[ v06 p218 ]
06:0218(37)CO
The decision of the Authority follows:
6 FLRA No. 37
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 53
Respondent
and
INTERNAL REVENUE SERVICE
AND BROOKLYN DISTRICT OFFICE
Complainant
Case No. 2-CO-3
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING, ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE 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. EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL
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 ENTIRE RECORD IN THE
SUBJECT CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. IN SO ADOPTING, THE
AUTHORITY FINDS THAT THE RIGHT GUARANTEED TO EMPLOYEES UNDER SECTION
7102 OF THE STATUTE TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR
TO REFRAIN FROM SUCH ACTIVITY, IS SUFFICIENTLY BROAD TO INCLUDE WITHIN
ITS SCOPE THE RIGHT OF AN EMPLOYEE TO APPEAR AS A WITNESS IN AN
AUTHORITY PROCEEDING TO WHICH A UNION IS A PARTY AND TO GIVE TESTIMONY
SUPPORTING OR OPPOSING THE UNION'S INTEREST IN THAT PROCEEDING. IN THIS
REGARD, IT IS NO LESS INTERFERENCE WITH THE SECTION 7102 STATUTORY RIGHT
FOR A UNION TO DISCIPLINE OR DISCRIMINATE AGAINST AN EMPLOYEE FOR GIVING
TESTIMONY IN AN AUTHORITY PROCEEDING THAN IT IS FOR AN EMPLOYER TO DO SO
AS PROSCRIBED UNDER SECTION 7116(A)(4) OF THE STATUTE. SUCH
INTERFERENCE WITH EMPLOYEE RIGHTS UNDER SECTION 7102 IS THUS A VIOLATION
OF SECTION 7116(B)(1) OF THE STATUTE. HOWEVER, THIS SHOULD NOT BE
CONSTRUED AS ABROGATING THE UNION'S CONTROL OF ITS OWN INTERNAL AFFAIRS
IN THE ABSENCE OF A STATUTORY VIOLATION SUCH AS HERE INVOLVED.
IN REACHING THIS DECISION, IT IS NOTED THAT, WHILE THE ADMINISTRATIVE
LAW JUDGE FOUND THAT THE RESPONDENT'S PRESIDENT WAS INFORMED OF A
CERTAIN CHANGE IN WORKING CONDITIONS SPECIFICALLY ON JANUARY 17, 1978,
THE RECORD SHOWS ONLY THAT SUCH INFORMATION WAS PASSED ON TO HIM
"SHORTLY AFTER" JANUARY 17, 1978.
OUR ORDER THAT THE UNION STEWARD BE REINSTATED TO HIS UNION POSITION
IS, OF COURSE, CONFINED TO THE CIRCUMSTANCES OF THIS CASE WHERE, AS
FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE UNION STEWARD, EXCEPT FOR HIS
TESTIMONY AT THE AUTHORITY PROCEEDING, WOULD NOT HAVE BEEN REMOVED FROM
THAT POSITION.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53 SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING OR COERCING ITS MEMBERS IN THE
EXERCISE OF THEIR RIGHTS GUARANTEED IN THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE BY REMOVING A MEMBER FROM THE
POSITION OF UNION STEWARD BECAUSE HE GAVE TESTIMONY IN A HEARING
CONDUCTED UNDER THE AUSPICES OF THE FEDERAL LABOR RELATIONS AUTHORITY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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 CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) REINSTATE MR. HERMAN MODIN TO HIS POSITION OF UNION SHOP STEWARD,
BROOKLYN DISTRICT OFFICE.
