCY
GRIEVANCE PROCEDURE), SEE, ALSO, UNITED STATES ARMY SCHOOL/TRAINING
CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO. 42, 1 A/SLMR 225(1971)
(IMPLICITLY PROMISING GRIEVANT MORE FAVORABLE AND EXPEDITIOUS ACTION BY
DIRECT DISCUSSIONS WITH MANAGEMENT). IN NATIONAL LAW JUDGE, NOVEMBER 2,
1979). SECTION 2 OF THE STATUTE, AS HAD SECTION 1(A) OF THE EXECUTIVE
ORDER, ASSURES THAT "EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN,
OR ASSIST ANY LABOR ORGANIZATION . . . FREELY AND WITHOUT FEAR OF
PENALTY OF REPRISAL, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE
EXERCISE OF SUCH RIGHT . . . ." (5 U.S.C. SECTION 7102). THERE CAN BE
NO QUESTION THAT THE RIGHT TO FILE AND PROCESS GRIEVANCES UNDER A
NEGOTIATED GRIEVANCE PROCEDURE FALLS WITHIN THE AMBIT OF SECTION 2 OF
THE STATUTE. AS NOTED, SECTION 1(A) OF THE EXECUTIVE ORDER ASSURED SUCH
RIGHT AND SECTION 2 OF THE STATUTE ASSURES PRECISELY THE SAME RIGHT,
"FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL" TO "FORM, JOIN, OR
ASSIST ANY LABOR ORGANIZATION" AND THAT "EACH EMPLOYEE SHALL BE
PROTECTED IN THE EXERCISE OF SUCH RIGHT".
ACCORDINGLY, SUPERVISOR JEHLI'S STATEMENT TO MS. JACOBS THAT HE
RECOMMENDED THAT SHE "DROP", OR NOT PROCEED WITH, HER GRIEVANCE; AND
THAT, EVEN IF SHE SUCCEEDED IN HAVING THE EVALUATION CHANGED, SHE WOULD
NOT REALLY GAIN ANYTHING IN THE LONG RUN, WAS, ALONE, A COERCIVE OR
INTIMIDATING STATEMENT BY AGENCY MANAGEMENT IMPLYING ADVERSE
CONSEQUENCES "IN THE LONG RUN" IF SHE DID NOT DO SO; AND WHEN COUPLED
WITH THE FURTHER COMMENT THAT, SHOULD THE GRIEVANT ACQUIRES A REPUTATION
AS A "BITCHER" OR A "COMPLAINER", HER CAREER "WOULDN'T GO MUCH FURTHER"
WAS A FURTHER DIRECT, IMPLIED THREAT, IF NOT A LIGHTLY VEILED PROMISE,
THAT THE CAREER OF ANY EMPLOYEE WHO PROCESSED GRIEVANCES, OR COMPLAINTS,
WOULD SUFFER. ANY INTERFERENCE WITH THE RIGHT OF AN EMPLOYEE TO FILE
AND PROCESS GRIEVANCES UNDER A NEGOTIATED AGREEMENT, BY ANY IMPLIED
THREATS OF ADVERSE CONSEQUENCES, IS INHERENTLY DESTRUCTIVE OF THE RIGHT
OF EACH EMPLOYEE, ASSURED BY SECTION 2 OF THE STATUTE, "TO FORM, JOIN,
OR ASSIST ANY LABOR ORGANIZATION . . . FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL . . . ", AND VIOLATES SECTION 16(A)(1) OF THE
STATUTE. /3/
RESPONDENT'S CONTENTIONS HAVE BEEN CAREFULLY CONSIDERED AND HAVE BEEN
FOUND WHOLLY LACKING IN MERIT. THUS, FOR EXAMPLE, RESPONDENT CONTENDS
THAT, BECAUSE THE EVALUATION WAS FOR A JOB OUTSIDE THE BARGAINING UNIT,
IT WAS NOT GRIEVABLE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE,
NOTWITHSTANDING THAT RESPONDENT DENIED THE GRIEVANCE BECAUSE IT WAS NOT
TIMELY FILED IN ACCORDANCE WITH ARTICLE 34, SECTION 7 OF THE AGREEMENT
(C.G. EXH. 4) WHICH WAS, IN EFFECT, THEREAFTER AFFIRMED (G.C. EXH 6).
