U.S. Department of Treasury, Internal Revenue Service (Respondent) and National Treasury Employees Union and National Treasury Employees Union Chapter 10 (Charging Party)
[ v04 p666 ]
04:0666(87)CA
The decision of the Authority follows:
4 FLRA No. 87
U.S. DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION CHAPTER 10
Charging Party
Case No. 5-CA-97
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491,
AS AMENDED, AND RECOMMENDING THAT CERTAIN OTHER ALLEGED UNFAIR LABOR
PRACTICES BE DISMISSED. THE RESPONDENT FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2423.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
STATUTE.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS WERE
HEREBY AFFIRMED. THE AUTHORITY HAS CONSIDERED THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE EXCEPTIONS FILED. THE AUTHORITY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS TO
THE EXTENT CONSISTENT HEREWITH. /1/
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF THE EXECUTIVE ORDER 11491, AS AMENDED, WHEN ITS
AGENTS ON TWO SEPARATE OCCASIONS THREATENED OR INTERFERED WITH TWO
UNION
APPOINTED MEMBERS OF AN EEO ADVISORY COMMITTEE IN THE PERFORMANCE OF
THEIR FUNCTIONS AS UNION APPOINTED MEMBERS OF THAT COMMITTEE. HOWEVER,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE ACTIONS OF THE RESPONDENT'S
AGENTS ON A THIRD OCCASION DID NOT CONSTITUTE INTERFERENCE WITH,
RESTRAINT OR COERCION OF AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED
BY THE ORDER. THE SPECIFIC INCIDENT INVOLVED OCCURRED ON JANUARY 3,
1979. THE DAY BEFORE MARJORIE GERDES, THE UNION APPOINTED CHAIRPERSON
OF THE EEO ADVISORY COMMITTEE, HAD BEEN INFORMED BY AN AGENT OF THE
RESPONDENT THAT SHE WAS TO ATTEND A MEETING IN THE OFFICE OF
RESPONDENT'S DISTRICT DIRECTOR THE FOLLOWING MORNING. SHE REQUESTED
FELLOW COMMITTEE MEMBER (AND COINCIDENTALLY NTEU CHAPTER 10 PRESIDENT)
EDWARD MCCARTHY TO ACCOMPANY HER TO THE MEETING. UPON ARRIVAL AT THE
MEETING, DISTRICT DIRECTOR MIRIANI REFUSED TO ALLOW MR. MCCARTHY TO
ATTEND AND ORDERED MS. GERDES INTO HIS OFFICE. PRESENT AT THE MEETING
WERE MR. MIRIANI AND THREE OTHER REPRESENTATIVES OF THE RESPONDENT. AT
THE MEETING MS. GERDES WAS QUESTIONED ABOUT AND CRITICIZED REGARDING A
LIST OF QUESTIONS WHICH THE COMMITTEE HAD PREPARED IN ANTICIPATION OF AN
UPCOMING APPEARANCE BEFORE THE COMMITTEE BY ANOTHER AGENT OF THE
RESPONDENT.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT RESPONDENT'S ACTIONS WITH
RESPECT TO THE JANUARY 3 MEETING DID NOT VIOLATE SECTION 19(A)(1) OF THE
ORDER. IN SO FINDING HE NOTED THAT WHILE THE REMARKS MADE TO MS. GERDES
WERE DIRECTED AT HER AS THE UNION APPOINTED EEO COMMITTEE CHAIRPERSON,
THEY WERE DEVOID OF ANY THREATS, IMPLIED OR OTHERWISE, TO HER OF
POSSIBLE RETALIATION FOR HER UNION ACTIVITIES.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE THE AUTHORITY IS OF THE VIEW
THAT THE RESPONDENT'S CONDUCT TOWARDS MS. GERDES IN CONJUNCTION WITH THE
JANUARY 3 MEETING VIOLATED SECTION 19(A)(1) OF THE ORDER. NOTING THAT
MS. GERDES WAS ENGAGED IN PROTECTED ACTIVITY IN THE CONTEXT OF
PERFORMING HER ROLE AS THE UNION APPOINTED CHAIRPERSON OF THE EEO
ADVISORY COMMITTEE, THE AUTHORITY FINDS THAT THE TREATMENT ACCORDED MS.
GERDES WOULD TEND TO INTERFERE WITH THE PERFORMANCE OF HER FUNCTIONS.
IN THIS REGARD THE AUTHORITY FINDS THAT, WHILE THE REMARKS MADE TO MS.
