United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois (Respondent) and National Treasury Employees Union and National Treasury Employees Union Chapter 94 (Labor Organization) 



[ v03 p724 ]
03:0724(116)CA
The decision of the Authority follows:


 3 FLRA No. 116
 
 UNITED STATES DEPARTMENT OF TREASURY
 BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
 CHICAGO, ILLINOIS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION AND
 NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 94
 Labor Organization
 
                                            Case No. 5-CA-152
 
                            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 AN UNFAIR LABOR PRACTICE AS 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.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 45 FED. REG. 3511(1980), AND SECTION 7118 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SECTION 7101 ET
 SEQ.), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW
 JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICAL 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 SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTIONS 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE UNITED STATES DEPARTMENT OF THE
 TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR
 OTHERWISE, BARBARA J. JACOBS, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
 RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
 THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) POST AT ITS FACILITIES IN CHICAGO, ILLINOIS, 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
 SUPERVISOR, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS,
 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 SUPERVISOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID 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 REGION 5, ROOM 1638,
 DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS,
 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 24, 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, OR DISCOURAGE, BY IMPLIED THREATS, OR
 OTHERWISE, BARBARA J. JACOBS, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
 RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
 UNDER THE STATUTE.
 
                           (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 ANY 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,
 REGION 5, WHOSE ADDRESS IS:  ROOM 1638 DIRKSEN FEDERAL BUILDING, 219
 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS 60604, AND WHOSE TELEPHONE
 NUMBER IS:  (312) 353-6746.
 
    JOHN A. CHEVRIER, ESQUIRE
 
    PHYLLIS POLLACK, ESQUIRE
 
    OFFICE OF THE CHIEF COUNSEL
 
    BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
 
    FEDERAL BUILDING
 
    WASHINGTON, D.C. 20226
 
                            FOR THE RESPONDENT
 
    BRENDA M. ROBINSON, ESQUIRE
 
    REGIONAL ATTORNEY
 
    GREGORY A. MIKSA, ESQUIRE
 
    ATTORNEY
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    ROOM 1638
 
    219 S. DEARBORN STREET
 
    CHICAGO, ILLINOIS 60604
 
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
 SECTION 7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS ISSUED
 THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER
 XIV, PART 2411, ET SEQ.
 
    THE CHARGE WAS FILED ON JUNE 27, 1979, AND A COMPLAINT, ALLEGING A
 VIOLATION OF 5 U.S.C. SECTION 7116(A)(1) OF THE ACT /1/ AND A NOTICE OF
 HEARING WERE ISSUED BY THE REGIONAL DIRECTOR ON AUGUST 21, 1979,
 PURSUANT TO WHICH A HEARING WAS DULY HELD ON OCTOBER 4, 1979, IN
 CHICAGO, ILLINOIS, BEFORE THE UNDERSIGNED.
 
    PARAGRAPH IV OF THE COMPLAINT ASSERTED THAT ON, OR ABOUT, JUNE 6,
 1979, RESPONDENT, BY A SUPERVISOR AND AGENT, WARNED A BARGAINING UNIT
 EMPLOYEE THAT HER CAREER WITH RESPONDENT WOULD NOT GO MUCH FARTHER
 BECAUSE OF HER FILING GRIEVANCES, WHICH CONDUCT VIOLATED SECTION
 16(A)(1) OF THE STATUTE.  PARAGRAPH V OF THE COMPLAINT REASSERTED THAT
 BY THE ACTS DESCRIBED IN PARAGRAPH IV RESPONDENT DID ENGAGE IN, AND IS
 ENGAGING IN, UNFAIR LABOR PRACTICES IN VIOLATION OF SECTION 16(A)(1) OF
 THE STATUTE. RESPONDENT FILED A TIMELY ANSWER ON SEPTEMBER 6, 1979,
 ADMITTING ALL ALLEGATIONS CONTAINED IN PARAGRAPHS I, II AND III OF THE
 COMPLAINT BUT DENYING THE ALLEGATIONS SET FORTH IN PARAGRAPHS IV AND V
 OF THE COMPLAINT.
 
