11:0290(64)CA - Treasury, IRS, Louisville District and NTEU -- 1983 FLRAdec CA



[ v11 p290 ]
11:0290(64)CA
The decision of the Authority follows:


 11 FLRA No. 64
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE,
 LOUISVILLE DISTRICT
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 4-CA-882
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had violated
 section 7116(a)(1) of the Federal Service Labor-Management Relations
 Statute (the Statute) and recommending that it cease and desist
 therefrom and take certain affirmative actions.  Thereafter, the
 Respondent filed exceptions to the Judge's Decision.  /1A/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of 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, the Authority hereby adopts the
 Judge's findings, conclusions and recommendation.
 
                                   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 Department of the Treasury, Internal
 Revenue Service, Louisville District shall:
 
    1.  Cease and desist from:
 
    (a) Orally reprimanding Scott Hester, or any other steward of the
 National Treasury Employees Union, the exclusive bargaining
 representative of its employees, because the steward, on behalf of an
 employee, contacted the personnel officer and asked questions concerning
 established personnel policies and practices and other matters relating
 to conditions of employment.
 
    (b) Making any other statement or comment which interferes with,
 restrains, or coerces Scott Hester or any other employee in the exercise
 of the right accorded him by the Federal Service Labor-Management
 Relations Statute to act for a labor organization in the capacity of a
 representative and the right, in that capacity, to present the views of
 the labor organization to appropriate authorities.
 
    (c) 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 Federal Service Labor-Management Relations
 Statute:
 
    (a) Post at its facilities 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 District Director, or his
 designee, and shall be 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
 District Director shall take reasonable steps to insure that such
 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, Region IV, 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.  
 
 Issued, Washington, D.C., February 10, 1983
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          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 orally reprimand Scott Hester, or any other steward of
 the National Treasury Employees Union, the exclusive bargaining
 representative of our employees, because the steward, on behalf of an
 employee, contacted the personnel officer and asked questions concerning
 established personnel policies and practices and other matters relating
 to conditions of employment.
 
    WE WILL NOT make any other statement or comment which interferes
 with, restrains, or coerces Scott Hester or any other employee in the
 exercise of the right accorded him by the Federal Service
 Labor-Management Relations Statute to act for a labor organization in
 the capacity of a representative and the right, in that capacity, to
 present the views of the labor organization to appropriate authorities.
 
    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
 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 questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director for the Federal Labor Relations Authority whose address is:
 Suite 501, North Wing, 1776 Peachtree Street, N.W., Atlanta, Georgia
 30309 and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    George T. Bell, Esquire
          For the Respondent
 
    Barbara S. Liggett, Esquire
          For the General Counsel, FLRA
 
    Timothy C. Welsh, Esquire
          For the Charging Party
 
    Before:  GARVIN LEE OLIVER
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Four, Federal Labor Relations Authority,
 Atlanta, Georgia, against the Department of the Treasury, Internal
 Revenue Service, Louisville District (Respondent).  The complaint
 alleged, in substance, that Respondent violated section 7116(a)(1) of
 the Federal Service Labor-Management Relations Statute (5 U.S.C. 7101 et
 seq.) (the Statute) on or about March 18, 1981 when Richard Pooley,
 Chief, Collection Division, reprimanded a unit employee and union
 steward, Scott Hester, because he engaged in activities on behalf of a
 unit employee in connection with the unit employee's dealings with
 Respondent.  Respondent's answer denied this allegation.
 
    A hearing was held in Louisville, Kentucky.  The Respondent, General
 Counsel, and Charging Party were represented by counsel and afforded
 full opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  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, and the briefs, I make the following findings of fact,
 conclusions of law, and recommendations.
 
                             Findings of Fact
 
    The National Treasury Employees Union (Charging Party or the Union)
 is the exclusive representative of an appropriate unit of Respondent's
 employees.  The Union and Respondent are parties to a collective
 bargaining agreement which became effective on January 26, 1981.
 (General Counsel's Ex. 2;  Tr. 18, 80-81).
 
    On March 16, 1981, Sharon Robinson, a group clerk at Respondent's
 Owensboro, Kentucky post of duty, came to Scott Hester, a revenue
 officer and Union steward, with a problem and a question.  Robinson had
 been notified of her selection for the position of revenue
 representative in Respondent's Hopkinsville, Kentucky post of duty.  She
 had to let management know that day whether or not she would accept the
 position, because a training class would start very soon.  She told
 Hester that it would be very difficult for her to accept the position
 and move to Hopkinsville because of personal reasons, but before
 declining the position, she would like to first propose that management
 move the position to Owensboro.  Before making this proposal to
 management, she wanted to know from Hester what the procedures would be
 in moving the position and whether this was something which management
 could do legally.  She did not want to ask for something that management
 could not accomplish in any event.
 
