[ v41 p436 ]
41:0436(42)CA
The decision of the Authority follows:
41 FLRA No. 42
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The Respondent issued a record of infraction and a letter of proposed removal to the Charging Party, Edward Hanlon. In each document, the Respondent cited Hanlon's filings of grievances and unfair labor practice (ULP) charges against the Respondent as one of the bases for its actions. This case arose when Hanlon filed a ULP charge asserting that he had a statutory right to file grievances and ULP charges and protesting the Respondent's reliance in the record of infraction and the letter of proposed removal on his filings of grievances and ULP charges. Subsequently, Hanlon was removed from his position.
The complaint alleged that the Respondent's references in the record of infraction and the letter of proposed removal to Hanlon's filings of grievances and ULP charges violated section 7116(a)(1) of the Statute by interfering with, restraining and coercing employees in the exercise of their rights under the Statute. The Judge found that section 7116(d) of the Statute did not preclude his consideration of the matters raised in the complaint. He further found that the Respondent's references in the record of infraction and the proposed letter of removal to Hanlon's filings of grievances and ULP charges violated section 7116(a)(1) of the Statute.
The Respondent filed exceptions to the Judge's decision. The General Counsel filed an opposition to the Respondent's exceptions. The Office of Personnel Management (OPM) filed an amicus brief in support of the Respondent's exceptions.
Upon consideration of the Judge's Decision, the Respondent's exceptions, the General Counsel's opposition, OPM's amicus brief and the stipulated record,(1) we adopt the Judge's findings and conclusions to the extent consistent with this decision. We find, in agreement with the Judge, that section 7116(d) of the Statute does not preclude consideration of the matters raised in the complaint. We also find, as to the merits of the complaint, that the Respondent violated section 7116(a)(1) of the Statute.
II. Facts
Hanlon was employed by the Respondent from May 31, 1978, to January 8, 1988, as a statistician/demographer in the Respondent's Population Division. Paula Schneider served as Chief of the Population Division and Hanlon's third-line supervisor. Hanlon was a member of the American Federation of Government Employees, Local 2782, the exclusive representative of the Respondent's unit employees.
From April 1985 to November 1987, Hanlon was actively engaged in union organizational and representational activities--including the solicitation of union membership and the distribution of union literature--at the Respondent's Suitland, Maryland location. The Respondent was aware of Hanlon's union activities. From 1985 through 1987, Hanlon filed, in his individual capacity, an unspecified number of ULP charges against the Respondent with the Authority. During this same time period, Hanlon also filed grievances under the applicable collective bargaining agreement.
On or about November 23, 1987, Schneider issued Hanlon a written record of infraction. A record of infraction is not a disciplinary action and is not a grievable matter under the parties' collective bargaining agreement. Rather, it is "a precursor to discipline and is used by supervisors to document and report employee violations of Respondent's regulations or standards of conduct." Judge's Decision at 3. The record of infraction listed four charges, including one that cited Hanlon's "[m]isuse of administrative/judicial procedures" between 1985 and November 23, 1987, by his filing of, among other things, numerous ULP charges and grievances. See General Counsel Exhibit 3 at 2.
Hanlon filed a ULP charge with the Authority on November 27, 1987. The charge alleged that the Respondent had committed a ULP by, among other things, basing the record of infraction on Hanlon's statutorily protected right to file ULP charges and grievances.
Also on November 27, 1987, Hanlon submitted a written response to Schneider concerning the record of infraction. Hanlon denied the allegations and stated that the filing of ULP charges and grievances is a statutorily protected right, and to punish him for such filings would violate the Statute. Hanlon also stated that he had "actually filed few grievances during 1987, but many unfair labor practices, the majority of which have been determined by the Regional Director of Region 3 of the FLRA to be meritorious." General Counsel Exhibit 4 at 10.
On or about December 4, 1987, Schneider issued Hanlon a letter of proposed removal. The letter listed four categories which outlined conduct by Hanlon that the Respondent claimed supported the proposed action. These categories were: (1) unauthorized use of the Respondent's computer equipment; (2) unauthorized conduct of personal business while in a duty status; (3) insubordination; and (4) misuse of administrative/judicial procedures.