                                 FINDINGS
 
    THERE IS LITTLE DISAGREEMENT AS TO THE FACTS. BARBARA J. JACOBS IS,
 AND HAD BEEN FOR OVER THREE YEARS, EMPLOYED BY RESPONDENT AS AN
 INSPECTOR.  SHE IS A MEMBER OF THE BARGAINING UNIT REPRESENTED BY THE
 NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER, ALSO REFERRED TO AS
 "NTEU").  AS AN INSPECTOR, MS. JACOBS WORKS ABOUT HALF THE TIME UNDER
 THE SUPERVISION OF MR. ROBERT E. ROGOWSKI, AREA SUPERVISOR;  AND ABOUT
 HALF THE TIME UNDER THE SUPERVISION OF MR.  ARTHUR J. JEHLI,
 OFFICER-IN-CHARGE OF DISTILLED SPIRITS PLANT.  MR. JEHLI IS ALSO UNDER
 THE SUPERVISION OF THE AREA SUPERVISOR, MR. ROGOWSKI.
 
    MS. JACOBS RESPONDED TO A VACANCY NOTICE ANNOUNCING THE POSITION OF
 MANAGEMENT ANALYST SOMETIME PRIOR TO MAY 8, 1979 (THE DATE OF HER
 RESPONSE WAS NOT SHOWN AND IS NOT MATERIAL) AND ON MAY 8, 1979, MS.
 JACOBS RECEIVED A PERFORMANCE (PROMOTION) EVALUATION, FOR THE ANALYST
 JOB FOR WHICH SHE HAD APPLIED, WHICH HAD BEEN PREPARED BY MR. ROGOWSKI.
 MS. JACOBS WAS DISSATISFIED WITH THE EVALUATION AND MET WITH MR.
 ROGOWSKI THE FOLLOWING DAY, MAY 9, 1979, AND DISCUSSED THE EVALUATION.
 REMAINING DISSATISFIED, ON MAY 21, 1979, MS. JACOBS PREPARED A
 MEMORANDUM AUTHORIZING MR. ROBERT N. FORGERON, NTEU STEWARD, AS HER
 REPRESENTATIVE AND AUTHORIZING MR. FORGERON TO HAVE ACCESS "TO ANY
 WRITTEN DOCUMENTS THAT MAY HAVE A BEARING ON MY GRIEVANCE." (G.C. EXH.
 2).  MS. JACOBS AND MR. FORGERON MET WITH MR.  ROGOWSKI ON MAY 21, 1979,
 AT WHICH TIME THE MEMORANDUM (G.C. EXH. 2) WAS SUBMITTED TO MR.
 ROGOWSKI, THE PROBLEMS MS. JACOBS HAD WITH THE EVALUATION WERE DISCUSSED
 POINT BY POINT, AND MR. ROGOWSKI WAS INFORMED THAT THE EVALUATION
 VIOLATED ARTICLE 8, SECTION 1, AND ARTICLE 9, SECTIONS 4C AND 4D OF
 NTEU'S AGREEMENT WITH RESPONDENT, DATED SEPTEMBER 19, 1977.  THE MEETING
 OF MAY 21 WAS CONTINUED THE FOLLOWING MORNING, MAY 22.  MS. JACOBS
 TESTIFIED THAT, IN THE COURSE OF THE MAY 21-22 MEETING, MR. ROGOWSKI
 AGREED TO GET INFORMATION SHE HAS REQUESTED TO SUPPORT THE EVALUATION,
 BASICALLY INFORMATION CONCERNING ASSIGNMENTS ON WHICH MS. JACOBS HAD
 WORKED, AND THAT THERE WAS SOME MENTION OF CHANGING SOME ASPECT OF THE
 EVALUATION.  NOT HAVING RECEIVED ANY RESPONSE, ON JUNE 1, 1979, MS.
 JACOBS SUBMITTED A MEMORANDUM TO M#R. ROGOWSKI, "SUBJECT:  INFORMAL
 GRIEVANCE" IN WHICH SHE REQUESTED THAT "THE RESPONSE TO THE INFORMAL
 GRIEVANCE, OUTLINED BELOW, AND DISCUSSED WITH YOU ON 5/21 AND 5/22/79,
 BE SUBMITTED IN WRITING." (G.C. EXH. 3).  THE JUNE 1, 1979, MEMORANDUM
 ALSO OUTLINED THE RELIEF REQUESTED AND CITED ARTICLE 8, SECTION 1 AND
 ARTICLE 9, SECTIONS 4C AND 4D OF THE NTEU AGREEMENT.  MR. ROGOWSKI
 TESTIFIED THAT HE HAD INFORMED MS. JACOBS BOTH ON MAY 9 AND AT THE MAY
 21-22 MEETING THAT HE COULDN'T MAKE ANY CHANGES IN THE EVALUATION
 ITSELF;  BUT "DID INDICATE THAT SHOULD SHE APPLY FOR ANOTHER POSITION IN
 THE FUTURE, I WOULD PREPARE A NEW EVALUATION." MR. ROGOWSKI ALSO
 TESTIFIED THAT HE DID NOT CONSIDER THE MEETING OF MAY 21-22 TO BE THE
 SECOND STEP IN THE GRIEVANCE PROCEDURES, BUT, RATHER "JUST A DISCUSSION
 OF HER PERFORMANCE EVALUATION." (TR. 49). OTHERWISE, MR. ROGOWSKI DID
 NOT DISPUTE, OR DISAGREE, WITH MS. JACOB'S TESTIMONY CONCERNING THE
 MEETINGS OF MAY 9, 21 AND 22.
 
