[ v51 p413 ]
51:0413(38)CA
The decision of the Authority follows:
51 FLRA No. 38
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
UNITED STATES SMALL BUSINESS ADMINISTRATION
WASHINGTON, D.C.
(Respondent)
and
ROBERT WILDBERGER
(Charging Party/Individual)
WA-CA-20821
WA-CA-21010
WA-CA-21060
DECISION AND ORDER
October 31, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This consolidated unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel and the Charging Party, Robert Wildberger. The General Counsel filed exceptions with respect to the Judge's decision in Case No. WA-CA-21010. The Charging Party filed exceptions with respect to the Judge's decision in all three cases. The United States Small Business Administration (SBA or Respondent) filed an opposition to all of the exceptions.(1)
The complaint in Case No. WA-CA-21010 alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (Statute) by including in a letter of proposed removal references to Wildberger's protected activity. The complaint in Case No. WA-CA-20821 alleges that the Respondent violated section 7116(a)(1) of the Statute when a supervisor told Wildberger that he would be denied training and fired if the conflict created by the labor organization Wildberger had formed did not stop. The complaint in Case No. WA-CA-21060 alleges that the Respondent violated section 7116(a)(1) and (2) by treating Wildberger in a disparate and discriminatory manner because he had engaged in protected activities under the Statute. The Judge recommended that the complaint in Case No. WA-CA-21010 be dismissed on jurisdictional grounds and that the complaints in Case Nos. WA-CA-20821 and WA-CA-21060 be dismissed on the merits.
For the reasons explained below, we dismiss all three complaints on jurisdictional grounds. We find that the same factual predicate and legal issues underlie each of the complaints and Wildberger's appeal of his removal to the Merit Systems Protection Board (MSPB). Pursuant to section 7116(d) of the Statute, Wildberger is precluded from raising these same issues in an unfair labor practice proceeding.
II. Judge's Decision
The facts, which are fully set forth in the Judge's decision, are briefly summarized here.
A. Case No. WA-CA-21010
On August 3, 1992, James Charney, Wildberger's second-line supervisor, issued Wildberger a notice of proposed removal. The notice listed five charges, with particular specifications, of alleged misconduct. The charges relevant to the complaint concern allegations involving: dishonest and general misconduct; attempted and actual conversion of public funds; insubordination, i.e., deliberate refusal to comply with authorized instructions, disrespect, insolence and like behavior; and unauthorized use of Government property, including numerous instances when Wildberger allegedly used agency equipment--telephones and electronic mail (E-mail) and other resources--for unofficial or union organizing activities.
On August 11, 1992, Wildberger filed an unfair labor practice charge with the Authority. He also submitted written and oral responses to the Respondent on the proposed removal notice. In a letter dated September 16, 1992, the Respondent informed Wildberger of his removal from his position, effective on the same date. Wildberger appealed the Respondent's removal decision to the MSPB on or about September 28, 1992.(2) The General Counsel issued the unfair labor practice complaint in this case on October 13, 1992, alleging that SBA violated the Statute by referring, in the notice of proposed removal, to activity protected under the Statute.
Relying upon the Fourth Circuit's decision in Department of Commerce, Bureau of the Census v. FLRA, 976 F.2d 882 (4th Cir. 1992) (Commerce), the Judge recommended that the complaint be dismissed for lack of jurisdiction. In this regard, he found that because Wildberger had appealed his removal to the MSPB, the Authority is without jurisdiction, pursuant to section 7116(d) of the Statute, to consider an unfair labor practice complaint premised upon the proposed removal. Consequently, the Judge found that sole jurisdiction to adjudicate the matters raised in the notice of proposed removal and the notice of removal lies in the MSPB.
B. Case No. WA-CA-20821
In April 1992, Charney and Wildberger met to discuss Wildberger's leave requests, which Charney ultimately approved. At this meeting, Wildberger also informed Charney of Solidarity, a rival labor organization he formed in 1991 after he was removed as President of American Federation of Government Employees (AFGE) Local 2532 and AFGE Council 228.(3) The General Counsel alleged in the unfair labor practice complaint that Charney's responses to Wildberger at this meeting, to which Wildberger testified at the hearing, violated the Statute.
During the meeting, they discussed several matters of mutual concern. Wildberger informed Charney that he needed training as a Program Analyst because he had recently returned to this position after being on 100 percent official time.(4) Wildberger alleged that Charney asserted that Wildberger "should be more concerned with himself than other employees; the conflict [created by his representational activity] had to stop; he [Charney] had fired over 100 employees in his . . . career; and he would do it again if necessary." Judge's Decision at 4. Wildberger also testified that Charney said that he would deny any training request Wildberger might submit. Charney denied making any statement, either directly or indirectly, threatening to fire Wildberger or to deny him training.
The Judge credited Charney's testimony over Wildberger's, thereby finding insufficient evidence to support a conclusion that Charney made the alleged statements. Accordingly, based on a review of the entire record and the latter credibility determination, the Judge recommended that the complaint be dismissed.
C. Case No. WA-CA-21060
The General Counsel alleged in the unfair labor practice complaint in this case that the Respondent violated section 7116(a)(1) of the Statute when it took certain actions with respect to Wildberger. The General Counsel listed the following actions taken by the Respondent in support of the allegation: (1) within 4 months in 1992, the issuance of 89 memoranda to Wildberger that required his response; (2) prohibiting Wildberger from using various equipment and E-mail for personal reasons, while not applying the same restrictions to other bargaining unit employees; (3) requiring Wildberger to report to management whenever he expected to be away from his desk for more than 5 to 10 minutes, while not requiring the same from other bargaining unit employees; (4) requiring Wildberger to be escorted whenever he left his desk, while not applying the same requirement to other bargaining unit employees; and (5) barring Wildberger from his work site at SBA Headquarters and ordering him to work at home or at an alternate work site, while not requiring the same of other bargaining unit employees. The General Counsel also alleged in the complaint that by the action described in item 5 above, the Respondent violated section 7116(a)(1) and (2) of the Statute.
Based upon a review of the entire record, the Judge found the evidence did not support finding that any of the Respondent's conduct, as outlined above, violated the Statute. Accordingly, the Judge recommended that the complaint be dismissed.
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel filed exceptions only to the Judge's decision in Case No. WA-CA-21010. Specifically, the General Counsel argues that the Judge erred in concluding that the Authority lacks jurisdiction to consider the merits of whether the Respondent violated the Statute by referring to protected activity in a letter of proposed removal. In this regard, the General Counsel urges the Authority to adhere to its holding in Bureau of the Census, 41 FLRA 436 (1991) (Bureau of Census I), rev'd sub nom. Department of Commerce, Bureau of the Census v. FLRA, 976 F.2d 882 (4th Cir. 1992). In support of this argument, the General Counsel points to the Authority's decision in Bureau of the Census, 46 FLRA 526 (1992) (on remand from the Fourth Circuit) (Bureau of Census II), wherein the Authority, rather than abandoning the precedent established in Bureau of Census I, applied the doctrine of the law of the case and dismissed the complaint.