SUCH CONTENTION BEGS THE QUESTION AND IGNORES THE RIGHTS ASSURED BY
SECTION 2 OF THE STATUTE, WHICH INCLUDES THE RIGHT OF EVERY EMPLOYEE,
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FILE AND TO PROCESS
GRIEVANCES UNDER A NEGOTIATED AGREEMENT. ASSUREDLY, THE RIGHT TO FILE
AND PROCESS GRIEVANCES, ASSURED BY SECTION 2 OF THE STATUTE, IS NOT
CONDITIONED ON, OR LIMITED TO, GRIEVANCES IN WHICH THE GRIEVANT
PREVAILS. WHETHER THE EVALUATION WAS GRIEVABLE, IN FACT, UNDER THE
NEGOTIATED PROCEDURE IS BESIDE THE POINT. EVEN IF WRONG, MS. JACOBS HAD
THE ABSOLUTE RIGHT OF FREE ACCESS TO THE GRIEVANCE PROCEDURE TO PRESENT
HER CONTENTION. IT IS IMMATERIAL WHETHER MR. JEHLI "KNEW" MS. JACOBS
HAD A "GRIEVANCE" SINCE HE CONCEDED THAT HE KNEW "BY TALKING TO MR.
ROGOWSKI-- THAT SHE HAD A COMPLAINT OR JUST SOME DISSATISFACTION WITH AN
EVALUATION REPORT . . . AND THAT SHE WAS DISCUSSING THIS WITH MR.
ROGOWSKI" (TR. 40). SECTION 3(A)(9) OF THE STATUTE PROVIDES, IN PART,
THAT:
"(9) 'GRIEVANCE' MEANS ANY COMPLAINT--
(A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
OF THE EMPLOYEE;"
CHARACTERIZATION OF THE MATTER AS A "COMPLAINT", ITSELF, UNDER
SECTION 3(A)(9) ALSO MEANS "GRIEVANCE". IN ANY EVENT, MR. ROGOWSKI'S
KNOWLEGE IS IMPUTED TO MR. JEHLI AND THE RECORD SHOWS, BEYOND ANY
POSSIBLE DOUBT, THAT MR. ROGOWSKI WAS FULLY ADVISED THAT MS. JACOBS WAS
ASSERTING A GRIEVANCE UNDER THE NTEU AGREEMENT, SHOWN, INTER ALIA, BY
DESIGNATION OF REPRESENTATIVE (G.C. EXH. 2), THE DISCUSSIONS OF MAY 21
AND 22, THE WRITTEN GRIEVANCE OF JUNE 1, 1979 (G.C. EXH. 3), AND BY MR.
ROGOWSKI'S DISMISSAL OF THE GRIEVANCE AS NOT TIMELY FILED (G.C. EXH. 4).
FINALLY, IT IS IMMATERIAL AS TO WHETHER MR. JEHLI'S STATEMENT TO MS.
JACOBS DID, OR DID NOT, HAVE A CHILLING EFFECT ON OTHER EMPLOYEES
INSOFAR AS THE VIOLATION AS TO MS. JACOBS IS CONCERNED. SECTION 2 OF
THE STATUTE PROTECTS THE RIGHTS OF EACH EMPLOYEE, MANDATES THAT EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHTS, AND SECTION
16(A)(1) MAKES IT AN UNFAIR LABOR PRACTICE FOR AN AGENCY TO INTERFERE
WITH, RESTRAIN, OR COERCE, "ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE
OF ANY RIGHT UNDER THIS CHAPTER". CONSEQUENTLY, THE STATEMENT TO MS.
