10:0422(72)CA - Consumer Product Safety Commission, NY and AFGE Local 3477 -- 1982 FLRAdec CA

[ v10 p422 ]
The decision of the Authority follows:

 10 FLRA No. 72
 Charging Party
                                            Case No. 2-CA-294
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair Labor Practices and recommending that it cease and desist
 therefrom and take certain affirmative actions.  The Judge further found
 that the Respondent had not engaged in certain other alleged unfair
 labor practices and recommended dismissal of the complaint with respect
 to them.  The General Counsel filed exceptions to the portion of the
 Judge's Decision discussed below.
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommendations.
    The complaint alleged that the Respondent violated section 7116(a)(1)
 of the Statute by its actions in issuing to employee (and also Union
 President) Louis L. Abramsky two communications which the General
 Counsel contends were threatening in nature and interfered with rights
 guaranteed under the Statute.  The first of the two ("the Moore memo")
 ostensibly was a demand by Respondent's Director, Division of Personnel
 Management, Roland H. Moore, that Abramsky adhere to the terms of an
 agreement between Abramsky and the Respondent reached in January 1979 in
 settlement of a dispute relating to the withholding of a within-grade
 increase from Abramsky and a disciplinary action taken against him.
 Essentially, Abramsky had agreed to withdraw several pending actions and
 to institute no further actions on the letters involved in the dispute.
 Moore's memo, dated September 7, 1979, demanded that Abramsky withdraw
 several actions, including an unfair labor practice charge, which
 allegedly amounted to reinstitution of the actions which Abramsky had
 agreed in January to withdraw.  Moore further indicated he would take
 "whatever legal steps are necessary to enforce the Agreement." The Judge
 found that Moore's memo, in essence, sought only to enforce a commitment
 made by Abramsky and did not otherwise attempt to proscribe his
 utilization of processes available under the Statute.  Accordingly, he
 concluded that the Respondent did not violate the Statute as a result of
 the Moore memo.
    The General Counsel contends, in its exceptions, that the Judge has
 mischaracterized the unfair labor practice charge which Moore demanded
 be withdrawn.  The General Counsel contends that the charge was not
 merely an attempt to revive the dispute which Abramsky had previously
 agreed to settle but, instead, challenged the validity of the settlement
 itself which Abramsky alleged had been obtained by coercive means.  As
 the General Counsel acknowledges this intended challenge to the
 settlement was not "readily apparent from the fact of the charge." /1A/
 Additionally, Abramsky had instituted several other actions which the
 Respondent viewed as an attempt to revive the dispute it believed had
 been settled.  Noting particularly that the memo is limited to a demand
 that Abramsky abide by the terms of the January agreement and makes no
 mention of precluding any challenge to the validity of that agreement
 and given the context, the Authority views the Moore memo as being
 non-coercive in nature.  Under these circumstances, and absent any
 evidence that the Respondent, through the Moore memo, sought to
 accomplish anything other than enforcement of the January 1979
 settlement agreement, the Authority finds, in agreement with the Judge,
 that the Respondent's actions with respect to the Moore memo did not
 violate the Statute.
    Further, noting particularly the absence of exceptions, the Authority
 additionally hereby adopts that part of the Judge's conclusion finding
 that Respondent by its letter of January 15, 1980, which in effect
 warned employees that they would be subject to discipline if they
 resorted to, or invoked procedures protected under the Federal Service
 Labor-Management Relations Statute, violated section 7116(a)(1) of the
 Statute.  See, e.g., United States Department of Treasury, Bureau of
 Alcohol, Tobacco, and Firearms, Chicago, Illinois, 3 FLRA 723 (1980) and
 Federal Election Commission, 6 FLRA No. 59 (1981).
    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 the Consumer Product Safety Commission, New York
    (1) Cease and desist from:
          (a) Warning employees that they will be subject to discipline
       if they resort to, or invoke, procedures protected under the
       Federal Service Labor-Management Relations Statute.