B. Charging Party's Exceptions
The Charging Party contends that the Judge erred in Case No. WA-CA-21010 by failing to apply Authority precedent established in Bureau of Census I. The Charging Party argues that he could not have brought the issues in this case, which concern his right to engage in protected activity on behalf of Solidarity free from coercion, before the MSPB. Accordingly, the Charging Party requests that the Authority find that it has jurisdiction to decide the merits of the case.(5)
C. Respondent's Opposition
The Respondent asserts that the Judge is correct in Case No. WA-CA-21010, holding that section 7116(d) of the Statute precludes the Authority from asserting jurisdiction over the complaint. In this connection, SBA urges the Authority to overturn its precedent in Bureau of Census I and adopt the Fourth Circuit's decision in Commerce. In any event, SBA contends that it did not remove Wildberger for protected activity.
IV. Analysis and Conclusions
This consolidated case presents the Authority with an opportunity to reexamine previous Authority precedent interpreting the statutory bar set forth in the first sentence of section 7116(d): "Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section." Our review is prompted by the decision of the Fourth Circuit in Commerce, in which the court reversed the Authority's decision in Bureau of Census I, and held that a record of infraction and letter of proposed removal were inseparable from an employee's subsequent challenge to a removal before MSPB and that the MSPB had sole jurisdiction to consider the merits of any challenge to these actions. Commerce, 976 F.2d at 888.
For the reasons more fully explained below, we find that we lack jurisdiction over the subject matter of the complaints in this case because the same factual predicate and legal theories underlie each unfair labor practice complaint and Wildberger's challenge of his removal before the MSPB. Accordingly, we dismiss the unfair labor practice complaints in this consolidated case.
A. Authority Precedent
In Bureau of Census I, as relevant here, an individual filed an unfair labor practice charge challenging the agency's reference to protected activities in a record of infraction and a letter of proposed removal issued to him. The Authority determined that the question presented was whether "issues presented in the ULP proceeding are the same as the issues that could have been raised under the statutory appeal procedure . . . ." Bureau of Census I, 41 FLRA at 445. If so, "then section 7116(d) would preclude the matter from being raised in the unfair labor practice proceeding." Id.
In finding that the jurisdictional bar in the first sentence of section 7116(d) was inapplicable in Bureau of Census I, the Authority relied on 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), petition for review denied sub nom. American Federation of Government Employees, Local 1411 v. FLRA, 960 F.2d 176 (D.C. Cir. 1992) (Army Finance). Bureau of Census I, 41 FLRA at 447. In Army Finance, the Authority had developed a test for determining whether the jurisdictional bar in the second sentence of section 7116(d)(6) applied, i.e., whether the issues raised in an arbitration proceeding are the same as the issues that are raised in the unfair labor practice charge. Army Finance, 38 FLRA at 1351. In adapting the Army Finance test to the Bureau of Census I case, the Authority held that the jurisdictional bar in the first sentence in section 7116(d) would correspondingly be invoked if "the subject matter of an unfair labor practice charge is the same, in terms of the factual predicate and theory, as the subject matter of a grievance." Bureau of Census I, 41 FLRA at 446-47 (citation omitted).
Applying the Army Finance test to the facts presented in Bureau of Census I, a scenario which implicated the first sentence of section 7116(d), the Authority held that the unfair labor practice allegation was not barred by the Statute. Id. at 447. Although the Authority found that the factual predicate of the unfair labor practice charge might also have been a basis of the final removal action, the Authority concluded that the theory of the unfair labor practice charge was different from the theory applicable to review of the final removal action because the unfair labor practice charge presented issues relating to the record of infraction and letter of proposed removal--matters that are not subject to review in a statutory appeals procedure. Consequently, two distinct sections of Title 5 of the United States Code provided the basis for the respective legal theories. The unfair labor practice charge was premised on a violation of section 7116(a)(1) of the Statute, whereas the removal implicated 5 U.S.C. § 7701. Thus, the Authority found the statutory bar inapplicable. Id.
B. Application of the Section 7116(d) Statutory Bar in the Commerce Decision
On appeal to the Fourth Circuit, the court reversed the Authority's decision in Bureau of Census I, and determined that the first sentence of section 7116(d) barred the Authority from asserting jurisdiction over the record of infraction and a notice of proposed removal. Commerce, 976 F.2d at 888.
The court agreed with the Authority's interpretation of section 7116(d) as articulated in Army Finance. However, the court disagreed with the Authority's application in Bureau of Census I. Specifically, the court rejected the Authority's finding that the underlying legal theories supporting the unfair labor practice charge and the removal action were different. The court stated that the employee could raise the same legal arguments before the MSPB that he could raise in an unfair labor practice allegation before the Authority. In this connection, an employee may challenge the agency's actions as a "prohibited personnel practice" under 5 U.S.C. § 2302. Id. at 890. Thus, the court held that a proposed adverse personnel action may not be separated from an actual adverse personnel action when both are based on the same underlying facts and legal theories. Id. at 889.
The court reasoned that its holding was consistent with the Civil Service Reform Act (CSRA) and its legislative history. Id. at 885. The court noted that in enacting the CSRA, Congress sought to replace a "'patchwork' system of laws governing [F]ederal employment" that "sometimes [led] to confusing and contradictory results" with "an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of [F]ederal employees with the needs of sound and efficient administration." Id. (citing United States v. Fausto, 484 U.S. 439, 445 (1988)). In the court's view, under the CSRA scheme of adjudication, Congress intended that the jurisdiction of the Authority and MSPB be limited to distinct employment-related matters. The court pointed out that under Chapter 71 of the CSRA, the Authority adjudicates issues that relate to employees' rights to engage in union-related activities; the MSPB, on the other hand, is responsible for adjudicating employees' appeals from various types of adverse personnel actions. Id. Such adverse actions include, among other things, a removal action. See 5 U.S.C. § 7512.
The court made two additional points. First, it stated that "[n]othing . . . prevents employees from lodging ULP charges to complain about unfair disciplinary actions. Only where those initial disciplinary actions ripen into full-blown 'adverse employment actions' will sole jurisdiction vest in the MSPB under the first sentence of § 7116(d)." Commerce, 976 F.2d at 890. Second, the court found that the employee's ULP "charge focused on his individual right and thus was essentially the same as his later grievance under the MSPB procedure." Id. at 889. As a result, the ULP allegation did not address the union's institutional interests. Id.
C. Clarification of the Test to Determine If the Section 7116(d) Bar Applies
In light of the Commerce decision, we take this opportunity to clarify how the Authority will apply its Army Finance test in cases analogous to Bureau of Census I. Where an employee has attempted to raise related issues both in an unfair labor practice proceeding and under either an appeals procedure or a negotiated grievance procedure, we will apply the Army Finance test in order to determine whether to invoke the jurisdictional bars set forth in section 7116(d). We will examine the subject matter of the ULP charge to determine if the factual predicate and legal theory are the same as the matter raised in the appeals procedure or grievance.