    Hester told Robinson that one way management could move the position
 to Owensboro would be not filing it in Hopkinsville and reannouncing the
 position for Owensboro.  However, he said he didn't know whether there
 were some other possibilities available, and would telephone Murray
 Torrance, Chief of Personnel, in Louisville to find out what
 possibilities existed under the rules.
 
    At the time of this conversation, Hester served as the Union steward
 for bargaining unit employees in Owensboro, Paducah, Hopkinsville,
 Bowling Green, and Elizabethtown.  On a number of occasions in the past
 he had discussed various problems in person and by telephone with Murray
 Torrance, Chief of Personnel, concerning proper procedures under the
 personnel regulations and the collective bargaining agreement.  Torrance
 is responsible for Respondent's administration of the agreement and
 provides advice and assistance to division chiefs on labor relations
 matters.  Torrance had never discouraged Hester's contacts.  (Tr. 18-19,
 22-25, 74).
 
    Hester telephoned Torrance, explained the situation to him, and noted
 that Ms. Robinson had not yet discussed with management her proposal for
 moving the position.  He advised Torrance that he just wanted to know
 what the rules and regulations provided, and whether, if management
 could be persuaded to transfer the position from Hopkinsville to
 Owensboro, there was a way to do this and still allow Robinson to meet
 the deadline for the training class.  Torrance stated at the outset that
 the proper approach would be for Robinson to go to her supervisor with
 the proposal.  He added that, if management chose to move the position,
 the proper way would be to make no selection for the position in
 Hopkinsville and reannounce it in Owensboro.  Torrance said that another
 possibility, which might be explored, would be for management to go
 ahead and select Robinson for the position in Hopkinsville, and before
 expiration of the period during which Robinson was required to move to
 the new post of duty, possibly her personal situation would change so
 that she could make the move, or she could possibly then be transferred
 from Hopkinsville to Owensboro.  At no time during the telephone call on
 March 15, 1981 did Hester ask Torrance to use his influence to get the
 revenue representative position moved to Owensboro from Hopkinsville.
 The conversation between Hester and Torrance lasted five to ten minutes
 and was congenial as always.  (Tr. 23-24, 48).
 
    After concluding the telephone call to Torrance, Hester told Robinson
 what Torrance had said.  /1/ Hester had no further conversations with
 anyone concerning Robinson's situation until March 18, 1981.  (Tr. 25).
 
    On March 18, 1981, personnel officer Torrance mentioned to Richard
 Pooley, Chief Collections Division and Hester's third-line supervisor in
 Louisville, that Hester had telephoned him.  Pooley understood that
 Hester had identified himself as a Union steward, had asked Torrance
 some questions, and was "seeing what he could do to get the position
 moved to Owensboro." (Tr. 56, 63).  Hester had previously expressed to
 Pooley his personal desire that the position of revenue representative
 be placed in Owensboro so that he, as a revenue officer, could be
 relieved of some of the routine and less difficult duties.  Other
 revenue officers had also expressed this opinion.  Upon hearing of
 Hester's telephone call to Torrance, Pooley became upset, because he
 felt that Hester was interfering with his decision concerning the
 placement of positions in the division.  (Tr. 59).
 
    Shortly thereafter, Pooley telephoned Hester.  Pooley asked Hester to
 look at Article 5 of the collective bargaining agreement.  /2/ Pooley
 stated that he understood Hester had been in contact with the personnel
 office to get the position transferred to Owensboro.  Pooley said, "I am
 mad as hell.  I reckon I am just pissed off at you.  That is my
 business.  I decide where positions go in the Division, and I spent a
 lot of time and effort, and it bugs me." Pooley stated that the
 selection and placement of personnel positions is solely management's
 prerogative and that Hester was "way out of line" in his involvement in
 the selection of the revenue representative.  Hester responded that
 there was obviously some misunderstanding, because his only action had
 been to call Torrance and inquire about the rules and regulations.
 Pooley stated that Hester was out of line for even asking;  that it was
 improper for Hester to have called Torrance in this set of
 circumstances;  that he was considering filing an unfair labor practice
 charge against Hester and also discussing the matter with the Union
 chapter president.  Hester reiterated his view concerning the need for
 the position in Owensboro and Robinson's problems.  Pooley responded,
 "Even so, Scott, you know, in whatever capacity (you called Torrance),
 to me you were way out of line.  It really disturbed me." Pooley stated
 That robinson should have called her group leader if she had any
 questions, Hester had needlessly raised Robinson's hopes, and had done
 her a disfavor.  Pooley stated, "Scott, you know, very often you stick
 your nose into things and cause troubles without knowing all the facts
 and everything.  Damn it, it looks like you have done it again." Hester
 replied that he was sorry about any problems he might have caused and
 would make it a point to find out exactly what his rights and
 responsibilities were as a steward.  (Tr. 25-28, 41-43, 62-66).
 
