20:0660(77)CA - Treasury, IRS, Louisville District and NTEU -- 1985 FLRAdec CA
[ v20 p660 ]
The decision of the Authority follows:
20 FLRA No. 77 DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE LOUISVILLE DISTRICT Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 4-CA-1232 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the General Counsel and the Charging Party file exceptions to the Judge's Decision. The Respondent filed oppositions to the exceptions. 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, only to the extent consistent herewith. The unfair labor practice complaint alleges that the Department of Treasury, Internal Revenue Service, Louisville District (the Respondent) violated section 7116(a)(1) of the Statute /1/ based on the conduct of one of its supervisors, Sharon Klein, through her attorney, in threatening to file a lawsuit against Jane Eads, a bargaining unit employee, and against the National Treasury Employees Union (NTEU), Chapter 25. The Judge concluded that the letters sent by Klein's attorney to Eads and to Chapter 25 threatened them with a lawsuit and inherently interfered with and restrained Eads and the Union in the exercise of their protected right to pursue a contractual grievance in violation of section 7116(a)(1) of the Statute. Furthermore, he concluded that the letters were attributable to the Respondent inasmuch as the latter was put on notice as to Klein's disposition to seek legal counsel and did not attempt to dissuade her, did nothing to repudiate the letters from Klein's attorney, and failed to convey in any other way that it was not a party to conduct which would interfere with the presentation of the grievance. Based on the totality of the record evidence herein, the Authority concludes, contrary to the Judge, that the Respondent did not violate section 7116(a)(1) of the Statute as alleged. The facts in this case are not in dispute. They have been set forth by the Judge in his Decision and shall be repeated only to the extent necessary. Under section 7116(a)(1) of the Statute, it is an unfair labor practice for an agency to "interfere with, restrain, or coerce" any employee in the exercise of that employee's rights under the Statute. The standard under which the Authority has determined whether a particular agency's conduct falls within that definition is whether, in the circumstances of the case, the employer's conduct may reasonably tend to interfere with, restrain or coerce employees in the exercise of their rights under the Statute. /2/ With respect to the general issue of lawsuits in the context of an unfair labor practice, the Authority concluded in Consumer Products Safety Commission, 4 FLRA 803, at 804, 842-845 (1980), that the filing of a civil suit by a supervisor against an employee for libel was not, in the circumstances therein, violative of section 7116(a)(1) of the Statute. /3/ Thus, the Authority viewed the civil action filed by the supervisor, in an individual capacity without the authorization or involvement of the agency, to be based on the alleged libel and not as a penalty for engaging in protected activity by filing an unfair labor practice charge under the Statute. The issue involved herein is whether, in the circumstances of this case, a supervisor's stated intent to file a civil lawsuit against an employee for libel may constitute an unfair labor practice on the part of the agency. Thus, the Authority will examine whether the stated intent to file in this case reasonably tended to interfere with, restrain, or coerce employees in the exercise of their rights under the Statute and whether such stated intent can be attributed to Respondent. As noted above, the Judge viewed the letters from Klein's attorney to both employee Eads and NTEU Chapter 25, which conveyed Klein's intent to file a lawsuit if Eads did not cease making statements to certain employees and supervisors of the Respondent concerning Klein's alleged misconduct, as reasonably tending to coerce employees in the exercise of their protected right under the Statute to file grievances. Further, he concluded that the letters could be attributed to the Respondent under the circumstances presented. The Authority disagrees with both conclusions. Thus, the Authority concludes, based upon careful consideration of the full text of the letters at issue in the context of all the surrounding facts and circumstances, that the Respondent did not violate section 7116(a)(1) of the Statute as alleged. The text of the two letters sent to Eads and Chapter 25 by Klein's attorney on his letterhead, which are set forth in their entirety in the Judge's Decision, shall be repeated only to the extent necessary for clarity. Upon review of the full text of each letter against a backdrop of all the circumstances presented herein, the Authority concludes that the contents and timing of the letters in question did not reasonably tend to interfere with, restrain, or coerce either Eads or Chapter 25 in the exercise of rights protected under the Statute. Rather, in the Authority's view, Klein was only attempting to protect her personal reputation against what she viewed as an unsubstantiated and wanton attack by Eads outside of normal channels. As the Judge acknowledged, "Klein was genuinely concerned that her reputation as a supervisor be protected by what she saw as malicious statements by Eads." Further, in disagreement with the Judge, the Authority finds insufficient evidence in the record to establish by inference that Klein's conduct would reasonably tend to prevent either Eads or the Union from utilizing the grievance procedure or any other established procedure to resolve the differences she had with Klein. Turning first to the letter from Klein's attorney to Chapter 25, the letter states clearly and unequivocally that "we recognize the right of an employee to file a grievance against his or her supervisor and we have no intention of attempting to stifle the orderly transaction of proper procedures." The very next sentence makes it clear that the concern of both Klein and her attorney is with "accusations outside the normal channels." In the Authority's view, the stated intent of this letter, noting particularly the quoted passages, was to stop the accusations made outside of the grievance procedure and not to interfere with the processing of the grievance in any manner. The letter from Klein's attorney