In this examination, however, we will no longer follow Bureau of Census I insofar as that decision held that the legal theories upon which an unfair labor practice allegation is based are different from the legal theories underlying a removal proceeding before the MSPB merely because different statutory review provisions are applicable in each instance. The Commerce decision held that the legislative history underlying the enactment of the CSRA discussed above--to avoid potentially inconsistent results between Authority and MSPB decisions--compels this determination. As the Fourth Circuit noted, an employee may raise an affirmative defense before the MSPB that the agency committed a "prohibited personnel practice" under 5 U.S.C. § 2302. Commerce, 976 F.2d at 890. We agree with the Fourth Circuit and conclude that in some circumstances the same legal theory that can be raised as a "prohibited personnel practice" under 5 U.S.C. § 2302(b)(9) can also be raised as an "unfair labor practice" under 5 U.S.C. § 7116(a). Accordingly, when the factual predicate of the ULP and the statutory appeal is the same, and the legal theory supporting the statutory appeal has been or could properly be raised to the MSPB, we will decline to assert jurisdiction over the unfair labor practice pursuant to section 7116(d).
Consistent with Commerce, we will apply this rule only in cases when the matter raised in the ULP allegation ripens into or is inseparable from the matter appealable to the MSPB. Commerce, 976 F.2d at 889-90. Additionally, unlike the Authority's statutory jurisdiction to review unfair labor practice allegations of, and grant relief to, individuals and labor organizations, 5 U.S.C. §§ 7103(a)(1) & 7118(a)(1), (7), the MSPB's statutory jurisdiction is limited, under 5 U.S.C. § 7701(a) & (b)(2)(A), to reviewing appeals by, and granting relief to, employees or applicants. Reid v. Dept. of Commerce, 793 F.2d 277, 282 (Fed. Cir. 1986) ("[I]t would be contrary to the plain and unequivocal language of [5 U.S.C. § 7701(a)] to say that the term 'employee' . . . encompasses a labor organization[.]"). Accordingly, we will decline jurisdiction in cases where the ULP focuses on the rights of an individual employee; conversely, we will assert jurisdiction when the ULP focuses on the union's institutional interest in protecting the rights of other employees. See Commerce, 976 F.2d at 889; cf. Army Finance, 38 FLRA at 1353 (construing and applying second sentence of section 7116(d), where individual employee is actually the aggrieved party in the ULP action, employee cannot maintain separate action in the form of a grievance).
D. The Authority Lacks Jurisdiction to Consider the Merits of the Unfair Labor Practice Complaints in this Consolidated Case
1. Case No. WA-CA-21010
The issue raised in the ULP charge, a notice of proposed removal, is inseparable from the adverse action that was appealed to the MSPB. The same factual predicate supports both the ULP and the MSPB appeal; the legal theory involved--discrimination for protected activity--could properly be and was litigated before the MSPB.(7) Compare General Counsel's Exhibit No. 2 (charges and specifications in letter of proposed removal dated August 3, 1992) with General Counsel's Exhibit No. 3 (the same charges and specifications in letter of removal dated September 16, 1992). Additionally, it is clear that the ULP charge focused on Wildberger's individual rights rather than the union's institutional interests.(8) See General Counsel's Exhibit No. 1(a). Accordingly, we conclude that the ULP complaint and the MSPB appeal are based upon the same factual predicate and legal theories and that we do not have jurisdiction over this case.
2. Case No. WA-CA-20821
The Authority does not have jurisdiction to consider the merits of the complaint in this case.(9) The factual predicate and legal theory of the ULP charge, Supervisor Charney's alleged threats, are inseparable from the facts and legal theories underlying Wildberger's challenge to the adverse action. The record establishes that in his September 25, 1992, affidavit responding to the September 16, 1992, removal letter, Wildberger referenced supervisor Charney's threat to deny his requests for training. SBA Exhibit 10 at p. 22. Further, in responding to the removal notice, Wildberger asserted that his supervisor had illegally threatened to fire him. Id. at p. 27. The legal theory--that Wildberger's rights were violated when he was threatened with various personnel actions--was raised in his response to the proposed removal and litigated before the MSPB administrative judge. Wildberger II, at 23-25.
As in the preceding case and as specified in the ULP charge, Wildberger's interests, rather than the union's institutional concerns, were the focus of the ULP allegation in this case.(10) Thus, we conclude that the ULP allegation and the MSPB appeal are based upon the same factual predicate and legal theories and that we do not have jurisdiction over this case.
3. Case No. WA-CA-21060
As with the preceding ULP allegations, we find that matters raised in the complaint are present in and inseparable from the removal action. The ULP charge, filed within weeks of the proposal to remove Wildberger, raises allegations of disparate treatment by SBA during the three-month period prior to and the three-week period after the August 3, 1992 notice of proposed removal. The factual allegations described in paragraphs 8 through 12 of the complaint, see General Counsel's Exhibit 1(b), were raised by Wildberger in his response to the proposed removal.(11) The legal theory of Wildberger's allegations--discrimination as a result of engaging in protected activity-- has been raised in a statutory appeals procedure.(12)
As in the prior two cases, the focus of the ULP charge concerns the alleged interference with the protected rights of Wildberger as an individual employee. Thus, we conclude, as in the prior two cases, that the ULP allegation and the MSPB appeal are based upon the same factual predicate and legal theories and that we do not have jurisdiction over this case.
V. Order
The consolidated complaint in Case Nos. WA-CA-20821, WA-CA-21010, and WA-CA-21060 is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| UNITED STATES SMALL BUSINESS ADMINISTRATION, WASHINGTON, D.C.
Respondent |
|
| and
ROBERT WILDBERGER Charging Party/ Individual |
WA-CA-21010 WA-CA-21060 |
Christopher Holleman
Gail D. Reinhart
Counsel for the
Respondent
Ana de le Torre
Stephen G. DeNigris (On the Brief)
Counsel for
the General Counsel, FLRA
Robert W. Wildberger, Jr.
Pro se
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
These three unfair labor practice cases were consolidated for hearing. The complaint in Case No. WA-CA-20821 alleges that Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1), on April 3, 1992, by telling Robert Wildberger that he would be denied training and fired if the conflict created by the labor organization Wildberger had formed did not stop. The complaint in Case No. WA-CA-21010 charges that Respondent again violated section 7116(a)(1) of the Statute by including references to Wildberger's protected activity in an August 3, 1992 letter of proposed removal. The complaint in Case No. WA-CA-21060 claims that Respondent violated section 7116(a)(1) and (2) by treating Wildberger in various disparate and discriminatory ways because of his protected activities under the Statute.
Respondent's answers asserted that the Authority lacks jurisdiction to hear the complaints, because the Charging Party appealed the same issues (encompassing the proposed removal and the agency's conduct before, during, and after the proposed removal) to the Merit Systems Protection Board (MSPB). Alternatively, Respondent claims that the General Counsel failed to prove the alleged violations in that there was no protected activity, Wildberger's actions constituted flagrant misconduct, and none of Respondent's actions was improperly motivated or was in reprisal for protected activity.