GERDES AT THE MEETING WERE DEVOID OF ANY EXPLICIT THREATS, THE CONDUCT
OF THE RESPONDENT IN ORDERING MS. GERDES TO ATTEND SUCH A MEETING AND IN
REFUSING TO ALLOW HER TO BE ACCOMPANIED BY A FELLOW COMMITTEE MEMBER WAS
COERCIVE IN NATURE AND CONSTITUTED INTERFERENCE WITH MS. GERDES'
PROTECTED UNION ACTIVITY IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE,
THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE SHALL:
1. CEASE AND DESIST FROM
(A) THREATENING OR OTHERWISE INTERFERING WITH THE REPRESENTATIONAL
RESPONSIBILITIES OR ACTIVITIES OF AN NTEU APPOINTED MEMBER TO THE EEO
ADVISORY COMMITTEE BY SUGGESTING THAT HE MAY JEOPARDIZE HIS CAREER BY
PURSUING CERTAIN MATTERS IN CONJUNCTION WITH COMMITTEE ACTIVITY.
(B) THREATENING OR INTERFERING WITH THE REPRESENTATIONAL
RESPONSIBILITIES OF THE NTEU APPOINTED CHAIRPERSON OF THE COMMITTEE BY
THREATENING TO CEASE FURTHER BRIEFING SESSIONS WITH THE OFFICE OF THE
DISTRICT DIRECTOR IF SHE CONTINUES HER PRACTICE OF SUBMITTING WRITTEN
REPORTS OF THE SESSIONS TO THE FULL EEO COMMITTEE OR BY ORDERING HER TO
ATTEND MANAGEMENT CALLED MEETINGS AT WHICH COMMITTEE ACT'ONS ARE
QUESTIONED AND CRITICIZED AND BY REFUSING ADMISSION TO A FELLOW
COMMITTEE MEMBER WHOM SHE HAD SOUGHT TO HAVE ACCOMPANY HER.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED, OR THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR RELATIONS STATUTE:
(A) POST AT THE CHICAGO DISTRICT OFFICE, DEPARTMENT OF TREASURY,
INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. (THE NOTICE RECOMMENDED BY THE ADMINISTRATIVE LAW
JUDGE HAS BEEN MODIFIED TO REFLECT THE ADDITIONAL VIOLATION FOUND BY THE
AUTHORITY. ALSO IT HAS BEEN MODIFIED TO INDICATE MORE SPECIFICALLY THE
VIOLATIVE CONDUCT INVOLVED.) UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE DISTRICT DIRECTOR, DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, CHICAGO, ILLINOIS, AND THEY SHALL BE POSTED BY HIM FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DISTRICT
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE SECTION 19(A)(6) ALLEGATION OF THE
COMPLAINT FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND
HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 12, 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 THREATEN OR OTHERWISE INTERFERE WITH THE REPRESENTATIONAL
RESPONSIBILITIES OR ACTIVITIES OF AN NTEU APPOINTED MEMBER TO THE EEO
ADVISORY COMMITTEE BY SUGGESTING THAT HE MAY JEOPARDIZE HIS CAREER BY
PURSUING CERTAIN MATTERS IN CONJUNCTION WITH COMMITTEE ACTIVITY.
WE WILL NOT THREATEN OR INTERFERE WITH THE REPRESENTATIONAL
RESPONSIBILITIES OF THE NTEU APPOINTED CHAIRPERSON OF THE COMMITTEE BY
THREATENING TO CEASE FURTHER BRIEFING SESSIONS WITH THE OFFICE OF THE
DISTRICT DIRECTOR IF SHE CONTINUES HER PRACTICE OF SUBMITTING WRITTEN
REPORTS OF THE SESSIONS TO THE FULL EEO COMMITTEE OR BY ORDERING HER TO
ATTEND MANAGEMENT CALLED MEETINGS AT WHICH COMMITTEE ACTIONS ARE
QUESTIONED AND CRITICIZED AND BY REFUSING ADMISSION TO A FELLOW
COMMITTEE MEMBER WHOM SHE HAD SOUGHT TO HAVE ACCOMPANY HER.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, OR 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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
175 WEST JACKSON BLVD., SUITE 1359A, CHICAGO, ILLINOIS 60604 AND WHOSE
TELEPHONE NUMBER IS: (312) 353-6306.
---------------
LOWS -----
TOM C. BORDERS, ESQUIRE
STAFF ATTORNEYS, REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
22ND FLOOR SOUTH
219 S. DEARBORN STREET
CHICAGO, ILLINOIS 60604
FOR THE RESPONDENT
MICHAEL MAUER, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 1101, 1730 K STREET, N.W.