to Eads, unlike the letter to Chapter 25, does not contain any reference to Eads' right to pursue her grievance. However, in the second paragraph, the letter references a memorandum addressed to Eads by Doris Frederick, her Branch Chief. /4/ The letter notes that Eads was advised in that memorandum of the proper procedure by which to make the allegations concerning Klein's asserted misconduct, and that following the established procedure was necessary because Eads' allegations reflected on Klein's integrity. The letter goes on to state that Eads had not yet followed Frederick's suggestion to put her accusations in writing so they could have been addressed through proper channels. While the Authority notes, in agreement with the Judge, that the subsequent statement in the attorney's letter, that Eads "immediately cease making all allegations of misconduct relating to Mrs. Klein," might be subject to an interpretation as including allegations made as part of the grievance process, the Authority views the letter, when read in its entirety, as addressing those comments and accusations made by Eads outside of proper channels. Moreover, as noted above, Eads' agent, NTEU Chapter 25, was clearly informed in its letter that both Klein and her attorney recognized Eads' right to file a grievance and that there was no intention on the part of Klein or her attorney "to stifle the orderly transaction of proper procedures." When the letter to Eads is read in this context, the only reasonable inference is that Klein's stated intent to file a lawsuit was directed solely at Eads' accusations made randomly to various people at the worksite and was not an attempt to frustrate the processing of her grievance. Further, the letters were not issued in a vacuum. In order to determine objectively whether the letters would reasonably have tended to coerce Eads, the background of events leading up to the letters must also be considered. First, the allegations of misconduct made by Eads against Klein were indeed serious. Thus, there is reason to believe that Klein would want to refute them. Second, they were made outside as well as inside normal channels to both members of the supervisory hierarchy and to Eads' fellow employees. In this regard, the record reflects that the discussion of these accusations by employees under Klein's supervision, which was clearly outside the established procedure for processing the grievance, was having a detrimental effect on the work place. Third, it appears clear from the record that Klein utilized normal channels in her attempts to refute the accusations. Thus, there is no evidence that she was unresponsive to the grievance procedure. To the contrary, the evidence supports the conclusion that Klein was attempting to encourage Eads to utilize the grievance procedure or some other established procedure to resolve the problems. Indeed, Klein herself suggested bringing Eads' allegations to the Inspection Division for investigation. It was not until after the Inspection Division declined to pursue the matter that she went to an attorney. Finally, it appears that at least some of the accusations made against Klein by Eads were not made part of and had nothing to do with the processing of the grievance. /5/ Taking all of these factors under consideration, the Authority concludes that the only reasonable inference is that the intent of the letters was limited to channeling into proper procedures those accusations being made by Eads outside of the grievance process. /6/ Noting the absence of specific Authority precedent as to whether it may be an unfair labor practice to threaten a lawsuit, the Judge relied on a 25-year old decision of the National Labor Relations Board in Clyde Taylor Company, 127 NLRB 103 (1960), in reaching his decision. In the Authority's view, Clyde Taylor is clearly distinguishable from the instant case both on its facts and with regard to applicable Federal sector law. First, in contrast to Clyde Taylor, where there was a threat to sue if an unfair labor practice charge were not withdrawn, Klein did not "threaten" to sue because of the grievance or unless Eads withdrew her grievance. Rather, as found above, Klein simply indicated an intention to "proceed with whatever legal steps necessary to protect her good name" unless Eads ceased making unsubstantiated verbal accusations and potentially defamatory remarks against Klein outside the context of the grievance procedure, or any established procedure, and urged Eads instead to utilize such procedures to determine the truth or falsity of such accusations. Thus, Klein did not state an intent to file a lawsuit unless the grievance were withdrawn; and any connection with the protected activity of processing a grievance must be made by inference. Second, Clyde Taylor can be distinguished by the fact that neither the Respondent nor its agent sent the letters. In this regard, it is noted that the letters indicating an intent to file a lawsuit were written by Klein's attorney on his own letterhead, rather than that of the Respondent. Under these circumstances, we conclude that a reasonable person could view the letters as coming from Klein and as expressing her personal viewpoint rather than that of the Respondent. /7/ Furthermore, it appears that reliance on Clyde Taylor, which is factually distinguishable, is also misplaced based on an objective application of the Federal sector test, i.e., whether an agency's conduct reasonably tends to interfere with, restrain or coerce any employee in the exercise of his or her protected rights under the Statute. Rather, the Clyde Taylor test appears to be based on the perceptions of hypothetical employees who are easily intimidated and fearful of exercising their rights under the law. Although not necessary to the outcome of this decision, the Authority finds it difficult in these days and times to believe that the objective considerations present in this case would indicate any tendency to coerce, or in any other way to chill, the exercise of an employee's protected rights. Indeed, it is noted in this regard that, after the letters were sent, third and fourth step meetings were held regarding Eads' grievance, and that the grievance was subsequently submitted to arbitration. Thus, it is clear in the present case that Eads was not so coerced nor felt so chilled as to be restrained in the exercise of rights under the contract