For the reasons set forth below, I find that the Authority lacks jurisdiction over Case No. WA-CA-21010 and that a preponderance of the evidence does not establish that Respondent violated the Statute as alleged in Case No. WA-CA-20821 and Case No. WA-CA-21060.
A hearing was held in Washington, D.C. on December 17, 18 and 21, 1992. The parties were afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses at that time, and file post-hearing briefs. The proposed findings have been adopted where found material and supported by the record as a whole. Based on the entire record,(1) including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
I. Case No. WA-CA-20821
A. The Alleged Violation
The complaint alleges that on April 30, 1992, Respondent, by James L. Charney, told employee Robert Wildberger that the conflict created by the labor organization Wildberger had formed had to stop, that Charney had fired over 100 employees in the past and that he would do it again if the conflict did not stop, and that he would deny all training that Wildberger might request. The complaint alleges that by such conduct Respondent committed an unfair labor practice in violation of section 7116(a)(1).
B. Findings of Fact(2)
The employees in Respondent's Central Office in Washington, D.C. are part of a consolidated bargaining unit represented by the National Office of the American Federation of Government Employees (AFGE). The Department of Labor certified AFGE as the exclusive representative of these employees on August 22, 1978 (Case Number 22-08517), and through a later series of election cases.
The National AFGE delegated authority to represent Agency employees to the Agency consolidated council of locals, AFGE, Council 228, and, on matters involving Agency Central Office employees, to AFGE, Local 2532.
The Charging Party, Robert Wildberger, was employed by the Respondent (SBA) from June 1980 until September 1992. From about 1987 until September 1991 Wildberger was on 100% official time as President of AFGE Local 2532 and AFGE, Council 228.
By letter dated September 6, 1991, SBA advised Mr. Wildberger that he was no longer entitled to official time, having been removed by AFGE as President of AFGE, Local 2532 and AFGE, Council 228.(3) Mr. Wildberger was returned to duty as a Program Analyst, GS-13, in the Office of Program Analysis and Quality Assurance (OPAQA) under Mr. Charles Thomas, Director, Office of Compliance.
Shortly thereafter, Wildberger decided to form a rival labor organization, Solidarity, USA (Solidarity). He drafted a constitution and bylaws and, in February 1992, filed a "Labor Organization Information Report" with the U.S. Depart-ment of Labor. See 29 C.F.R. §§ 402.2, 402.7. Wildberger, writing as President of Solidarity, notified the Administrator of SBA of the formation of the organization on April 2, 1992 and requested a list of bargaining unit employees. He stated, "We have been invited to organize and provide immediate representational services to employees in every single location of the U.S. Small Business Administration." On April 21, 1992, Wildberger wrote to the Administrator advising that he and other representatives of Solidarity would be requesting official time in accordance with 29 C.F.R. Section 1613.214(b)(1), (2), which pertains to employee representation in equal employment opportunity proceedings.
On April 28, 1992, Mr. James Charney first reported to work at OPAQA in Washington, D.C. He had been reassigned to OPAQA from the Chicago Regional Office, where he was Deputy Regional Administrator. He became Mr. Wildberger's second line supervisor. (Tr. 159). During Mr. Charney's 18 years in Chicago, he had a cordial relationship and extensive dealings with the union there, and helped settle disputes. He never had a grievance or unfair labor practice charge filed against him there. (Tr. 169-70). Solidarity has not conducted any organizing activities in Respondent's Chicago Regional Office. (Tr. 357-58).
On April 30, 1992, two days after his arrival in Washington, D.C., Mr. Charney was asked to approve a leave request from Mr. Wildberger. (Tr. 161). Both Mr. Charney and Mr. Wildberger agree that they had never met prior to April 28. (Tr. 23-24, 161). Mr. Charney further stated, without contradiction by the Charging Party, that, at the time of his reassignment, Mr. Charney knew nothing about Mr. Wildberger. (Tr. 170).
Mr. Charney and Mr. Wildberger discussed the leave request and Mr. Charney approved it. Mr. Charney also used this opportunity to acquaint himself with Mr. Wildberger. During the meeting, they discussed several matters of mutual concern, including Mr. Wildberger's job duties, career goals, and training needs. Mr. Wildberger informed Mr. Charney, for the first time at this meeting, of the existence of Solidarity. (Tr. 162-64).
Wildberger told Charney that he had recently returned to his position after being on 100% official time for many years and needed training as a Program Analyst. Wildberger testi-fied that Charney replied that the conflict created by his representational activity had to stop. Wildberger testified that he replied that his only representational activity was through Solidarity, the new organization; that employees had complained that AFGE was not providing them with repre-sentation, and Solidarity was a mechanism through which representation could be provided. According to Wildberger, Charney replied that Wildberger should be more concerned with himself than other employees; the conflict had to stop; he had fired over 100 employees in his public and private sector career; and he would do it again if necessary. Wildberger testified that Charney also said he would deny any training request Wildberger might submit and reiterated, "This conflict has to stop. You should be more concerned with yourself than other employees." (Tr. 25-27).
Mr. Charney denied making any statement, either directly or indirectly, threatening to fire Mr. Wildberger or deny him training. (Tr. 163-68). Charney testified that he replied to Wildberger's request for additional training by discussing with Wildberger his education and past experience and stating that he would discuss Wildberger's training request with his supervisor at the first opportunity. Charney testified that Wildberger brought up his union activities in the conversa-tion, but Charney did not discuss them or caution Wildberger about his union activities. (Tr. 162-64). According to a memorandum Charney later prepared, Wildberger "made an attempt at verbal intimidation, implying that his union activities earned him special treatment. I countered by pointing out that I was not intimidated and that my years of experience had given me experience equivalent to his. The issue was then dropped." (Jt. Exh. 2 at 4x(52)). Charney denied that he had fired 100 people in his career or that he had private sector management experience. (Tr. 160, 163-64).
Mr. Wildberger did not mention the alleged threat to fire him for his union activities in an unfair labor practice charge he filed on May 1, 1992, only one day after the events in question. (Res. Exh. 11; Tr. 108). It was not until May 13, 1992, almost two weeks after the April 30 meeting, that Wildberger, in a memo to Charney, first alleged that Charney had threatened to fire him at the April 30 meeting. (Jt. Exh. 2, 4x(51)). The very next day, May 14, 1992, Charney sent Wildberger a memo denying that he had made any such statement. (Jt. Exh. 1, 4x(129)).
Mr. Wildberger filed the instant unfair labor practice charge on June 19, 1992.
Discussion and Conclusions
Section 7102 of the Statute provides, in part, that each employee "shall have the right to form . . . any labor organization . . . and . . . shall be protected in the exercise of such right." Section 7116(a)(1) makes it an unfair labor practice to interfere with, restrain, or coerce any employee in the exercise of such right. The parties agree that if James Charney made the statement alleged it would violate section 7116(a)(1).