WASHINGTON, D.C. 20006
FOR THE CHARGING PARTY
GREGORY A. MIKSA, ESQUIRE
COUNSEL FOR THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
ROOM 1638, 219 SOUTH DEARBORN STREET
CHICAGO, ILLINOIS 60604
FOR THE FEDERAL LABOR RELATIONS AUTHORITY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS MATTER COMES BEFORE THE UNDERSIGNED ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON DECEMBER 20,
1979, BY THE REGIONAL DIRECTOR FOR REGION V, FEDERAL LABOR RELATIONS
AUTHORITY, CHICAGO, ILLINOIS. SAID COMPLAINT IS BASED UPON AN AMENDED
CHARGE FIRST FILED ON MAY 3, 1979, BY THE NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTER 10 (HEREINAFTER CALLED THE UNION OR COMPLAINANT),
AGAINST THE U.S. INTERNAL REVENUE SERVICE AND ITS CHICAGO DISTRICT
OFFICE, (HEREINAFTER CALLED THE RESPONDENT OR ACTIVITY).
THE COMPLAINT ALLEGES IN SUBSTANCE THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY VIRTUE
OF ITS ACTIONS IN "PATENTLY AND ARBITRARILY" BREACHING A COLLECTIVE
BARGAINING AGREEMENT AND COERCING AND RESTRAINING EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE EXECUTIVE ORDER TO FREELY
PARTICIPATE AS UNION APPOINTED REPRESENTATIVES ON A CONTRACTUALLY
ESTABLISHED EQUAL OPPORTUNITY COMMITTEE. /2/
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JANUARY 22, 1980, IN
CHICAGO, ILLINOIS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO ADDUCE EVIDENCE AND EXAMINE AND CROSS-EXAMINE WITNESSES. THE
GENERAL COUNSEL AND RESPONDENT SUBMITTED BRIEFS WHICH HAVE BEEN DULY
CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDED ORDER.
FINDINGS OF FACT
THE RESPONDENT AND THE UNION, WHICH IS THE EXCLUSIVE REPRESENTATIVE
OF THE PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES IN RESPONDENT'S
DISTRICT OFFICES, ARE PARTIES TO A MULTI-DISTRICT COLLECTIVE BARGAINING
AGREEMENT COVERING, AMONG OTHER THINGS, RESPONDENT'S CHICAGO DISTRICT
OFFICE WHEREIN THE ALLEGED UNFAIR LABOR PRACTICES OCCURRED. CHAPTER 10,
NTEU, IS THE LOCAL AGENT FOR THE NTEU IN THE CHICAGO DISTRICT AND IS A
PARTY TO A LOCAL SUPPLEMENTAL COLLECTIVE BARGAINING AGREEMENT WITH THE
RESPONDENT. BOTH THE MULTI-DISTRICT AGREEMENT AND THE LOCAL
SUPPLEMENTAL AGREEMENT PROVIDE FOR THE ESTABLISHMENT OF AN EQUAL
OPPORTUNITY AFFIRMATIVE ACTION COMMITTEE, ONE HALF OF WHICH IS TO BE
SELECTED BY THE UNION. /3/ BOTH THE COLLECTIVE BARGAINING AGREEMENT AND
THE SUPPLEMENTAL AGREEMENT PROVIDE THAT EACH YEAR THE UNION AND THE
DISTRICT DIRECTOR WILL ROTATE THE SELECTION OF THE COMMITTEE CHAIRMAN
AND VICE-CHAIRMAN. IN A YEAR WHEN THE UNION APPOINTS THE CHAIRMAN, THE
DISTRICT DIRECTOR WILL HAVE THE RIGHT TO APPOINT THE VICE-CHAIRMAN AND
VICE VERSA.
WITH RESPECT TO THE PURPOSE AND FUNCTION OF THE EEO COMMITTEE,
ARTICLE 15, SECTION 1E PROVIDES AS FOLLOWS: /4/
IT WILL BE THE FUNCTION OF THE COMMITTEE TO ASSIST IN THE
IDENTIFICATION AND DEVELOPMENT OF
ITEMS FOR EEO AFFIRMATIVE ACTION AND UPWARD MOBILITY PLANS AND TO
MAKE RECOMMENDATIONS TO THE
EMPLOYER FOR POSSIBLE INCLUSION IN THE PLAN. IT WILL ALSO ADVISE THE
EMPLOYER ON THE
IMPLEMENTATION OF THE PLAN. THE ACTION PLAN WILL CONCERN ITSELF WITH
MATTERS OF RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AND AGE. THE COMMITTEE WILL ALSO BE
RESPONSIBLE FOR REVIEWING
THE PROGRESS UNDER THE ACTION PLAN AND REPORTING ITS FINDINGS TO THE
EMPLOYER.