          (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
    (2) Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
          (a) Remove and expunge from its files any reference to the
       January 15, 1980 warning letter issued to Louis Abramsky and
       submit to Louis Abramsky a written acknowledgement of same.
          (b) Post at its facilities at the Consumer Product Safety
       Commission, New York, 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 of the
       Consumer Product Safety Commission, or his designee, and posted
       and maintained for 60 consecutive days thereafter, in conspicuous
       places, including all bulletin boards and other places where
       notices to employees are customarily posted.  The Director shall
       take reasonable steps to insure that such Notices are not altered,
       defaced, or covered by any other material.
          (c) Notify the Regional Director, Region II, Federal Labor
       Relations Authority, In writing, within 30 days from the date of
       this Order, as to what steps have been taken to comply herewith.
    IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
 violation as a consequence of issuance of the Moore memo, be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., October 29, 1982
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                          NOTICE TO ALL EMPLOYEES
    WE WILL NOT warn employees that they will be subject to discipline if
 they resort to, or invoke, procedures protected under the Federal
 Service Labor-Management Relations Statute.
    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.
    WE WILL remove and expunge from our files any reference to the
 January 15, 1980 warning letter issued to Louis Abramsky and submit to
 Louis Abramsky a written acknowledgment of same.
                                       (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
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director of the Federal Labor Relations Authority, Region II, whose
 address is:  26 Federal Plaza, Room 241, New York, New York 10278, and
 whose telephone number is:  (212) 264-4934.
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Ronald E. Deutsch, Esq.
    Gary Cheetam
          For the Respondent
    Allan W. Stadtmauer, Esq.
    Steven Sharfstein, Esq.
          For the General Counsel
    Louis Abramsky
          For the Charging Party
          Administrative Law Judge
                           Statement of the Case
    This is a proceeding which arose under the Federal Service
 Labor-Management Relations Statute (herein called the Act).  Pursuant to
 a Complaint and Notice of Hearing issued on May 30, 1980 by the Regional
 Director, Federal Labor Relations Authority, New York, N.Y., a hearing
 was held before the undersigned on October 7, 1980 at New York, N.Y.
    The Complaint herein was based on a second amended charge filed on
 May 22, 1980 by American Federation of Government Employees, Local 3477
 (herein called the Union) against Consumer Product Safety Commission
 (herein called the Respondent).  It alleged, in substance, that
 Respondent violated Section 7116(a)(1) of the Act by:  (a) issuing a
 memorandum on September 7, 1979 to employee Louis L. Abramsky
 threatening reprisal unless the employee withdrew an unfair labor
 practice charge;  (b) issuing a letter on January 15, 1980 to employee
 Louis L. Abramsky threatening him with disciplinary action if he
 challenged a proposed suspension by means other than specified channels.
    Respondent filed an answer to the complaint, dated June 11, 1980,
 wherein it denied the commission of any unfair labor practices.
    All parties were represented at the hearing.  They were afforded full
 opportunity to be heard, to adduce evidence and to examine as well as
 cross-examine witnesses.  Thereafter briefs /1/ were filed with the
 undersigned which have been duly considered.
    Upon the entire record in this case, from my observation of the
 witnesses, and their demeanor, and from all of the testimony and
 evidence adduced at the hearing, I make the following findings and
    1.  At all times material herein the Union has been, and still is,
 the collective bargaining representative of Respondent's professional
 and non-professional employees at its New York Area office.
    2.  In July, 1978 Respondent denied a within grade increase in salary
 to Louis L. Abramsky, an employee-investigator who is also president of
 the Union herein.
    3.  As a result of an incident between Abramsky and Gilbert Rodin,
 Respondent's Director of Operations, which occurred on September 18,
 1978, a three-day suspension was thereafter given to Abramsky.
    4.  Between July, 1978 and January 30, 1979 Abramsky filed several
 grievances and unfair labor practice charges pertaining to the
 aforementioned actions by Respondent directed against him.  In
 connection therewith he made a written request on November 28, 1978 for
 data under the Freedom of Information Act.