I agree with Respondent that a review of the entire record does not support the conclusion that Charney actually made the statement alleged. Rather, a number of factors strongly indicate that Mr. Charney's denial that he made the threat is more credible than Mr. Wildberger's contrary version.
First, Mr. Charney issued a written statement denying Mr. Wildberger's allegations immediately upon learning of the claims. Mr. Wildberger, on the other hand, waited almost two full weeks after the meeting in question before raising his allegations. Significantly, during this interim two week period, he filed a complaint with the Authority which made no mention of the alleged threat.
Mr. Wildberger's version also is inherently improbable. Mr. Charney had arrived from Chicago only two days before the meeting. Both he and Mr. Wildberger testified that they had never met before he came to Washington. Further, Mr. Charney testified that he had no prior knowledge of Mr. Wildberger or Solidarity, and there is no evidence contradicting his statement. Thus, there is no evidence which would support a conclusion that, at the time of the alleged threat, Mr. Charney had any knowledge whatsoever of the existence of Solidarity or of any conflict between Solidarity and the Agency.
In addition, the record shows no anti-union animus by Mr. Charney. To the contrary, he testified without contradiction that, while in Chicago, he had a cordial relationship with the union; he helped settle several union disputes; and no union grievances or unfair labor practices had ever been filed against him.
Based on the entire record, I credit Mr. Charney's testimony. Accordingly, a preponderance of the evidence does not support the alleged violation, and it is recommended that the complaint in Case No. WA-CA-20821 be dismissed.
II. Case No. WA-CA-21010
A. The Alleged Violation
The complaint alleges that Respondent violated section 7116(a)(1) of the Statute on August 3, 1992, by James Charney, by issuing Robert Wildberger a letter of proposed removal which includes in part, at Charge 1, Specifications 1 and 4; Charge 2, Specifications 1-18 and 21-33, inclusive, and Charge 4, references to the Charging Party's alleged protected activity as President, on behalf of American Federation of Government Employees, Local 2532, AFL-CIO, American Federation of Government Employees, Council 228, AFL-CIO, and Solidarity, alleged labor organizations under 5 U.S.C. § 7103(a)(4).(4)
Respondent denied that the references were to protected activity or that Solidarity was a labor organization under the Statute.
B. Findings of Fact
On August 3, 1992, Respondent, by James Charney, issued Robert Wildberger a letter of proposed removal. (G.C. Exh. 2).
Charge 1, Specification 1 alleges dishonest conduct and conversion of union funds for personal use on the basis of a decision by the AFGE that Mr. Wildberger, as President, AFGE Local 2532, wrongfully appropriated for his own use approximately $6,484.00 in union funds.(5)
Charge 1, Specification 4 alleges four instances of dishonest conduct through false representations by Mr. Wildberger to Agency personnel and outside entities regarding his authority to represent Agency employees on behalf of AFGE and Solidarity.
Charge 2, alleges insubordination, i.e. deliberate refusal to comply with authorized instructions, disrespect, insolence and like behavior. The charge alleges that Mr. Wildberger was explicitly directed not to use Agency telephones, equipment, or resources for union organizing or unofficial activities before, during, or after duty hours. Specifications 1-16 charge that Mr. Wildberger used Electronic Mail (E-Mail) messages on 16 occasions as President of Solidarity USA or in his capacity as President of Solidarity. Specification 17 alleges that Mr. Wildberger failed to follow instructions not to use the telephone for other than agency business, and Specification 18 alleges that he violated specific instructions not to conduct unofficial activities during duty hours. Specifications 21-33 concern 13 separate instances of E-Mail messages and letters sent by Mr. Wildberger which allegedly constitute "insubordinate acts of disrespectful, insolent and like behavior (threats, attempted intimidation, and harassment), which represent inexcusable misconduct."
Charge 4 alleges unauthorized use of Government property and incorporates by reference the specifications in Charge 2, Specifications 1 through 17, 26, 27, and 31 through 33, described above.
Mr. Wildberger filed the unfair labor charge on August 11, 1992.
Mr. Wildberger submitted written and oral responses to the Agency regarding the proposed removal. On September 16, 1992, Erline M. Patrick, Director, OPAQA, decided that the facts supported the charges by a preponderance of the evidence and that Mr. Wildberger should be removed from his position as Program Analyst, GS-343-13, and from Federal service effective September 16, 1992. (G.C. Exh. 3).
On or about September 28, 1992, Mr. Wildberger filed an appeal to the Merit Systems Protection Board (MSPB) from the Agency decision to remove him. The instant unfair labor practice complaint concerning the earlier proposal removal was issued October 13, 1992. On January 13, 1993, an Initial Decision of MSPB Administrative Judge Elizabeth B. Bogle affirmed the Agency action to remove Mr. Wildberger. Mr. Wildberger filed a petition for review or appeal of the Initial Decision to the MSPB on March 10, 1993.
During the hearing in the instant case, Mr. Wildberger testified that the above charges and specifications included in his proposed removal, charging a conversion of funds, related to internal AFGE decisions to remove him as a member (Tr. 31-32); those charging him with false representations concerned his efforts through AFGE and Solidarity to represent Agency employees (Tr. 32-33); and those alleging insubor-dination for unauthorized use of Agency resources and disrespectful behavior concerned his activities on behalf of Solidarity in representing Agency employees or explaining his or Solidarity's position on various issues (Tr. 33-43).
Respondent's witnesses John Whitmore, James L. Charney, Charles Thomas, Brenda Smith, and Raymond Barnes, Jr., testified in support of Respondent's position that Mr. Wildberger's actions did not constitute protected activity, but flagrant misconduct, as charged, and Respondent's actions were not improperly motivated or reprisal for protected activity.
C. Discussion and Conclusions
The General Counsel and the Charging Party argue that Respondent violated section 7116(a)(1) of the Statute by referring to activity protected under the Statute in the notice of proposed removal. Respondent initially claims that the Authority lacks jurisdiction because Mr. Wildberger's sole remedy for appeal of his removal is through the MSPB under 5 U.S.C. Chapter 75 and 5 U.S.C. § 7701 of the Civil Service Reform Act.
On the jurisdictional issue, Counsel for the General Counsel relies upon the Authority decision in Bureau of Census, 41 FLRA 436 (1991) wherein it concluded that Census' reliance on an employee's protected activity in a letter of proposed removal violated section 7116(a)(1) of the Statute. This case was remanded back to the Authority by the U.S. Court of Appeals in Department of Commerce, Bureau of the Census v. FLRA, 976 F.2d 882 (4th Cir., 1992) with directions to the Authority to dismiss the complaint for lack of jurisdiction. The court disagreed with the Authority's conclusion that section 7116(d) of the Statute did not bar the unfair labor practice complaint.(6) The court found "that both Congress's clear intent, as reflected in the language and statutory history of CSRA [Civil Service Reform Act], and prior decisions of the FLRA, compel a finding that the actions [letter of infraction, letter of proposed removal, and removal action] are inseparable, and, therefore, that sole jurisdiction lies in the MSPB." 976 F.2d at 888.
