[ v04 p460 ]
04:0460(64)CA
The decision of the Authority follows:
4 FLRA No. 64
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
SAN FRANCISCO AREA OFFICE
SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1450
Charging Party
Case No. 9-CA-172
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED
IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS
AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER.
PURSUANT TO SEC. 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2423.29) AND SEC. 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
ORDER
PURSUANT TO SEC. 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S
RULES AND REGULATIONS AND SEC. 7118 OF THE STATUTE, THE AUTHORITY HEREBY
ORDERS THAT THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, SAN
FRANCISCO AREA OFFICE, SAN FRANCISCO, CALIFORNIA SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES BY
REPRIMANDING ANY AGENT OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1450, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, FOR CONDUCT WHILE
PERFORMING REPRESENTATIONAL FUNCTIONS.
(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 STATUTE:
(A) POST AT ITS FACILITIES LOCATED IN THE DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, SAN FRANCISCO AREA OFFICE, SAN FRANCISCO, CALIFORNIA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY
THE AREA MANAGER AT SAID ACTIVITY AND SHALL BE POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING
ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE AREA MANAGER SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) REMOVE OR EXPUNGE FROM ITS FILES ANY REFERENCE TO THE REPRIMAND
GIVEN BETTY ANDERSON ON SEPTEMBER 24, 1979, AND ACKNOWLEDGE THE REMOVAL
TO ANDERSON IN WRITING.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION IX, 450 GOLDEN GATE
AVENUE, ROOM 11408, P. O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102, IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
REPRIMANDING ANY AGENCY OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1450, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, FOR CONDUCT WHILE
PERFORMING REPRESENTATIONAL FUNCTIONS.
WE WILL NOT IN ANY LIKE OR RELATED MATTER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL REMOVE OR EXPUNGE FROM OUR FILES ANY REFERENCE TO THE WRITTEN
REPRIMAND GIVEN BETTY ANDERSON ON SEPTEMBER 24, 1979, AND ACKNOWLEDGE
THE REMOVAL TO ANDERSON IN WRITING.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
450 GOLDEN GATE AVENUE, ROOM 11408, P. O. BOX 36016, SAN FRANCISCO,
CALIFORNIA 94102, AND WHOSE TELEPHONE NUMBER IS: (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JOHN KOSLOSKE, ESQ.
WILLIAM CREGAR
FOR THE RESPONDENT
STEFANIE ARTHUR, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
CASE NO. 9-CA-172
DECISION
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON JANUARY 28, 1980, BY THE
REGIONAL DIRECTOR, REGION IX, FEDERAL LABOR RELATIONS AUTHORITY, SAN
FRANCISCO, CALIFORNIA, AGAINST THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, SAN FRANCISCO AREA OFFICE, SAN FRANCISCO, CALIFORNIA.
THE COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SEC. 7116(A)(1) OF THE
STATUTE WHEN IT REPRIMANDED THE LOCAL UNION PRESIDENT FOR REMARKS MADE
WHILE REPRESENTING AN EMPLOYEE AT GRIEVANCE MEETINGS WITH MANAGEMENT
OFFICIALS. RESPONDENT DENIES THESE ALLEGATIONS AND CONTENDS THAT THE
REPRIMAND WAS JUSTIFIED UNDER THE CIRCUMSTANCES.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT SAN
FRANCISCO, CALIFORNIA, ON MARCH 18, 1980. ALL PARTIES WERE REPRESENTED
BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCED RELEVANT
EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. BOTH PARTIES FILED
EXCELLENT BRIEFS WHICH HAVE BEEN DULY CONSIDERED. BASED ON THE ENTIRE
RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDED ORDER: /1/
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1450 (THE UNION) HAS BEEN RECOGNIZED BY RESPONDENT AS
THE EXCLUSIVE REPRESENTATIVE FOR AN APPROPRIATE UNIT OF CERTAIN
NON-PROFESSIONAL EMPLOYEES OF THE RESPONDENT.