    5.  On January 30, 1979 Respondent and Abramsky /2/ executed a
 written agreement in an effort to resolve the pending disputes between
 them.  The Respondent, on its part, agreed to reduce the aforesaid
 suspension to a written reprimand, and to grant Abramsky a within grade
 increase no later than February 25, 1979.  Abramsky, on his part, agreed
 to withdraw, settle, or conclude (a) certain specified grievances
 therefore filed by him, (b) appeals regarding his denial of the
 within-grade increase, and (c) his requests under the Freedom of
 Information Act.  He also agreed not to file any administrative actions,
 including unfair labor practice charges arising out of the September 18,
 1978 incident and the withholding of his within-grade increase.
    6.  On February 7, 1979 Executive Director Michael A. Brown wrote
 Abramsky that, in accordance with the January 30 agreement, the three
 day suspension previously given the employee was reduced to a letter of
 reprimand.  The letter by Brown was, by its language, to serve as an
 official reprimand for Abramsky's discourteous conduct toward Supervisor
 Gilbert Rodin as well as for his failure to obey supervisory orders.
 Further, it was stated that the letter would remain in Abramsky's
 personnel file for one year.
    7.  On February 14, 1979 Respondent authorized in writing the
 within-grade increase to Abramsky, effective on February 25, 1979, as
 well as the cancellation of the three day suspension of the employee.
    8.  Subsequently, on July 19, 1979 Abramsky made a written request,
 under the Freedom of Information Act, for data used by Respondent in
 denying him a within-grade increase.  Management replied by letter dated
 August 2 wherein it informed Abramsky that he had agreed not to file any
 actions or suits arising out of the denial of his within-grade increase
 and the September 18, 1978 incident;  that the employee entered into a
 written agreement to that effect on January 30, 1978;  and that
 Respondent intended to enforce said agreement.
    9.  On August 7, 1979 Abramsky, as union president, filed an unfair
 labor practice charge (2-CA-98) against Respondent alleging a violation
 of Section 19(a)(2) and (4) of Executive Order 11491, as amended.  It
 was averred therein that on January 30, 1979 Buchanan informed Abramsky
 he would be given a within-grade increase plus three days back pay if he
 dropped a grievance, as well as all possible unfair labor practice
 charges stemming from an assault upon him;  that if he didn't drop the
 charges and grievances he would not receive such benefits.  /3/
    10.  Under date of September 7, 1979 Respondent's Director, Division
 of Personnel Management, Roland H. Moore sent a memorandum to Abramsky
 regarding his requests for information under the Privacy Act, which
 related to the reprimand given him and the withholding of his
 within-grade increase.  In this letter it was stated that Abramsky had
 agreed, under the January 30, 1979 agreement, not to pursue the
 within-grade increase and reprimand controversies;  that management in
 return agreed to reduce the suspension and authorize the increase.
 Further, the employer recited that Abramsky violated the said agreement
 by filing an appeal to the Merit System Protection Board based on
 withholding the increase, by filing an unfair labor practice charge
 regarding this matter, and by requesting information under the Privacy
 Act concerning this issue.  Respondent stated in the memo that it
 expected Abramsky to honor the agreement by withdrawing the
 aforementioned appeal, unfair labor practice charges, and requests under
 the Privacy Act;  that if he failed to do so, Respondent would take
 whatever legal steps were necessary to enforce the agreement.
    11.  Under date of January 15, 1980 Respondent's Director, Richard D.
 Swackhammer, wrote Abramsky that management proposed to suspend the
 employee without pay for 30 days.  The proposed suspension was, as
 stated, based upon (a)insubordination by Abramsky on October 26, 1979
 resulting from his failure to follow orders of his supervisor and
 initiate assigned inspection duties, (b) dishonesty and untruthfulness
 in regard to statements made by him on October 25, 1979.  The Director
 informed Abramsky of his right to file answer to the proposed
 suspension, and the employee was advised he could contact Daryl Stevens,
 Division of Personnel Management regarding any questions as to his
 procedural rights.
