Federal Election Commission (Respondent) and National Treasury Employees Union (Charging Party)
[ v06 p327 ]
06:0327(59)CA
The decision of the Authority follows:
6 FLRA No. 59
FEDERAL ELECTION COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-929
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS 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 JUDGE'S DECISION AND ORDER. NO EXCEPTIONS
WERE FILED TO THE JUDGE'S DECISION AND ORDER.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) 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 ORDER, AND THE ENTIRE RECORD
IN THE SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS,
THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE FEDERAL ELECTION COMMISSION,
WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS OR OTHER
MEANS, MICHAEL LEVIN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHTS
ACCORDED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE TO
FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE PROCEDURE
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
(B) THREATENING MICHAEL LEVIN OR ANY OTHER EMPLOYEE THAT THEY MAY
HAVE THEIR EMPLOYMENT ADVERSELY AFFECTED BECAUSE THEY HAVE FILED A
GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS GUARANTEED 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 THE FEDERAL ELECTION COMMISSION, WASHINGTON, D.C., 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 CHAIRMAN OF THE FEDERAL ELECTION COMMISSION AND SHALL BE POSTED AND
MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN 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, REGION III, 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 23, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS OR
OTHER MEANS, MICHAEL LEVIN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHTS ACCORDED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
WE WILL NOT THREATEN OUR EMPLOYEES THAT THEY MAY HAVE THEIR
EMPLOYMENT ADVERSELY AFFECTED BECAUSE THEY HAVE FILED A GRIEVANCE UNDER
THE NEGOTIATED GRIEVANCE PROCEDURE.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THEIR RIGHTS GUARANTEED UNDER 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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1133 15TH STREET, N.W., ROOM 300, WASHINGTON, D.C. 20005, AND WHOSE
TELEPHONE NUMBER IS: (202) 653-8452.
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED BELOW:
-------------------- ALJ DECISION FOLLOWS --------------------
GARY D. SIMS
SPECIAL ASSISTANT TO THE STAFF DIRECTOR
FOR LABOR-MANAGEMENT RELATIONS
FEDERAL ELECTION COMMISSION
1325 K STREET, N.W.
WASHINGTON, D.C. 20463
VINCENT L. CONNERY, PRESIDENT
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
PATRICK F. SMITH
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
HONORABLE FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
1111 20TH STREET, N.W., SUITE 416
WASHINGTON, D.C. 20036
NINA L. SCHWARTZ, ESQ.
BRUCE D. ROSENSTEIN, ESQ.
FEDERAL LABOR RELATIONS AUTHORITY
1133 15TH STREET, N.W., SUITE 300
WASHINGTON, D.C. 20005
ALEXANDER GRAHAM
REGIONAL DIRECTOR
FEDERAL LABOR RELATIONS AUTHORITY
1133 15TH STREET, N.W., SUITE 300
WASHINGTON, D.C. 20005
GARY D. SIMMS
FOR THE RESPONDENT
NINA L. SCHWARTZ, ESQUIRE
BRUCE D. ROSENSTEIN, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
ON MAY 28, 1980 BASED UPON A CHARGE FILED ON MARCH 5, 1980 AND AN
AMENDED CHARGE DATED MAY 5,
THE COMPLAINT ALLEGES THAT THE FEDERAL ELECTION COMMISSION, (ALSO
REFERRED TO HEREIN AS THE RESPONDENT), VIOLATED SECTION 7116(A)(1) OF
THE STATUTE WHEN ITS AGENT KENNETH GROSS TOLD MICHAEL LEVIN THAT IF HE
INSISTED ON PURSUING HIS GRIEVANCE THROUGH THE PARTIES' NEGOTIATED
GRIEVANCE PROCEDURE, HE WOULD SEE TO IT THAT LEVIN DID NOT RECEIVE ANY
MORE EXTENSIONS OF EMPLOYMENT. RESOLUTION OF THIS ISSUE REQUIRES MAKING
A CREDIBILITY DETERMINATION AS BETWEEN WITNESSES GROSS AND LEVIN. AS
FURTHER DEFENSES, RESPONDENT CONTENDS THAT LEVIN WAS NOT AN "EMPLOYEE"
AT ALL RELEVANT TIMES AND THAT SECTION 7116(D) BARS THE INSTANT CHARGE
AND COMPLAINT.
AT A HEARING IN WASHINGTON, D.C., ALL PARTIES WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. THEREAFTER, RESPONDENT, CHARGING PARTY,
AND COUNSEL FOR THE GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY
CONSIDERED. TO THE EXTENT APPLICABLE, THE PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW SUBMITTED BY THE PARTIES HAVE BEEN ADOPTED WITH
APPROPRIATE MODIFICATION. FURTHER, THE GENERAL COUNSEL'S MOTION TO
CORRECT THE TRANSCRIPT HAS BEEN CAREFULLY REVIEWED AND IS HEREBY
GRANTED. /2/
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING:
FINDINGS OF FACT
1. MR. MICHAEL LEVIN WAS ORIGINALLY HIRED AS A "SUMMER INTERN" BY
RESPONDENT DURING THE SPRING OF 1978, AND WAS EXTENDED IN THIS POSITION
ON A PART-TIME (LESS THAN 40 HOURS PER WEEK) BASIS THROUGH THE SPRING OF
1979 VIA A SERIES OF TIME-LIMITED EXTENSIONS OF EMPLOYMENT. MR. LEVIN
WAS ATTENDING A LOCAL LAW SCHOOL IN WASHINGTON, D.C.