ON SEPTEMBER 24, 1979 THE DEPUTY DIRECTOR OF RESPONDENT'S HOUSING
DIVISION, BERNARD DEASY, ISSUED A LETTER OF REPRIMAND TO BETTY ANDERSON
FOR ALLEGEDLY MAKING DEFAMATORY AND PROVOCATIVE STATEMENTS DURING TWO
GRIEVANCE MEETINGS WITH MANAGEMENT IN WHICH ANDERSON WAS REPRESENTING
THE GRIEVANT-EMPLOYEE, KATHY KANDA. ANDERSON WAS THE PRESIDENT OF THE
LOCAL UNION.
THE ABOVE GRIEVANCE PROCEEDING WAS INITIATED BY KANDA FOR TWO
REASONS. FIRST, SHE RECEIVED AN OFFICIAL REPRIMAND ON JULY 27, 1979
FROM HER SUPERVISOR, ROBERT LANG, FOR ALLEGEDLY FAILING TO COMPLETE A
WORK ASSIGNMENT AND FOR LEAVING HER DUTY STATION WITHOUT PERMISSION.
KANDA WAS A CLERK-TYPIST AND LANG WAS A SUPERVISORY LOAN MANAGEMENT
OFFICER. SECOND, LANG DENIED HER REQUEST TO USE ANNUAL LEAVE FOR THREE
HOURS ON JULY 24, 1979, WHILE KANDA WAS AT THE HUD REGIONAL PERSONNEL
OFFICE. LANG HAD CHARGED HER WITH THREE HOURS AWOL FOR THAT TIME.
KANDA HAD GONE TO THE PERSONNEL OFFICE IN ORDER TO SEEK A TRANSFER OUT
OF LANG'S SECTION.
ONE OF THE MEETINGS THAT WAS SCHEDULED FOR THE ABOVE GRIEVANCE WAS
HELD ON AUGUST 21, 1979. ON THAT DATE, NEITHER OF KANDA'S REGULAR UNION
REPRESENTATIVES, ALLEN GANDY AND WALLY SHEPHERD, WERE ABLE TO ATTEND,
AND BETTY ANDERSON AGREED TO REPRESENT HER AT THAT MEETING. ALTHOUGH
ANDERSON WAS GENERALLY FAMILIAR WITH THIS GRIEVANCE, SHE MET WITH KANDA
JUST BEFORE THE AUGUST 21 MEETING TO DISCUSS KANDA'S COMPLAINTS. KANDA
TOLD ANDERSON THAT LANG HAD BEEN DISCRIMINATING AGAINST HER AND
INTIMIDATING HER; THAT HE TREATED HER DIFFERENTLY THAN HE TREATED THE
LOAN MANAGEMENT OFFICERS AND THAT SHE FELT HE WAS HARASSING HER BECAUSE
OF HER RACE, AGE AND SEX. GANDY, A VICE PRESIDENT OF THE UNION, HAD
PREVIOUSLY MENTIONED THIS PARTICULAR ALLEGATION TO ANDERSON. KANDA IS A
JAPANESE WOMAN WHO IS OVER 45 YEARS OF AGE; LANG IS A BLACK MAN WHO IS
31 YEARS OF AGE.
THE FIRST SUBJECT DISCUSSED DURING THE AUGUST 21 MEETING WAS THE AWOL
CHARGE. IN THIS REGARD, LANG HAD ALREADY BEEN ADVISED BY HUD'S LOCAL
PERSONNEL DIRECTOR THAT THE UNION HAD ORALLY ACKNOWLEDGED RESPONSIBILITY
FOR KANDA'S VISIT TO PERSONNEL WHICH HAD RESULTED IN THE AWOL CHARGE,
AND HE HAD ALREADY DECIDED, WITHOUT TELLING ANYONE, TO RESTORE KANDA'S
HOURS. IN SPITE OF THIS, AT THE MEETING LANG INSISTED THAT HE WOULD NOT
WITHDRAW THE AWOL CHARGE UNLESS THE UNION WROTE HIM A LETTER
ACKNOWLEDGING RESPONSIBILITY. WHEN THE DISCUSSION TURNED TO KANDA'S
REPRIMAND, ANDERSON TOLD LANG THAT HE HAD BEEN DISCRIMINATING AGAINST
KANDA BECAUSE OF HER RACE, SEX AND AGE. KANDA CONFIRMED THE LATTER
ACCUSATION. ANDERSON ALSO SAID THAT OTHER OLDER WOMEN HAD COMPLAINED
ABOUT LANG DISCRIMINATING AGAINST THEM BECAUSE OF THEIR AGE. LANG
REFUSED TO WITHDRAW THE LETTER OF REPRIMAND AND CONTINUED TO INSIST ON A
LETTER FROM THE UNION ACKNOWLEDGING RESPONSIBILITY. THE DISCUSSION
BECAME HEATED AND VOICES WERE RAISED. ANDERSON TOLD LANG THAT HE WAS A
"RACIST, SEXIST AND AGEIST" AND THAT HE DISCRIMINATED AGAINST ASIAN
MEMBERS OF THE STAFF. SEVERAL TIMES DURING THE MEETING LANG ACCUSED
ANDERSON OF BEING UNPREPARED AND STATED THAT SHE "DIDN'T KNOW WHAT SHE
WAS TALKING ABOUT."