JACOBS, WHICH I HAVE FOUND DISCOURAGED OR INTERFERED WITH HER RIGHT,
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FILE AND PROCESS A
GRIEVANCE UNDER THE AGREEMENT, CONSTITUTED, WITHOUT MORE, A VIOLATION OF
SECTION 16(A)(1) OF THE STATUTE. MOREOVER, MR. JEHLI'S STATEMENT TO MS.
JACOBS, EVEN IF NOT OVERHEARD, WAS SO PHRASED THAT IT IMPLIED THAT THE
CAREER OF ANY EMPLOYEE WHO COMPLAINED OF MANAGEMENT ACTION BY
PROCESSING
GRIEVANCES WOULD SUFFER, WHICH I DEEM SUFFICIENT BASIS TO WARRANT A
BROAD REMEDIAL ORDER.
ORDER
PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. SECTION
7118(1)(7), AND SECTION 2423.25 OF THE INTERIM RULES AND REGULATIONS,
FED. REG., VOL. 44, NO. 147, JULY 30, 1979 (5 C.F.R. SECTION 2423.25),
THE AUTHORITY HEREBY ORDERS THAT UNITED STATES DEPARTMENT OF TREASURY,
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR
OTHERWISE, BARBARA J. JACOBS, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
THE STATUE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) POST AT ITS FACILITIES IN CHICAGO, ILLINOIS, 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 AREA
SUPERVISOR, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS,
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
AREA SUPERVISOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.29 OF THE INTERIM RULES AND REGULATIONS,
NOTIFY THE REGIONAL DIRECTOR OF REGION 5, ROOM 1638, DIRKSEN FEDERAL
BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS, IN WRITING,
WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN
TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 20, 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF THE THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS, OR
OTHERWISE, BARBARA J. JACOBS, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER 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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 5, WHO
ADDRESS IS: ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN
STREET, CHICAGO, ILLINOIS 60604.
SERVICE SHEET
"DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE WILLIAM B.
DEVANEY WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
BY: (SIGNATURE)
JOHN A. CHEVRIER, ESQUIRE
PHYLLIS POLLACK, ESQUIRE
OFFICE OF THE CHIEF COUNSEL
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
FEDERAL BUILDING
WASHINGTON, D.C. 20226
BRENDA M. ROBINSON, ESQUIRE
REGIONAL ATTORNEY
GREGORY A. MIKSA, ESQUIRE
ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
ROOM 1638
219 S. DEARBORN STREET
CHICAGO, IL 60604
REGULAR MAIL:
MR. ROBERT TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
FEDERAL LABOR RELATIONS AUTHORITY
1900 "E" STREET, N.W., ROOM 7469
WASHINGTON, D.C. 20424
OFFICE OF THE GENERAL COUNSEL
1900 "E" STREET, N.W., ROOM 7469
WASHINGTON, D.C. 20424
ONE COPY TO EACH REGIONAL DIRECTOR
/1/ HEREINAFTER, FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE
STATUTE ARE ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
PORTION OF THE STATUTE REFERENCE. FOR EXAMPLE, SECTION 7116(A)(1)
SIMPLY AS "16(A)(1)"; HOWEVER, UNLESS OTHERWISE SPECIFICALLY INDICATED,
ALL SUCH REFERENCES REFER TO CHAPTER 71 OF THE STATUTE.
/2/ SUBSEQUENTLY, IN JULY OR AUGUST, MR. ROGOWSKI DID PREPARE AN
AMENDED EVALUATION WHICH WAS GIVEN TO MS. JACOBS IN A MEETING WITH MR.
HAUSCHILDT, MR. ROGOWSKI AND MISS ALICE WILSON, PERSONNEL
REPRESENTATIVE.
/3/ "(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 OF ANY RIGHT UNDER
THIS CHAPTER;" (5 U.S.C. SECTION 7116 (A)(1)).