2. ON OR ABOUT AUGUST 2, 1979, A MANAGEMENT OFFICIAL CIRCULATED A
MEMORANDUM ADVISING SUMMER INTERNS THAT LIMITED FUNDS WERE AVAILABLE TO
EXTEND "A FEW" TEMPORARY APPOINTMENTS AND REQUESTING ALL SUMMER INTERNS
TO INDICATE WHETHER THEY HAD A DESIRE TO CONTINUE EMPLOYMENT WITH THE
RESPONDENT DURING THE FALL OF 1979. FOR REASONS KNOWN ONLY TO HIMSELF,
MR. LEVIN CONSTRUED THIS MEMORANDUM TO BE AN OFFER OF CONTINUED
EMPLOYMENT, AND RESPONDED SAYING THAT HE LOOKED FORWARD TO CONTINUING
HIS EMPLOYMENT AFTER LABOR DAY. /3/ IN HIS TESTIMONY, HOWEVER, HE
CONCEDED THAT HE NEVER DID RECEIVE A FIRM OFFER OF EMPLOYMENT (TR.
P.40).
3. ON AUGUST 18, LEVIN WENT ON VACATION. AT THE END OF AUGUST, A
PERSONNEL COMMITTEE CONSISTING OF ASSISTANT GENERAL COUNSELS MEET TO
DISCUSS THE SUBJECT OF REEMPLOYMENT OF SUMMER INTERNS FOR THE FALL.
APPARENTLY BUDGET CONSTRAINS WOULD ONLY PERMIT REHIRING TWO INTERNS. IT
WAS DECIDED NOT TO REHIRE LEVIN BECAUSE TWO OTHER INTERNS HAD
CAPABILITIES AND POTENTIAL EXCEEDING THOSE OF LEVIN. IT WAS DECIDED TO
INFORM LEVIN IN PERSON RATHER THAN IN WRITING AND, SINCE LEVIN WAS OUT
OF TOWN, THE NOTIFICATION HAD TO AWAIT HIS RETURN.
4. UPON HIS RETURN TO WORK ON SEPTEMBER 4, LEVIN WAS SUMMONED INTO
KENNETH GROSS' OFFICE, THE ASSISTANT GENERAL COUNSEL FOR PUBLIC
FINANCING. GROSS TOLD LEVIN THAT DUE TO BUDGETARY REASONS LEVIN WOULD
NOT BE KEPT ON FOR THE FALL. SINCE THERE HAD BEEN NO PRIOR WARNING TO
LEVIN THAT HE MIGHT NOT BE REHIRED, THIS NEWS UNDERSTANDABLY WAS
UPSETTING. EVEN GROSS CONCEDES THAT IT WAS ABRUPT. LEVIN'S IMMEDIATE
REACTION CENTERED ON WHAT THIS MEANT TO HIM FINANCIALLY. HE EXPLAINED
TO GROSS THAT HE HAD GIVEN UP A JOB OFFER SEVERAL WEEKS AGO AND THAT HE
NEEDED THE JOB AT LEAST UNTIL THE END OF THE SEMESTER IN ORDER TO
CONTINUE ATTENDING LAW SCHOOL. LEARNING OF MR. LEVIN'S FINANCIAL
DIFFICULTIES, MR. GROSS INDICATED THAT HE WOULD TRY TO GET AN EXTENSION
OF EMPLOYMENT FOR HIM, DURING WHICH TIME MR. LEVIN MIGHT FIND
ALTERNATIVE EMPLOYMENT.
5. IMMEDIATELY AFTER THE MEETING, LEVIN WENT TO SEE PHIL KELLETT,
PRESIDENT OF THE LOCAL NTEU CHAPTER, IN HIS OFFICE. LEVIN RELATED TO
KELLETT WHAT HAD TRANSPIRED IN GROSS'S OFFICE; THAT HE WAS TO BE
TERMINATED WITHOUT NOTICE AND ASKED KELLETT IF THE UNION WOULD BE ABLE
TO DO ANYTHING FOR HIM. KELLETT ADVISED LEVIN THAT THE UNION WOULD FILE
A GRIEVANCE ON HIS BEHALF. THE GRIEVANCE WAS FILED BY THE UNION ON
SEPTEMBER 6 (G.C. EXH. NO. 5).
6. ACCORDING TO GROSS'S TESTIMONY, IMMEDIATELY AFTER THE SEPTEMBER 4
CONVERSATION WITH LEVIN, HE WENT TO SPEAK TO VARIOUS MEMBERS OF THE
PERSONNEL COMMITTEE IN ORDER TO RECOMMEND AN EXTENSION OF EMPLOYMENT
FOR
LEVIN THROUGH THE END OF SEPTEMBER. AS A RESULT OF GROSS'S EFFORTS,
LEVIN WAS TELEPHONED AT HOME BY A MS. MAURA CONLEY ON SEPTEMBER 6, AND
NOTIFIED THAT HE HAD BEEN GRANTED AN EXTENSION OF EMPLOYMENT THROUGH
SEPTEMBER 30 (TR. 22). LEVIN TOLD MS. CONLEY THAT HE APPRECIATED THE
EXTENSION AND WOULD LET HER KNOW OF HIS DECISION. MS. CONLEY DID NOT
TESTIFY AT THE HEARING.
7. UPON HIS RETURN TO WORK ON SEPTEMBER 7, LEVIN IMMEDIATELY WENT TO
SEE PHIL KELLETT. HE TOLD KELLETT ABOUT HIS CONVERSATION WITH CONLEY
AND ASKED KELLETT WHETHER HIS ACCEPTANCE OF THE EXTENSION WOULD IN ANY
WAY PREJUDICE HIS GRIEVANCE. AFTER BEING ASSURED THAT IT WOULD NOT,
LEVIN WROTE A MEMORANDUM ADDRESSED TO MAURA CONLEY, DATED SEPTEMBER 7,
CONDITIONALLY ACCEPTING HER "PROPOSAL" OF AN EXTENSION OF EMPLOYMENT
(G.C. EXH. NO. 6; TR. 23). /4/ THE CONDITION WAS THAT LEVIN'S
ACCEPTANCE OF THE EXTENSION WAS "NOT TO BE VIEWED AS EITHER AN EXPRESS
OR IMPLIED WAIVER OR MODIFICATION OF AN ORIGINAL AGREEMENT TO CONTINUE
MY CURRENT POSITION . . . THROUGH DECEMBER 31, 1979." (IN THE GRIEVANCE
PROCEEDING, LEVIN WAS ADVANCING THE ARGUMENT THAT BACK IN AUGUST HE
RECEIVED AND ACCEPTED AN "OFFER OF EMPLOYMENT" FROM STEPHANIE KATZ.)