As to the fourth category, the letter of proposed removal alleged that between 1985 and December 4, 1987, Hanlon filed "numerous actions[,]" including ULP charges and grievances, "with the intent and effect of impeding the efficiency of the agency and of intimidating agency officials in the pursuit of their official responsibilities." General Counsel Exhibit 5 at 19. No grievance was filed by Hanlon over the letter of proposed removal.
Hanlon filed an amended ULP charge on December 16, 1987. In his amended charge, Hanlon added, among other things, an allegation that the December 4, 1987, letter of proposed removal constituted a ULP because it referenced Hanlon's statutorily-protected right to engage in union activities by filing ULP charges and grievances. The amended charge alleged that the Respondent's letter of December 4, 1987, interfered with the rights of all employees under the Statute.
On January 8, 1988, Hanlon was removed from his position. On January 11, 1988, Hanlon filed a grievance challenging his removal. On February 18, 1988, Hanlon invoked arbitration of the grievance. The record does not contain the result of the arbitration proceeding.
On February 29, 1988, the General Counsel issued the complaint in this case.
III. Administrative Law Judge's Decision
The Respondent argued before the Judge that the complaint was barred by section 7116(d) of the Statute because, as Hanlon was subsequently terminated, the complaint concerned a removal action--a matter properly raised only before the Merit Systems Protection Board (MSPB) or an arbitrator.(2) The Judge rejected the Respondent's contention because the complaint did not cover the removal action.
The Judge found that because no grievance could have been filed over the record of infraction and no grievance was filed over the letter of proposed removal, the complaint was not precluded by the "previously-filed grievance" bar of section 7116(d). Judge's Decision at 4. The Judge also found that the complaint was not precluded by the "statutory appeals" bar of section 7116(d). Id. at 5. The Judge noted that although "a removal action ordinarily falls within the statutory appeals bar of section 7116(d), the complaint . . . does not pertain to Hanlon's removal. Rather, it concerns . . . the alleged section 7116(a)(1) statements which, besides occurring prior to Hanlon's removal, are totally independent of the removal issue." Id.
The Judge further noted that the complaint only concerned "certain statements" contained in the record of infraction and letter of proposed removal and stated that "the Authority has jurisdiction over unfair labor practice charges concerning statements made by an agency which are alleged, as is the case here, to be violative of section 7116(a)(1) of the Statute." Id. The Judge additionally found that "neither the record of infraction nor the proposed removal letter constitute[s] adverse actions with[in] the jurisdiction of the [MSPB] under 5 U.S.C. §[ ]4303 or §§ 7511-7514 and 5 C.F.R. § 432.101-432.207 or §§ 752.401-752.406." Id.
Having determined that the complaint was not barred by section 7116(d) of the Statute, the Judge then considered the merits of the complaint. The Judge stated that an agency's threat of penalty or discipline, whether oral or written, no matter what context it is "hidden in," made to an employee for filing and pursuing ULP charges or grievances, would reasonably tend to interfere with or coerce an employee in the exercise of rights protected under section 7102 of the Statute and, therefore, would constitute prohibited conduct under section 7116(a)(1) of the Statute. Id. at 6. In the Judge's view, the statements contained in the record of infraction and the letter of proposed removal would reasonably tend to coerce or intimidate an employee. The Judge concluded, therefore, that the Respondent violated section 7116(a)(1) of the Statute by referring to Hanlon's filing of ULP charges and grievances in those documents.
As a remedy, the Judge ordered, among other things, that the Respondent remove from both documents references to Hanlon's filing of ULP charges and grievances.
IV. Positions of the Parties
A. Respondent
The Respondent contends that the Judge erred by finding that the record of infraction and letter of proposed removal are not covered actions under 5 U.S.C. § 7513. The Respondent states that the Judge's finding that "a letter of proposed removal issued under 5 U.S.C. § 7513(b) is 'totally independent' from the notice of removal issued under the same statutory section . . . . is both logically and legally unsound." Exceptions at 5. In the Respondent's view, the record of infraction and the letter of proposed removal are both "integral elements" of the adverse actions procedures under 5 U.S.C. §§ 7511-7514 and, therefore, are solely under MSPB jurisdiction. Id. at 6.
