19:1141(127)CA - Customs Service, Washington, DC and Customes Service Region VIII Seattle, WA -- 1985 FLRAdec CA

[ v19 p1141 ]
The decision of the Authority follows:

 19 FLRA No. 127
 Charging Party
                                           Case No. 9-CA-20232
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the United States Customs
 Service, Washington, D.C. and the United States Customs Service, Region
 VIII, Seattle, Washington (Respondents) had engaged in certain of the
 unfair labor practices alleged in the complaint, and recommending that
 Respondents be ordered to cease and desist therefrom and take certain
 affirmative action.  The Judge found that the Respondents had not
 engaged in another unfair labor practice alleged in the complaint.
 Thereafter, the Charging Party (NTEU) and the Respondents filed
 exceptions to the Judge's Decision, and opposition briefs were filed by
 the Respondents and the General Counsel.
    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, the Authority hereby adopts the
 Judge's findings, conclusions, and Recommended Order, as modified
    The Judge, among other things, found that there was a violation of
 section 7116(a)(1) and (8) of the Statute, concluding that there was a
 formal discussion and that the requirements of section 7114(a)(2)(A)
 were not met notwithstanding the fact that a union representative was
 present at the meeting.  Subsequent to the Judge's Decision, the
 Authority issued Veterans Administration, Veterans Administration
 Medical Center, Muskogee, Oklahoma, 19 FLRA No. 122 (1985), wherein the
 Authority held that the actual presence of a union representative at a
 "formal discussion" satisfies the requirement of section 7114(a)(2)(A)
 that the exclusive representative be given the opportunity to be
 represented at such a discussion.  Accordingly, without passing upon
 whether the meeting at issue was, in fact, "formal" within the meaning
 of section 7114(a)(2)(A) of the Statute, the Authority hereby reverses
 the Judge's conclusion that the Respondents violated section 7116(a)(1)
 and (8) of the Statute.
    IT IS ORDERED that the complaint in Case No. 9-CA-20232 be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., August 30, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                                       Case No.: 9-CA-20232
    Patricia K. Olson, Esquire
       For the Respondent
    Lucinda Bendat, Esquire
       For the Charging Party
    Stefanie Arthur, Esquire
       For the General Counsel, FLRA
       Administrative Law Judge
                           Statement of the Case
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Nine, Federal Labor Relations Authority,
 San Francisco, California against the United States Customs Service,
 Washington, D.C. and United States Customs Service, Region VIII,
 Seattle, Washington, (Respondents), based on charges filed by the
 National Treasury Employees Union (Charging Party or Union).  The
 complaint alleged that Respondents violated sections 7116(a)(1), (5) and
 (8) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
 7101 et seq. (the Statute).  The complaint charged, in substance, that
 Respondents interfered with an employee's right to file a grievance when
 Chief Inspector Barney Martin conducted a meeting with bargaining unit
 employee Walter Lisowski during which Martin expressed his anger that
 Lisowski had filed a grievance and repeatedly told Lisowski to
 reconsider pursuing the grievance.  The complaint also alleged that the
 Martin-Lisowski meeting constituted a formal discussion within the
 meaning of section 7114(a)(2)(A), and that Respondents' failure to
 provide the Union with advance notice of the meeting violated the
    Respondent's answer denied any violation of the Statute.  Respondents
 asserted that the meeting concerned an agreement made by Lisowski and
 the Union and did not concern the substance or resolution of any
 grievance;  that the Union was afforded an opportunity to be
 represented, and in fact was represented, at the meeting;  that
 supervisor Barney Martin's comments at the meeting were limited to
 reminding Lisowski of an agreement he had made and requesting Lisowski
 to reconsider his actions in light of the agreement;  that the comments
 made by Martin did not contain any threat of reprisal or force or
 promise of benefit, nor were they made under coercive conditions;  and
 that the meeting was consistent with the requirement of an effective and
 efficient Government.