8. SHORTLY THEREAFTER, WITHIN THE TIME FRAME DESIGNATED IN THE
NEGOTIATED GRIEVANCE PROCEDURE, A FIRST LEVEL GRIEVANCE MEETING WAS HELD
AND, ON SEPTEMBER 24, 1979, MR. GROSS ISSUED A WRITTEN DECISION
REJECTING THE GRIEVANCE BASED UPON THE FACT THAT MR. LEVIN WAS NOT A
MEMBER OF THE OFFICIALLY RECOGNIZED BARGAINING UNIT AND THEREFORE WAS
WITHOUT STANDING TO UTILIZE THE NEGOTIATED GRIEVANCE PROCEDURE.
THEREAFTER, ON OR ABOUT SEPTEMBER 26, MR. PHILIP KELLETT, UNION
PRESIDENT, ATTEMPTED TO SERVE A SECOND STEP GRIEVANCE. A DISPUTE AROSE
CONCERNING WHO WAS THE APPROPRIATE INDIVIDUAL TO RECEIVE THAT GRIEVANCE
AND WHETHER THE GRIEVANCE HAD IN FACT BEEN PROPERLY FILED. MR. GROSS
WAS AWARD OF THIS DISPUTE (TR. PP. 80-81) CONCERNING THE APPEAL OF HIS
FIRST LEVEL GRIEVANCE DETERMINATION.
9. IN THE CLOSING DAYS OF SEPTEMBER 1979, MR. GROSS AGAIN DISCUSSED
THE MATTER WITH MEMBERS OF THE PERSONNEL COMMITTEE, AND OBTAINED AN
ADDITIONAL EXTENSION OF EMPLOYMENT FOR MR. LEVIN THROUGH THE END OF
OCTOBER 1979 IN ORDER TO PROVIDE MR. LEVIN WITH ADDITIONAL TIME TO
SECURE ALTERNATIVE EMPLOYMENT. ALTHOUGH THE DETERMINATION HAD BEEN MADE
TO EXTEND LEVIN'S EMPLOYMENT FOR AN ADDITIONAL MONTH, THE NECESSARY
PAPERWORK HAD NOT YET BEEN INITIATED AND COMPLETED, AND AS OF THIS POINT
IN TIME MR. LEVIN WAS UNAWARE OF THE DECISION. ON SUNDAY, SEPTEMBER 30,
1979, MR. LEVIN'S ONE-MONTH EXTENSION WITH RESPONDENT WAS COMPLETED.
10. ON OCTOBER 2, 1979, MR. LEVIN APPEARED IN THE OFFICE OF GENERAL
COUNSEL, AND SPOKE WITH MR. PHILIP KELLETT, UNION PRESIDENT (TR. 24).
MR. KELLETT'S OFFICE WAS LOCATED ONLY 15 FEET FROM THE OFFICE OF KEN
GROSS. MR. LEVIN WAS NOT SURE WHETHER HE WAS WORKING OR WHETHER HE WAS
BEING PAID. HE INDICATED THAT HE WAS PRESENT TO "CLEAR THE FILES OFF"
OF HIS DESK; TO FIND OUT HIS STATUS, "IF I WAS WORKING OR WHAT WAS
GOING ON." AS HE STATED, "I REALLY WASN'T SURE WHAT WAS GOING ON." HE
WAS ALSO THERE TO CHECK ON THE STATUS OF HIS GRIEVANCE.
11. WHILE IN THIS UNCERTAIN STATUS, HE WAS CALLED INTO THE OFFICE OF
MR. GROSS, WHO GAVE HIM THE GOOD NEWS THAT AN EXTENSION FOR THE MONTH OF
OCTOBER HAS BEEN SECURED. MR. LEVIN FURTHER INDICATED THAT THE
DISCUSSION ATTENDANT THERETO WAS "FRIENDLY" (TR. P. 27). /5/ MR. GROSS
TESTIFIED, HOWEVER, THAT MR. LEVIN IMMEDIATELY ACCEPTED THE OFFER OF
CONTINUED EMPLOYMENT. /6/
12. LATER THAT AFTERNOON, LEVIN WROTE A MEMO TO THE UNION FILE
REGARDING HIS OCTOBER 2 CONVERSATION WITH GROSS. /7/ HE ALSO PREPARED
ANOTHER CONDITIONAL ACCEPTANCE LETTER ADDRESSED TO KENNETH GROSS (G.C.
EXH. NO. 8); (TR. 26-27). LEVIN THEN WENT TO SPEAK TO KELLETT AND
PRESENTED BOTH DOCUMENTS TO KELLETT AND FILLER, CHIEF STEWARD AND VICE
PRESIDENT OF THE UNION (TR. 31, 59). LEVIN RELATED TO THEM WHAT HAD
JUST TRANSPIRED WITH GROSS AND TOLD THEM THAT HE WAS GOING TO GIVE GROSS
HIS OCTOBER 2 CONDITIONAL ACCEPTANCE LETTER. LEVIN'S TESTIMONY IS THAT
ON THE SAME DAY, AT APPROXIMATELY 4:00 OR 4:30 P.M., HE HANDED HIS
OCTOBER 2 CONDITIONAL ACCEPTANCE LETTER TO GROSS'S SECRETARY, CLARA
KISHER, AND TOLD HER TO GIVE THE LETTER TO GROSS AS IT WAS IMPORTANT
(TR. 31). MR. GROSS TESTIFIED THAT HE HAD NO SPECIFIC RECOLLECTION OF
RECEIVING THE DOCUMENT, NOR DID A SEARCH OF OFFICIAL LOGS WITHIN THE
OFFICE OF GENERAL COUNSEL INDICATE WHETHER IT HAD, IN FACT, BEEN
RECEIVED BY HIS SECRETARY, AS ALLEGED BY MR. LEVIN (TR. 82). RESPONDENT
DID NOT OFFER THE LOGS IN EVIDENCE AND MS. KISHER WAS NOT CALLED AS A
WITNESS. CONSIDERING LEVIN'S PENCHANT FOR PREPARING MEMORANDA AND
LETTERS OF A SELF-SERVING NATURE, I FIND IT HARD TO BELIEVE THAT HE
WOULD HAVE PREPARED THIS MEMO, DISCUSSED IT WITH THE UNION
REPRESENTATIVES AND NOT DELIVERED IT AS HE TESTIFIED. I CREDIT LEVIN'S
VERSION.
