Department of Housing and Urban Development, San Francisco Area Office, San Francisco, California (Respondent) and National Federation of Federal Employees, Local 1450 (Charging Party) 

 



[ 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 COD