(B) POST AT THE BUSINESS OFFICE OF THE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 53, AND IN NORMAL MEETING PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO MEMBERS OF THE NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 53 ARE CUSTOMARILY POSTED, 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 PRESIDENT OF THE NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 53, AND SHALL BE POSTED FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO MEMBERS ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL
BE TAKEN BY NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53 TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE INTERNAL REVENUE
SERVICE FOR POSTING IN CONSPICUOUS PLACES WHERE MEMBERS OF NTEU, CHAPTER
53 ARE LOCATED, WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 2, FEDERAL LABOR
RELATIONS AUTHORITY, ROOM 241, 26 FEDERAL PLAZA, NEW YORK, N.Y. 10007,
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., JULY 1, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL MEMBERS AND 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 MEMBERS AND ALL EMPLOYEES OF THE
INTERNAL REVENUE SERVICE, BROOKLYN DISTRICT OFFICE THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR MEMBERS IN THE
EXERCISE OF THEIR RIGHTS ASSURED IN THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE BY REMOVING A MEMBER FROM THE POSITION OF UNION
STEWARD BECAUSE HE GAVE TESTIMONY IN A HEARING CONDUCTED UNDER THE
AUSPICES OF THE FEDERAL LABOR RELATIONS AUTHORITY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL REINSTATE MR. HERMAN MODIN TO HIS POSITION OF UNION SHOP
STEWARD, BROOKLYN DISTRICT OFFICE.
(UNION)
DATED: BY:
(SIGNATURE) (TITLE)
(SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: ROOM
241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND WHOSE TELEPHONE
NUMBER IS: (212) 264-4934.
-------------------- ALJ DECISION FOLLOWS --------------------
WILLIAM F. WHITE, ESQUIRE
LYNN SYLVESTER, ESQUIRE
FOR THE RESPONDENT
ALLAN W. STADTMAUR, ESQUIRE
JAMES PETRUCCI, ESQUIRE
FOR THE GENERAL COUNSEL
ROBERT F. HERMANN, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101,
ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R.CHAPTER XIV, PART 2411, ET
SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON JULY 20, 1979, BY THE
INTERNAL REVENUE SERVICE AND BROOKLYN DISTRICT OFFICE, (HEREINAFTER
CALLED THE IRS OR THE CHARGING PARTY), A COMPLAINT AND NOTICE OF HEARING
WAS ISSUED ON FEBRUARY 27, 1980, BY THE REGIONAL DIRECTOR FOR REGION II,
FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK, N.Y. THE COMPLAINT ALLEGES
THAT NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 53, (HEREINAFTER CALLED THE NTEU, UNION OR RESPONDENT),
VIOLATED SECTION 7116(B)(1) AND (B)(3) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE OR
ACT), BY VIRTUE OF ITS ACTION IN REMOVING HERMAN MODIN FROM THE POSITION
OF UNION SHOP STEWARD BECAUSE MR. MODIN GAVE TESTIMONY AT A HEARING HELD
PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON MAY 14, 1980, IN NEW
YORK, N.Y. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED BRIEFS ON JULY 3, 1980,
WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE AT A NUMBER OF
THE INTERNAL REVENUE SERVICE OFFICES IN THE NEW YORK CITY AREA, AMONG
WHICH IS THE BROOKLYN DISTRICT OFFICE WHEREIN THE INSTANT ALLEGED UNFAIR
LABOR PRACTICE OCCURRED. MR. GEORGE BRAVERMAN HAD BEEN THE PRESIDENT OF
CHAPTER 53 SINCE 1966 AND ITS CHIEF STEWARD SINCE ABOUT 1973. MR.
HERMAN MODIN, THE ALLEGED DISCRIMINATEE HEREIN, SERVED AS SHOP STEWARD
IN THE BROOKLYN DISTRICT OFFICE FOR SOME FOUR OR FIVE YEARS PRIOR TO
BEING DISCHARGED BY MR. BRAVERMAN FROM SUCH POSITION ON MARCH 21, 1979.
IN ADDITION TO BEING SHOP STEWARD, MR. MODIN HAS, OVER THE YEARS, HELD A
NUMBER OF ELECTIVE POSITIONS IN CHAPTER 53, NTEU. HE CURRENTLY HOLDS
THE POSITION OF "VICE PRESIDENT OF COLLECTIONS."