13. LEVIN'S CONDITIONAL ACCEPTANCE MEMORANDUM ADDRESSED TO MR.
GROSS STATED AS FOLLOWS:
"I REALLY APPRECIATE YOUR EXTENDING MY TERM OF EMPLOYMENT THROUGH 31
OCTOBER 1979. I WILL
CONTINUE TO WORK 25 HOURS PER WEEK DURING THIS TIME; HOWEVER, AS
BEFORE, THIS DOES NOT
CONSTITUTE A WAIVER EITHER EXPRESS OR IMPLIED OF MY RIGHT TO CONTEST
THE PERSONNEL ACTION IN
DISPUTE NOR DOES IT CONSTITUTE A MODIFICATION OF WHAT I CONSIDERED
THE ORIGINAL OFFER OF
EMPLOYMENT."
IN PREPARING THE "CONDITIONAL ACCEPTANCE" LEVIN AND THE UNION WERE
ONLY CONCERNED WITH THE OBJECTIVE THEY WERE SEEKING. NO CONSIDERATION
WAS APPARENTLY GIVEN TO THE REACTION IT MIGHT INVOKE IN MR. GROSS.
AFTER ALL, IT MUST BE REMEMBERED THAT THIS MEMO WAS BEING SENT TO THE
ONE PERSON IN MANAGEMENT WHO HAD BEFRIENDED LEVIN AND WHO WAS SINGULARLY
RESPONSIBLE FOR OBTAINING TWO EXTENSIONS OF ONE MONTH EACH.
FURTHERMORE, THE MEMO WAS GRATUITOUS; IT HAD NOT BEEN REQUESTED BY
GROSS. THERE IS NO EVIDENCE THAT, AS OF OCTOBER 2, GROSS HAD SUGGESTED
OR EVEN HINTED THAT LEVIN SHOULD DROP HIS GRIEVANCE. NEVERTHELESS, THE
MEMO JOINS TOGETHER TWO SEPARATE THOUGHTS-- ACCEPTANCE OF THE EXTENSION
AND REFUSAL TO WAIVE THE RIGHTS TO GRIEVE. BUT, AS NOTED PREVIOUSLY,
THE OCTOBER 2 MEETING ONLY INVOLVED THE EXTENSION; THERE WAS NO MENTION
OF THE PENDING GRIEVANCE.
14. THE NEXT DAY, OCTOBER 3, LEVIN WAS AGAIN SUMMONED INTO GROSS'
OFFICE. GROSS BEGAN WAVING A PIECE OF PAPER IN FRONT OF LEVIN SAYING,
"WHAT THE HELL IS THIS?" MR. LEVIN IDENTIFIED THE PIECE OF PAPER AS HIS
OCTOBER 2 MEMORANDUM TO GROSS, DESCRIBED ABOVE. MR. LEVIN ASKED MR.
GROSS WHAT THE PROBLEM WAS AND MR. GROSS STATED AS FOLLOWS:
"'YOU KNOW, YOU'RE THE MOST UNGRATEFUL SON OF A BITCH I EVER MET. I,
PERSONALLY, WENT OUT
ON A LIMB TO GET YOU THIS EXTENSION AND I CAN'T BELIEVE YOU'RE
MAINTAINING THIS ACTION LIKE
THIS. IF I HAD TO DO IT OVER-- I AM REALLY SORRY I WENT AHEAD AND
GOT YOU THE EXTENSION. IF
IT'S UP TO ME, YOU WON'T GET ANOTHER.'" (TR. P. 32; SEE ALSO PP. 54
AND 55).
AT THIS POINT, LEVIN RAISED A POINT WHICH I IMAGINE HAD BEEN
BOTHERING HIM FOR SOME TIME. HE ASKED GROSS WHY OTHER LESS EXPERIENCED
INTERNS WERE BEING KEPT ON IF THERE WAS A BUDGET PROBLEM (TR. 32).
GROSS TOLD LEVIN THAT IT WAS A MATTER OF COMPETENCE. WHEN ASKED WHO
MADE THE DETERMINATION WITH REGARD TO COMPETENCE, GROSS TOLD LEVIN THAT
IT WAS A "MANAGEMENT PREROGATIVE" (TR. 33).
(A) THE FOREGOING IS MR. LEVIN'S VERSION OF WHAT WAS SAID AT THE
OCTOBER 3 MEETING. RESPONDENT'S DEFENSE IS SIMPLE; THE MEETING NEVER
TOOK PLACE. MR. GROSS DOES NOT RECALL THE MEETING AT ALL. WHEN
CROSS-EXAMINED ABOUT THE STATEMENTS ALLEGEDLY MADE BY HIM, HE DENIED
HAVING MADE THEM.
(B) FROM A CREDIBILITY STANDPOINT, THE QUESTION IS WHICH VERSION IS
MORE BELIEVABLE: LEVIN'S DETAILED POINT-BY-POINT RECITAL OF A
CONVERSATION DURING WHICH SEVERAL MATTERS WERE DISCUSSED OR GROSS'
DENIAL THAT THE MEETING EVER TOOK PLACE AND HIS SPECIFIC DENIAL OF THE
STATEMENTS ATTRIBUTED TO HIM.