DURING THE MEETING LANG REPEATEDLY STATED THAT HE DID NOT WANT TO
DEAL WITH ANDERSON AND PREFERRED TO DEAL WITH ONE OF KANDA'S OTHER
REPRESENTATIVES, WALLY SHEPHERD, WHO IS A BLACK MALE. ANDERSON TOLD HIM
THAT THIS WAS ADDITIONAL EVIDENCE THAT LANG PREFERRED TO DEAL WITH BLACK
MEMBERS OF THE STAFF. FINALLY, AT THE CONCLUSION OF THE MEETING, WHEN
LANG AGAIN DEMANDED A LETTER FROM THE UNION IN RETURN FOR WITHDRAWING
THE AWOL CHARGE, ANDERSON SAID "I'M NOT GOING TO GIVE YOU SHIT."
BETWEEN AUGUST 21 AND SEPTEMBER 4 ANDERSON HAD ONE BRIEF ENCOUNTER
WITH LANG REGARDING THIS MATTER DURING WHICH HE TOLD HER THAT IF HE
DECIDED TO GIVE KANDA BACK HER HOURS IT WOULD NOT BE BECAUSE OF ANYTHING
THE UNION HAD DONE; OTHERWISE, NO ONE IN MANAGEMENT SAID ANYTHING TO
ANDERSON ABOUT HER CONDUCT AT THE AUGUST 21 MEETING.
THE NEXT MEETING ON THIS GRIEVANCE OCCURRED ON SEPTEMBER 4, 1979, AND
WAS ATTENDED BY ANDERSON, SHEPHERD, AND LANG. AT THIS MEETING LANG
CONTINUED TO INSIST ON A LETTER FROM THE UNION. AGAIN, THE DISCUSSION
BECAME HEATED AND ANDERSON AGAIN STATED THAT SHE WOULD NOT GIVE HIM
"SHIT." SHE ALSO TOLD LANG THAT SHE THOUGHT HE WAS A RACIST, THAT HE
PREFERRED TO DEAL WITH SHEPHERD BECAUSE HE IS BLACK, AND REFUSED TO DEAL
WITH HER BECAUSE SHE IS WHITE. AT NO TIME DURING THIS MEETING DID LANG
ADVISED THE UNION THAT HE HAD ALREADY DECIDED TO RESTORE KANDA'S HOURS.
LANG ADMITTEDLY WITHHELD THIS INFORMATION SO THAT HE WOULD BE IN A
BETTER POSITION TO OBTAIN THE LETTER OF ACKNOWLEDGEMENT.
SEVERAL WEEKS LATER, THE UNION LEARNED THAT KANDA'S AWOL HOURS HAD
BEEN RESTORED.
ON SEPTEMBER 24, 1979, SUPERVISOR DEASY CALLED ANDERSON INTO HIS
OFFICE AND PRESENTED HER WITH A "LETTER OF REPRIMAND." THE LETTER STATED
THAT ANDERSON WAS BEING REPRIMANDED FOR THE STATEMENTS THAT SHE MADE TO
LANG DURING THE AUGUST 21 AND SEPTEMBER 4 MEETINGS. WHEN SHE RECEIVED
THIS LETTER, ANDERSON STATED THAT IT WAS IMPROPER SINCE SHE HAD BEEN
ACTING IN HER REPRESENTATIONAL CAPACITY DURING THE MEETINGS IN QUESTION.