    The final statement in the aforesaid letter apprised Abramsky that he
 was expected to follow only those procedures as outlined and as set
 forth in 5 CFR 752.301.  Any deviation from said procedure, Swackhammer
 stated, would not be acceptable and might be grounds for further
 disciplinary action.
    The issue presented for determination is simply stated:  Whether the
 written communications from Respondent to Abramsky, on September 7, 1979
 and January 15, 1980 respectively, constituted a violation of Section
 7116(a)(1) of the Act.
    (a) In respect to the memorandum of September 7, 1979 (herein called
 the Moore memo), General Counsel contends that it constitutes a threat
 to invoke legal action if the individual did not withdraw his unfair
 labor practice charge of August 7, 1979.  As such, it is argued, the
 memo interferes with employee rights and violates Section 7116(a)(1) of
 the Act.
    In support of its contention General Counsel cited cases in both the
 private and public sectors wherein an employer was found to have engaged
 in interfered by acts which hindered the assertion of employee rights.
 Thus, in Mandel Security Bureau, Inc. 202 NLRB 117, an employer, who had
 engaged in protected concerted activity, was transferred by the employer
 to a different project.  Thereafter he filed an unfair labor practice
 charge with the National Labor Relations Board alleging that the
 transfer was discriminatory.  The employer offered to return the
 individual to his former site provided the employee would "cease his
 concerted activity, withdraw the charges . . . and refrain from future
 charges".  It was held that, by the imposition of such condition, the
 employer engaged in acts of interference in violation of the National
 Labor Relations Act.  Likewise in the public sector the employer was
 found to have violated Section 19(a)(1) of Executive Order 11491, as
 amended, by threatening to discipline an employees who invoke the
 grievance procedure improperly.  Department of the Navy, Puget Sound
 Naval Shipyard, Bremerton, Washington A/SLMR No. 582.
    Although the General Counsel advances a seemingly tenable argument in
 support of its position, I am persuaded that the cited cases are
 distinguishable from the one at hand.  In the Mandel case, supra, the
 conditions imposed by the employer involved not only a cessation by the
 employer of protected concerted activity and the withdrawal of charges,
 but also a commitment by the employee not to file any future charges.
 The Moore memo, by its language, was concerned with the charge filed the
 previous month.  It dealt solely with the commitment by Abramsky to
 abide by the agreement made with management on January 15, 1979, viz.
 the employer to grant the within-grade increase and reduce a
 disciplinary action in return for the individual's promise not to file a
 charge with respect to those matters.  The memo does not purport to
 outlaw the filing of any unfair labor practices in the future arising
 out of other disputes between the parties.  Neither does it state, as in
 the Mandel case, that the employee must cease from engaging in all
 protected concerted activities.  The broad proscription in the cited
 case makes the holding, in my opinion, inapplicable to the case at bar.
 Moreover, the Puget Sound Naval Shipyard case, supra, involves a threat
 in regard to the use of the grievance process by employees.  As such,
 the remarks clearly interfere with rights assured under the Order, and
 they are neither restrictive nor pegged to a specific agreement on the
 part of the employee.
    The distinction between the broad limitation laid down by the
 employer in the Mandel case and the inspection of a more limited
 condition was recognized by the National Labor Relations Board in U.S.
 Postal Service, 234 NLRB No. 116.  In the latter case the employer
 reduced a disciplinary action from discharge to suspension conditioned
 upon the employer's promise not to grieve or appeal the suspension
 before various agencies.  The General Counsel contended that Section 7
 of the Act protected the rights of employees to use the processes of
 such agencies when protesting actions by management.  The Board
 distinguished the Mandel case and acknowledged that the employee could
 bind himself not to overturn settlement of the dispute with the
 employer.  Further, the condition laid down by the employer did not
 preclude the individual from filing charges or appeals in respect to any
 future matters.