I CREDIT LEVIN'S VERSION ESSENTIALLY BECAUSE WHAT HE RELATED IS MORE
PLAUSIBLE AND HAS A DISTINCT RING OF TRUTH TO IT. I BELIEVE THAT GROSS
LOST HIS TEMPER WHEN HE RECEIVED LEVIN'S GRATUITOUS MEMORANDUM ACCEPTING
THE EXTENSION OF EMPLOYMENT WITH THE PROVISO THAT HE WOULDN'T DROP HIS
GRIEVANCE. GROSS, NOT HAVING SUGGESTED THAT THE GRIEVANCE BE DROPPED,
WAS INSULTED BY THE IMPLICATION THAT HIS OBTAINING THE EXTENSION WAS IN
ANY WAY RELATED TO THE GRIEVANCE. GROSS' MOTIVES IN OBTAINING THE
EXTENSIONS WERE SOLELY BASED UPON SYMPATHY. ACCORDINGLY, HE CALLED
LEVIN TO HIS OFFICE AND THE CONVERSATION OCCURRED PRECISELY AS RELATED
BY LEVIN. I AM UNABLE TO CONCLUDE THAT LEVIN LIED WHEN HE TESTIFIED
THAT THE MEETING OCCURRED OR THAT HE COMPLETELY FABRICATED THE ENTIRE
CONVERSATION. THIS IS A SIMPLE CASE OF A SUPERVISOR LOSING HIS TEMPER
AND SAYING SOMETHING THAT WOULD HAVE BEEN BETTER LEFT UNSAID.
15. ACCORDING TO MR. LEVIN, IMMEDIATELY FOLLOWING THE MEETING WITH
MR. GROSS IN WHICH MR. GROSS MADE THE REMARKS CITED ABOVE, HE LEFT MR.
GROSS' OFFICE AND WALKED TO THE OFFICE OF THE UNION PRESIDENT PHILIP
KELLETT TO DISCUSS THE PRECEDING CONVERSATION WITH MR. GROSS. MR. LEVIN
FURTHER TESTIFIED THAT MR. KELLETT WAS NOT IN HIS OFFICE, AND THAT HE,
MR. LEVIN, THEN PROCEEDED DOWN TO THE 4TH FLOOR AND THERE WROTE A
HANDWRITTEN MEMORANDUM WHICH HAS BEEN INTRODUCED OVER RESPONDENT'S
OBJECTION AS GENERAL COUNSEL'S EXHIBIT #9 (TR. P. 34). HE STATED THAT
AFTER HAVING WRITTEN THIS MEMORANDUM, HE RETURNED TO THE 7TH FLOOR
OFFICE OF MR. KELLETT, AND RELATED TO HIM THE ALLEGED CONVERSATION WITH
MR. GROSS. HE FURTHER TESTIFIED THAT MR. FILLER, UNION CHIEF STEWARD,
WAS CALLED INTO THE MEETING. MR. FILLER TESTIFIED THAT A TYPEWRITTEN
COPY OF GENERAL COUNSEL'S EXHIBIT #9 WAS PREPARED BY MR. FILLER. MR.
FILLER ALSO TESTIFIED, CONCERNING HIS OWN RECOLLECTION OF WHAT MR. LEVIN
HAD TOLD HIM ABOUT THE CONVERSATION WITH GROSS. /8/
16. ON OCTOBER 4, 1979, MR. ROBERT BAKER SIGNED A DOCUMENT
EFFECTUATING THE EXTENSION OF MR. LEVIN THROUGH THE MONTH OF OCTOBER
1979. HE FURTHER TESTIFIED THAT THE "EFFECTIVE DATE" THEREOF WAS
OCTOBER 1, 1979 (RESP. EXH. NO. 2, TR. 100).
17. ON OR ABOUT OCTOBER 19, 1979, A MEETING WAS HELD AS A LAST LEVEL
DETERMINATION OF THE GRIEVANCE (G.C. EXH. NO. 2, P. 3). MR. LEVIN
TESTIFIED THAT DURING THE COURSE OF THAT MEETING, HE RELATED TO THE
STAFF DIRECTOR THAT MR. GROSS HAD BEEN UPSET AND ANGRY AT THE ALLEGED
OCTOBER 3 MEETING (TR. 53). THE STAFF DIRECTOR, ORLANDO POTTER, ISSUED
THE FINAL LEVEL GRIEVANCE DETERMINATION ON OCTOBER 31, 1979. (TR. 10,
G.C. EXH. NO. 2).
DISCUSSION AND CONCLUSION OF LAW
A. MICHAEL LEVIN WAS AN "EMPLOYEE" WITHIN THE MEANING OF SECTION
7103(2)(A) OF THE
STATUTE.