SUBSEQUENTLY, ANDERSON FILED AN UNFAIR LABOR PRACTICE CHARGE WHICH
INITIATED THE INSTANT PROCEEDING.
BOTH LANG AND DEASY HAVE USED FOUR-LETTER WORDS DURING MEETINGS WITH
ANDERSON. FURTHERMORE, SUCH LANGUAGE HAD BEEN FREQUENTLY USED BY
MANAGEMENT OFFICIALS DURING THE PAST FEW YEARS IN THE PRESENCE OF OTHER
EMPLOYEES.
CONCLUSIONS OF LAW
THE BASIC ISSUE PRESENTED FOR DECISION IS WHETHER THE RESPONDENT'S
REPRIMAND OF ANDERSON, THE UNION'S PRESIDENT, FOR THE STATEMENTS THAT
SHE MADE TO LANG AT THE AUGUST 21 AND SEPTEMBER 4, 1979 GRIEVANCE
MEETINGS VIOLATED 5 U.S.C. 7116(A)(1). THAT SECTION 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 ANY RIGHT UNDER
THE STATUTE. SEC. 7102 OF THE STATUTE PROVIDES THAT EACH EMPLOYEE SHALL
HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION WITHOUT
FEAR OF REPRISAL, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE
OF SUCH RIGHT. THERE IS NO QUESTION THAT ANDERSON'S REPRESENTATION OF
THE EMPLOYEE AT THE ABOVE GRIEVANCE MEETINGS CONSTITUTED PROTECTED
ACTIVITY. IT IS EQUALLY CLEAR THAT FLAGRANT MISCONDUCT BY AN EMPLOYEE,
EVEN THOUGH OCCURING DURING THE COURSE OF PROTECTED ACTIVITY, MAY
JUSTIFY DISCIPLINARY ACTION BY THE EMPLOYER. DEPARTMENT OF THE NAVY,
PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, 2 FLRA NO. 7)1979),
REPORT NO. 20. THE QUESTION IN THE INSTANT CASE IS WHETHER ANDERSON'S
STATEMENTS DURING THE MEETINGS IN QUESTION CONSTITUTED FLAGRANT
MISCONDUCT WHICH WAS BEYOND THE AMBIT OF PROTECTED ACTIVITY.
IT HAS BEEN HELD THAT THE EJECTION OF A UNION PRESIDENT FROM A
MEETING AT WHICH HE WAS REPRESENTING A UNIT EMPLOYEE, FOR ALLEGED
ABUSIVE REMARKS AND PROFANITY WAS VIOLATIVE OF SEC. 19(A)(1) OF
EXECUTIVE ORDER 11491. U.S. SMALL BUSINESS ADMINISTRATION, CENTRAL
OFFICE, WASHINGTON, DC, 6 A/SLMR 157, A/SLMR NO. 631(1976). IN THE
INSTANT CASE, LANG'S DEMAND FOR A LETTER ACKNOWLEDGING RESPONSIBILITY
FOR KANDA'S PRESENCE AT THE PERSONNEL OFFICE HAD THE PREDICTABLE EFFECT
OF EVOKING AN EMOTIONAL RESPONSE FROM ANDERSON. IT APPEARED
UNREASONABLE TO REQUIRE A LETTER FROM THE UNION IN RETURN FOR DROPPING
THE AWOL CHARGE AGAINST KANDA. THE RESOLUTION OF HER CLAIM SHOULD BE
RESOLVED ON ITS OWN MERITS AND NOT HINGED ON THE FUTURE ACTION OF A
THIRD PARTY. UNDER THESE CIRCUMSTANCES, AND NOTING THE FACT THAT
MANAGEMENT OFFICIALS USED FOUR-LETTER WORDS ON OCCASION IN THE PRESENCE
OF THEIR EMPLOYEES, ANDERSON'S USE OF A FOUR-LETTER WORD CANNOT BE
CONSIDERED FLAGRANT MISCONDUCT.