    A hearing was held in this matter at Seattle, Washington.  The
 Respondents, Charging Party, and the General Counsel were represented by
 counsel and afforded full opportunity to be heard, adduce relevant
 evidence, examine and cross-examine witnesses and file post-hearing
 briefs.  The Respondents and General Counsel filed briefs, and the
 proposed findings have been adopted to the extent found supported by the
 record as a whole.  Based on the entire record, including my observation
 of the witnesses and their demeanor, I make the following findings of
 fact, conclusions of law, and recommendations.
                             Findings of Fact
    At all times material herein, the Union has been certified as the
 exclusive representative of an appropriate unit of employees of
 Respondent U.S. Customs Service, Washington, D.C., including employees
 at Respondent U.S. Customs Service, Region VIII, Seattle (Region VIII).
 At all times material herein, Bernard Martin has been the Chief,
 Inspection Branch, Port of Seattle, Seattle District, and an agent of
    By letter dated January 4, 1982, Walter Lisowski, a Customs inspector
 at SEATAC airport, Seattle district, Region VIII, was informed of a
 proposal to suspend him for thirty days predicated upon two alleged
 charges:  unofficial use of a government vehicle in violation of 31
 U.S.C. 638 and violation of airport security regulations.  31 U.S.C. 638
 provides that any officer or employee of the government who willfully
 uses a government vehicle for other than official purposes shall be
 suspended from duty for not less than one month.  The Union represented
 Lisowski in responding to the proposed suspension and in negotiating a
    During the course of the negotiations concerning the disciplinary
 proceedings, Lisowski voluntarily admitted to the facts set forth in the
 notice of the proposed suspension.  At one point in the negotiations,
 the Union proposed a settlement involving a suspension of only three
 days.  However, this was rejected by Acting District Director Raymond
 Mintz as not being a satisfactory penalty.
    Management recognized that the mandatory one month suspension would
 be rather harsh under the circumstances and that a lesser period would
 be more appropriate.  However, Customs' management was faced with the
 problem of deviating from a statutory mandate if a lesser penalty were
 imposed.  Therefore, a settlement was negotiated which involved an
 agreement by Lisowski and the Union that they would not use the case as
 a precedent in future cases and would not grieve the action, provided
 the discipline were reduced to a five day suspension.
    The terms of the settlement were finalized at a meeting between
 Inspector Lisowski, Union Chapter President Thomas Geary, and Acting
 District Director Mintz on February 26, 1982.  This included a
 discussion as to the effective dates of the suspension.  Union president
 Geary and Mr. Lisowski asked that the suspension be made effective March
 6-10 (Saturday through Wednesday) which would straddle two pay periods
 and minimize the impact of Lisowski's pay loss.  Mintz agreed to make
 the suspension effective in such a way that Lisowski would lose only
 four days of pay (Saturday, Monday, Tuesday and Wednesday), Sunday being
 Lisowski's day off.  During the February 26 meeting, Lisowski and Geary
 signed a document which provided as follows:
          In the event that the proposed suspension of Mr. Walter T.
       Lisowski, Customs Inspector, initiated by letter dated January 4,
       1982, is reduced from thirty (30) to five (5) days, NTEU will not
       grieve the decision nor invoke arbitration;  nor will this case be
       raised as a precedent issued in any future cases.
 As a result of the meeting and agreement, Mintz issued a letter
 dismissing the allegation of misuse of a government vehicle and reducing
 the suspension to five days.  The dates of the suspension were set
 during the period of March 6-10 in order that Lisowski's loss of pay
 would be spread over two pay periods.
    One week prior to the meeting with Mintz, Lisowski had exchanged his
 day off during the week of March 7 with Inspector Doctulero.  He had
 been scheduled to be off on Friday of that week, but had, at Doctulero's
 request, exchanged his Friday off for her Tuesday off.  The exchange of
 days off, or "trade day," had been made through proper channels, in
 writing, and approved.  After the meeting with Mintz and the final
 decision rendered on the dates of his suspension, Lisowski advised his
 supervisor of the decision and claimed that, in view of the approved
 trade, he should only be charged with three days of lost pay during that
 period instead of the four days to be charged under the decision.