ON OR ABOUT JANUARY 18, 1979, A HEARING WAS HELD UNDER EXECUTIVE
ORDER 11491, AS AMENDED. THE HEARING WAS BASED UPON A COMPLAINT FILED
BY THE NTEU AND NTEU CHAPTER 53 ALLEGING, AMONG OTHER THINGS, THAT THE
INTERNAL REVENUE SERVICE HAD VIOLATED THE EXECUTIVE ORDER BY
UNILATERALLY INSTITUTING A CHANGE IN WORKING CONDITIONS WITHOUT
ACCORDING THE NTEU NOTICE OF SAME AND ALLOWING IT THE OPPORTUNITY TO
REQUEST BARGAINING OVER THE IMPACT OF THE CHANGE. PURSUANT TO MOTION
DULY MADE, THE WITNESSES AT THE HEARING WERE SEQUESTERED.
MR. BRAVERMAN APPEARED AND TESTIFIED AT THE HEARING THAT HE HAD NO
PRIOR NOTICE OF THE UNILATERAL CHANGE UNDERLYING THE COMPLAINT AND THAT
HE HAD FIRST LEARNED OF THE CHANGE ONLY AFTER THE CHANGE HAD BEEN FULLY
IMPLEMENTED ON OR ABOUT FEBRUARY 21, 1978. LATER IN THE HEARING MR.
MODIN WAS CALLED TO THE STAND AS A WITNESS FOR THE RESPONDENT. MR.
MODIN TESTIFIED THAT HE HAD BEEN INFORMED BY HIS IMMEDIATE SUPERVISOR ON
JANUARY 17, 1978, OF IRS'S PLANS CONCERNING THE PROPOSED CHANGE IN
WORKING CONDITIONS AND THAT HE HAD LATER IN THE DAY TELEPHONED MR.
BRAVERMAN AND INFORMED HIM OF IRS'S PROPOSED CHANGE IN WORKING
CONDITIONS.
FOLLOWING THE CLOSE OF THE HEARING, MR. BRAVERMAN, ALONG WITH MR.
DAVE LIPTON AND MR. FRANK FERRIS, WHO PARTICIPATED IN THE HEARING AS
ADVISOR AND COUNSEL, RESPECTIVELY, TOOK THE SUBWAY TO PENN. STATION.
DURING THE COURSE OF THE SUBWAY RIDE, MR. FERRIS INFORMED MR. BRAVERMAN
OF MR. MODIN'S "DAMAGING TESTIMONY" CONCERNING THE CRUCIAL ISSUE OF
NOTICE. WHEREUPON, MR. BRAVERMAN TOOK HIS DIARY FROM HIS BRIEFCASE AND
TURNED TO JANUARY 17, 1978. THE DIARY REVEALED THAT MR. BRAVERMAN,
WHOSE OFFICE IS LOCATED IN MINEOLA, N.Y., HAD SPENT SOME EIGHT HOURS IN
BROOKLYN, N.Y. ON JANUARY 17, 1978, CONDUCTING BOTH A GRIEVANCE
INVESTIGATION AND A GRIEVANCE HEARING. IN VIEW OF THE FOREGOING, MR.
BRAVERMAN CONCLUDED THAT MR. MODIN'S TESTIMONY WAS INACCURATE SINCE IT
WOULD HAVE BEEN IMPOSSIBLE FOR MR. MODIN TO HAVE REACHED HIM BY
TELEPHONE ON JANUARY 17, 1978. MR. BRAVERMAN ACKNOWLEDGED THAT HE WAS
BOTH SURPRISED AND ANGRY AT MR. MODIN'S CONFLICTING TESTIMONY.
THEREAFTER, MR. BRAVERMAN CONTINUALLY CONSIDERED THE REPLACEMENT OF
MR. MODIN AND APPROACHED OTHER REVENUE OFFICERS FROM THE BROOKLYN
DISTRICT OFFICE ABOUT ASSUMING MR. MODIN'S POSITION OF UNION STEWARD.
ALL THE REVENUE OFFICERS APPROACHED BY MR. BRAVERMAN DECLINED THE OFFER.