The Respondent notes that although the underlying ULP charge, as amended, was filed with the Regional Director before January 8, 1988, the date of Hanlon's removal, the complaint was not issued until February 29, 1988. The Respondent asserts that, as of the latter date, "there was no longer an isolated proposal for a[n] adverse action" but "[o]nly a final adverse action existed which was appealable to the MSPB or through the applicable negotiated grievance procedure." Id. at 10. The Respondent asserts that as the record of infraction and the letter of proposed removal concern matters pertaining to Hanlon's removal, a matter that is within the purview of the MSPB, "any claim of impropriety as to the 'cause' for the agency's action under § 7513, including issues of union animus, is also properly before the MSPB." Id. at 7.
According to the Respondent, because the complaint in this case pertains to a matter which could properly be raised before the MSPB, the Judge erred by failing to find that the complaint was barred by section 7116(d) of the Statute. The Respondent contends that ULP procedures may not be used as to issues that may properly be raised before the MSPB. The Respondent cites for support decisions in which, under section 7122 of the Statute, the Authority denied exceptions to arbitration awards relating to section 7121(f) matters, such as removals. The Respondent asserts that such decisions show that the Authority has recognized that it lacks jurisdiction to review matters relating to an employee's removal. The Respondent contends, therefore, that the Judge erred as a matter of law by failing to find that section 7116(d) of the Statute precluded his consideration of the complaint.
As to the merits of the complaint, the Respondent contends that the stipulated record does not support the Judge's conclusion that the Respondent violated section 7116(a)(1) of the Statute. The Respondent asserts that the record does not contain "any evidence to support a finding that the inclusion of certain words in [the record of infraction] and [the] letter of proposed removal had any chilling effect upon Mr. Hanlon or any other employee." Id. at 12. The Respondent claims that "[w]ithout such evidence, a finding of a violation of section 7116(a) can only be predicated on a per se theory that the mere appearance of certain words is a violation of section 7116(a)(1) of the Statute." Id. The Respondent contends that such a theory "ignores well established principles that an employee's right to file various actions is not without limits and that abuse of process is a valid basis for disciplinary actions." Id. (emphasis in original). The Respondent asserts that before finding that statements in the documents had a chilling effect on the exercise of section 7116(a)(1) rights, the Judge should have first evaluated Hanlon's conduct to see if the "'rights' asserted were, in fact, protected." Id. at 13.
Finally, the Respondent contends that to the extent that the remedy ordered by the Judge requires the Respondent to remove from the documents in issue references to Hanlon's filing of ULP charges and grievances, the remedy directly interferes with the removal action itself and is contrary to law.
B. OPM
OPM contends that the issues raised in this dispute could have been properly raised only in the grievance that Hanlon filed challenging his removal. According to OPM, section 7116(d) of the Statute "specifically prohibits recourse to the unfair labor practice procedure with respect to issues that can be raised in a proceeding subject to MSPB's appellate jurisdiction." Amicus Brief at 8-9. OPM notes that an employee against whom an action is taken under this chapter is entitled to appeal to the MSPB under section 7701 of title 5. OPM contends that the Respondent gave Hanlon "the option of challenging the action through the negotiated grievance procedure or by means of an appeal to MSPB," and Hanlon, "correctly informed of his options, chose to file a grievance under 5 U.S.C. 7121(e)(1), in accordance with the terms of the collective bargaining agreement between the parties." Id. at 9.
OPM contends that MSPB has the "authority to hear as an affirmative defense any allegation that an adverse action was 'based on any prohibited personnel practice described in section 2302(b)'" of title 5. Id. at 10. OPM states that the issue that the General Counsel pursued under the ULP procedure was invoked "after Hanlon had grieved his removal[.]" Id. at 11 (emphasis in original). OPM asserts that this issue "[could] properly be raised under an appeals procedure'--specifically, the adverse action procedure." Id. Thus, OPM contends that "it was contrary to law for Mr. Hanlon to attempt to raise the same issue in the form of an unfair labor practice charge, and for the [J]udge to assume jurisdiction over it." Id.