 Thereupon, the supervisor rescinded the trade day, because it did not
 fall within the period of the suspension ordered by the Acting District
    On March 22, 1982 Lisowski and the Union filed a grievance.  The
 "specific nature of the employment condition in dispute" was stated to
 be the "District Director's letter of suspension." The "statement of the
 circumstances giving rise to the grievance" recited the facts relating
 to the trade day and that this day fell during the time of the
 suspension.  The "remedy requested" was "that the original trade be
 approved and that I be reimbursed for one day's pay during suspension
 period." The grievance was filed with Lisowski's immediate supervisor,
 Charles Day.
    On March 23, when the above grievance came to the attention of Chief
 Inspector Martin, Lisowski's second-level supervisor, Martin became
 concerned that Lisowski, by the grievance, was reneging on the terms of
 the settlement agreement, which, in Martin's view, included an agreement
 not to grieve the actual loss of four days pay.  Martin was also
 concerned that Lisowski had mislead the District Director, at the
 February 26 meeting, as to his days off.  Martin decided to talk to
 Lisowski about these concerns.  After being advised by labor relations
 personnel that his plan to talk to Lisowski was appropriate, Martin
 contacted Lisowski's supervisor and requested that he have Lisowski come
 to Martin's office.
    Lisowski was approached by supervisor Day while he was working at the
 counter at SEATAC airport.  Day instructed Lisowski that he was to meet
 that afternoon with Chief Inspector Martin in his office downtown in the
 Federal office building.  He said that Martin was very upset.
    Lisowski contacted Union steward Mike Milne and asked him to go
 downtown with him as his Union representative.  No one in management
 contacted Milne, who was the designated steward at the airport, to
 advise him of the meeting with Martin.
    The meeting commenced at approximately 2:00 p.m. in the office of the
 Director of Inspection and Control.  Present were Chief Inspector
 Martin, Union representative Milne, and Inspector Lisowski.  Martin
 began the meeting by stating that he was "upset and dissatisfied that
 Lisowski had filed a grievance of this nature." When Milne asked at
 which step of the grievance procedure the meeting was being held, Martin
 stated that they were not meeting at any step in the grievance
 procedure;  that he was "conducting an informal discussion to let Walt
 think about the consequences of filing this grievance."
    Martin stated that he was concerned about the fact that Lisowski had
 sat in on the negotiations with Mr. Mintz while knowing all the time
 about the day off problem.  He implied that Lisowski had purposely
 deceived Mintz during the suspension discussions by failing to tell him
 what his correct days off were.  He went on to say that it upset him,
 and he couldn't understand why Lisowski would file such a grievance
 after having agreed to the suspension.  Martin stated that he had spoken
 with Mr. Mintz, and the whole principle of the suspension was that
 Lisowski would have four days off without pay.  Lisowski replied that
 the number of days off without pay had not been discussed.  Martin asked
 Lisowski whether he had read the law on misuse of government vehicles.
 He told Lisowski that he had read the law, and that Lisowski was "damn
 lucky" that he had not received "30 days plus." Martin reiterated that
 he was "quite beside himself," "dumbfounded and amazed" that Lisowski
 would file a grievance after the fact.
    Martin asserted that Mintz had bent over backwards to accommodate
 Lisowski, even permitting the suspension to fall during two separate pay
 periods to ease the financial impact.  When Lisowski replied that, in
 fact, the money had not been taken out of two paychecks as agreed,
 Martin picked up the telephone and called Lisowski's supervisor, Charles
 Day, at SEATAC.  Martin asked Day if the timekeeper had the suspension
 period correct on the time cards.  Upon receiving an answer, Martin hung
 up the phone and exclaimed "Bull," implying that Lisowski was wrong
 about the time cards.  Milne then advised Martin that he had personal
 knowledge that the timekeeper had not been notified since he and the
 timekeeper had discussed the suspension period.