THE BYLAWS OF THE EEO COMMITTEE PROVIDES UNDER THE "PURPOSE AND
FUNCTION" AS FOLLOWS:
TO ADVISE THE DISTRICT DIRECTOR AND RECOMMEND TO MANAGEMENT ANY
REMEDIAL ACTIONS NECESSARY
TO FURTHER ALL ASPECTS OF THE EEO PROGRAM IN THE DISTRICT OFFICE.
FUNCTIONS AS A CONTINUING
LINK OF COMMUNICATION BETWEEN MANAGEMENT AND THE TOTAL POPULATION OF
THE DISTRICT OFFICE ON
MATTERS OF AN EEO NATURE IN AN ADVISORY AND CONSULTATIVE CAPACITY.
THE BYLAWS FURTHER PROVIDE, AMONG OTHER THINGS, THAT THE EEO MEETINGS
SHALL BE HELD ON THE FIRST THURSDAY OF EACH MONTH THROUGHOUT THE YEAR.
ON DECEMBER 7, 1978, A REGULARLY MONTHLY EEO COMMITTEE MEETING WAS
HELD. DURING THE COURSE OF THE MEETING A DISCUSSION ENSUED CONCERNING
THE LACK OF STATISTICAL INFORMATION PERTAINING TO THE FAILURE RULE OF
MINORITIES IN THE RESPONDENT'S TRAINING PROGRAM FOR NEW EMPLOYEES. IN
INASMUCH AS THE RESPONDENT HAD REFUSED PAST COMMITTEE REQUESTS FOR SUCH
STATISTICAL INFORMATION, ROBERT JONES, A UNION APPOINTED MEMBER OF THE
EEO COMMITTEE, VOLUNTEERED TO PERSONALLY CONTACT VARIOUS EMPLOYEES
INVOLVED IN THE TRAINING PROGRAM AND ATTEMPT TO SECURE THE STATISTICS
CONCERNING THE FAILURE RATES OF THE MINORITY EMPLOYEES IN THE TRAINING
PROGRAMS. ACCORDING TO MR. JONES, WHOSE TESTIMONY IS CORROBORATED BY
MR. MICHAEL PEACHER AND MS. MAJORIE GERDES, /5/ MR. DON TURNER, CHIEF
OF FIELD BRANCH AND COLLECTION DIVISION, /6/ INFORMED HIM THAT SUCH
ACTION ON HIS PART COULD JEOPARDIZE HIS CAREER SINCE IT WOULD BE
CONTRARY TO THE WISHES OF THE DIRECTOR WHO DID NOT WANT THE INFORMATION
COLLECTED. THEREAFTER, THE EEO COMMITTEE VOTED TO EXPUNGE MR. JONES'
OFFER FROM THE COMMITTEE'S MINUTES. /7/
ON DECEMBER 14, 1978, MS. MARJORIE GERDES, CHAIRPERSON OF THE EEO
COMMITTEE, IN ACCORDANCE WITH PRIOR PRACTICE, MET WITH ASSISTANT
DISTRICT DIRECTOR JOHN EDWARDS FOR PURPOSES OF BRIEFING HIM WITH RESPECT
TO WHAT HAD OCCURRED OR TRANSPIRED AT THE DECEMBER 7TH EEO COMMITTEE
MEETING. /8/ PRIOR TO THE START OF THE BRIEFING SESSION AND WHILE MR.
EDWARDS AND MS. GERDES WERE ALONE, MR. EDWARDS TOOK EXCEPTION TO THE
MINUTES MS. GERDES HAD TAKEN AT THEIR PREVIOUS MONTHLY MEETING. MR.
EDWARDS ATTACKED THE MINUTES ON THE GROUND THAT THEY WERE INACCURATE AND
SLANTED. AFTER DELINEATING WHAT HE THOUGHT WERE ERRORS IN MS. GERDES
MINUTES, MR. EDWARDS CAUTIONED MS. GERDES THAT HE WOULD NOT HOLD THE
REGULAR MONTHLY BRIEFING SESSIONS WITH HER IF SHE DID NOT CEASE MAKING
WRITTEN REPORTS TO THE EEO COMMITTEE OF THEIR BRIEFING SESSIONS. MR.