OPM contends that to read the Statute "in any other way would undermine the comprehensive scheme laid out" in the Civil Service Reform Act for the administrative and judicial resolution of disputes over adverse personnel actions. Id. OPM states that "the substantive content of the [proposed removal] notice is not reviewable outside of the adverse action setting; it may be challenged only as part of an adverse action appeal or grievance." Id. at 13. OPM asserts that "[o]nce an adverse action is taken, the notice of proposed removal is subsumed in it, and has no independent existence apart from the action that results." Id. at 13-14. OPM further states that "[i]f the removed employee challenges the action on the grounds that the notice of removal and notice of proposed removal were in reprisal for protected activity, whether in the labor context, . . . or otherwise, these issues are properly dealt with in the appeal or grievance under chapter 75." Id. at 14. OPM also contends that the record of infraction was "a matter exclusively within the purview of the arbitrator who was selected to adjudicate the adverse action proceeding." Id. at 18. OPM asserts that once that procedure was invoked by Hanlon, the Authority was divested of any jurisdiction over the issue by section 7116(d).
Further, OPM contends that even if the Judge had the authority to consider the complaint, he "misapplied the law pertaining to disciplinary actions resulting from the filing of grievances and unfair labor practices." Id. at 19. OPM asserts that the Judge "erred in finding that there is 'no limit in the Statute as to how many unfair labor practice charges or grievances an employee can file.'" Id. at 20 (quoting Judge's Decision at 5). OPM contends that an employee's right to use statutory procedures created for the protection of protected activity is not absolute and the Judge erred by failing to recognize the possibility that an employee might seek to immunize himself from misconduct by labeling it protected activity. OPM asserts, therefore, that the Judge erred by not considering whether the manner in which Hanlon used the negotiated grievance and ULP procedures was abusive or constituted flagrant misconduct.
C. General Counsel
As to the Respondent's contention concerning section 7116(d) of the Statute, the General Counsel asserts that the Respondent has "misread the appellate jurisdiction of the [MSPB] under 5 U.S.C. §[ ]7511, et seq." Opposition to Exceptions (Opposition) at 6. The General Counsel acknowledges that a competitive service, preference eligible employee has the right to appeal a removal to the MSPB. The General Counsel contends, however, that the record of infraction is not a removal action and that, "[w]hile the letter of proposed removal relates to a removal, it too is not a matter subject to MSPB review." Id. at 7. The General Counsel contends that the MSPB has jurisdiction over an actual removal, not a proposed removal.
The General Counsel asserts that the Respondent's contention that its removal of Hanlon deprived the Authority of jurisdiction is misplaced. The General Counsel states that the "removal of Hanlon is not covered by the complaint," which only "concerns the record of infraction and the letter of proposed removal to the extent they contain statements in violation of section 7116(a)(1) of the Statute." Id. In the General Counsel's view, the complaint is not barred by section 7116(d) because the Authority has jurisdiction over the alleged "section 7116(a)(1)" statements in the documents. Id. The General Counsel asserts, therefore, that the Judge properly concluded that he had jurisdiction to decide the matter.
The General Counsel contends that the Respondent errs in asserting that the Judge employed a "per se theory" and failed to "'evaluate the Charging Party's conduct to see if the 'rights' asserted were, in fact protected.'" Id. at 3 (quoting Exceptions at 13). The General Counsel contends that "the issue in this case is whether the statements contained in the record of infraction and letter of proposed removal concerning Hanlon's filing of grievances and unfair labor practices have a reasonable tendency to interfere with section 7102 rights." Id. at 3-4. The General Counsel notes that the Judge expressly found that the filing of grievances and ULP charges constitutes protected activity under the Statute. The General Counsel asserts that the record is "devoid of any evidence that Hanlon's filing of grievances and unfair labor practice charges operated to undermine Respondent's operations or was disruptive." Id. at 5-6. The General Counsel contends, therefore, that the Judge correctly found that the statements in the documents violated section 7116(a)(1) of the Statute.
