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17:0304(42)CA
The decision of the Authority follows:
17 FLRA No. 42
U.S. DEPARTMENT OF JUSTICE
U.S. MARSHALS SERVICE
Respondent
and
INTERNATIONAL COUNCIL OF DEPUTY
U.S. MARSHALS LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2827
Charging Party
Case No. 2-CA-40016
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and the
Respondent filed an opposition to the General Counsel's exceptions.
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.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-40016 be, and it
hereby is, dismissed.
Issued, Washington, D.C., March 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-40016
James G. Bennett, Esq.
Ronald R. Frazee, Esq.
For the Respondent
Robert J. Fabii, Esq.
Barbara S. Liggett, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations
Statute (herein called the Statute). It is based on a first amended
charge filed on November 22, 1983 by International Council of Deputy
U.S. Marshals Locals, American Federation of Government Employees, Local
2827, (herein called the Union) against the U.S. Department of Justice,
U.S. Marshals Office (herein called the Respondent).
A Complaint and Notice of Hearing was issued on December 28, 1983 by
the Acting Regional Director for the Federal Labor Relations Authority,
Region II. The said Complaint alleged, in substance, that on or about
October 3, 1983 Respondent suggested to employees they would be
scrutinized more closely re their telephone usage and promptness in
reporting for duty; that such suggestion was made as a result of the
Union President's exercise of protected activity - all in violation of
Section 7116(a)(1) of the Statute.
Respondent filed an Answer dated January 20, 1984 which denied the
aforesaid allegations as well as the commission of any unfair labor
practices.
A hearing was held before the undersigned on February 7, 1984 at
Philadelphia, Pennsylvania. All parties were represented thereat. Each
was afforded full opportunity to be heard, to adduce evidence, and to
examine as well as cross-examine witnesses. Thereafter briefs were
filed which have been duly considered. /1/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make following findings and conclusions:
Findings of Fact
1. At all times material herein, the American Federation of
Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals has been, and still is, the exclusive bargaining
representative of Respondent's nonprofessional employees worldwide,
including intermittent and term deputies and excluding certain employees
not relevant herein.
2. Both Respondent and American Federation of Government Employees,
AFL-CIO, International Council of U.S. Marshals Service Locals are
parties to a collective bargaining agreement. The said agreement, by
its terms, became effective on January 29, 1982 and remains in full
force and effect thereafter for a three year period.
3. At all times material herein, American Federation of Government
Employees, Local 2827 (herein called the Union) has acted as the agent
of American Federation of Government Employees, AFL-CIO, International
Council of U.S. Marshals Service Locals, regarding collective bargaining
and other labor relations matters affecting employees at Respondent's
Camden New Jersey location.
4. On September 3, 1983 Starlord Pickett, Acting President of the
Union /2/ and a Deputy U.S. Marshal employed at the Camden, New Jersey
Office, filed a step one grievance on behalf of the Union with Eugene
Liss, U.S. Marshal for the District of New Jersey. In this written
grievance Pickett stated that Liss had made "various changes" in working
conditions without notifying the Union or giving it an opportunity to
negotiate the changes - all in violation of Article XXXI of the Master
Agreement. Pockett requested that Liss discuss this grievance as
required under Article XXV of the said Agreement.
5. In a letter dated September 9, 1983 /3/ Liss wrote Pickett
acknowledging receipt of the step one grievance. The Marshal stated
that the letter-grievance filed by Pickett did not set forth specifics
and Liss had no idea of the Union's particular complaint. Liss
requested that Pickett mention specific contractual violative acts with
attending dates.
6. By letter dated September 19 Pickett filed a step two grievance,
addressed to Liss, wherein he enumerated the changes unilaterally
instituted by the Marshal. These changes did not include, or make
mention of, the usage of FTS telephones by employees in the Camden
office, or the charging of leave to a Camden employee if he returned
late from lunch or reported late to work. /4/
7. Several days after September 19 Liss called Leon Cunningham,
Supervisory Deputy Marshal at Camden, New Jersey. The Marshal notified
Cunningham he would be in Camden on October 4. He also told the
supervisor to have Pickett available to discuss a grievance which the
Union official filed against Liss. /5/
8. On October 4 Marshal Liss visited the Camden office and conferred
for a short time with Pickett. Both individuals discussed the matters
mentioned in the step two grievance letter. No reference was made by
either person as to the usage of FTS telephones by Camden employees, or
the charging of leave to Camden employees if they returned late from
lunch or reported late to work.