    ON JUNE 7, 1979, IN RESPONSE TO MS. JACOBS' MEMORANDUM ON JUNE 1,
 1979, MR. ROGOWSKI STATED:
 
    ". . . I FIND THAT I CANNOT CONSIDER YOUR GRIEVANCE BECAUSE IT WAS
 NOT TIMELY FILED IN
 
    ACCORDANCE WITH ARTICLE 34, SECTION 7 OF THE 'AGREEMENT BETWEEN BATF
 AND NTEU', DATED
 
    SEPTEMBER 19, 1977." (G.C. EXH. 4).
 
    ON JUNE 7, 1979, MS. JACOBS DELIVERED A LETTER TO MR. JOHN K.
 HAUSCHILDT, CHIEF OF FIELD OPERATIONS FOR THE MIDWEST REGION, TOGETHER
 WITH A DETAILED "DESCRIPTION OF GRIEVANCES:  PERFORMANCE EVALUATION (ATF
 F 2430.1)" (G.C. EXH. 6);  AND BY LETTER DATED JUNE 14, 1979,
 MR.HAUSCHILDT STATED:
 
    "YOUR GRIEVANCE OF YOUR PERFORMANCE EVALUATION WAS DENIED BECAUSE IT
 WAS NOT TIMELY FILED
 
    . . . FOR THIS REASON, I CANNOT CONSIDER YOUR GRIEVANCE OR GRANT THE
 REMEDIES YOU
 
    REQUEST." (G.C. EXH. 5).  /2/
 
    THE VIOLATION CHARGED IN THE COMPLAINT CONCERNS THE STATEMENTS MADE
 BY MR. JEHLI TO MS. JACOBS ON JUNE 6, 1979.  MS. JACOBS TESTIFIED THAT
 MR. JEHLI, AFTER DISCUSSING OTHER MATTERS, SAID THAT HE WOULD LIKE TO
 DISCUSS SOMETHING WITH HER "OFF THE RECORD" AND THEN, INTER ALIA, STATED
 THAT HE RECOMMENDED THAT SHE "DROP THE WHOLE THING" BY WHICH, HE STATED,
 HE MEANT HER GRIEVANCE;  THAT SHE COULD PROCEED WITH THE GRIEVANCE, AS
 SHE WAS DOING, BUT, ALTHOUGH MR.  ROGOWSKI WOULD CHANGE THE EVALUATION,
 SHE WOULD NOT REALLY GAIN ANYTHING IN THE LONG RUN;  AND THAT MR. JEHLI
 FURTHER STATES THAT "SHOULD I ACQUIRE A REPUTATION AS A 'BITCHER' OR A
 COMPLAINER, THAT MY CAREER REALLY WOULDN'T GO MUCH FURTHER." (TR. 23,
 24-25;  SEE, ALSO, TR. 34, 35). MR. JEHLI DID NOT DENY, OR DISPUTE, THAT
 HE MADE THE "BITCHER" OR "COMPLAINER" REMARK AND, WHILE HE TESTIFIED
 THAT HE DID NOT RECALL USING THE WORD "DROP", READILY ADMITTED THAT HE
 TOLD MS. JACOBS THAT HE "DIDN'T THINK THE PURSUANCE OF THIS THING TO GET
 AN EVALUATION CHANGED WAS WORTH ALL THE TROUBLE SHE WAS GOING THROUGH"
 AND THAT HE "COULDN'T SEE HOW SHE COULD BENEFIT EVEN IF SHE HAD SOME OF
 THE WORDING CHANGED" (TR. 42).  I FOUND MS. JACOBS TO BE A WHOLLY
 CREDIBLE WITNESS;  HER TESTIMONY, IN ALL SIGNIFICANT RESPECTS, WAS
 EITHER ENTIRELY UNCHALLENGED OR WAS FULLY CONFIRMED BY THE TESTIMONY OF
 MR.  JEHLI;  AND, ACCORDINGLY, I CREDIT HER TESTIMONY AND FIND THAT MR.
 JEHLI DID RECOMMEND THAT SHE DROP HER GRIEVANCE;  THAT IF SHE PROCEEDED
 WITH THE GRIEVANCE AND SUCCEEDED IN HAVING THE EVALUATION CHANGED SHE
 WOULD NOT REALLY GAIN ANYTHING IN THE LONG RUN;  AND THAT MR. JEHLI
 STATED THAT SHOULD SHE ACQUIRE A REPUTATION AS A "BITCHER" OR A
 "COMPLAINER" HER CAREER REALLY WOULDN'T GO MUCH FURTHER.
 