IN THE LAST FEW DAYS OF SEPTEMBER, RESPONDENT DECIDED TO GRANT
ANOTHER EXTENSION TO LEVIN AND THIS DECISION WAS COMMUNICATED TO LEVIN
BY GROSS ON OCTOBER 2. ON THE FOLLOWING DAY, OCTOBER 3, THE ALLEGED
UNFAIR LABOR PRACTICE OCCURRED. BECAUSE THE PAPERWORK TO EXTEND LEVIN'S
EMPLOYMENT WAS NOT COMPLETED UNTIL THE NEXT DAY, OCTOBER 4, RESPONDENT
CONTENDS THAT LEVIN WAS NOT AN "EMPLOYEE" WITHIN THE MEANING OF THE
STATUTE WHEN THE ALLEGED UNFAIR LABOR PRACTICE OCCURRED. IT WAS ALSO
CONTENDED THAT LEVIN WAS NOT A MEMBER OF THE BARGAINING UNIT. IN A
THIRD STEP GRIEVANCE DETERMINATION, ORLANDO POTTER, FORMER STAFF
DIRECTOR FOR THE RESPONDENT, ADDRESSED THE ISSUE OF WHETHER LEVIN WAS A
MEMBER OF THE BARGAINING UNIT AND AFFIRMATIVELY FOUND THAT HE WAS A
MEMBER OF THE BARGAINING UNIT (G.C. EXH. NO. 2). I FIND IT UNNECESSARY
TO DECIDE WHETHER LEVIN WAS IN THE UNIT; HIS RIGHTS UNDER THE STATUTE
DEPENDS ON WHETHER HE WAS AN EMPLOYEE OF THE RESPONDENT AT ALL TIMES
MATERIAL HEREIN. SECTION 7116(A)(1) OF THE STATUTE 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". SECTION 7103(2)(A) OF THE STATUTE DEFINES EMPLOYEE AS AN
INDIVIDUAL "EMPLOYED IN AN AGENCY." RESPONDENT, THROUGH ITS WITNESS
ROBERT BARKER, ASSISTANT STAFF DIRECTOR FOR ADMINISTRATION, ATTEMPTED TO
SHOW THAT LEVIN WAS NOT OFFICIALLY ON THE PAYROLL AS AN EMPLOYEE ON
OCTOBER 2 AND/OR OCTOBER 3. HOWEVER, ON CROSS-EXAMINATION, BARKER
ADMITTED THAT LEVIN WAS FOR PAYROLL PURPOSES, AN EMPLOYEE ON OCTOBER 2
AND/OR OCTOBER 3 (TR. 103-104). AS NOTED ABOVE, THE DECISION TO EXTEND
HIS EMPLOYMENT WAS MADE BEFORE HIS SEPTEMBER APPOINTMENT EXPIRED, AND
GROSS ORALLY "HIRED" HIM ON OCTOBER 2. BASED ON THE FOREGOING, I FIND
AND CONCLUDE THAT LEVIN WAS AN EMPLOYEE OF THE RESPONDENT WITHIN THE
MEANING OF THE STATUTE AT ALL RELEVANT TIMES HEREIN.
B. SECTION 7116(D) DOES NOT BAR THE INSTANT UNFAIR LABOR PRACTICE
CHARGE.
RESPONDENT ARGUES THAT BECAUSE LEVIN MADE REFERENCE TO THE OCTOBER 3
CONVERSATION WITH GROSS DURING THE STEP 3 GRIEVANCE MEETING ON OCTOBER
31, THE INSTANT CHARGE IS BARRED BY SECTION 7116(D) OF THE STATUTE WHICH
PROVIDES THAT "ISSUES WHICH CAN BE RAISED UNDER THE GRIEVANCE PROCEDURE
OR AS AN UNFAIR LABOR PRACTICE UNDER THIS SECTION, BUT NOT UNDER BOTH
PROCEDURES."
THE FACTS REFLECT THAT THE ORIGINAL GRIEVANCE FILED ON SEPTEMBER 6
CLEARLY PREDATES THE OCTOBER 3 CONVERSATION WITH GROSS (G.C. EXH. NO.
5). THUS, THE GRIEVANCE COULD NOT HAVE RAISED AS AN ISSUE THE OCTOBER 3
CONVERSATION. MOREOVER, IT WAS NOT RAISED NOR WAS IT ADDRESSED AS AN
ISSUE IN POTTER'S STEP 3 GRIEVANCE DETERMINATION (G.C. EXH. NO. 2).
FURTHER, ARTICLE 61, SECTION 5 OF THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT PROVIDES IN RELEVANT PART THAT "A GRIEVANCE MUST BE FILED
WITHIN TEN (10) WORK DAYS AFTER THE OCCURRENCE OF THE MATTER OUT OF
WHICH THE GRIEVANCE AROSE, OR TEN (10) WORK DAYS AFTER THE DATE THE
AGGRIEVED SHOULD REASONABLY HAVE BEEN AWARE OF THE OCCURRENCE OF THE
MATTER OUT OF WHICH THE GRIEVANCE AROSE." (JT. EXH. NO. 1). THUS, UNDER
THIS ARTICLE, THE ISSUE COULD NOT HAVE BEEN CONSIDERED PART OF THE
ORIGINAL SEPTEMBER 6 GRIEVANCE (JT. EXH. NO. 1).
IT IS UNCONTROVERTED THAT LEVIN MERELY ALLUDED TO THE OCTOBER 3
MEETING DURING THE STEP 3 GRIEVANCE MEETING. FURTHER, LEVIN'S BRIEF
DISCUSSION OF THE MEETING WAS THE RESULT OF A QUESTION POSED TO HIM BY
POTTER (TR. 51, 68). THUS, IT IS EVIDENT THAT THE OCTOBER 3 MEETING WAS
NOT RAISED BY THE UNION OR BY LEVIN AS AN ISSUE DURING THE STEP 3
GRIEVANCE MEETING. BASED ON THE FOREGOING, I FIND AND CONCLUDE THAT
SECTION 7116(D) OF THE STATUTE DOES NOT BAR THE INSTANT UNFAIR LABOR
PRACTICE CHARGE.
C. RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE STATUTE WHEN ITS
AGENT, GROSS, TOLD
MICHAEL LEVIN THAT IF HE INSISTED ON PURSUING HIS GRIEVANCE THROUGH
THE PARTIES' NEGOTIATED
GRIEVANCE PROCEDURE, HE WOULD SEE TO IT THAT LEVIN DID NOT RECEIVE
ANY MORE EXTENSIONS OF
EMPLOYMENT.