9. Following the conversation with Pickett, and on the same day,
Liss conferred with Cunningham. The Marshal testified he was concerned
about the usage of telephones at Camden; that it was difficult to
communicate between headquarters and Trenton due to the fact that the
Camden phones were continually in use. Liss told Cunningham that the
excessive usage was difficult to understand since there was not much
warranty work being undertaken; that the public, as well as some
attorneys, complained they couldn't communicate with the Camden office.
Liss told the supervisor to "get tough with his phones" and to supervise
them. The Marshal also advised Cunningham that the latter could
interrupt a lengthy phone conversation to ascertain if it was official
business being discussed. The reference was made by Liss, during their
discussion, as to charging leave if employees reported late to work or
after lunch. Liss did not mention that Pickett had filed a grievance or
refer to it.
10. On October 6, Cunningham called a meeting of his deputies. /6/
Attending thereat were Pickett, William Gunning, Barry Frost, and Boston
Bennett - all deputies attached to the Camden office. The supervisor
stated /7/ that there had been complaints regarding the operation of the
office; that someone gave information to the Marshal that the Camden
office was being run in a loose manner. He also referred to having met
with Liss on the previous day; that the Marshal had met with one of the
deputies, but the name of the deputy was not mentioned. Cunningham
mentioned that while the office was being run satisfactorily, certain
rules needed to be enforced and it was necessary to tighten procedures.
He indicated that warrant files should be kept accessible in the event a
deputy was not on hand; that the deputies should observe the chain of
command and advise him if they want to talk to the Marshal. Cunningham
referred to the fact that the hours were from 8:30 a.m. to 5:00 p.m. and
if a deputy reported late he would have to take leave. The supervisor
commented he came in at 8:30 and was not asking the deputies to do
anything unusual. He mentioned that one-half hour was allotted for
lunch and if a deputy exceeded that time, he must put in a leave slip.
Cunningham also told the deputies that phones must be used only for
official business; that the calls should be kept short and limited to
about three minutes. He suggested that it may be necessary to monitor
phone calls where the usage is excessive. /8/
11. The record reflects that subsequent to the meeting on October 5
Cunningham monitored some of the phone calls in the Camden office, and
that this practice has continued.
Conclusions
General Counsel maintains that, based on the statements made by
Supervisor Cunningham to the deputies on October 5, Respondent violated
Section 7116(a)(1) of the Statute. It is contended that the supervisor
suggested to the employees he intended to restrict the use of
telephones, as well as charge the deputies leave if late for work or
upon returning from lunch, because Pickett had met with Marshal Liss re
a grievance filed by the union official.
Management is proscribed, under Section 7116(a)(1) from interfering
with, restraining, or coercing its employees in the exercise of rights
assured by the Statute. It is quite clear that included within such
protective activity is the filing of grievances. See United States
Department of Interior, Office of the Secretary, U.S. Controller for the
Virgin Islands, 11 FLRA No. 91. In determining whether statements by
management re the filing of grievances by employees tends to interfere
with such protected activity, certain standards must be considered.
Thus, it does not suffice to consider subjective perceptions or
reactions by employees. By the same token, the intent of the employer
is not the test in deciding whether statements constitute interference.
The decisive factor is whether, under the circumstances, an employee may
reasonably infer intimidation or coercion based on management's remarks.
The essential query is whether such statements tended to interfere,
coerce or restrain employees. Federal Mediation and Conciliation
Service, 9 FLRA No. 3.
Careful consideration of the record herein convinces me that,
contrary to General Counsel's assertions, Cunningham did not suggest to
the deputies on October 5 that he was instituting changes because
Pickett had filed a grievance or met with Marshal Liss in respect a
thereto. While it is true that the supervisor knew that Deputy Pickett
had filed a grievance and had met with Liss on October 4, the record
does not support a reasonable inference that Cunningham announced there
would be closer scrutinizing of working conditions based on Pickett's
activities in that regard. Despite the artful and well expressed
urgings of the General Counsel, I am constrained to conclude that the
deputies could not reasonably draw such an inference.