Finally, the General Counsel asserts that the remedy ordered by the Judge is consistent with section 7118(a)(7) of the Statute and Authority precedent, and is appropriate for the nature of the violation.
V. Analysis and Conclusions
For the reasons stated below, we agree with the Judge that section 7116(d) of the Statute does not preclude consideration of the complaint in this case. On the merits, we also agree with the Judge that the Respondent violated section 7116(a)(1) of the Statute and we will issue an appropriate remedial order.
A. Section 7116(d) Does Not Preclude Consideration of the Complaint in this Case
The Respondent and OPM, noting that Hanlon was subsequently removed from his position, contend that the Judge erred in concluding that section 7116(d) of the Statute does not preclude the Authority's consideration of the issues presented by the ULP complaint. According to the Respondent, such conclusion is erroneous because the issues presented by the record of infraction and the letter of proposed removal may be raised under a statutory appeals procedure involving the removal action. We disagree with the Respondent's contentions.
As noted earlier, the first sentence of section 7116(d) provides: "Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section." 5 U.S.C. § 7116(d). Because this case presents a question concerning the statutory bar of section 7116(d), it is necessary to determine whether the issues sought to be resolved in the ULP forum could have been invoked under an appeals procedure. If the issues presented in the ULP proceeding are the same as the issues that could have been raised under the statutory appeal procedure, then section 7116(d) would preclude the matter from being raised in the ULP proceeding.
In the instant case, the issues before us are whether the record of infraction and the letter of proposed removal contain statements that interfere with employees' rights to engage in protected activity in violation of section 7116(a)(1) of the Statute. The evidence reveals that a record of infraction is not a disciplinary action and is not a grievable matter under the parties' contract. Rather, it is a precursor to discipline and is used by supervisors to document and report employees' violations of the Respondent's regulations or standards of conduct. Therefore, the record of infraction could not be appealed to the MSPB.
As to the letter of proposed removal, under MSPB regulations and case law, proposed actions are not appealable to the MSPB. See Cruz v. Department of the Navy, No. 89-3359, slip op. at 7 (Fed. Cir. April 30, 1991) (court stated that "proposals to remove are not listed in [5 U.S.C.] § 7512, they are not appealable adverse actions in themselves and the [MSPB] has no jurisdiction over them)." See also 5 C.F.R. § 1201.3 (detailing the actions over which the MSPB has appellate jurisdiction).
Consequently, we find that the record of infraction and the letter of proposed removal are not actions appealable to the MSPB. As such actions are not appealable, the issues presented in the ULP complaint are not issues that could properly be raised in a statutory appeals procedure. We find, therefore, that the ULP complaint, which concerns only the record of infraction and the letter of proposed removal, and not the removal action itself, is not barred by the first sentence of section 7116(d) of the Statute from consideration in the ULP forum. See, for example, United States Department of Interior, Office of the Secretary, U.S. Government Comptroller for the Virgin Islands, 11 FLRA 521, 529-531 (1983) (DOI, Virgin Islands) (where the Authority adopted a Judge's decision finding that the first sentence of section 7116(d) did not bar his consideration of a ULP complaint alleging a section 7116(a)(1) violation because the removal action, which had been appealed to MSPB and was pending at the time of the ULP hearing, was not before him).
We note that in interpreting the second sentence of section 7116(d), relying on the decision of the United States Court of Appeals for the District of Columbia Circuit in Overseas Education Association v. FLRA, 824 F.2d 61, 72 (D.C. Cir. 1987) (OEA), we have developed a test for determining whether issues raised in an arbitration proceeding are the same as the issues that are raised in a ULP proceeding. For purposes of applying the jurisdictional bar set forth in the second sentence of section 7116(d), we examine whether the subject matter of a ULP charge is the same, in terms of the factual predicate and theory, as the subject matter of a grievance. See U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 38 FLRA 1345 (1991) (Army Finance and Accounting Center), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 1411 and Helen Owens v. FLRA, No. 91-1120 (D.C. Cir. Mar. 11, 1991).