IT IS WELL ESTABLISHED THAT PROTECTED ACTIVITY FLOWING FROM EXCLUSIVE
REPRESENTATION BY A UNION INCLUDES THE PROCESSING OF A GRIEVANCE. /9/
UNDER EXECUTIVE ORDER 11491, IT WAS EQUALLY WELL ESTABLISHED THAT ANY
INTERFERENCE WITH THE RIGHT TO FILE AND/OR PURSUE A GRIEVANCE TENDS TO
DISCOURAGE EMPLOYEES' RIGHTS TO FORM, ASSIST OR JOIN A LABOR
ORGANIZATION, RIGHTS GUARANTEED BY SECTION 1(A) OF THE ORDER. /10/
LIKE SECTION 1(A) OF THE EXECUTIVE ORDER, SECTION 2 OF THE STATUTE
PROVIDES THAT "EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR
ASSIST ANY LABOR ORGANIZATION . . . FREELY AND WITHOUT FEAR OF PENALTY
OR REPRISAL, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF
SUCH RIGHT. . . . " (5 U.S.C.SECTION 7102). THE RIGHT TO FILE AND
PROCESS GRIEVANCES UNDER A NEGOTIATED GRIEVANCE PROCEDURE CLEARLY FALLS
WITHIN THE AMBIT OF SECTION 2 OF THE STATUTE. /11/
I FIND AND CONCLUDE THAT GROSS' STATEMENTS ON OCTOBER 3 TO LEVIN--
THAT HE WAS AN UNGRATEFUL SON-OF-A-BITCH FOR MAINTAINING HIS GRIEVANCE,
AND THAT IF IT WERE LEFT UP TO HIM (GROSS), HE WOULD SEE TO IT THAT
LEVIN DID NOT RECEIVE ANY FURTHER EXTENSIONS OF EMPLOYMENT-- INTERFERED
WITH, RESTRAINED, AND COERCED LEVIN IN HIS RIGHT TO PURSUE HIS
GRIEVANCE.
THE STATEMENTS CLEARLY CONSTITUTE AN IMPLIED THREAT TO WITHHOLD
FURTHER EXTENSION OF EMPLOYMENT FROM LEVIN AND THUS PUNISH HIM FOR THE
EXERCISE OF HIS STATUTORILY PROTECTED RIGHT-- NAMELY THE RIGHT TO PURSUE
HIS GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE. /11/ THEREFORE,
RESPONDENT'S CONDUCT WAS VIOLATIVE OF SECTION 7116(A)(1) OF THE STATUTE.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE
STATUTE, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ISSUE
THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE FEDERAL ELECTIONS COMMISSION,
WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS OR OTHER
MEANS, MICHAEL LEVIN OR
ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHTS ACCORDED BY THE
STATUTE TO FILE AND PROCESS
GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE PROCEDURE FREELY AND
WITHOUT FEAR OF PENALTY OR
REPRISAL.
(B) THREATENING MICHAEL LEVIN OR ANY OTHER EMPLOYEE THAT THEY MAY
HAVE THEIR EMPLOYMENT
ADVERSELY AFFECTED BECAUSE THEY HAVE FILED A GRIEVANCE UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS GUARANTEED 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 THE FEDERAL ELECTIONS COMMISSION, WASHINGTON, D.C.,
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
CHAIRMAN OF THE FEDERAL
ELECTIONS COMMISSION AND SHALL BE POSTED AND MAINTAINED FOR 60
CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT
SAID 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.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 31, 1980
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 CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE GIVES
EMPLOYEES THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION,
INCLUDING THE NATIONAL TREASURY EMPLOYEES UNION, 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.
WE WILL NOT INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS OR
OTHER MEANS, MICHAEL LEVIN OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHTS ACCORDED BY THE STATUTE TO FILE AND PROCESS GRIEVANCES UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL.
WE WILL NOT THREATEN OUR EMPLOYEES THAT THEY MAY HAVE THEIR
EMPLOYMENT ADVERSELY AFFECTED BECAUSE THEY HAVE FILED A GRIEVANCE UNDER
THE NEGOTIATED GRIEVANCE PROCEDURE.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THEIR RIGHTS GUARANTEED UNDER 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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1133 15TH STREET, NW., SUITE 300, WASHINGTON, D.C. 20005 (TELEPHONE NO.
(202) 653-8452).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT COPIES OF THE DECISION ISSUED BY FRANCIS E.
DOWD, ADMINISTRATIVE LAW JUDGE, WAS SENT TO THE FOLLOWING PARTIES IN THE
MANNER INDICATED:
/S/BECKY FORREST
CERTIFIED MAIL:
NINA L. SCHWARTZ, ESQUIRE
BRUCE D. ROSENSTEIN, ESQUIRE
FEDERAL LABOR RELATIONS AUTHORITY
1133 15TH STREET, NW., SUITE 300
WASHINGTON, D.C. 20005
GARY D. SIMS
SPECIAL ASSISTANT TO THE STAFF DIRECTOR
FOR LABOR-MANAGEMENT RELATIONS
FEDERAL ELECTION COMMISSION
1325 K STREET, NW
WASHINGTON, D.C. 20463
REGULAR MAIL:
FEDERAL LABOR RELATIONS AUTHORITY
1900 E. STREET, NW., ROOM 7469
WASHINGTON, D.C. 20424
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, NW., ROOM 7469
WASHINGTON, D.C. 20424
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, NW
WASHINGTON, D.C. 20415
VINCENT L. CONNERY, PRESIDENT
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW., SUITE 1101
WASHINGTON, D.C. 20006
(1) COPY TO EACH FLRA REGIONAL DIRECTORS
DATED: DECEMBER 31, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ THE AUTHORITY, IN THE CIRCUMSTANCES OF THIS CASE, DOES NOT ADOPT
THE JUDGE'S DICTA TO THE EFFECT THAT IT IS UNNECESSARY TO DECIDE WHETHER
THE GRIEVANT WAS IN THE BARGAINING UNIT. IN THIS CONNECTION, THE JUDGE
NOTED THAT RESPONDENT HAD, IN A THIRD STEP GRIEVANCE DETERMINATION,
AFFIRMATIVELY FOUND GRIEVANT TO HAVE BEEN A MEMBER OF THE UNIT.