The General Counsel notes that the Authority dismissed the complaint in compliance with the Court's order, Bureau of the Census, 46 FLRA 526 (1992), but did not reverse itself on the initial Census case which must still be considered Authority precedent.
The General Counsel has not pointed out any manner in which the analysis of the court is flawed. Respondent has persuasively reiterated and expanded upon the reasoning of the court concerning the language and statutory history of the CSRA and prior decisions of the Authority. I find the reasoning of the court and Respondent compelling and, accord-ingly, recommend that the Authority conclude that because Mr. Wildberger has appealed his removal to the MSPB, section 7116(d) deprives the Authority of jurisdiction to consider the unfair labor practice arising from the proposed removal.
II. Case No. WA-CA-21060
A. The Alleged Violation
The complaint alleges that by the following conduct, as described in paragraph 8-12 of the complaint, Respondent violated section 7116(a)(1) of the Statute:
8. Between April 13 and August 26, 1992, Respondent, primarily by Charles W. Thomas, issued the Charging Party over 86 memoranda during a 94 day period which memoranda required a response from the Charging Party.
9. By letters dated May 11, May 14, May 22 and July 23, 1992, Respondent, by Charles W. Thomas, prohibited the Charging Party from using Respondent's telephones, equipment, resources and electronic mail for personal reasons, not related to Respondent's business, while not applying the same restrictions to other bargaining unit employees.
10. By letter dated May 7, 1992, Respondent, by Charles W. Thomas, required the Charging Party to report to him whenever the Charging Party was going to be away from his desk for more than 5 to 10 minutes, while not applying the same requirement to other bargaining unit employees.
11. Since on or about August 3, 1992, Respondent, by Charles W. Thomas, and James L. Charney, required the Charging Party to be escorted by themselves or others whenever the Charging Party left his desk, including when he went to the rest room, while not applying this same requirement to other bargaining unit employees.
12. By letter dated August 3, 1992, Respondent, by James L. Charney, barred the Charging Party from working at Respondent's Headquarters, his regularly assigned duty station, and ordered him to complete his assignments out of his home or at an alternate work site which was not specified, while not requiring this of other bargaining unit employees.
The complaint also alleges that Respondent took the action in paragraph 12 because the Charging Party engaged in activities protected under the Statute and thereby committed an unfair labor practice in violation of section 7116(a)(1) and (2).
B. Findings of Fact
1. Of the 89 documents (G.C. Exh. 4-92) alleged by the General Counsel, in paragraph 8 of the Complaint and at the hearing, to have been "issued [to] the Charging party" by the Respondent between April 13 and August 26, 1992 and to have "required a response from the Charging Party," eight were in fact issued to someone other than the Charging Party. (G.C. Exhs. 35, 50, 51, 52, 66, 74, 77 and 78).
2. Of the 89 documents, 38 did not require a response from the Charging Party, but, rather, were responses by the Respondent to correspondence which the Charging Party had issued to the Agency. (G.C. Exhs. 6, 9, 11, 14, 20, 21, 22, 24, 25, 27, 31, 33, 36, 39, 41, 42, 43, 47, 53, 54, 56, 60, 61, 62, 64, 67, 70, 71, 73, 76, 79, 80, 82, 90, 91 and 92).
3. Of the 89 documents, 18 related to work assignments or to leave or training requested by the Charging Party. (G.C. Exhs. 6, 7, 8, 12, 13, 18, 26, 27, 29, 40, 45, 46, 57, 63, 65, 67 and 85).
4. The Charging Party had repeatedly informed his supervisors that he preferred to receive his work assignments in writing. (Tr. 260-61). For instance, on July 15, 1992, he wrote first level supervisor Charles Thomas:
As you know, on July 14, 1992 and on previous dates, I have asked you and other management officials to provide WRITTEN and specific guidance...I mentioned that you had promised me WRITTEN guidelines from you and Mr. Charney...I told you I wanted WRITTEN guidelines so there would be no misunderstandings.
(Jt. Exh. 1, 4x(120) (emphasis in original)).
5. The Charging Party also requested responses from the Agency on numerous other occasions. (Tr. 249, 259; see, e.g., Jt. Exh. 2, 4x(53), 4x(61); Jt. Exh. 1, 4x(92), 4x(100), 4x(106), 4x(108), 4x(109), 4x(110), 4x(120), 4x(124), 4x(126), 4x(133), 4x(134), 4x(141)).
6. Of the 89 documents, 14 were pleadings or other required correspondence relating to MSPB appeals in which the Charging Party was seeking to represent the appellant. (G.C. Exhs. 37, 44, 48, 49, 55, 59, 68, 69, 75, 81, 86, 87, 88 and 89).
7. Of the 89 documents, 10 merely reminded the Charging Party of work rules of the Agency, and did not require any response from him other than compliance. (G.C. Exhs. 4, 5, 15, 16, 17, 19, 23, 24, 28, and 38).
8. Only one document not fitting in any of the above categories, G.C. Exh. 72, specifically required a response from the Charging Party. That document required him to provide a medical certificate to support sick leave which he had requested.
9. Respondent's standards of conduct prohibit the use of Agency time or equipment for personal business. Employees occasionally are authorized to use the telephone, copier, or other equipment for personal business, but no employee has made personal, non-official use of Agency time and equipment to the extent the Charging Party used such time and equipment. (Tr. 183, 229, 283-84).
10. Prior to the Charging Party notifying the Agency that he had formed Solidarity in April 1992, Mr. Thomas had orally cautioned the Charging Party not to use Agency equipment for personal business approximately 10 to 15 times. (Tr. 282).
11. In 1991, Respondent proposed the removal of another bargaining unit employee in part for using Agency equipment for personal business and conducting personal business on duty time. This proposed action was settled with the employee resigning in lieu of removal. (Tr. 382-83; Res. Exh. 19).
12. The Charging Party testified that it had never come to his attention that Respondent had proposed disciplinary action against any other employee for using government equipment. (Tr. 52-53). In fact, the Charging Party was well aware of the employee's proposed removal, since he personally signed the settlement agreement on behalf of AFGE Local 2532 on June 19, 1991. (Res. Exh. 19).
13. During several staff meetings in early 1992, Mr. Thomas cautioned the employees under his supervision collectively that they needed to be more diligent about being fully occupied with Agency work during duty time. (Tr. 236-37).
14. In March or April 1992, Mr. Thomas individually cautioned another bargaining unit employee, orally, about the need to avoid doing personal business on duty time. The employee thereafter complied, so it did not become necessary to issue him written directions. (Tr. 237-38).
15. On April 7, April 16 and April 22, 1992, Mr. Thomas cautioned a second bargaining unit employee, in writing, against engaging in non-work activities during duty time. (Res. Exh. 14). The employee thereafter complied, so no further written directions were necessary. (Tr. 238).