    Martin concluded the meeting by stating that he did not know if the
 grievance had been filed in a timely manner;  that if it were, he would
 assign it a number and proceed, but that he wanted Lisowski to think
 very carefully about the consequences of filing the grievance;  to "take
 a reading" of the situation and reconsider just how badly he wanted to
 file the grievance.  Martin told Lisowski that if he did continue to
 pursue the grievance, he, Martin, would "fight (him) all the way on it."
    Martin was tense, visibly upset, loud, and angry during the meeting.
 The meeting lasted approximately 10 minutes.
    Following the March 23 discussion, Lisowski and the Union pursued the
 grievance through the three steps of the negotiated grievance procedure,
 and the Union has invoked arbitration.
                        Discussion and Conclusions
    Alleged Interference With Grievance
    The right to file and process grievances under a contractual
 grievance procedure falls within the ambit of section 7102 of the
 Statute which provides that employees have "the right to form, join, or
 assist any labor organization . . . freely and without fear of penalty
 or reprisal." Whether the grievance has merit, or is grievable under the
 negotiated procedure, is beside the point.  An employee has the absolute
 right of free access to the grievance procedure to present his
 contention.  United States Department of Treasury, Bureau of Alcohol,
 Tobacco and Firearms, Chicago, Illinois, 3 FLRA No. 116 (1980).  It is
 an unfair labor practice under section 7116(a)(1) of the Statute for an
 agency "to interfere with, restrain, or coerce any employee in the
 exercise by the employee" of his right to file and process a grievance.
 U.S. Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA No. 129
 (1982);  United States Department of the Treasury, Supra.
    The standard by which one may determine interference, restraint, or
 coercion is not the subjective perceptions of the employee, nor is it
 the intent of the employer.  Rather, the test is whether, under the
 circumstances of the case, the employer's conduct may reasonably tend to
 coerce or intimidate the employee, or, in the case of a statement,
 whether the employee could reasonably have drawn a coercive inference
 from the statement.  Federal Mediation and Conciliation Service, 9 FLRA
 No. 31 (1982);  Army and Air Force Exchange Service, Ft. Carson,
 Colorado, 9 FLRA No. 69 (1982);  Department of the Treasury, Internal
 Revenue Service, Louisville District, 11 FLRA No. 64 (1983).
    It is concluded from all the circumstances that a reasonable employee
 would interpret Chief Inspector Martin's statements at the meeting as
 statements of agency management and not merely expressions of his own
 personal views, as Respondents contend.  Lisowski was called away from
 his work place at the airport and ordered to appear for a meeting in the
 downtown office of his second-line supervisor, Chief Inspector Martin.
 Martin was clearly speaking in his supervisory capacity.  In fact, he
 had received prior authorization to speak to Lisowski about the matter.
 Compare Army and Air Force Exchange Service (AAFES), Ft. Carson,
 Colorado, supra.
    The essence of Martin's remarks was that Lisowski's grievance,
 requesting that he be reimbursed for one day's pay during a suspension
 period, violated an agreement that the employee and Union had made in
 settlement of a disciplinary suspension;  that Lisowski, during the
 settlement negotiations, had mislead the Acting District Director as to
 his days off during the week of the agreed suspension;  that he should
 reconsider pursuing the grievance;  and that, if he did pursue the
 grievance, Martin would fight him all the way on it.
    The case of Consumer Product Safety Commission, 10 FLRA No. 72 (1982)
 is directly in point.  That case, like the present one, involved the
 negotiated settlement of a discipline matter and subsequent alleged
 interference with statutory rights.  In Consumer Product, one of the
 terms of the settlement was an agreement by the employee not to
 institute any administrative actions, including unfair labor practice
 charges, concerning the incidents in question.  Some time after the
 agreement was made and the employer had implemented its portion, the
 employee, among other things, filed an unfair labor practice charge over
 the incident.  A management official of the employer subsequently sent a
 memorandum to the employee stating that the employee had violated the
 terms of the agreement, that he expected the employee to withdraw the
 unfair labor practice charge, and that, if the employee failed to do so,
 the employer would take whatever legal steps were necessary to enforce
 the agreement.  The Administrative Law Judge found that, because the
 memorandum sought only to enforce a commitment made by the employee in
 settlement of the discipline matter and did not otherwise attempt to
 proscribe his utilization of the Act's protective processes as to other
 disputes, it was non-coercive in nature and, therefore, the employer had
 not violated the Statute.  The Authority adopted the Judge's findings
 and conclusions.  The Authority noted particularly that the memorandum
 made "no mention of precluding any challenge to the validity of that
 agreement" and sought only to enforce the settlement agreement.