ON MARCH 21, 1979, MR. BRAVERMAN, AFTER UNSUCCESSFULLY ATTEMPTING TO
CONVINCE MR. MODIN THAT HE SHOULD RESIGN, POSTED A NOTICE ON THE UNION
BULLETIN BOARD STATING THAT MR. MODIN WAS "REMOVED AS SHOP STEWARD FOR
THE BROOKLYN POST OF DUTY." MR. BRAVERMAN APPOINTED A REVENUE AGENT FROM
ANOTHER OFFICE TO MR. MODIN'S FORMER POSITION AS UNION STEWARD FOR THE
BROOKLYN DISTRICT OFFICE SOME TWO MONTHS LATER.
MR. BRAVERMAN FURTHER TESTIFIED THAT FOR SEVERAL YEARS HE HAD BEEN
DISAPPOINTED IN MR. MODIN'S PERFORMANCE AS UNION STEWARD AND HAD BEEN
UNSUCCESSFUL IN ATTEMPTING TO FIND A REPLACEMENT. IN THIS CONTEXT MR.
BRAVERMAN POINTED OUT THAT MR. MODIN HAD BEEN LAX IN FILING GRIEVANCES
AND CONTINUALLY CHOSE TO SIT WITH HIS SUPERVISOR RATHER THAN
RANK-AND-FILE UNION MEMBERS DURING COFFEE BREAKS THEREBY CREATING THE
IMPRESSION THAT HE WAS MORE INTERESTED IN THE PROBLEMS OF MANAGEMENT
RATHER THAN THOSE OF THE UNIT MEMBERS. ACCORDING TO MR. BRAVERMAN, HE
FINALLY DECIDED TO TERMINATE MR. MODIN FROM HIS POSITION AS UNION
STEWARD WHEN HE WAS INFORMED BY TWO NEWLY TRANSFERRED REVENUE OFFICERS
THAT THEY HAD NEVER BEEN APPROACHED OR CONTACTED BY A UNION
REPRESENTATIVE SINCE ARRIVING AT THE BROOKLYN DISTRICT OFFICE POST OF
DUTY.
BASED UPON THE COMPLAINTS FROM THE REVENUE OFFICERS, MR. MODIN'S PAST
PERFORMANCE AND MR. MODIN'S "FRAUDULENT" TESTIMONY DURING THE JANUARY
UNFAIR LABOR PRACTICE PROCEEDING, MR. BRAVERMAN REMOVED MR. MODIN FROM
HIS POSITION AS UNION STEWARD FOR THE BROOKLYN DISTRICT OFFICE. /1/
MR. ALLEN HORN, WHO ACTED AS COUNSEL FOR THE INTERNAL REVENUE SERVICE
IN THE PRIOR PROCEEDING, TESTIFIED THAT DURING A POST HEARING DISCUSSION
WITH MR. FRANK FERRIS, UNION COUNSEL IN THE PRIOR PROCEEDING, CONCERNING
AN EXTENSION OF TIME TO FILE POST HEARING BRIEFS, HE HAD BEEN INFORMED
BY MR. FERRIS THAT MR. MODIN HAD BEEN REMOVED FROM THE POST OF UNION
STEWARD BECAUSE OF HIS TESTIMONY IN THE UNFAIR LABOR PRACTICE
PROCEEDING. MR. FERRIS IN A POST HEARING DEPOSITION IN THE INSTANT CASE
DENIED IMPARTING SUCH INFORMATION TO MR. HORN. /2/
DISCUSSION AND CONCLUSIONS
RESPONDENT URGES DISMISSAL OF THE INSTANT COMPLAINT ON THE BASIS OF A
NUMBER OF PROCEDURAL GROUNDS, NAMELY: (1) THAT THE INTERNAL REVENUE
SERVICE IS WITHOUT STANDING TO FILE THE CHARGES UNDERLYING THE INSTANT
COMPLAINT, (2) SECTION 7116(B) OF THE STATUTE DOES NOT CONTAIN A SIMILAR
PROHIBITION CONCERNING DISCRIMINATION FOR FILING CHARGES AND/OR GIVING
TESTIMONY AS SET FORTH IN SECTION 7116(A)(4) OF THE STATUTE, (3) REMOVAL
OF A STEWARD IS AN INTERNAL UNION AFFAIR NOT COGNIZABLE UNDER SECTION
7116(B) OF THE STATUTE, AND (4) THE AUTHORITY DOES NOT, IN ANY EVENT,
HAVE JURISDICTION SINCE THE TESTIMONY WAS GIVEN UNDER EXECUTIVE ORDER
11491, AS AMENDED, AND NOT THE STATUTE.