EDWARDS' REMARKS WERE MADE IN AN ANGRY MANNER AND ACCOMPANIED BY A
POINTED FINGER FOR EMPHASIS. THE PRIVATE CONVERSATION ENDED WHEN MS.
GERDES AGREED NOT TO MAKE WRITTEN NOTES OF THE DECEMBER 14, 1978
BRIEFING SESSION. THEREAFTER NEXT MONTHLY BRIEFING SESSION HELD ON
JANUARY 22, 1979, MS. GERDES WAS ALLOWED TO TAKE NOTES. HOWEVER, MR.
EDWARDS REMAINED SILENT AND MADE NO REMARKS OR STATEMENTS OF POSITION
DURING THE ENTIRE MEETING.
ON JANUARY 2, 1979, WHILE AT HOME ON ANNUAL LEAVE, MS. GERDES
RECEIVED A TELEPHONE CALL FROM MR. DONALD TURNER WHO INFORMED HER THAT
SHE WAS TO ATTEND A MEETING IN THE DISTRICT DIRECTOR'S OFFICE THE NEXT
MORNING AT 8:30 A.M. MR. TURNER FURTHER INFORMED HER THAT HE BELIEVED
THAT THE MEETING CONCERNED THE OUTSTANDING INVITATION TO MR.
KOPIDLANSKY, CHIEF OF THE EXAMINATION DIVISION, TO SPEAK AT A SCHEDULED
MONTHLY MEETING OF THE EEO COMMITTEE. BEING CONCERNED ABOUT HER PAST
EXPERIENCE IN MR. EDWARDS' OFFICE A FEW WEEKS EARLIER, MS. GERDES
CONTACTED MR. MICHAEL PEACHER, NTEU VICE-PRESIDENT, AND SOUGHT ADVICE.
MR. PEACHER SUGGESTED THAT MS. GERDES HAVE EEO COMMITTEEMAN EDWARD
MCCARTHY ACCOMPANY HER TO THE MEETING.
THE NEXT MORNING, JANUARY 3, 1979, MS. GERDES MET MR. MCCARTHY IN
DISTRICT DIRECTOR MIRIANI'S ANTE ROOM. UPON BEING INVITED INTO MR.
MIRIANI'S OFFICE, MS. GERDES INFORMED MR. MIRIANI THAT SHE WANTED MR.
MCCARTHY TO ACCOMPANY HER. MR. MIRIANI STATED THAT MR. MCCARTHY WAS
NOT WELCOME SINCE IT WAS NOT A UNION MATTER. MR. MCCARTHY REPLIED THAT
HE WAS NOT COMING IN HIS CAPACITY AS PRESIDENT OF CHAPTER 10, NTEU, BUT
AS AN EEO COMMITTEEMAN, AND THAT IT HAD ALWAYS BEEN THE PRACTICE TO
ALLOW EEO COMMITTEEMEN TO ATTEND EEO MEETINGS WITH MANAGEMENT. MR.
MIRIANI REPLIED THAT MR. MCCARTHY COULD NOT ATTEND AND ORDERED MS.
GERDES INTO HIS OFFICE. THE MEETING THEN PROCEEDED WITH MR. MIRIANI,
MR. EDWARDS, ASSISTANT DIRECTOR, MR. TURNER, EEO VICE-CHAIRMAN, AND MR.
THOMAS, AN EEO OFFICIAL, IN ATTENDANCE.
THE MEETING, IN THE MAIN, WAS CONFINED TO A SET OF QUESTIONS TO MR.
KOPIDLANSKY WHICH HAD BEEN DRAWN UP BY THE EEO COMMITTEE IN PREPARATION
FOR HIS SCHEDULED APPEARANCE BEFORE THE EEO COMMITTEE. DURING THE
MEETING THE QUESTIONS PREPARED FOR MR. KOPIDLANSKY WERE HIGHLY
CRITICIZED AND MS. GERDES WAS ACCUSED OF TURNING THE EEO COMMITTEE INTO
AN ADVERSARY RELATIONSHIP. SHE WAS FURTHER ACCUSED OF NOT KNOWING HOW
TO WRITE QUESTIONS AND TO DEAL WITH PEOPLE. WHEN MS. GERDES POINTED OUT
THAT SHE WAS NOT THE AUTHOR OF THE QUESTIONS, SHE WAS ASKED THE
IDENTITIES OF THE INDIVIDUAL COMMITTEE MEMBERS WHO HAD SUBMITTED THE
QUESTIONS. MS. GERDES DECLINED TO IDENTIFY THE INDIVIDUALS. THE
MEETING ENDED WITH MR. MIRIANI STATING, IN RESPONSE TO A QUESTION FROM
MS. GERDES, THAT MR. KOPIDLANSKY WOULD ATTEND THE NEXT MEETING OF THE
EEO COMMITTEE AND ANSWER THEIR QUESTIONS.