Applying that test to the first sentence of section 7116(d), we conclude that the ULP complaint in this case is not barred by the Statute. Although the factual predicate of the ULP charge might also have been a basis of the final removal action, the theory of the ULP charge is different from that that would be applicable to review of the final removal action.(3) As noted above, the ULP charge presented issues pertaining to the record of infraction and the letter of proposed removal, which are not subject to review in a statutory appeals procedure. The theory advanced in the ULP charge is that the Respondent, by the statements contained in the record of infraction and the letter of proposed removal, violated section 7116(a)(1) of the Statute, while the removal concerns the termination of the employee and the application of 5 U.S.C. § 7701. Consequently, the theory that applies to our consideration of the record of infraction and the letter of proposed removal is different from the theory that is applicable to the final removal action.
This case is therefore distinguishable from Army Finance and Accounting Center. In that case, we set aside an arbitrator's award finding that a grievant's 10-day suspension was not for just cause. We concluded that the grievance concerning a 10-day suspension presented the same issue as a ULP charge concerning a proposed suspension and, therefore, that section 7116(d) barred the grievance. In so concluding, we noted that the factual predicates and theory for the ULP charge and the grievance were the same. In this case, however, the theory of the violation presented in the ULP charge is different from that applicable to the matters at issue in the final removal action.
We also find that the Respondent's reliance on Authority arbitration decisions involving section 7121(f) of the Statute to support its position that the complaint is barred from our consideration under section 7116(d) is misplaced. The cases cited by the Respondent all involved exceptions to arbitration awards "relating to a matter described in [section] 7121(f)," such as a removal. 5 U.S.C. § 7122(a). In each case, the Authority found that it was without jurisdiction under section 7122(a) of the Statute to resolve the exceptions because the subject involved "relat[ed] to" a matter described in section 7121(f).
Under section 7116(d) of the Statute, however, a ULP complaint alleging a violation of the Statute is not precluded from the Authority's consideration under the ULP procedure simply because it "relates to" a matter that is the subject of an appeals procedure. Rather, section 7116(d) bars processing of an issue as a ULP only if that same issue can be properly raised under an appeals procedure. See, for example, DOI Virgin Islands. As discussed above, the issues involved in this ULP could not be properly raised in a statutory appeals procedure. Therefore, section 7116(d) does not bar our consideration of the complaint.
B. The Respondent Violated Section 7116(a)(1) of the Statute
Having concluded that section 7116(d) of the Statute does not preclude our consideration of the complaint, we now turn to the merits. The Respondent contends that the stipulated record does not support the Judge's conclusion that the Respondent violated section 7116(a)(1) of the Statute. We disagree with the Respondent's contention.
The standard for determining whether management's statement or conduct violates section 7116(a)(1) is an objective one. The question is whether, under the circumstances, the statement or conduct tends to coerce or intimidate the employee in the exercise of rights protected under section 7102 of the Statute, or whether the employee could have reasonably drawn a coercive inference from the statement. Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 956, 962 (1990). While the circumstances surrounding the making of the statement are taken into consideration, the standard is not based on the subjective perceptions of the employee or on the intent of the employer. Id. Further, in order to find a violation of section 7116(a)(1), it is not necessary to find other unfair labor practices or to demonstrate union animus. Id.
In this case, the Judge assessed the evidence presented in the stipulated record and determined that the statements contained in the record of infraction and letter of proposed removal would reasonably tend to coerce employees in the filing of grievances and ULP charges. The Judge concluded, therefore, that the Respondent's references in the record of infraction and the letter of proposed removal to the employee's filing of grievances and ULP charges constituted a violation of section 7116(a)(1) of the Statute. We agree with the Judge's determination.
It is beyond dispute that employees have a right under the Statute to file ULP charges and grievances. See U.S. Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California, 38 FLRA 567, 569, 581 (1990); Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, 18 FLRA 831 (1985). In our view, an employee could reasonably have drawn a coercive inference from the Respondent's references to Hanlon's filings of ULP charges and grievances. References to Hanlon's filings of ULP charges and grievances in the record of infraction, which precedes discipline and is used by supervisors to document and report employee violations, would tend to have an intimidating effect on an employee who seeks to exercise the statutory right to file ULP charges and grievances. Similarly, the reliance in the letter of proposed removal on Hanlon's filing of ULP charges, as well as the reference to Hanlon's filing of grievances, would tend to intimidate employees in exercising their statutory right.