WITH RESPECT TO NUMBER (1) ABOVE BOTH THE STATUTE, SECTIONS 7103 AND
7118(A)(1), AND THE REGULATIONS, SECTION 2423.3, MAKE IT CLEAR THAT ANY
PERSON MAY FILE A CHARGE ALLEGING A VIOLATION OF THE STATUTE.
ACCORDINGLY, I FIND RESPONDENT'S FIRST DEFENSE TO BE WITHOUT MERIT. CF.
NATIONAL TREASURY EMPLOYEES UNION, 1 FLRA NO. 104; NATIONAL TREASURY
EMPLOYEES UNION, WASHINGTON, D.C., 2 FLRA NO. 51, WHEREIN A SIMILAR
CONCLUSION WAS REACHED UNDER EXECUTIVE ORDER 11491, AS AMENDED.
WITH RESPECT TO (2) ABOVE, IRRESPECTIVE OF THE FACT THAT THE
PROHIBITION SET FORTH IN SECTION 7116(A)(4) OF THE STATUTE IS NOT
SPECIFICALLY INCLUDED UNDER SECTION 7116(B), UNION UNFAIR LABOR
PRACTICES, I FIND THAT IT WAS THE INTENT OF THE CONGRESS TO BAR ANY AND
ALL INTERFERENCE WITH THE AUTHORITY'S PROCESSES. IN THIS CONTEXT IT IS
NOTED THAT THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE IS
MODELED AFTER THE NATIONAL LABOR RELATIONS ACT WHICH ALSO DOES NOT
SPECIFICALLY CONTAIN PROHIBITIONS CONCERNING DISCRIMINATION BECAUSE OF
TESTIMONY AND/OR FILING CHARGES UNDER SECTION 8(B), WHICH DEALS WITH
UNION UNFAIR LABOR PRACTICES. HOWEVER, DESPITE SUCH OMISSION THE
NATIONAL LABOR RELATIONS BOARD, WITH THE APPROVAL OF THE COURTS, HAS
FOUND SUCH DISCRIMINATION BY A UNION TO BE A VIOLATION OF SECTION
8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT. IBEW, LOCAL UNION NO.
34, AFL-CIO, 208 NLRB 638; LOCAL 138 OPERATING ENGINEERS (CHARLES
SKURA), 148 NLRB 679, CITED WITH APPROVAL IN NLRB V. INTERNATIONAL UNION
MARINE & SHIPBUILDING WORKERS OF AMERICA, 391 U.S. 418. IN REACHING THE
ABOVE CONCLUSION THE NATIONAL LABOR RELATIONS BOARD, CITING
INTERNATIONAL LADIES GARMENT WORKERS' UNION, AFL-CIO V. NLRB AND
BERNHARD ALTMAN TEXAS CORP., 366 U.S. 731, 738 FOUND THAT CONGRESS
CLEARLY INTENDED TO IMPOSE UPON UNIONS THE SAME RESTRICTIONS WHICH WERE
IMPOSED UPON EMPLOYERS REGARDING EMPLOYEES RIGHTS.
WITH RESPECT TO (3) ABOVE, THE PROVISO CONTAINED IN SECTION
7116(B)(8)(C) WITH RESPECT TO INTERNAL UNION AFFAIRS IS SIMILAR TO THAT
CONTAINED IN SECTION 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT.