DISCUSSION AND CONCLUSIONS
SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED, GIVES EMPLOYEES
THE RIGHT TO "FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM,
JOIN AND ASSIST A LABOR ORGANIZATION." THE RIGHT TO ASSIST A LABOR
ORGANIZATION "EXTENDS TO PARTICIPATION IN THE MANAGEMENT OF THE
ORGANIZATION AND ACTING FOR THE ORGANIZATION IN THE CAPACITY OF AN
ORGANIZATION REPRESENTATIVE . . . "
IN THE INSTANT CASE, MR. JONES AND MS. GERDES WERE SERVING ON THE EEO
COMMITTEE AS UNION SELECTED MEMBERS PURSUANT TO THE PARTIES NEGOTIATED
COLLECTIVE BARGAINING AGREEMENT. IN SUCH CAPACITY THEY WERE ENGAGED IN
PROTECTED UNION ACTIVITY. DEPARTMENT OF THE ARMY, HEADQUARTERS MILITARY
TRAFFIC MANAGEMENT, 2 FLRA NO. 72. ACCORDINGLY, THEY HAD THE RIGHT TO
PURSUE THEIR EEO COMMITTEE RESPONSIBILITIES AND OBJECTIVES WITHOUT FEAR
OF REPRISAL OR INTIMIDATION BY MANAGEMENT REPRESENTATIVES.
IN VIEW OF THE FOREGOING, I FIND THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) OF THE EXECUTIVE ORDER WHEN DONALD TURNER, CHIEF OF FIELD
BRANCH AND COLLECTION DIVISION, MADE IT CLEAR TO UNION APPOINTED
COMMITTEEMAN ROBERT JONES THAT HIS CAREER WOULD BE IN JEOPARDY IF HE
PURSUED HIS INDEPENDENT INVESTIGATION OF MINORITY DROPOUTS FROM
RESPONDENT'S NEW EMPLOYEE TRAINING PROGRAM.
SIMILARLY, I FIND THAT MR. EDWARDS' THREAT OF DECEMBER 14, 1978, TO
STOP FURTHER BRIEFING SESSIONS SHOULD MS. GERDES CONTINUE HER PRACTICE
OF SUBMITTING WRITTEN REPORTS OF THE BRIEFING SESSIONS TO THE FULL EEO
COMMITTEE, TO CONSTITUTE INTERFERENCE, RESTRAINT AND COERCION WITHIN THE
MEANING OF SECTION 19(A)(1) OF THE ORDER. THE ORDER GIVES THE EMPLOYEES
THE RIGHT TO ACT AS A UNION REPRESENTATIVE. HAVING BEEN APPOINTED EEO
COMMITTEE CHAIRPERSON BY THE UNION, PURSUANT TO THE COLLECTIVE
BARGAINING AGREEMENT IN EFFECT, MS. GERDES, SUBJECT TO EXISTING RULES,
REGULATIONS AND PRACTICES, WAS PRIVILEGED TO FREELY PURSUE THE DUTIES
AND RESPONSIBILITIES IMPOSED UPON HER POSITION. THE THREAT TO CEASE
FURTHER BRIEFING SESSIONS UNLESS MS. GERDES CONDUCTED HER DUTIES IN A
MANAGEMENT SELECTED MANNER PLACED ON UNDUE RESTRICTION UPON HER
PROTECTED ACTIVITIES AND DESTROYED THE INDEPENDENCE OF UNION
REPRESENTATION ENVISIONED BY THE ORDER.
CONTRARY TO THE CONTENTIONS OF THE GENERAL COUNSEL, I FIND THAT THE
STATEMENTS, REMARKS AND/OR ACTIVITIES OF MR. MIRIANI ON JANUARY 3, 1979,
FALL SHORT OF INTERFERENCE, RESTRAINT AND COERCION WITHIN THE MEANING OF
SECTION 19(A)(1) OF THE EXECUTIVE ORDER. WHILE IT IS TRUE THAT THE
OBJECTIONABLE REMARKS WERE DIRECTED TO MS. GERDES WHO WAS A UNION
APPOINTED EEO COMMITTEE CHAIRPERSON, SUCH REMARKS WERE DEVOID OF ANY
THREATS, IMPLIED OR OTHERWISE TO HER OF POSSIBLE RETALIATION FOR HER
UNION ACTIVITIES. THE MANAGEMENT DISPLEASURE DIRECTED TOWARD HER BY MR.