                                CONCLUSIONS
 
    IT IS ELEMENTAL THAT PROTECTED ACTIVITY FLOWING FROM EXCLUSIVE
 REPRESENTATION BY A LABOR ORGANIZATION INCLUDES THE PROCESSING OF
 GRIEVANCES.  IN ONE OF THE EARLY CASES DECIDED UNDER EXECUTIVE ORDER
 11491 IT WAS HELD THAT ANY INTERFERENCE WITH THE RIGHT TO FILE
 GRIEVANCES TENDED TO DISCOURAGE EXERCISE OF THE FREEDOM OF EMPLOYEES TO
 FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, RIGHTS WHICH WERE GUARANTEED
 BY SECTION 1(A) OF EXECUTIVE ORDER 11491.  DEPARTMENT OF DEFENSE,
 ARKANSAS NATIONAL GUARD, A/SLMR NO. 53, 1 A/SLMR 274 (1971) (AGENCY
 GRIEVANCE PROCEDURE), SEE, ALSO, UNITED STATES ARMY SCHOOL/TRAINING
 CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO. 42, 1 A/SLMR 225(1971)
 (IMPLICITLY PROMISING GRIEVANT MORE FAVORABLE AND EXPEDITIOUS ACTION BY
 DIRECT DISCUSSIONS WITH MANAGEMENT).  IN NATIONAL LAW JUDGE, NOVEMBER 2,
 1979).  SECTION 2 OF THE STATUTE, AS HAD SECTION 1(A) OF THE EXECUTIVE
 ORDER, ASSURES THAT "EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN,
 OR ASSIST ANY LABOR ORGANIZATION . . . FREELY AND WITHOUT FEAR OF
 PENALTY OF REPRISAL, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE
 EXERCISE OF SUCH RIGHT . . . ." (5 U.S.C. SECTION 7102).  THERE CAN BE
 NO QUESTION THAT THE RIGHT TO FILE AND PROCESS GRIEVANCES UNDER A
 NEGOTIATED GRIEVANCE PROCEDURE FALLS WITHIN THE AMBIT OF SECTION 2 OF
 THE STATUTE.  AS NOTED, SECTION 1(A) OF THE EXECUTIVE ORDER ASSURED SUCH
 RIGHT AND SECTION 2 OF THE STATUTE ASSURES PRECISELY THE SAME RIGHT,
 "FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL" TO "FORM, JOIN, OR
 ASSIST ANY LABOR ORGANIZATION" AND THAT "EACH EMPLOYEE SHALL BE
 PROTECTED IN THE EXERCISE OF SUCH RIGHT".
 