    Respondent argues that, by the term of the January 30, 1979
 agreement, Abramsky waived his right to file a charge regarding the two
 matters which were the subject of the instrument.  It insists that the
 Moore memo reflected an intention to enforce that commitment, and not to
 prescribe the utilization of the Act's protective processes as to other
 disputes.  I agree.  It is true that a waiver of an existent right under
 the Act should be clear and unmistakable.  /4/ I am convinced Abramsky
 manifested clearly that he would accept the benefits from management and
 thereby "settle" the dispute between them.  As such, the commitment, on
 his part, not to file a charge or grievance with respect to the disputed
 issues which were resolved constitutes a clearly expressed waiver in
 that regard.  Further, I am in accord with Respondent's contention that
 the January 30, 1979 agreement comports with the attempt, in the public
 sector, to encourage parties to resolve disputes before filing charges
 under the Act.  See Section 2423.2(a) of the Rules and Regulations.
    Accordingly, and for reasons expressed hereinabove, I am constrained
 to conclude that the Moore memo of September 7, 1979 did not constitute
 interference, restraint, or coercion under Section 7116(a)(1) of the
 Act.  Therefore, I shall dismiss that portion of the complaint which
 involves an obligation in that regard.
    (b) In respect to the letter of January 15, 1980 (Swackhammer letter)
 directed to Abramsky, Respondent maintains that no attempt was made
 therein to inform Abramsky of his rights, remind him of the established
 negotiated procedure under the collective bargaining agreement, and to
 remind the employee to follow established legal procedures for adverse
 action under 5 CFR 752.
    While the foregoing intentions may have motivated the Swackhammer
 communication, it is clear that the language contained therein was not
 so limited.  Thus, while Respondent informed Abramsky he could file an
 answer to management's proposed suspension, he was expected to follow
 only certain procedures in the event he contested the employer's
 disciplinary action.  Such procedures were restricted to those set forth
 for adverse actions in the code.  As set forth in the Swackhammer
 letter, Abramsky would be subject to further discipline should he invoke
 any other procedure to obtain redress for management's action in
 suspending him for 30 days.
    The broad proscription set forth in the aforesaid letter would
 apparently render unacceptable the filing of an unfair labor practice
 charge against management.  Such a filing is not one of the established
 procedures to correct adverse actions under 5 CFR 752, and thus would
 not be acceptable to management.  Moreover, the cited Section of the
 Code limits the filing of grievances to those established under an
 administrative agency grievance procedure.  This particular grievance
 procedure, with its exceptions and limitations as set forth in 5 CFR 752
 et seq., does not afford a bargaining unit employee the same rights to
 which he is entitled under the Act in respect to filing contract
 grievances.  An employer may not, under threat of retaliation, foreclose
 or preclude an employee from filing a grievance under a negotiated
 grievance procedure.  See Federal Aviation Administration, Air Traffic
 Control Tower, Greater Pittsburgh Airport, Pittsburgh, Pa., A/SLMR No.
 90.  In the cited case the employer informed the employee it would take
 a strict interpretation of a disputed grievance which he had filed.  The
 Assistant Secretary held this statement had the effect of interfering
 with, restraining and coercing the individual in the exercise of his
 right under the Executive Order, including the right to invoke the
 negotiated grievance machinery.
    In my view an employee must feel free to file an unfair labor
 practice charge, or resort to the negotiated grievance procedure, when
 he deems action by management to be inimical to his interests.  An
 employee may neither impede the employee in seeking redress, nor may it
 warn him that unfavorable consequences will ensue if he pursues his
 rights under the Act.  Thus, management may not threaten to, or impose,
 discipline in the event an employee files an unfair labor practice
 charge against it.  Airway Facilities Field Office, Federal Aviation
 Administration, St. Petersburg, Fla., A/SLMR No. 776.  In the case at
 bar I am persuaded that the Swackhammer letter, by warning Abramsky that
 if he sought redress for the discipline imposed by Respondent through
 any channels other than those prescribed in 5 CFR 752, was violative of
 the Act.  It constituted a threat by management in the event he pursued
 such other procedures, and the latter could well include invoking his
 rights under the Act herein.  Accordingly, I find that by issuing said
 letter Respondent has interfered with, restrained and coerced its
 employees in violation of Section 7116(a)(1) of the Act.
    Having found that Respondent violated Secti