    The instant case involves a face-to-face meeting and not a more
 impersonal memorandum.  However, as in the Consumer Product case,
 Martin's remarks were not directed in a broad, non-specific fashion at
 the employee's right to engage in protected activities, but only at the
 circumstances surrounding a particular settlement agreement.  Compare
 Department of the Treasury, Internal Revenue Service, Louisville
 District, supra.  The settlement, in management's view, was that
 management would reduce a proposed 30-day suspension to five days with
 the understanding that Lisowski would lose only four day's pay and would
 not grieve the decision.  Whether or not the settlement agreement bars,
 or otherwise affects, the grievance is an issue for resolution in the
 grievance/arbitration proceeding, and it is not appropriate for
 disposition here.  However, under all the circumstances, it was at least
 reasonable for Martin to conclude that the filing of the grievance was a
 repudiation, or attempt at circumvention, of the negotiated agreement,
 and, under Consumer Product, it was appropriate for him to bring
 management's position to the employee's and the Union's attention.
    Martin's closing remarks, that Lisowski should "think very carefully,
 about the consequences of filing the grievance, take a reading of the
 situation, and reconsider just how badly he wanted to file the
 grievance," were obviously designed to have Lisowski consider and agree
 to management's view;  namely, that in order to honor the agreement he
 should withdraw the grievance.  Under the circumstances, the remarks
 were no different in effect than the memorandum in Consumer Product
 which specifically stated that it expected the employee to honor the
 agreement by withdrawing the various appeals.
    Martin's comment that if Lisowski did pursue the grievance, he would
 "fight him all the way on it" simply meant that Respondents would assert
 every legal defense and exhaust every appeal.  It was also similar to
 the remarks in Consumer Product that, if the various requests, appeals,
 and unfair labor practice charge were not withdrawn, the employer would
 take whatever legal steps are necessary to enforce the Agreement."
    The Union's presence at the meeting also served to reduce any
 coercive effect of Martin's remarks.  The employee's personal Union
 representative was present at the meeting and could explain the overall
 significance of Martin's remarks.  As found infra, this representative
 also had the right to represent the Union's position in this formal
 discussion of the alleged conflict between the grievance and the prior
 settlement agreement.
    Under all the circumstances, it is concluded that Respondents'
 conduct, through Chief Inspector Martin, did not constitute
 interference, restraint, or coercion under section 7116(a)(1) of the
 Act, as alleged.
    Alleged Formal Discussion
    The General Counsel contends that Respondents' failure to have
 provided the Union with notice of the formal discussion which Martin
 conducted on March 23, concerning Lisowski's grievance, constituted a
 failure to comply with the provisions of section 7114(a)(2)(A) /1/ of
 the Statute and an unfair labor practice in violation of section
 7116(a)(1), (5) and (8) of the Statute.  There is no contention that the
 Union would have designated a representative other than Mr. Milne had it
 received proper advance notice.
    Respondents defend on the basis that Martin made it clear that the
 meeting was only an informal discussion;  there was no discussion of the
 substance or resolution of the grievance;  and, in any event, the Union
 was afforded the opportunity to be represented and, in such
 circumstances, there can be no violation of the Statute resulting from
 the employer's failure to give notice.