The Respondent contends that the Judge's decision "ignores well established principles that an employee's right to file various actions is not without limits and that abuse of process is a valid basis for disciplinary action." Exceptions at 12 (emphasis in original). The Respondent cites for support Social Security Administration v. Burris, 39 MSPR 51 (1988) (Burris), affirmed mem., 878 F.2d 1445 (Fed. Cir.), cert. denied, 110 S. Ct. 158 (1989), and contends that the Judge "had to evaluate the Charging Party's conduct to see if the 'rights' asserted were, in fact, protected." Id. at 13.
We interpret the Respondent's contention that Hanlon's actions constituted an abuse of process as an argument that its action was justified because Hanlon's filing of ULP charges and grievances exceeded the boundaries of protected activity under the Statute. See, for example, Long Beach Naval Shipyard, Long Beach, California, and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987). An employee's conduct that would otherwise constitute protected activity may constitute flagrant misconduct and, therefore, exceed the bounds of protected activity if the employee's actions are "'of such an outrageous and insubordinate nature as to remove them from the protection of the Statute.'" U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 385, 388-91 (1990) (quoting Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678, 687 (1981)). See Burris (where the MSPB found that an employee's outrageous and sufficiently flagrant abuses of the grievance process by filing frivolous grievances warranted the imposition of discipline).
The Judge stated that he "[saw] no limit in the Statute as to how many unfair labor practice charges or grievances an employee can file." Judge's Decision at 5. It is clear, in this regard, that the Statute does not impose a limitation on the number of charges and grievances an employee can file. However, to the extent that the Judge's statement suggests that an employee may never be disciplined for misuse of the ULP procedure and grievance process, we disagree with such a suggestion. Employee misconduct may be of such an outrageous and insubordinate nature so as to remove the conduct from the protection of the Statute. A similar principle applies in the private sector under the National Labor Relations Act (NLRA). See Wayne W. Sell Corp., 281 NLRB 529, 532 (1986) (the fact that an employee "filed many grievances does not render the behavior unprotected"; it is "only extreme behavior on the part of an employee that removes his actions from the protection of the [NLRA]."); Ad Art, Inc., 238 NLRB 1124, 1131 (1978), enf'd 645 F.2d 669 (D.C. Cir. 1980) (section 7 of the NLRA is "a shield which protects employees" in the exercise of the protected right to file and process grievances, but is not "a sword which an employee may use to gain immunity in order to conceal his true motive of simply harassing an employer"; in order to show that an employer has not improperly discharged an employee for the employee's grievance filing activity, the employer must prove that the employee "has so abused his right to file grievances as to have engaged in unwarranted harassment of [the employer]").
Applying the foregoing analysis to this case, we find that the record does not support a finding that Hanlon's action in filing ULP charges and grievances exceeded the bounds of protected activity. Nothing in the record shows that Hanlon used the ULP and grievance processes in such an outrageous manner so as to remove the conduct from the protection of the Statute. In particular, the record does not support the Respondent's claim that Hanlon's actions constituted an abuse of process. Based on the record before us, which was stipulated by the parties, we find that the Respondent has not met its burden of showing that Hanlon's filings constituted an abuse of the ULP and grievance forums so as to lose the protection of the Statute.
Therefore, based on the above, we conclude that the statements in the documents pertaining to Hanlon's filing of ULP charges and grievances interfered with the right of employees under section 7102 to file ULP charges or use the negotiated grievance procedure. The Respondent's actions could reasonably tend to have a restraining or "chilling" effect not only on Hanlon but on other employees who might similarly wish to exercise such right. Accordingly, we conclude that the Respondent violated section 7116(a)(1) of the Statute.
