|
INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, OGDEN, UTAH Respondent |
|
|
and Individual Charging Party |
Case No. DE-CA-30893
|
Janis E. Baldwin Counsel for the Respondent Matthew Jarvinen Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
DECISION
The unfair labor practice complaint 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), when the
Respondent's agent, Chris Gough, in denying bargaining unit
employee Painter's request for advanced sick leave, told Painter
that upon her return to work, it would not take long for her to go
complain to the Union.
Respondent's answer denied that the alleged statement was made
and any violation of the Statute.
A hearing was held in Salt Lake City, Utah. The Respondent and
the General Counsel were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, and examine and
cross-examine witnesses. Counsel for the General Counsel introduced
certain documentary evidence and presented the testimony of the
Charging Party, Elizabeth Ann Painter, who testified as to the
surrounding circumstances and the alleged statement. Counsel for
Respondent presented the testimony of Supervisor Chris Gough who
testified as to the surrounding circumstances and denied that any
such statement was made. Based on the entire record, including my
observation of the witnesses and their demeanor, and the extensive
arguments in the briefs as to the credibility of the respective
witnesses, I have credited major portions of the testimony of the
Charging Party. I found her detailed testimony to be forthright and
persuasive. Accord-ingly, I make the following findings of fact,
conclusions of law, and recommendations.
On February 9, 1993, Elizabeth Ann Painter, a seasonal career-conditional term employee of Respondent, requested her supervisor, Chris Gough, to approve advanced sick leave in connection with surgery on her left wrist scheduled for the next day. She presented a certificate from the medical center indicating that she would be unable to work for six to eight weeks. Gough initially denied Painter's request, stating that seasonal employees were not eligible for advanced sick leave.
Painter then went to the office of Nancy Fisher, the president
of Chapter 67, National Treasury Employees Union (NTEU), which
represents unit employees for NTEU at the Respondent's Ogden
facility. Painter was advised that she was eligible for advanced
sick leave under the negotiated agreement. She was given a copy of
the pertinent contract provision. Painter then proceeded to talk to
Linda Fielding, an EEO counselor in Employee Services. Fielding
confirmed that Painter was entitled to advanced sick leave and
furnished Painter the forms to fill out. Fielding also telephoned
Supervisor Gough to inform her of Painter's eligibility for
advanced sick leave.
When Painter returned to Gough with the contract provision and
the completed papers, Gough appeared to be upset. Her face was red
and she raised her voice. Painter and Gough discussed the
possibility of light work for Painter and the length of time
Painter would be off. At that time, Gough went on to ask Painter
how long it would be after Painter returned, after her six to eight
week absence, before she "started to complain again and run to the
Union?"
Following the conversation, Gough promptly submitted Painter's
application for advanced sick leave and it was approved the same
day. Gough called Painter at home later in the day to inform her of
that fact.
The record reflects that Painter had previously asked the Union
to intervene with Gough concerning an incident that occurred near
the end of the 1992 tax season. The Union president informed
Painter at that time that she had spoken to Gough and resolved the
matter.
Section 7102 of the Statute protects each employee in the
exercise of the right to form, join, or assist a labor
organization, or to refrain from any such activity, without fear of
penalty or reprisal. Section 7116(a)(1) provides that it is an
unfair labor practice for an agency to interfere with, restrain, or
coerce any employee in the exercise by the employee of such
right.
The Authority has held that the standard for determining whether management's statement or conduct violates section 7116(a)(1) of the Statute is an objective one. The question is whether, under the circumstances, the statement or conduct would tend to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. Although 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 the intent of the employer. U.S. Department of Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba, Kentucky, 49 FLRA 1020, 1034 (1994).
Gough's comment, in the context of processing Painter's request
for advanced sick leave, questioning how long it would be until
Painter started to complain again and run to the Union, would make
a reasonable employee in Painter's position "think twice" about
exercising the statutory right to seek the Union's assistance in
the resolution of an employment problem. Under such circumstances,
a reasonable employee would conclude that further attempts to seek
Union assistance may lead to adverse job consequences. Thus, the
statement was coercive and constituted interference with the
protected right of a bargaining unit employee in violation of
section 7116(a)(1), as alleged. See
Navy Resale System Field Support Office Commissary
Store Group, 5 FLRA 311 (1981); Department
of the Treasury, Internal Revenue Service, Louisville
District, 11 FLRA 298 (1983).
Based on the above findings and conclusions, it is recommended
that the Authority issue the following Order:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that Internal Revenue Service, Ogden Service
Center, Ogden, Utah, shall:
1. Cease and desist from:
(a) Making statements to employees which interfere
with, restrain, or coerce employees in the exercise of their rights
to form, join, or assist any labor organization, including the
right to seek the labor organization's assistance in the resolution
of an employment problem, or to refrain from any such activity,
freely and without fear of penalty or reprisal.
(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
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) Post at its 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, 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 customerily
posted. Reasonable steps shall be taken to insure that such Notices
are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the Denver
Region, Federal Labor Relations Authority, 1244 Speer Boulevard,
Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply herewith.
Issued, Washington, DC, June 22, 1995
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements to employees which interfere with,
restrain, or coerce employees in the exercise of their rights to
form, join, or assist any labor organization, including the right
to seek the labor organization's assistance in the resolution of an
employment problem, or to refrain from any such activity, freely
and without fear of penalty or reprisal.
WE WILL NOT in any like or related manner interfere with, restrain
or coerce our employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute.
(Activity)
Date: _________________________ 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 any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, 1244 Speer Boulevard, Suite 100, Denver, Colorado
80204-3581, and whose telephone number is: (303) 844-5224.