THE NATIONAL LABOR RELATIONS BOARD, WITH COURT APPROVAL, HAS CONCLUDED
THAT WHILE SECTION 8(B)(1)(A) ASSURES A UNION FREEDOM OF SELF REGULATION
WHERE LEGITIMATE INTERNAL AFFAIRS ARE CONCERNED, SUCH FREEDOM OF
REGULATION DOES NOT EXTEND TO, OR ENCOMPASS, THE IMPOSITION OF PENALTIES
FOR UTILIZING OR PARTICIPATING IN THE PROCESSES OF THE NATIONAL LABOR
RELATIONS BOARD. NLRB V. INTERNATIONAL UNION MARINE & SHIPBUILDING
WORKERS OF AMERICA, SUPRA. ACCORDINGLY, CONTRARY TO THE POSITION OF
RESPONDENT, I FIND THAT UNDER ALL THE CIRCUMSTANCES PRESENT HEREIN, THE
REMOVAL OF A UNION STEWARD FOR UTILIZING OR PARTICIPATING IN THE
AUTHORITY'S PROCESSES IS COGNIZABLE UNDER SECTION 7116(B) OF THE
STATUTE. CF. SHEET METAL WORKER'S INTERNATIONAL ASSOCIATION, 246 NLRB
NO. 50.
FINALLY, WITH RESPECT TO RESPONDENT'S LAST PROCEDURAL ARGUMENT, I
FIND, CONTRARY TO THE CONTENTION OF RESPONDENT, THAT THE AUTHORITY DOES
HAVE JURISDICTION, DESPITE THE FACT THAT MR. MODIN'S TESTIMONY WAS GIVEN
IN A HEARING ALLEGING VIOLATIONS OF EXECUTIVE ORDER 11491, AS AMENDED,
AND NOT THE STATUTE. THUS, IT IS NOTED THAT ON JANUARY 11, 1979, THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE BECAME EFFECTIVE AND
THE FEDERAL LABOR RELATIONS AUTHORITY ASSUMED THE DUTIES AND
RESPONSIBILITIES OF THE ASSISTANT SECRETARY OF LABOR. THEREAFTER ALL
HEARINGS WERE CONDUCTED UNDER THE AUSPICES OF THE AUTHORITY AND THE
AUTHORITY BECAME RESPONSIBLE FOR ASSURING THE INTEGRITY OF ITS
PROCESSES. ACCORDINGLY, INASMUCH AS THE JANUARY 18, 1979 HEARING
ALLEGING VIOLATIONS OF THE EXECUTIVE ORDER WAS SANCTIONED BY THE
AUTHORITY PURSUANT TO THE POWERS GRANTED IT BY THE STATUTE, THE HEARING
OF JANUARY 18, 1979, FALLS WITHIN THE PROTECTION OF THE STATUTE.
IN VIEW OF THE ABOVE CONCLUSIONS AND BASED PRIMARILY ON THE ADMISSION
OF MR. BRAVERMAN THAT MR. MODIN'S TESTIMONY AT THE JANUARY 18, 1979,
HEARING ENTERED INTO HIS DECISION TO REPLACE MR. MODIN AS UNION STEWARD,
I FIND THAT RESPONDENT VIOLATED SECTION 7116(B)(1) OF THE STATUTE. THE
FACT THAT MR. BRAVERMAN MAY HAVE HAD OTHER LEGITIMATE GROUNDS FOR
REMOVING MR. MODIN AND HAD INDEED ATTEMPTED TO SECURE A REPLACEMENT IN
THE PAST DOES NOT ALTER THIS CONCLUSION. IT WAS ONLY AFTER MR. MODIN
TESTIFIED THAT MR. BRAVERMAN DECIDED TO REMOVE HIM FROM THE POSITION OF
UNION STEWARD, DESPITE THE ABSENCE OF A SUITABLE REPLACEMENT.
ACCORDINGLY, IT IS CONCLUDED THAT BUT FOR MR. MODIN'S TESTIMONY HE WOULD
NOT HAVE BEEN REMOVED FROM HIS POSITION OF UNION STEWARD ON MARCH 21,
1979.
