23:0648(85)CA - HHS, SSA and SSA Field Operations, Region II and AFGE Local 2369 -- 1986 FLRAdec CA
[ v23 p648 ]
23:0648(85)CA
The decision of the Authority follows:
23 FLRA No. 85
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION, AND
SOCIAL SECURITY ADMINISTRATION
FIELD OPERATIONS, REGION II
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2369
Charging Party
Case No. 2-CA-50323
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 practice 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.
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 adopts the Judge's
findings, /*/ conclusions, and recommended Order dismissing the
complaint. The Authority does not view the supervisor's remarks in this
case as in any way constituting the kind of expression which is
authorized by section 7116(e) of the Statute. The Authority's
conclusion is based on the focus and import of the remarks as found by
the Administrative Law Judge.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-50323 be, and it
hereby is, dismissed.
Issued, Washington, D.C. October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 2-CA-50323
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION, AND SOCIAL SECURITY
ADMINISTRATION, FIELD OPERATIONS,
REGION II
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2369
Charging Party
Richard Matthews
Al Lipovsky
For the Respondent
Susan M. Roche, Esquire
Edgar A. Jones, Esquire
For the General Counsel
Joseph Calafut,
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on August 29,
1985 by the Regional Director for the Federal Labor Relations Authority,
New York, N.Y., a hearing was held before the undersigned on October 9,
1985 at New York, N.Y.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq. (herein called the Statute). It is
based on a First Amended Charge filed on July 18, 1985 by American
Federation of Government Employees, AFL-CIO, Local 2369 (herein called
the Union) against Department of Health and Human Services, Social
Security Administration, and Social Security Administration, Field
Operations, Region II (herein collectively called Respondent).
The Complaint alleged, in substance, that on or about May 1, 1983
Respondent's Area V Director, Arne Tornquist, made a derogatory
anti-union remark in a telephone conversation to a Union representative
who was preparing to represent a grievant in a hearing before said Area
Director, all of which allegedly violated Section 7116(a)(1) of the
Statute.
Respondent's Answer, dated September 23, 1985, denied the aforesaid
allegation as well as the commission of any unfair labor practice.
All parties were represented at the hearing. 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 the following findings and conclusions:
Findings of Fact
1. At all times material herein American Federation of Government
Employees, AFL-CIO has been the exclusive representative of a
consolidated nationwide unit of Respondent's employees, including all
employees located in the District and Branch Offices of Social Security
Administration in the states of New York and New Jersey, with specified
exclusions.
2. At all times material herein the American Federation of
Government Employees, AFL-CIO has delegated to the National Council of
Social Security Administration Field Operations Locals (Council)
authority to act with representatives for collective bargaining on
behalf of certain of Respondent's employees, including those employed at
the Toms River, New Jersey Branch Office, and Respondent has so
recognized the Council for that purpose.
3. At all times material herein the Union has acted as agent for the
Council for the purposes of collective bargaining for certain of
Respondent's employees, including employees at the Toms River, New
Jersey Branch, and Respondent has recognized the Union for that purpose.
4. Both the Social Security Administration and American Federation
of Government Employees, AFL-CIO, are parties to an agreement covering a
nationwide unit of employees, including employees at the Toms River, New
Jersey Branch. Said agreement contains a provision in Article 30,
Section 4, as well as Appendix F, Part G, which states as follows: /2/
"Unless otherwise arranged, union representatives for field
offices will be required to request and arrange with appropriate
management officials in advance of their usage of official time by
using the SSA-75."
5. Record facts show that on May 1, 1985 Alan H. Cannizzaro was
employed as a claims representative at Respondent's Bridgeton, New
Jersey Branch. He was the on-site representative for Bridgeton Branch,
as well as second vice-president of the Union herein. His duties
included handling grievances on behalf of employees, attendance at
arbitration hearings, and filing unfair labor practice charges.
6. On May 1, 1985 Cannizzaro went to the Toms River, New Jersey
Branch of Respondent to speak with employee Patricia D'Elia. He wanted
to investigate a charge brought against D'Elia by management re misusing
her title as a government official. Cannizzaro planned to represent the
employee in connection with a proposal to suspend her for a day.
7. When the Union representative arrived at the Branch he was met by
Joseph E. Lynch, the Operations Supervisor who asked why Cannizzaro was
there. The latter explained he wanted to see employee D'Elia; that he
was on official time signed by his supervisor. Lynch testified he knew
that the Union official represented D'Elia re her proposed suspension,
and he was aware that Area Director Arne Tornquist had been assigned to
the matter. Since Lynch believed that this Area Director would be the
proper official to authorize official time, he telephoned Tornquist to
ascertain whether the Director had given approval therefor. Tornquist
explained that he did not sanction official time for Cannizzaro's visit,
and he told Lynch to put the Union representative on the phone.