    ACCORDINGLY, SUPERVISOR JEHLI'S STATEMENT TO MS. JACOBS THAT HE
 RECOMMENDED THAT SHE "DROP", OR NOT PROCEED WITH, HER GRIEVANCE;  AND
 THAT, EVEN IF SHE SUCCEEDED IN HAVING THE EVALUATION CHANGED, SHE WOULD
 NOT REALLY GAIN ANYTHING IN THE LONG RUN, WAS, ALONE, A COERCIVE OR
 INTIMIDATING STATEMENT BY AGENCY MANAGEMENT IMPLYING ADVERSE
 CONSEQUENCES "IN THE LONG RUN" IF SHE DID NOT DO SO;  AND WHEN COUPLED
 WITH THE FURTHER COMMENT THAT, SHOULD THE GRIEVANT ACQUIRES A REPUTATION
 AS A "BITCHER" OR A "COMPLAINER", HER CAREER "WOULDN'T GO MUCH FURTHER"
 WAS A FURTHER DIRECT, IMPLIED THREAT, IF NOT A LIGHTLY VEILED PROMISE,
 THAT THE CAREER OF ANY EMPLOYEE WHO PROCESSED GRIEVANCES, OR COMPLAINTS,
 WOULD SUFFER.  ANY INTERFERENCE WITH THE RIGHT OF AN EMPLOYEE TO FILE
 AND PROCESS GRIEVANCES UNDER A NEGOTIATED AGREEMENT, BY ANY IMPLIED
 THREATS OF ADVERSE CONSEQUENCES, IS INHERENTLY DESTRUCTIVE OF THE RIGHT
 OF EACH EMPLOYEE, ASSURED BY SECTION 2 OF THE STATUTE, "TO FORM, JOIN,
 OR ASSIST ANY LABOR ORGANIZATION . . . FREELY AND WITHOUT FEAR OF
 PENALTY OR REPRISAL . .  . ", AND VIOLATES SECTION 16(A)(1) OF THE
 STATUTE.  /3/
 
    RESPONDENT'S CONTENTIONS HAVE BEEN CAREFULLY CONSIDERED AND HAVE BEEN
 FOUND WHOLLY LACKING IN MERIT. THUS, FOR EXAMPLE, RESPONDENT CONTENDS
 THAT, BECAUSE THE EVALUATION WAS FOR A JOB OUTSIDE THE BARGAINING UNIT,
 IT WAS NOT GRIEVABLE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE,
 NOTWITHSTANDING THAT RESPONDENT DENIED THE GRIEVANCE BECAUSE IT WAS NOT
 TIMELY FILED IN ACCORDANCE WITH ARTICLE 34, SECTION 7 OF THE AGREEMENT
 (C.G. EXH. 4) WHICH WAS, IN EFFECT, THEREAFTER AFFIRMED (G.C. EXH 6).
 SUCH CONTENTION BEGS THE QUESTION AND IGNORES THE RIGHTS ASSURED BY
 SECTION 2 OF THE STATUTE, WHICH INCLUDES THE RIGHT OF EVERY EMPLOYEE,
 FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FILE AND TO PROCESS
 GRIEVANCES UNDER A NEGOTIATED AGREEMENT.  ASSUREDLY, THE RIGHT TO FILE
 AND PROCESS GRIEVANCES, ASSURED BY SECTION 2 OF THE STATUTE, IS NOT
 CONDITIONED ON, OR LIMITED TO, GRIEVANCES IN WHICH THE GRIEVANT
 PREVAILS.  WHETHER THE EVALUATION WAS GRIEVABLE, IN FACT, UNDER THE
 NEGOTIATED PROCEDURE IS BESIDE THE POINT.  EVEN IF WRONG, MS. JACOBS HAD
 THE ABSOLUTE RIGHT OF FREE ACCESS TO THE GRIEVANCE PROCEDURE TO PRESENT
 HER CONTENTION.  IT IS IMMATERIAL WHETHER MR. JEHLI "KNEW" MS. JACOBS
 HAD A "GRIEVANCE" SINCE HE CONCEDED THAT HE KNEW "BY TALKING TO MR.
 ROGOWSKI-- THAT SHE HAD A COMPLAINT OR JUST SOME DISSATISFACTION WITH AN
 EVALUATION REPORT . . . AND THAT SHE WAS DISCUSSING THIS WITH MR.
 ROGOWSKI" (TR. 40).  SECTION 3(A)(9) OF THE STATUTE PROVIDES, IN PART,
 THAT:
 
    "(9) 'GRIEVANCE' MEANS ANY COMPLAINT--
 
    (A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
 OF THE EMPLOYEE;"
 