As to the remedy, the Respondent contends that the Judge's order requiring that references to Hanlon's filing of ULP charges and grievances be removed from the documents in issue is contrary to law. We disagree. "[W]hen an issue is properly raised as an unfair labor practice under section 7116, nothing therein would prevent the Authority from remedying any violation found." Department of the Air Force, Air Force Systems Command, Electronic Systems Division, 14 FLRA 390, 392 (1984) (although the Authority found, for other reasons, that a backpay award was not appropriate, the Authority rejected the agency's assertion that an Authority order to reinstate an employee with backpay would conflict with the action taken by MSPB and with section 7116(d) of Statute). As previously found, the issue concerning statements in the record of infraction and the letter of proposed removal pertaining to Hanlon's filing of ULP charges and grievances is properly before the Authority. We have also determined that the Respondent violated section 7116(a)(1) of the Statute.
Sections 7105(g) and 7118 of the Statute vest the Authority with broad remedial powers to correct violations of the Statute. See generally National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc); Pension Benefit Guaranty Corporation, 39 FLRA 905 (1991), petition filed sub nom. Pension Benefit Guaranty Corporation v. FLRA, No. 91-1180 (D.C. Cir. 1991). In our view, an order requiring the Respondent to remove any references to Hanlon's filing of ULP charges and grievances from the record of infraction and the proposed letter of removal is necessary to carry out the purposes of the Statute. If such references remained in these documents, the Respondent would benefit from its improper actions and employees would not be safeguarded in the exercise of their statutory rights. See, for example, Equal Employment Opportunity Commission, 24 FLRA 851 (1986), affirmed mem. sub nom. Martinez v. FLRA, 833 F.2d 1051 (D.C. Cir. 1987); Consumer Product Safety Commission, New York, 10 FLRA 422 (1982). We further note that these documents listed other charges of alleged misconduct by Hanlon. Our remedy addresses only the Respondent's reliance on Hanlon's filing of ULP charges and grievances as a basis for its action. Thus, we conclude that the order is not beyond the Authority's powers and does not conflict with the Respondent's right to remove employees.(4)
VI. Order
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, the Bureau of the Census shall:
1. Cease and desist from:
(a) Interfering with the protected right of Edward Hanlon, or any other employee, to file and pursue unfair labor practice charges and grievances by issuing records of infraction and letters of proposed removal to any employee which improperly reference the employee's filing of unfair labor practice charges and grievances.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by 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-Management Relations Statute:
(a) Remove from the record of infraction issued to Edward Hanlon on November 23, 1987, any references to his filing of unfair labor practice charges and to his filing of grievances.
(b) Remove from the letter of proposed removal issued to Edward Hanlon on December 4, 1987, any references to his filing of unfair labor practice charges and to his filing of grievances.
(c) Notify Edward Hanlon that the Respondent has removed from the record of infraction and the letter of proposed removal any references to his filing of unfair labor practices charges and his filing of grievances and that such activity will not be used against him in any way.
(d) Post at its Suitland, Maryland facilities, 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 Director, Bureau of the Census, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
WE WILL NOT interfere with the protected right of Edward Hanlon, or any other employee, to file and pursue unfair labor practice charges and grievances by issuing records of infraction and letters of proposed removal to any employee which improperly reference the employee's filing of unfair labor practice charges and grievances.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL remove from the record of infraction issued to Edward Hanlon on November 23, 1987, any references to his filing of unfair labor practice charges and grievances.
WE WILL remove from the letter of proposed removal issued to Edward Hanlon on December 4, 1987, any references to his filing of unfair labor practice charges and grievances.
WE WILL notify Edward Hanlon that we have removed from the record of infraction and letter of proposed removal any references to his filing of unfair labor practice charges and his filing of grievances and that such protected activity will not be used against him in any way.
(Activity)
Dated: By:
(Signature) (Title)
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 its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1111-18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Judge stated that his decision was based on the evaluation of testimony and the observation of witnesses and their demeanor. However, pursuant to the Judge's suggestion at the outset of the hearing, the parties stipulated the record. Therefore, the record does not include testimony from witnesses.
Section 7116(d) of the Statute provides:
Issues which can properly be raised under an appeals procedure may not be raised as an unfair labor practice prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.
3. Although it is clear that Hanlon was removed from his position, the record does not contain a copy of the final removal action.
4. We express no view on what effect, if any, our decision and order may have on the arbitration proceeding or other proceedings that may have been invoked concerning the removal action.