8. A telephone conversation ensued between Tornquist and Cannizzaro
re the purpose of the latter's visit to the Toms River Branch. /3/ The
Union official told the Director he had an approved SSA-75 /4/ which was
signed by his supervisor. Tornquist said it had to be sanctioned by the
hearing official /5/ before the supervisor could approve it.
Cannizzaro, who was upset at the confrontation, said he didn't give a
shit, he would do as he pleased. Upon rhetorically asking Cannizzaro if
the Union representative considered himself real big in the Union now,
Tornquist said that Cannizzaro was just a little "union shit".
Cannizzaro replied he didn't appreciate being called such a name, and he
then called the Area Director a "fat fuck".
After being asked by Tornquist if he intended to file an unfair labor
practice against the Director, Cannizzaro said he probably would do so.
Tornquist replied that the Union official should go ahead and do so;
that Cannizzaro had not made one stick yet. Cannizzaro stated he could
leave and return later but it would just be a waste of time and money;
that he gets paid for filing grievances and unfair labor practices. The
Area Director told the Union representative he was a waste to the agency
and interfered with its mission, but that Cannizzaro should stay there
and "do what you have to do -- meet with the employee and leave nice and
early."
9. After the telephone conversation Cannizzaro met with Patricia
D'Elia. He explained what occurred and asked her if she wanted him to
withdraw from the case. D'Elia stated she did not want Cannizzaro to
withdraw.
10. Thereafter Cannizzaro wrote letters to Paul Dudak, Area Director
IV, and Alex Bussy, Assistant Regional Commissioner. He mentioned what
transpired during his conversation with Tornquist, as well as the fact
that the latter called him a "little union shit". Cannizzaro complained
about Tornquist's behavior and asked that another person be appointed to
hear D'Elia's grievance so the employee could get a fair and unbiased
decision. A reply from Dudak stated that management makes its own
determination and would exercise its authority on this issue.
Conclusions
The simple issue herein is whether Area Director's remarks to Union
representative Cannizzaro, during a telephone conversation on May 1,
1985, were coercive in nature and violated Section 7116(a)(1) of the
Statute.
General Counsel contends that Cannizzaro was engaged in protected
activity at the time, /6/ that, although no explicit threat was made by
Tornquist, his comments implied that the Union official's right to
conduct his duties was "under attack"; that the statements interfered
with Cannizzaro's right to conduct his legitimate representational
activities.
The Authority has had occasion to consider several cases wherein
statements by supervisors were made to employees which were allegedly
coercive in nature. In determining if remarks by management interfered
with protected activity, and tended to coerce, the test is whether an
employee could reasonably infer coercion from the statement by a
supervisor. Federal Mediation and Conciliation Service, 9 FLRA No. 31.
Such determination is not based on the employer's intention or the
perception of the involved employee -- either of which may properly be
characterized as subjective in nature.
General Counsel has alluded to several cases in support of its
position that Tornquist's statements to Cannizzaro constituted
interference with the latter's functions as a union representative. In
particular, reference is made to U.S. Army Military Traffic Management
Command, Eastern Area, Bayonne, N.J., 16 FLRA No. 123; Social Security
Administration, Baltimore, Maryland, 14 FLRA No. 80; Department of the
Treasury, Internal Revenue Service, Louisville District, 11 FLRA No. 64.
The undersigned has reviewed the cited cases but is not persuaded
that they are determinative in deciding the matter at hand.
In U.S. Army Military Traffic Management Command, supra, a union
steward, who had received a formal reprimand for failing to work on
assignments, requested additional official time to prepare his reply.
The deputy, to whom he made the request, asked "why don't you stop this
Union nonsense and do your job like you're supposed to do instead of
like you were in 82"? It was held that this implied disapproval of the
steward's unionism and chilled the exercise of his right to join or
assist a labor organization. In the case at bar the Area Director was
concerned with the failure of Cannizzaro to obtain his prior approval to
confer with the grievant. He did not attempt to thwart the Union
representative from speaking to D'Elia, nor did he suggest that
Cannizzaro should cease his representational functions. I do not
conclude that, as in the cited case, such "chilling" effect resulted
from Tornquist's calling the representative a "little union shit" or
that the latter was a waste to the agency.
It was concluded in the Social Security Administration case, supra,
that a supervisor's threat to throw the union representative out of his
office, and his preventing a grievance meeting between the
representative and an employee, was violative of 7116(a)(1). The case
at bar presents a different situation. Tornquist did not prevent the
meeting between Cannizzaro and D'Elia, nor did he interfere with the
right of the Union representative to confer with the employee. In the
cited case the management official refused to verify the fact that the
union agent had already received permission to see the grievant.