/2/ IN ADDITION, THE WORDS "ADMINISTRATIVE LAW JUDGE ON PAGE 94A,
LINE 7, IS HEREBY CORRECTED TO READ "THE WITNESS."
/3/ THIS IS AN EXAMPLE OF LEVIN'S PENCHANT FOR PREPARING WHAT I
REGARD AS SELF-SERVING MEMORANDA.
/4/ THIS IS ANOTHER EXAMPLE OF A CAREFULLY PREPARED MEMORANDUM OF A
SELF-SERVING NATURE.
/5/ LEVIN TESTIFIED THAT IMMEDIATELY FOLLOWING THIS MEETING HE
PREPARED A MEMORANDUM OF THE CONVERSATION. IN REACHING MY DECISION IN
THIS CASE, I RELY ON THE TESTIMONY OF LEVIN AND ACCORD NO WEIGHT TO THIS
DOCUMENT.
/6/ CONTRARY TO THE GENERAL COUNSEL, I BELIEVE GROSS ON THIS POINT
AND CAN'T IMAGINE WHY HE WOULD LIE ABOUT IT. I AM NOT PERSUADED BY
LEVIN'S TESTIMONY THAT HE RESPONDED TO RECEIVING THE GOOD NEWS OF
ANOTHER MONTH'S EXTENSION WITH A REPLY TO THE EFFECT THAT HE WOULD LET
GROSS KNOW LATER IN THE DAY IF HE WAS GOING TO ACCEPT IT. SUCH A REPLY
WOULD HARDLY HAVE GONE UNNOTICED BY GROSS. AS MUCH NERVE AS LEVIN
APPARENTLY HAD, HE WASN'T FOOLISH ENOUGH TO SAY SOMETHING WHICH WOULD
ANGER GROSS AND POSSIBLY JEOPARDIZE RECEIVING ANOTHER MONTH'S
EMPLOYMENT.
/7/ THIS IS A FURTHER EXAMPLE OF LEVIN'S PENCHANT FOR PREPARING
MEMORANDA CONCERNING HIS CONVERSATION WITH GROSS. HOWEVER, I DO NOT
RELY ON IT IN REACHING MY DECISION.
/8/ TO CORROBORATE MR. LEVIN'S OWN TESTIMONY, THE GENERAL COUNSEL
ARGUES THAT MR. FILLER'S TESTIMONY IS ADMISSIBLE AS "AN EXCITED
UTTERANCE" EXCEPTION TO THE RULE EXCLUDING HEARSAY EVIDENCE. FOR THIS
EXCEPTION TO BE APPLICABLE IT MUST BE SHOWN THAT THE EVENT OR OCCURRENCE
IS SUFFICIENTLY STARTLING SO AS TO RENDER NORMAL REFLECTIVE THOUGHT
PROCESSES INOPERATIVE. HERE, LEVIN LEFT THE OFFICE OF GROSS, WENT TO
THE OFFICE OF KELLETT WHO WASN'T THERE, AND THEN WENT TO THE 4TH FLOOR
WHERE HE WROTE HIS MEMORANDUM. HE LATER RETURNED TO KELLETT'S OFFICE
AND RELATED THE CONVERSATION WITH GROSS. IN MY OPINION, THERE WAS A
SUFFICIENT LAPSE OF TIME TO GIVE LEVIN AN OPPORTUNITY FOR REFLECTIVE
THOUGHT THUS MAKING THE EXCITED UTTERANCE EXCEPTION INAPPLICABLE HEREIN,
MCCORMICK, SECTION 297 AT P. 706(1972). ACCORDINGLY, I DO NOT RELY ON
FILLER'S TESTIMONY OR LEVIN'S MEMORANDUM OF THE CONVERSATION WITH GROSS.
WITH RESPECT TO RESPONDENT'S CONTENTION THAT EVIDENCE WAS ADMITTED IN
VIOLATION OF THE FEDERAL RULES OF EVIDENCE, SEE SECTION 2423.17 OF THE
AUTHORITY'S RULES AND REGULATIONS. THIS CONTENTION IS REJECTED.
/9/ UNITED STATES DEPARTMENT OF TREASURY, BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS, CHICAGO, ILLINOIS, 3 FLRA NO. 116.
/10/ NATIONAL LABOR RELATIONS BOARD, REGION 17, AND NATIONAL LABOR
RELATIONS BOARD, A/SLMR NO. 295, 3 A/SLMR 427(1973), DEPARTMENT OF
DEFENSE, ARKANSAS NATIONAL GUARD, A/SLMR NO. 54; DEPARTMENT OF THE
NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, A/SLMR NO. 582,
5 A/SLMR 699(1975); DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, AIRWAY FACILITIES SECTOR, TAMPA, FLORIDA, A/SLMR NO.
725, 61 A/SLMR 521(1976); FEDERAL AVIATION ADMINISTRATION, AIR TRAFFIC
CONTROL TOWER, GREATER PITTSBURGH AIRPORT, PITTSBURGH, PENNSYLVANIA,
A/SLMR NO. 920, 7 A/SLMR 907(1977); UNITED STATES DEPARTMENT OF THE
ARMY, FORT POLK, LOUISIANA, A/SLMR NO. 1100, 8 A/SLMR 880(1978).
/11/ UNITED STATES DEPARTMENT OF THE TREASURY, SUPRA.
/12/ I REJECT THE CONTENTION THAT BECAUSE THE GRIEVANCE WAS NOW AT A
LEVEL HIGHER THAN GROSS, THAT HE WAS IN NO POSITION TO INFLUENCE A
DECISION WITH RESPECT TO ANY FURTHER EXTENSIONS OF EMPLOYMENT. NOR DOES
A THREAT HAVE TO BE EXPLICIT. U.S. DEPARTMENT OF TREASURY, 4 FLRA NO.
87(NOVEMBER 12, 1980).