16. Despite approximately a dozen oral warnings. (Tr. 230), and a written warning on May 7, 1992 (Jt. Exh. 2, 4x(44), the Charging Party never complied with Mr. Thomas's instructions on more than a temporary basis. (Tr. 243-44).
17. On July 21, 1992, Mr. Thomas cautioned a third bargaining unit employee, in writing, against being away from his desk for extended periods during duty hours. (Res. Exh. 13).
18. On August 12, 1992, Mr. Thomas issued a letter requiring all of the employees under his supervision to inform him when they were going to be away from their desks for more than 5-10 minutes during duty hours. (Res. Exh. 15). This letter was issued as a result of the third employee's having complained to the EEO office that he was being singled out in this respect. (Tr. 288).
19. On August 3, 1992, the same day that the Proposing Official, Mr. Charney, issued the Notice of Proposed Removal to the Charging Party, he informed the Charging Party by letter that, because of the Charging Party's continuing disruptive activities, he must work at an alternative work site during the response period. The letter explicitly stated that it was the Charging Party's choice whether to work at home or at another alternative work site. (Tr. 186-87, 262; G.C. Exh. 98).
20. In anticipation of the Charging Party choosing to work other than at home, Mr. Charney arranged for the Charging Party to work at the Agency Office of Hearings and Appeals office at 23rd and M Streets, N.W. The Charging Party chose to work at home, although he later denied that fact. (Tr. 186-87).
21. Because of the Charging Party's disruptive conduct, including his repeated and unauthorized visits to other offices during duty time about which his supervisor had received complaints, the Agency required him to turn in his building pass for the Agency Central Office, 409 3rd Street, S.W. Without that pass, he could not move freely from floor to floor and from office to office in the Agency headquarters. (Tr. 188).
22. For that reason, when the Charging Party thereafter visited the building to prepare his response to the proposed removal and to work on his ULPs, Mr. Thomas had to accompany him so that he could enter and exit the necessary offices and other Agency facilities, including the library and men's room. (Tr. 262-63, 311-14).
23. Another bargaining unit employee was also required to work at an alternative work site while under a notice of proposed removal in 1991, because Respondent believed the employee would be disruptive if permitted to remain on the job in Respondent's headquarters. (Tr. 379-80).
24. The Charging Party filed the instant charge on August 26, 1992.
C. Discussion and Conclusions
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 circum-stances, the statement or conduct tends to coerce or intimidate the employee in the exercise of the right to form, join, or assist any labor organization, or to refrain from any such activity. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Texas, 35 FLRA 891, 895 (1990).
1. The complaint alleges that Respondent violated this provision by issuing the Charging Party over 86 memoranda during a 94 day period which memoranda required a response from the Charging Party (89 were introduced into evidence at the hearing). (G.C. Exh. 4-92).
Respondent points out that at least eight of the documents introduced by the General Counsel in support of this paragraph of the complaint were actually addressed to someone other than the Charging Party. Another 38 of these documents did not require a response from the Charging Party, but, rather, responded to correspondence which the Charging Party had sent to the Agency. Moreover, on several occasions the Charging Party had specifically requested that the Agency respond to his letters. A reasonable employee could not be coerced or intimidated by the fact that his employer responded to his own letters, particularly when he had requested a response. Therefore, the General Counsel has not proven that Respondent violated the Statute in this respect.
Another 18 of the documents introduced by the General Counsel relate to work assignments or to leave or training requested by the Charging Party. Clearly, Respondent's actions were not coercive in the instant case, for the Charging Party had informed Respondent on numerous occasions that he preferred to receive guidance concerning his work assignments in writing. No reasonable employee could be coerced or intimidated by the fact that the employer complied with the employee's own requests.
Another 14 of the allegedly coercive documents are MSPB pleadings relating to cases in which the Charging Party had been designated by the appellant as his or her representative of record. The MSPB's regulations specifically require agencies to provide copies of all pleadings "to each party and to each representative." 5 CFR § 1201.26(b)(2). No reason-able employee could be coerced by the fact that his employer complied with this regulation, which has the force and effect of law.
Of the remaining documents which discuss the terms of the Charging Party's employment in some manner, 10 of these merely reminded the Charging Party of reasonable work rules, such as that prohibiting him from engaging in union organizing or other unofficial activities on duty time, and one requested a medical certificate in support of his request for leave.
I conclude that a preponderance of the evidence does not establish that Respondent violated section 7116(a)(1) of the Statute, as alleged, in paragraphs 8 and 13 of the complaint.
2. The complaint alleges that Respondent violated section 7116(a)(1) by prohibiting the Charging Party from using Agency equipment for personal reasons, while not applying the same restrictions to other bargaining unit members.
Counsel for the General Counsel did not submit any evidence showing that this requirement was not imposed on other employees, other than the Charging Party's own testimony.
As discussed above, while the Charging Party was emphatic in his testimony that Respondent had never proposed disci-plinary action against any employee other than himself for using government equipment for personal business, the evidence shows otherwise. In fact, Respondent in 1991 proposed the removal of another bargaining unit employee for that very offense, and the employee agreed to resign in lieu of being removed. Moreover, the Charging Party was well aware of Respondent's actions in the case, since he personally signed the settlement agreement on behalf of the union.
The record also reflects that while other employees are occasionally authorized to use Agency equipment for personal business, no employee has made personal, non-official use of Government equipment and time to the extent that the Charging Party did.
I conclude that a preponderance of the evidence does not establish that Respondent violated section 7116(a)(1) of the Statute as alleged in paragraphs 9 and 13 of the complaint.
3. The complaint alleges that Respondent violated section 7116(a)(1) by requiring the Charging Party to report to his supervisor whenever he would be away from his desk for over 5-10 minutes, while not applying the same requirement to other bargaining unit members.
The evidence establishes that the very same requirement was in fact applied to another bargaining unit employee. The evidence also shows that this employee, who is not a member of Solidarity, was the only other employee in the Charging Party's work section who, like the Charging Party, refused to comply with his supervisor's orders that they not spend extended periods of time away from their duty stations during duty hours.
Both the testimony of the supervisor, Charles Thomas, and Respondent's exhibits show that Mr. Thomas adopted a consistent practice in attempting to obtain his subordinates' compliance with this requirement: first oral warnings; then written warnings; and finally the requirement to report to him before leaving their duty stations for any extended period. Both of the employees who failed to correct their behavior in response to Mr. Thomas's earlier efforts were treated in exactly the same manner. Thus, there is no evidence of disparate treatment based on protected activity, and no reasonable employee could have been coerced or intimidated by Respondent's conduct.
I conclude that the General Counsel has not established by a preponderance of the evidence that Respondent violated section 7116(a)(1) in this respect as alleged in paragraphs 10 and 13 of the complaint.