    Under all the circumstances, it is concluded that the meeting on
 March 23 between Chief Inspector Martin, a representative of the agency,
 and employee Lisowski and his Union representative was a formal
 discussion within the meaning of section 7114(a)(2)(A).  The meeting had
 many of the essential indicia of formality set out by the Authority in
 Department of Health and Human Services, Social Security Administration,
 Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24
 (1982).  The meeting was conducted by Chief Inspector Martin, Lisowski's
 second line supervisor;  it was held in Martin's office at the Federal
 office building in downtown Seattle, away from Lisowski workplace at
 SEATAC airport;  and Lisowski's attendance was mandatory.  The meeting
 definitely "concerned" the grievance which Lisowski had filed the
 previous day.  The substance of the discussion essentially involved the
 alleged conflict between the grievance and the previous settlement
    The record reflects that Respondents did not notify the Union of the
 formal discussion.  However, an appropriate Union representative, Mr.
 Milne, was notified and brought to the meeting by the employee as the
 employee's representative and was permitted by management to attend,
 apparently without question.  Respondent contends that the Union was,
 therefore, "given the opportunity to be represented" at the meeting
 pursuant to section 7114(a)(2)(A), and that there can be no violation of
 the Statute resulting from the employer's failure to give specific
 advance notice under U.S. Air Force v. Federal Labor Relations
 Authority, 681 F.2d 466 (6th Cir., 1982).
    The Authority has held that the fact that a union steward is informed
 by an employee of a formal discussion concerning a grievance, and
 attends the meeting as a union's representative, does not fulfill the
 obligation of the agency to afford the exclusive representative the
 opportunity to be represented.  Internal Revenue Service, Fresno Service
 Center, Fresno, California, 7 FLRA No. 54 (1981).  Moreover, the facts
 in U.S. Air Force v. Federal Labor Relations Authority, supra, relied
 upon by Respondents, are quite different.  That case did not involve a
 violation of section 7114(a)(2)(A), the formal discussion provision.
 The issue involved whether a union had received appropriate advance
 notice of planned changes in conditions of employment so that it could
 have requested bargaining on such changes.  A union steward had attended
 a general staff meeting at which an intention to reorganize the office
 had been announced, but he had not received any notice of the
 reorganization as a union representative.  The Authority found a
 violation of the agency's obligation to consult in good faith, as
 required by sections 7116(a)(1) and (5).  The court of appeals denied
 enforcement, stating, in part, "We fail to see how Price, in his role as
 a human being, could not receive actual notice as an employee and formal
 notice as a union steward by his singular attendance at the
 reorganization meeting." Therefore, the union had notice, could have
 requested bargaining, and there was no violation.  In the instant case,
 the meeting at issue was not designed to constitute some form of notice
 to the Union of a bargaining opportunity.  The issue is not whether the
 Union received notice at the meeting, but whether it received notice of
 the meeting.  The whole purpose of the formal discussion provision is to
 provide the Union an opportunity to be represented at a formal
 discussion.  It was a fortuity that the Union representative was asked
 to attend the meeting by the employee as the employee's representative.
 While, under the principle of the U.S. Air Force decision, the union
 then had the opportunity to participate in the meeting by the presence
 of an appropriate representative, still Respondents had made no effort
 to give the Union appropriate notice in order that it might fulfill the
 role contemplated by section 7114(a)(2)(A).  Therefore, I conclude that
 Respondents did violate sections 7116(a)(1) and (8) of the Statute, /2/
 as alleged, and that a cease and desist order would effectuate the
 purposes and policies of the Statute.
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the United States Customs Service,
 Washington, D.C. and United States Customs Service, Region VII, Seattle,
 Washington shall:
    1.  Cease and desist from:
          (a) Failing to give the National Treasury Employees Union
       appropriate prior notification of, and opportunity to be
       represented at, a formal discussion between one or more
       representatives of the agency and one or more employees in the
       unit or their representatives concerning a grievance.
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
          (a) Give the National Treasury Employees Union appropriate
       prior notification of, and opportunity to be represented at, a
       formal discussion between one or more representatives of the
       agency and one or more employees in the unit or their
       representatives concerning a grievance.
          (b) Post at its facilities in Seattle, Washington copies of the
       attached Notice marked "Appendix" on forms to be furnished by the
       Authority.  Upon receipt of such forms, they shall b