    CHARACTERIZATION OF THE MATTER AS A "COMPLAINT", ITSELF, UNDER
 SECTION 3(A)(9) ALSO MEANS "GRIEVANCE". IN ANY EVENT, MR. ROGOWSKI'S
 KNOWLEGE IS IMPUTED TO MR.  JEHLI AND THE RECORD SHOWS, BEYOND ANY
 POSSIBLE DOUBT, THAT MR. ROGOWSKI WAS FULLY ADVISED THAT MS. JACOBS WAS
 ASSERTING A GRIEVANCE UNDER THE NTEU AGREEMENT, SHOWN, INTER ALIA, BY
 DESIGNATION OF REPRESENTATIVE (G.C. EXH. 2), THE DISCUSSIONS OF MAY 21
 AND 22, THE WRITTEN GRIEVANCE OF JUNE 1, 1979 (G.C. EXH. 3), AND BY MR.
 ROGOWSKI'S DISMISSAL OF THE GRIEVANCE AS NOT TIMELY FILED (G.C. EXH. 4).
 
    FINALLY, IT IS IMMATERIAL AS TO WHETHER MR. JEHLI'S STATEMENT TO MS.
 JACOBS DID, OR DID NOT, HAVE A CHILLING EFFECT ON OTHER EMPLOYEES
 INSOFAR AS THE VIOLATION AS TO MS. JACOBS IS CONCERNED.  SECTION 2 OF
 THE STATUTE PROTECTS THE RIGHTS OF EACH EMPLOYEE, MANDATES THAT EACH
 EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHTS, AND SECTION
 16(A)(1) MAKES IT 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 THIS CHAPTER". CONSEQUENTLY, THE STATEMENT TO MS.
 JACOBS, WHICH I HAVE FOUND DISCOURAGED OR INTERFERED WITH HER RIGHT,
 FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FILE AND PROCESS A
 GRIEVANCE UNDER THE AGREEMENT, CONSTITUTED, WITHOUT MORE, A VIOLATION OF
 SECTION 16(A)(1) OF THE STATUTE.  MOREOVER, MR. JEHLI'S STATEMENT TO MS.
 JACOBS, EVEN IF NOT OVERHEARD, WAS SO PHRASED THAT IT IMPLIED THAT THE
 CAREER OF ANY EMPLOYEE WHO COMPLAINED OF MANAGEMENT ACTION BY
 PROCESSING
 GRIEVANCES WOULD SUFFER, WHICH I DEEM SUFFICIENT BASIS TO WARRANT A
 BROAD REMEDIAL ORDER.
 
                                   ORDER
 
    PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. SECTION
 7118(1)(7), AND SECTION 2423.25 OF THE INTERIM RULES AND REGULATIONS,
 FED. REG., VOL. 44, NO. 147, JULY 30, 1979 (5 C.F.R. SECTION 2423.25),
 THE AUTHORITY HEREBY ORDERS THAT UNITED STATES DEPARTMENT OF TREASURY,
 BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR
 OTHERWISE, BARBARA J. JACOBS, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
 RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
 THE STATUE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) POST AT ITS FACILITIES IN CHICAGO, ILLINOIS, 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
 SUPERVISOR, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS,
 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 SUPERVISOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES
 ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 2423.29 OF THE INTERIM RULES AND REGULATIONS,
 NOTIFY THE REGIONAL DIRECTOR OF REGION 5, ROOM 1638, DIRKSEN FEDERAL
 BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS, IN WRITING,
 WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN
 TAKEN TO COMPLY HEREWITH.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  DECEMBER 20, 1979
 
    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 THE THE FEDERAL SERVICE
 
                    LABOR-MANAGEMENT RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS, OR
 OTHERWISE, BARBARA J. JACOBS, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
 RIGHT TO FILE AND PROCESS GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
 UNDER THE STATUTE.
 
                           (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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 5, WHO
 ADDRESS IS:  ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN
 STREET, CHICAGO, ILLINOIS 60604.
 
                               SERVICE SHEET
 
    "DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE WILLIAM B.
 DEVANEY WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
 
                             BY:  (SIGNATURE)
 
    JOHN A. CHEVRIER, ESQUIRE
 
    PHYLLIS POLLACK, ESQUIRE
 
    OFFICE OF THE CHIEF COUNSEL
 
    BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
 
    FEDERAL BUILDING
 
    WASHINGTON, D.C.  20226
 
    BRENDA M. ROBINSON, ESQUIRE
 
    REGIONAL ATTORNEY
 
    GREGORY A. MIKSA,