While it is true that Cunningham knew that Liss met with Pickett on
October 4 re a grievance, the complaints lodged by the union official
therein pertained to conduct - or the lack thereof - by Liss as Marshal
and head of the New Jersey District. There was no accusation or
criticism leveled by Pickett against his immediate supervisor. Further,
Liss made no reference to the specifics of the grievance, nor was he
unduly critical of the Camden office, when he spoke to Cunningham on
October 4. The Marshal did not upbraid the supervisor in any severe
manner but was concerned about the excessive use of the telephones by
the deputies. In respect to the latter, he directed that Cunningham
take some action to restrict such usage. Under the circumstances, it is
difficult to abide by General Counsel's theory that the supervisor
informed the men there would be closer scrutinizing because of Pickett's
grievance. Although it does not avail one to speculate re the motive
for Cunningham's actions, it seems reasonable to conclude, based on the
record herein, that he was tightening the reins pursuant to the command
of Marshal Liss on the previous day. None of the evidence supports a
conclusion that Cunningham did become stringent in enforcing the rules
as a result of Pickett's activity.
In meeting with the deputies on October 5, the supervisor made no
reference to Pickett on his filing a grievance which in anyway reflected
adversely upon the Camden office. No adverse inference may be properly
drawn against Respondent based on Pickett's testimony that Cunningham
looked at him during the meeting. The deputies who testified herein
attest to the fact that Cunningham spoke to all of them and did not
direct his remarks to anyone person. No reference was made to any union
or protected activity on the part of Pickett or other employee. The
state of the record persuades me that the supervisor of the deputies was
sensitive to the criticism expressed by Liss; that he sought to respond
thereto by limiting the usage of phones, and also insisted there be no
tardiness after lunch breaks or upon reporting for work - all of which
constituted adherence to proper procedures.
In sum, I conclude that Cunningham's remarks to the deputies on
October 5 contained no coercive statements and no threats of
interference with their protected rights under the Statute. Moreover,
the record herein does not, in my opinion, warrant the inference that
the supervisor's comments on October 5 - including his insistence upon
limited usage of the telephones and reporting on time for work or upon
returning from lunch - were made as a result of Pickett's filing a
grievance with the Marshal concerning other working conditions. Having
concluded that Cunningham's statements on October 5 did not tend to
interfere, restrain or coerce the deputies, I conclude Respondent did
not violate Section 7116(a)(1) of the Statute as alleged. Accordingly,
it is recommended that the complaint be dismissed in its entirety.
WILLIAM NAIMARK
Administrative Law Judge
Dated: November 15, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Subsequent to the hearing the General Counsel filed with the
undersigned a Motion to Correct Transcript. No objection having been
interposed thereto, and it appearing that the corrections are proper,
the motion is granted. The transcript is hereby corrected as reflected
in the Appendix which is annexed to this decision.
/2/ Pickett also served as Regional Vice-President of the
International Council of U.S. Marshals and as regional representative
for the national union.
/3/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1983.
/4/ There were 9 alleged changes by Liss of which Pickett complained.
They included such items as: rotating Newark Deputies but not others;
changing method of transporting prisoners which affected overtime for
Trenton and Camden Deputies; changing mileage calculations to detriment
of Trenton Deputies; reprisal against a union official for seeking to
file a grievance.
/5/ Pickett testified he always sent a copy to Cunningham of any
correspondence to Liss. Thus it is contended the supervisor was aware
of Pickett's grievance. On the state of the record, and in view of
Cunningham's denial that he received the grievance, there is
insufficient proof that the specifics of the grievance were known to the
supervisor.
/6/ Those in attendance at this meeting testified to different
versions of what was said thereat. The findings herein represent the
credited version of remarks by Cunningham.
/7/ Record facts reflect Cunningham calls periodic staff meetings,
and that he has held 3 or 4 meetings with his deputies during the past
18 months.
/8/ Although Pickett testified Cunningham looked at him during the
meeting, other deputies testified that the supervisor's remarks were
directed at all in attendance.