FURTHER, CONTRARY TO THE CONTENTION OF THE GENERAL COUNSEL, I FIND
THAT MR. BRAVERMAN'S ACTION IN THE ABOVE RESPECT DID NOT CONSTITUTE A
VIOLATION OF SECTION 7116(B)(3). SECTION 7116 (B)(3) PROHIBITS COERCION
OR ANY OTHER DISCIPLINE BY A UNION DESIGNED TO HINDER OR IMPEDE AN
EMPLOYEE'S WORK PERFORMANCE. INASMUCH AS THE REMOVAL OF MR. MODIN FROM
THE POSITION OF UNION STEWARD WAS UNRELATED TO, AND NOT DESIGNED TO
INTERFERE WITH, MR. MODIN'S WORK PERFORMANCE, INSUFFICIENT BASIS EXISTS
FOR A SECTION 7116(B)(3) FINDING.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(B)(1) OF THE
STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE FINAL RULES AND
REGULATIONS, IT IS HEREBY ORDERED THAT THE NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53 SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING, RESTRAINING OR COERCING ITS MEMBERS IN THE EXERCISE
OF THEIR RIGHTS GUARANTEED IN THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE BY REMOVING A MEMBER FROM THE POSITION OF UNION
STEWARD BECAUSE HE GAVE TESTIMONY IN A HEARING CONDUCTED UNDER THE
AUSPICES OF THE FEDERAL LABOR RELATIONS AUTHORITY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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 CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) REINSTATE MR. HERMAN MODIN TO HIS POSITION OF UNION SHOP STEWARD,
BROOKLYN DISTRICT OFFICE.
(B) POST AT THE BUSINESS OFFICE OF NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 53, AND IN NORMAL MEETING PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO MEMBERS OF THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53,
ARE CUSTOMARILY POSTED, 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 PRESIDENT OF NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 53, AND SHALL BE POSTED FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
MEMBERS ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(C) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE INTERNAL REVENUE
SERVICE FOR POSTING IN CONSPICUOUS PLACES WHERE MEMBERS OF CHAPTER 53,
NTEU, ARE LOCATED, WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(D) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS
FROM THE DATE OF HIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY
HEREWITH.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: JULY 15, 1980
WASHINGTON, D.C.
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 MEMBERS THAT:
WE WILL NOT INTERFERE, RESTRAIN OR COERCE OUR MEMBERS IN THE EXERCISE
OF THEIR RIGHTS ASSURED IN THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE BY REMOVING A MEMBER FROM THE POSITION OF UNION
STEWARD BECAUSE HE GAVE TESTIMONY IN A HEARING CONDUCTED UNDER THE
AUSPICES OF THE FEDERAL LABOR RELATIONS AUTHORITY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE, RESTRAIN OR
COERCE OUR MEMBERS IN THE EXERCISE OF THE RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL REINSTATE MR. HERMAN MODIN TO HIS POSITION OF UNION SHOP
STEWARD, BROOKLYN DISTRICT OFFICE.
(UNION)
DATED: BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OF COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: ROOM
241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007 AND WHOSE TELEPHONE
NUMBER IS (212) 264-4934.
--------------- FOOTNOTES: ---------------
/1/ MR. BRAVERMAN ACKNOWLEDGED THAT IN HIS PRE-HEARING AFFIDAVIT
SUBMITTED TO THE GENERAL COUNSEL HE DID NOT USE THE WORD "FRAUDULENT"
WHEN DISCUSSING THE REASONS FOR HIS REMOVAL OF MR. MODIN. THUS, IN HIS
AFFIDAVIT, MR. BRAVERMAN SET FORTH AS THE GROUNDS FOR MR. MODIN'S
REMOVAL, MR. MODIN'S PAST PERFORMANCE AND TESTIMONY IN THE PRIOR UNFAIR
LABOR PRACTICE PROCEEDING.
/2/ IN VIEW OF MR. BRAVERMAN'S ADMISSION THAT MR. MODIN'S TESTIMONY
DID IN FACT PLAY A PART IN HIS DECISION TO REMOVE MR. MODIN FROM HIS
POSITION AS UNION STEWARD, I DEEM IT UNNECESSARY TO RESOLVE THE CONFLICT
IN TESTIMONY OF MR. HORN AND MR. FERRIS.