4. The complaint alleges that Respondent violated section 7116(a)(1) and (2) by barring the Charging Party from its headquarters and requiring him to work at an alternate work site while he was under a notice of proposed removal. Additionally, the Complaint alleges that Respondent violated section 7116(a)(1) by requiring the Charging Party to be escorted while in the headquarters building during the notice period.
Contrary to the General Counsel's assertion, the evidence shows that Respondent had a past practice of imposing such requirements on employees who had received letters of proposed removal and who posed a high threat of disrupting Agency operations during the notice period. Specifically, in 1991, another bargaining unit employee, who is not a member of Solidarity, was barred from Respondent's headquarters while a proposed removal action was pending. Thus, Respondent was not treated disparately.
Moreover, the provision of escorts during his occasional approved visits was not coercive in nature. Rather, it was necessary to enable the Charging Party to obtain access to all areas of the building he might need to visit, since, in order to effectively bar him from the building, it was necessary to confiscate his security access card.
It is concluded that the General Counsel has not proven that any of Respondent's conduct might reasonably have tended to interfere with, restrain, or coerce the Charging Party in the exercise of protected rights, taking into consideration all of the circumstances surrounding the instant case. Therefore, it will be the recommended that the complaint in Case No. WA-CA-21060 be dismissed.
Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order
ORDER
The complaints in Case Numbers WA-CA-20821, WA-CA-21010 and WA-CA-21060, are dismissed.
Issued, Washington, DC, February 7, 1994
______________________________
GARVIN LEE OLIVER
Administrative
Law Judge
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. The Respondent filed a motion to include in the record a copy of Wildberger v. American Federation of Government Employees, No. 91-2316 (D.D.C. May 8, 1995). Because the court's decision concerns a proceeding that was pending when it was cited in the Judge's decision, we grant the request. See section 2429.5 of the Authority's Regulations.
2. On January 13, 1993, an MSPB Administrative Judge in Wildberger v. Small Business Administration, Doc. No. DC0752930005-I-1 (Jan. 13, 1993) (Wildberger I) affirmed the removal action. In Wildberger v. Small Business Administration, 63 MSPR 338 (1994), the MSPB vacated the initial decision and remanded the case to the Administrative Judge to correct a procedural matter. The MSPB remanded the case to the Administrative Judge again in Wildberger v. Small Business Administration, 65 MSPR 673 (1994), with instructions to allow for complete discovery. In Wildberger v. Small Business Administration, DC-0752-93-0005-B-2 (May 4, 1995) (Wildberger II), reconsideration pending, the Administrative Judge again affirmed the removal action.
3. The Respondent's employees are part of a consolidated bargaining unit represented by the National Office of the AFGE. The National Office of AFGE delegated authority to represent agency employees to AFGE Council 228, and on matters involving the local office of the Respondent to AFGE, Local 2532.
4. Wildberger was on official time as President of AFGE Local 2532 and AFGE, Council 228, from about 1987 until September 1991. In September 1991, SBA advised Wildberger that he was no longer entitled to official time, having been removed by AFGE as President of AFGE, Local 2532 and AFGE, Council 228.
5. The Charging Party also filed numerous procedural exceptions concerning the manner in which the Judge conducted the hearing and other exceptions with respect to the Judge's findings on the merits in Case Nos. WA-CA-20821 and WA-CA-21060. SBA contends that the Judge's findings of fact and credibility determinations in Case Nos. WA-CA-20821 and WA-CA-21060 are supported by the record and that the Charging Party's procedural exceptions are without merit. We neither summarize nor address these exceptions and arguments in view of our decision, explained below, to dismiss each of these complaints in this consolidated case on jurisdictional grounds.
6. The second sentence of section 7116(d) states as follows:
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.
7. In his appeal before an MSPB administrative judge, Wildberger addressed each of the charges first identified in the notice of proposed removal that subsequently became the basis for the removal itself. See Wildberger I and Wildberger II.
8. Further, the complaint in this case, which alleges a violation of section 7116(a)(1), focuses solely upon the rights of Wildberger.
9. We note that no exceptions were filed with respect to the Judge's decision to address the merits of the complaints in Case Nos. WA-CA-20821 and 21060. However, in its post-hearing brief and proposed conclusions of law filed with the Judge, the Respondent took the position that the Authority did not have jurisdiction to hear all three complaints in this case. In any event, the Authority may question, sua sponte, whether it has subject matter jurisdiction to consider the merits of a dispute. See, e.g., U.S. Department of the Army, Army Reserve Personnel Center and American Federation of Government Employees, Local 900, 34 FLRA 319 (1990) (Authority discusses whether it has jurisdiction over subject matter even though no party raised jurisdictional issue).
10. Moreover, in the complaint, the General Counsel focused upon the rights of Wildberger in alleging that the Respondent violated section 7116(a)(1) of the Statute.
11. In his response, Wildberger referenced, inter alia, the following: that he was issued various memoranda, SBA Exhibit 10 to Case No. WA-CA-20821 at 16, 19; that he was prohibited from using E-mail and other equipment, id. at 16, 23; that his movements in the workplace were restricted, id. at 23, 28; and that he was barred from the worksite and ordered to work at home, id. at 4, 22.
12. Unlike the previous two allegations, it is not clear that every allegation in this complaint is a prohibited personnel practice under 5 U.S.C. § 2302. However, where the MSPB has had jurisdiction over a statutory appeal, the Board has broadly construed section 2302(b)(9) to encompass all manner of "representational activities in the agency's appeal processes." Bodinus v. Dept. of Treasury, 7 MSPR 536, 539-40 (1981) ("agency's myopic construction of the subsection would afford protection from reprisal only to an employee or applicant for employment who exercises an appeal right"); accord Mallory v. Veterans Administration, 36 MSPR 135, 140 (1988). Moreover, the administrative judge in this case was instructed to allow Wildberger "an opportunity to present any and all nonfrivolous affirmative defenses." Wildberger v. SBA, 65 MSPR 673, 678 (1994).
ALJ's Footnotes Follow:
1. Respondent's motion and renewed motion to strike all exhibits and attachments accompanying the Charging Party's brief of April 1, 1993 is granted. Respondent's motion for leave to reply to the General Counsel's brief is denied; other pleadings related thereto have not been considered herein. (See Tr. 6).
2. Where the findings relate to more than one case, they have been considered, but generally not repeated.
3. See fn. 5, infra.
4. The notice of proposed removal listed other charges of alleged misconduct by Mr. Wildberger not included in the General Counsel's complaint, namely Charge 1, Specifica-tions 2, 3 and 5; Charge 2, Specifications 19-20; and all of Charges 3 and 5.
5. Mr. Wildberger has appealed the AFGE decision to the 1994 AFGE National Convention and is pursuing a separate cause of action against AFGE in the U.S. District Court for the District of Columbia, Robert Wildberger v. AFGE and John N. Sturdivant, No. 91-2316-HHG. (Tr. 31; Jt. Exh. 1, 4x(87); G.C. Exh. 6, WA-CA-20821).
6. Section 7116(d) of the Statute provides:
(d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices 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.