    The conversation lasted from three to five minutes.  (Tr. 28, 65).
 Pooley's tone was abrupt, curt, and angry, but became less severe toward
 the end of the conversation.  (Tr.28, 42) Hester advised his group
 manager and the Union's chief steward of his conversation with Pooley.
 (Tr. 29-30).
 
    Pooley and Hester had previously had personal, candid discussions in
 business and social meetings.  Such discussions, however, did not
 involve Union matters.  Twice in 1979 Hester advised Pooley that he
 would appreciate it if Pooley would speak to him directly about any
 problems with his work or behavior rather than having Pooley's concerns
 come down through the chain of command.  (Tr. 68-71).  In a third
 situation in 1980, again before Hester was a Union steward, Hester
 requested a candid discussion with Pooley about his work problems, and
 they held such an open and frank discussion.  (Tr. 67-68, 71-71).
 
                        Discussion and Conclusions
 
    The General Counsel and Charging Party contend that Union steward
 Hester was engaged in protected activity when he telephoned Respondent's
 personnel officer on behalf of a unit employee and that Respondent,
 through Mr. Pooley, violated section 7116(a)(1) of the Statute by orally
 reprimanding Hester because he had engaged in such protected activity.
 
    Respondent defends on the basis that Union steward Hester was not
 engaged in protected activity when he contacted the agency's personnel
 officer;  that the agency had no obligation to provide him technical
 advice on the proper procedures for moving a position;  that Hester's
 action was an attempt to interfere with the managerial prerogative of
 determining where to locate a position;  that management officials have
 the right under the Statute to express their opinions;  and that Mr.
 Pooley's telephone conversation did not tend to coerce Mr. Hester in the
 exercise of protected rights in view of the nature of the conversation,
 the circumstances, and the prior open relationship between Mr. Pooley
 and Mr. Hester.
 
    Section 7116(a)(1) of the Statute provides that it shall be an unfair
 labor practice for an agency to interfere with, restrain, or coerce any
 employee in the exercise of any right provided by the Statute.
 Consistent with the findings and purpose of Congress as set forth in
 section 7101, section 7102 of the Statute sets forth certain employee
 rights including the right to form, join, or assist any labor
 organization freely and without fear of penalty or reprisal and that
 each employee shall be protected in the exercise of such right.  Such
 right includes the right to act for a labor organization in the capacity
 of a representative and the right, in that capacity, to present the
 views of the labor organization to heads of agencies and to engage in
 collective bargaining with respect to conditions of employment through
 representatives chosen by employees.  The exclusive representative,
 pursuant to section 7114(a)(1), "is entitled to act for, and negotiate
 collective bargaining agreements covering all employees in the unit."
 The right of the exclusive representative to act for all unit employees
 also includes the right, pursuant to section 7121(b)(3), to present and
 process grievances on its own behalf or on behalf of any employee in the
 unit.  Section 7103(a)(9) defines "grievance" to include any complaint
 "by any employee concerning any matter relating to the employment of the
 employee" or "by any labor organization concerning any matter relating
 to the employment of any employee."
 
    Union steward Hester was exercising his section 7102 right to assist,
 act for, and present the views of a labor organization in the capacity
 of a representative when he telephoned and spoke with the personnel
 officer.  As such representative, he was acting for and on behalf of a
 unit employee.  The unit employee's complaint concerned whether a move
 was really necessary in order for her to accept a new position.  It was
 obviously a matter relating to her employment.  Although no formal
 grievance had been filed, the employee and steward were making
 preliminary inquiries into the established personnel policies,
 practices, and procedures, the results of which could resolve the matter
 without further effort.  The objectives of the collective bargaining
 process are furthered when a Union takes action after at least giving
 ear to the employer's advice and counsel.  /3/ In my view, Hester was
 engaged in representational activity protected by the Statute.
 
    Even though Pooley's remarks to Hester were devoid of any explicit
 threats of possible retaliation for his Union activities, the remarks
 were coercive in nature and would tend to interfere with the performance
 of Hester's functions as a Union steward.  See U.S. Department of the
 Treasury, Internal Revenue Service, 4 FLRA No. 87 (1980);  United States
 Marine Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA
 No. 97, p. 14, fn. 13 (1981).  Pooley was upset and angry.  He told
 Hester that he was "mad as hell." He did not limit his remarks or
 criticism to his understanding that Hester was attempting to interfere
 with management's selection and placement of personnel.  /4/ Even after
 Hester explained that he had only called to inquire about the rules and
 regulations, Pooley continued his broad-based reprimand that Pooley was
 "out of line" for even asking;  that Hester was "out of line" in
 whatever capacity he had called the personnel officer;  and that Hester
 had once again stuck his nose into things, caused troubles, and had done
 the employee a disservice.  Such remarks, delivered by a third-level
 supervisor in anger, would be interpreted by a reasonable employee as a
 display of management hostility toward his contacting the personnel
 officer in particular on behalf of an employee and toward his other
 representational activities in general.  He would "think twice" before
 becoming associated with other employee concerns and grievances.  If an
 employee has to think twice before exercising a statutory right, the
 employee's right has been interfered with.  See Naval Resale System
 Field Support Office Commissary Store Group, 5 FLRA No. 42 (1981);
 National Labor Relations Board, Region 1, Boston, Massachusetts, 5 FLRA
 No. 87 (1981).
 