FURTHERMORE, ANDERSON'S REFERENCES TO LANG AS A "RACIST, SEXIST AND
AGEIST" AND STATEMENTS REGARDING HIS RACIAL PREFERENCES, ALTHOUGH
INHERENTLY INFLAMMATORY, WERE RELATED TO THE GRIEVANT'S EXPRESSED
CONCERNS THAT HER SUPERVISOR HAD BEEN DISCRIMINATING AGAINST HER.
ANDERSON'S COMMENTS THAT LANG WAS REFUSING TO DEAL WITH HER BECAUSE SHE
WAS WHITE, OR THAT HE PREFERRED TO DEAL WITH ANOTHER UNION
REPRESENTATIVE BECAUSE HE WAS BLACK, WERE ESSENTIALLY EXPRESSED AS
FURTHER EVIDENCE OF THE GRIEVANT'S CONTENTION THAT LANG DISCRIMINATED ON
THE BASIS OF RACE. THUS, ALTHOUGH SUCH INDELICATE AND INTEMPERATE
LANGUAGE IN THE CONDUCT OF LABOR-MANAGEMENT RELATIONS IS NOT CONDONED,
ANDERSON BASED HER COMMENTS ON INFORMATION FROM SEVERAL SOURCES AND
WAS
MERELY ATTEMPTING TO REPRESENT THE POSITION OF A UNIT EMPLOYEE. UNDER
THESE CIRCUMSTANCES, I MUST CONCLUDE THAT NONE OF ANDERSON'S STATEMENTS
CONSTITUTED "FLAGRANT MISCONDUCT" BEYOND THE AMBIT OF PROTECTED
ACTIVITY. THEREFORE, I HOLD THAT RESPONDENT'S SEPTEMBER 24, 1979 LETTER
OF REPRIMAND CONSTITUTED IMPROPER INTERFERENCE WITH ANDERSON'S PROTECTED
RIGHTS IN VIOLATION OF SEC. 7116(A)(1) OF THE STATUTE. /2/
IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE AUTHORITY ADOPT THE
FOLLOWING:
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, SAN
FRANCISCO AREA OFFICE, SAN FRANCISCO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES BY
REPRIMANDING ANY AGENT OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1450, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, FOR CONDUCT WHILE
PERFORMING REPRESENTATIONAL FUNCTIONS.
(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 STATUTE:
(A) POST AT ITS FACILITIES LOCATED IN THE DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, SAN FRANCISCO AREA OFFICE, SAN FRANCISCO, CALIFORNIA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY
THE AREA MANAGER AT SAID ACTIVITY AND SHALL BE POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING
ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE AREA MANAGER SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) REMOVE OR EXPUNGE FROM ITS FILES ANY REFERENCE TO THE REPRIMAND
GIVEN BETTY ANDERSON ON SEPTEMBER 24, 1979, AND ACKNOWLEDGE THE REMOVAL
TO ANDERSON IN WRITING.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION IX, 450 GOLDEN GATE
AVENUE, ROOM 11408, P.O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102, IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY HEREWITH.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: JULY 9, 1980
WASHINGTON, DC
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
REPRIMANDING ANY AGENT OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1450, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, FOR CONDUCT WHILE
PERFORMING REPRESENTATIONAL FUNCTIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL REMOVE OR EXPUNGE FROM OUR FILES ANY REFERENCE TO THE WRITTEN
REPRIMAND GIVEN BETTY ANDERSON ON SEPTEMBER 24, 1979, AND ACKNOWLEDGE
THE REMOVAL TO ANDERSON IN WRITING.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
450 GOLDEN GATE AVENUE, ROOM 11408, P.O. BOX 36016, SAN FRANCISCO,
CALIFORNIA 94102, AND WHOSE TELEPHONE NUMBER IS: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ THE GENERAL COUNSEL'S MOTION TO CORRECT VARIOUS ERRORS IN THE
TRANSCRIPT IS GRANTED.
/2/ I FOUND ANDERSON'S TESTIMONY TO BE MORE CREDIBLE THAN LANG'S, AND
RESOLVED WHAT FEW CONFLICTS THAT EXISTED IN HER FAVOR.