Moreover, the record showed that the conduct displayed by management was
not an isolated incident but part of a larger problem in the office.
In the Internal Revenue Service, Louisville District case, supra, the
union steward was criticized by a chief of one of the employer's
division for calling the personnel office on behalf of an employee. /7/
The Chief upbraided the steward, stating the latter was "out of line";
that he sticks his nose into things and causes trouble -- that he had
done it again. These remarks, it was held, would be interpreted by a
reasonable employee to constitute management hostility toward the
steward's contacting the personnel office on behalf of an employee and
toward his representational activities. I view the aforesaid factual
situation far removed from the one at bar. The management official in
the cited case evinced a clear hostility to the efforts of the steward
to engage in his union duties and act on behalf of an employee who felt
aggrieved. Moreover, he admonished the steward to refrain from getting
involved in such representation. While Tornquist, in the instant case,
was upset that Cannizzaro had not solicited his approval beforehand, the
record does not support the conclusion that the Director declared or
implied that Cannizzaro should abstain from pursuing his
representational duties.
It is urged herein that calling Cannizzaro a "little union shit" was
anti-union in nature, and that the union official would necessarily
think twice before deciding to continue as D'Elia's representative.
This remark, however, was not made in the context of open hostility to
the Union. Neither was it made, in my opinion, in a deliberate attempt
to discourage Cannizzaro from continuing his representational duties.
The statement flowed from Tornquist's apparent slight at not being
contacted before Cannizzaro went to Toms River to see the grievant. As
such, the remark -- made solely to the Union official -- disparaged the
latter as a private conversation, and it may well be deemed an
expression of Tornquist's personal views rather than a position of
agency management. The language used by the Area Director, as well as
the cursing of the latter by Cannizzaro, may well have exceeded the
bounds of proper expression. However, passions were seemingly high,
and, in respect to the statement by Tornquist, I conclude any taint of
disparagement did not justify the conclusion that a reasonable man would
be coerced into discontinuing his representation of an aggrieved
employee. In sum, it is concluded that the Area Director's remarks did
not constitute interference, restraint or coercion and were not
violative of Section 7116(a)(1) of the Statute. See Army and Air Force
Exchange Service (AAFES), Ft. Carson, Colorado, 9 FLRA No. 69; Oklahoma
City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6
FLRA No. 32.
It is therefore recommended that the Authority issue the following
Order:
ORDER
It is hereby Ordered that the Complaint in Case No. 2-CA-50323 be,
and the same hereby is, dismissed.
WILLIAM NAIMARK
Administrative Law Judge
Dated: February 19, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) In response to the General Counsel's contention in its exceptions
that the cases relied upon by the Judge were not dispositive, the
Authority notes a recent case which involves similar facts and the same
determination. Department of the Air Force, 63rd Civil Engineers
Squadron, Norton Air Force Base, California, 22 FLRA No. 91 (1986).
(1) Subsequent to the hearing Respondent filed two motions with the
undersigned: (a) Motion, and an amendment thereto, to correct portions
of Respondent's post hearing brief, (b) Motion to Strike portions of
General Counsel's brief.
The Motion, and its amendment, to correct portions of Respondent's
brief constitute spelling and grammatical changes. No objection was
interposed thereto. Said Motion is granted as requested.
The Motion to Strike portions of General Counsel's Brief is based on
the fact that said brief refers to an article of a collective bargaining
agreement; that said agreement was never received in evidence and thus
no reference should have been made thereto. Apart from the fact that
said article of the agreement was acknowledged by Respondent's witness,
the undersigned has relied solely upon matters contained in the record
in his decision. The said Motion is denied. See Internal Revenue
Service, 16 FLRA No. 119.
(2) Although General Counsel neglected to introduce the agreement in
evidence, the Respondent's Area Director, Arne Tornquist, testified to
the existence of the agreement, as well as the quoted provision
requiring advance approval of the usage of official time by union
representatives.
(3) Several versions of this conversation were testified to by the
witnesses. The facts set forth herein represent the credited version
thereof.
(4) Approval of this form is official authorization to represent
someone at another office or location.
(5) Tornquist was the third-step grievance official who would
ultimately act as the hearing officer re D'Elia's grievance.
(6) Cannizzaro's intercession on behalf of employee D'Elia, and his
effort to discuss her grievance as a Union representative, are clearly
protected activities. Moreover, a union representative is entitled to
freedom to process grievances without harassment. However, the right is
not absolute. See Philadelphia Naval Shipyard, 4 FLRA No. 38.
(7) The employee, working at location A, had been selected to work at
location B. The steward was attempting to intercede for the employee in
an effort to have the job itself moved to location A so the employee
would not be required to move.