    Pooley's remarks were not protected as free speech under section
 7116(e) since they were made under coercive conditions.  See Oklahoma
 City Air Logistics Center (AFLC) Tinker Air Force Base, Oklahoma, 6 FLRA
 No. 32 (1981).  Pooley's previous candid conversations with Hester in
 other settings, and the common recognition that candid comments and
 frank opinions are to be anticipated in labor relations discussions,
 while important factors to be considered, do not, in my opinion, serve
 to insulate Pooley's improper remarks to Hester concerning his
 representational activities in this instance.
 
    Having concluded that Respondent violated section 7116(a)(1), as
 alleged in the Complaint, it is recommended that the Authority adopt the
 following Order:
 
                                   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 Department of the Treasury, Internal
 Revenue Service, Louisville District shall:
 
    1.  Cease and desist from:
 
          (a) Orally reprimanding Scott Hester, or any other steward of
       the National Treasury Employees Union, the exclusive bargaining
       representative of its employees, because the steward, on behalf of
       an employee, contacts the personnel officer and asks him questions
       concerning established personnel policies and practices and other
       matters relating to the employment of an employee.
 
          (b) Making any other statement or comment which interferes
       with, restrains, or coerces Scott Hester or any other employee, in
       the exercise by the employee of the right accorded him by the
       Federal Service Labor-Management Relations Statute to act for a
       labor organization in the capacity of a representative and the
       right, in that capacity, to present the views of the labor
       organization to appropriate authorities.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute.
 
          (a) Post at its facilities 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 District
       Director 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 District Director shall take reasonable
       steps to insure that such notices are not altered, defaced, or
       covered by any other material.
 
          (b) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional
       Director, Federal Labor Relations Authority, Region Four, in
       writing, within 30 days from the date of this order, as to what
       steps have been taken to comply herewith.
  
                                      GARVIN LEE OLIVER
                                      Administrative Law Judge
 
 Dated:  January 13, 1982
          Washington, D.C.
 
 
 
 
 
                                 APPENDIX
 
  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 orally reprimand Scott Hester, or any other steward of
 the National Treasury Employees Union, the exclusive bargaining
 representative of our employees, because the steward, on behalf of an
 employee, contacts the personnel officer and asks him questions
 concerning established personnel policies and practices and other
 matters relating to the employment of an employee.
 
    WE WILL NOT make any other statement or comment which interferes
 with, restrains, or coerces Scott Hester or any other employee, in the
 exercise by the employee of the right accorded him by the Federal
 Service Labor-Management Relations Statute to act for a labor
 organization in the capacity of a representative and the right, in that
 capacity, to present the views of the labor organization to appropriate
 authorities.
 
    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
 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 questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region Four, 1776
 Peachtree Street, N.W., Suite 501, North Wing, Atlanta, Georgia;
 telephone (404) 881-2324.
 
 
    /1A/ The Charging Party's exceptions were untimely and have not been
 considered.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Robinson declined the revenue representative position in
 Hopkinsville on March 16, 1981.  However, she later reconsidered and
 accepted the position when she was advised that her position as a group
 clerk in Owensboro would have to be converted to a part-time position.
 The revenue representative position, although located in Hopkinsville,
 includes work in, and servicing of, the Paducah and Owensboro posts of
 duty.  (Tr. 44-45).
 
 
    /2/ Article 5 of the collective bargaining agreement is, in pertinent
 part, a restatement of management rights set forth in section 7106 of
 the Statute.  (General Counsel's Ex. 2, p. 2.).
 
 
    /3/ In my view, no issue is presented in this case concerning the
 scope of the duty of a personnel officer to provide the Union technical
 advice, or other data pursuant to section 7114(b)(4).  Hester's version
 of the personnel officer's response to his inquiry was not rebutted.
 The substance of the conversation is not in dispute.  As noted, the
 record does establish that Hester had previously contacted the personnel
 officer on other matters for his views concerning the proper procedures
 under Respondent's regulations and the collective bargaining agreement
 without incident.
 
 
    /4/ Had Pooley limited his remarks to his understanding that Hes