MIRIANI WAS CONCERNED SOLELY WITH THE ACTIVITIES OF THE BILATERALLY
COMPOSED EEO COMMITTEE. HAVING ELECTED TO ACCEPT THE CHAIRMANSHIP OF
SUCH COMMITTEE, SHE LEFT HERSELF UPON FOR ANY CRITICISM THAT MIGHT ARISE
WITH RESPECT TO THE GENERAL ADVISORY ACTIVITIES OF THE EEO COMMITTEE,
SUCH AS THE QUESTIONNAIRE PREPARED FOR MR. KOPIDLANSKY. INASMUCH AS THE
CRITICISM OF MR. MIRIANI WAS DIRECTED TO THE BILATERALLY COMPOSED EEO
COMMITTEE AND UNACCOMPANIED BY ANY THREATS I FIND INSUFFICIENT BASIS FOR
A 19(A)(1) FINDING PREDICATED THEREON.
I FURTHER FIND THAT RESPONDENT DID NOT VIOLATE THE EXECUTIVE ORDER
WHEN IT REFUSED TO ALLOW MR. MCCARTHY TO ATTEND THE JANUARY 3, 1979
MEETING CALLED FOR THE PURPOSE OF DISCUSSING THE QUESTIONAIRE PREPARED
FOR MR. KOPIDLANSKY. IN REACHING THIS CONCLUSION IT IS NOTED THAT MR.
MCCARTHY WAS SEEKING ADMITTANCE SOLELY AS AN EEO COMMITTEEMAN AND THAT
THE MEETING WAS NOT THE TYPICAL MONTHLY "BRIEFING SESSION" WHICH,
ACCORDING TO PAST PRACTICE, ALL EEO COMMITTEEMEN WERE FREE TO ATTEND.
ACCORDINGLY, THE REFUSAL TO ALLOW MR. MCCARTHY'S ATTENDANCE AT THE
EXTRAORDINARY MEETING DID NOT AMOUNT TO A UNILATERAL CHANGE IN PAST
PRACTICE.
LASTLY, IN VIEW OF THE FACT THAT THE MONTHLY BRIEFING SESSIONS HAVE
CONTINUED TO BE HELD WITH MR. EDWARDS IN ATTENDANCE AND MS. GERDES
TAKING WRITTEN NOTES, I FIND THAT RESPONDENT'S SECTIONS, DESCRIBED
ABOVE, DID NOT RISE TO SUCH A LEVEL AS TO CONSTITUTE AN ABROGATION OR
NULLIFICATION OF ARTICLE 15 OF THE MULTI-DISTRICT AGREEMENT IN VIOLATION
OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENT DID NOT ENGAGE IN CONDUCT PROHIBITED BY
SECTION 19(A)(6) OF THE EXECUTIVE ORDER, AS AMENDED, IT IS HEREBY
RECOMMENDED THAT SUCH PORTIONS OF THE COMPLAINT BE DISMISSED IN THEIR
ENTIRETY. FURTHER, HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF THE EXECUTIVE ORDER, AS AMENDED, THE
FOLLOWING ORDER IS RECOMMENDED:
RECOMMENDED ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
UNITED STATES DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, CHICAGO
DISTRICT OFFICE, CHICAGO, ILLINOIS SHALL:
1. CASE AND DESIST FROM
(A) THREATENING OR OTHERWISE INTERFERING WITH THE UNION
REPRESENTATIONAL RESPONSIBILITIES OR ACTIVITIES OF MAJORIE GERDES AND
ROBERT JONES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. POST AT THE CHICAGO DISTRICT OFFICE, DEPARTMENT OF TREASURY,
INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED
BY THE DISTRICT DIRECTOR, DEPARTMENT OF TREASURY, INTERNAL REVENUE
SERVICE, CHICAGO, ILLINOIS, AND THEY SHALL BE POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DISTRICT DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE 19(A)(6) ALLEGATION OF THE COMPLAINT
FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND HEREBY IS,
DISMISSED. /9/
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 3, 1980
WASHINGTON, D.C.
APPENDIX
PURSUANT TO DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY CHAPTER 71 OF TITLE 5 OF THE UNITED
STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT THREATEN OR OTHERWISE INTERFERE WITH THE REPRESENTAIONAL
RESPONSIBILITIES OR ACTIVITIES OF NTEU APPOINTED MEMBERS TO THE EEO
ADVISORY COMMITTEE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
(AGENCY OR ACTIVITY)
DATED: . . .
BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 S. DEARBORN STREET, CHICAGO,
ILLINOIS 60604.
--------------- FOOTNOTES$ ---------------
/1/ THE PRESENT CASE IS DECIDED ON THE BASIS OF E.O. 11491, AS
AMENDED, WHICH WAS OPERATIVE AT THE TIME OF THE ALLEGED UNFAIR LABOR
PRACTICE AND IS ALONE INVOLVED IN THE INSTANT COMPLAINT. THE DECISION
AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ ALTHOUGH THE COMPLAINT ALLEGES VIOLATIONS OF EXECUTIVE ORDER
11491, AS AMENDED, IT WAS ISSUED PURSUANT TO SECTION 7104(F) AND 7134 OF
THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (92 STAT. 1196,
1215), IN ACCORDANCE WITH PART 2423 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY (44 FR 44740) WHICH PROVIDES THAT ALL
CHARGES OF ALLEGED UNFAIR LABOR PRACTICES UNDER SECTION 19 OF EXECUTIVE
ORDER 11491, AS AMENDED, WHICH ARE FILED WITH THE FEDERAL LABOR
RELATIONS AUTHORITY ON OR AFTER JANUARY 11, 1979, SHALL BE PROCESSED BY
THE GENERAL COUNSEL OF THE AUTHORITY.
/3/ THE TWO PRIOR MULTI-DISTRICT AGREEMENTS BETWEEN THE PARTIES WHICH
ARE DATED 1972 AND 1974, RESPECTIVELY, CONTAIN SIMILAR EEO PROVISIONS.
THE CURRENT AGREEMENT IS DATED JANUARY 31, 1977. THE SUPPLEMENTAL
AGREEMENT DATED OCTOBER 10, 1977, PROVIDES THAT THE EEO COMMITTEE SHALL
BE COMPOSED OF 12 MEMBERS.
/4/ THE LOCAL SUPPLEMENTAL AGREEMENT CONTAINS SIMILAR IF NOT
IDENTICAL LANGUAGE.
/5/ BOTH MR. PEACHER AND MS. GERDES WERE UNION APPOINTED MEMBERS OF
THE EEO COMMITTEE. MS. GERDES WAS THE CHAIRPERSON OF THE EEO COMMITTEE.
/6/ MR. TURNER WAS A MANAGEMENT APPOINTED MEMBER OF THE EEO
COMMITTEE.
/7/ MR. TURNER ACKNOWLEDGES THE DISCUSSION WITH RESPECT TO MR.
JONES' OFFER BUT DENIES STATING THAT AN ATTEMPT BY MR. JONES TO SECURE
THE INFORMATION WOULD HAVE AN ADVERSE AFFECT ON MR. JONES' CAREER.
ACCORDING TO MR. TURNER HE MERELY INFORMED THE COMMITTEE THAT SINCE
THERE HAD BEEN NO OFFICIAL RESPONSE TO COMMITTEE'S PAST REQUEST FOR THE
STATISTICAL INFORMATION, ANY ATTEMPT TO GATHER THE INFORMATION WOULD BE
OUTSIDE THE SCOPE OF THE COMMITTEE AND THAT THE MATTER SHOULD NOT APPEAR
IN THE COMMITTEE MINUTES AS AN OFFICIAL SANCTION OF THE COMMITTEE.
/8/ ACCORDING TO THE RECORD, IT WAS THE USUAL AND ESTABLISHED
PROCEDURE FOR THE CHAIRMAN AND VICE-CHAIRMAN OF THE EEO COMMITTEE TO
MEET WITH A REPRESENTATIVE OF THE DISTRICT DIRECTOR'S OFFICE AND INFORM
HIM OF WHAT HAD TRANSPIRED IN THE REGULARLY SCHEDULED MONTHLY EEO
COMMITTEE MEETINGS. PRIOR TO THE INSTITUTION OF THIS PROCEDURE IT HAD
BEEN THE PRACTICE TO COMMUNICATE THROUGH MEMORANDA.
/9/ IN THE ABSENCE OF OPPOSITION, GENERAL COUNSEL'S MOTION TO CORRECT
THE TRANSCRIPT IS HEREBY GRANTED. ACCORDINGLY, LINE 19, OF PAGE 66 OF
THE TRANSCRIPT IS CHANGED TO READ "DON AMES" RATHER THAN "DON AMBLES."