and the Statute. In conclusion, inasmuch as it is reasonable to infer both from the actual text of the letters as well as from the background and context in which they were written: that there was no intent to interfere with, restrain, or coerce Eads or Chapter 25 with respect to their protected right to file and process a grievance; that the letters in question did not reasonably tend to have such an effect on their protected rights; and that the letters are clearly attributable to Klein as an individual, rather than to her as an agent of Respondent, the Authority concludes, contrary to the Judge, that the unfair labor practice complaint herein should be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 4-CA-1232 be, and it hereby is, dismissed. Issued, Washington, D.C., November 13, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) provides: 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter(.) /2/ See, e.g., U.S. Department of Justice, U.S. Marshals Service, 17 FLRA No. 42 (1985); Bureau of Engraving and Printing, 15 FLRA No. 182 (1984); Defense General Supply Center, 15 FLRA No. 175 (1984); United States Air Force, Air Force Logistics Command, Wright-Patterson Conciliation SErvice, 9 FLRA 199 (1982). /3/ In the private sector, the Supreme Court found Bill Johnson's Restaurants Inc. v. NLRB, 461 U.S. 731 (1983), that the filing of a lawsuit, except in very limited circumstances where it can be shown that the suit is both baseless and that its intent is retaliation against an employee for the exercise of protected rights, cannot serve as the basis of an unfair labor practice charge under the National Labor Relations Act. /4/ Based upon a discussion initiated by Eads with Frederick following Ead's work review by Klein, Frederick prepared a memorandum dated June 10, 1981, which stated among other things that the serious charges of misconduct with regard to Klein's integrity should be reduced to writing and submitted to her be forwarded through channels. /5/ For instance, the arbitrator who decided the grievance made no mention of either Eads' statement that Klein was retaliating against her because Eads' husband did not hire a friend of Klein's, or the accusation that Klein required Eads to provide advice on lawn maintenance. /6/ The protected right under the Statute to file a grievance does not give an employee a license to make unsubstantiated and defamatory accusations outside of the grievance process, just because a grievance has been filed. Thus, as noted by the Judge, the Authority has held that an employee's conduct even during the course of protected activity may be such as to remove it form the ambit of protected activity. See, e.g., Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 16 FLRA No. 101 (1984). /7/ Cf. Army and Air Force Exchnage (AAFES), Ft. Carson, Colorado, 9 FLRA 620 (1982), where the Authority dismissed an allegation of coercion, concluding that the supervisor's statements represented his personal opinion and should reasonable have been interpreted as such. -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, LOUISVILLE DISTRICT Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party James Edwin Kagy, Esq. and Vernon J. Owens, Esq. and John A. Freeman, Esq. on the brief For the Respondent Timothy C. Welsh, Esq. and William Harness, Esq. on the brief For the Charging Party Pamela B. Jackson, Esq. and Barbara S. Liggett, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et Upon an unfair labor practice charge filed by the National Treasury Employees Union (hereinafter referred to as the Union) against the Department of Treasury, Internal Revenue Service, Louisville District (herein referred to as Respondent), the General Counsel of the Authority, by the Regional Director for Region IV, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by the action of Respondent's supervisor, Sharon Klein, through her attorney, in threatening to file a law suit against Jane Eads, a unit employee, and the Union's Chapter 25. A hearing on the Complaint was conducted in Louisville, Kentucky at which time all parties were represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Comprehensive briefs were filed by all parties and have been carefully considered. Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following: Findings of Fact /1/ At all times material herein the Union has been the exclusive collective bargaining representative of various of Respondent's employees including employees located in Respondent's Louisville, Kentucky District. Respondent and the Union are parties to a collective bargaining agreement effective from on or about January 26, 1981 until at least on or about January 1985. At all times material herein the Union's Chapter 25 (sometimes referred to as the Union) has been responsible for administration of the collective bargaining agreement at the Louisville facility. On June 3, 1981 Sharon Klein, Manager of Processing and Terminal Sections at Respondent's Louisville facility and a supervisor within the meaning of the Statute, met with unit employee Jane Eads, a Data Transcriber under Klein's supervision, and discussed the results of a work review Klein had recently completed on Eads performance. During the meeting Klein informed Eads that, in Klein's view, Eads work review showed a poor utilization of her time and Klein indicated that Eads' forthcoming performance evaluation would be considerably lower than she had previously received. Eads disagreed with Klein's conclusions and responded that Klein knew Eads was applying for a Tax Auditor job and accused Klein of attempting to keep her from getting that job. Immediately after the discussion with Klein, Eads went to Klein's supervisor, Doris Frederick, Chief of the Centralized Services Branch, and complained that Klein's evaluation of her work was unfair. Eads expressed her opinion that she performed well, that statistics would support her and indeed, other employees in the office came to her for help. Eads accused Klein of not being a good manager noting that she had previously received no counselling from Klein and Klein was generally unfriendly with her and other employees. Eads further complained that she had been under pressure from Klein to do homework for Klein's mother and had previously been told by Klein that her next evaluation would depend on how well she got along with Klein's mother. /2/ Eads indicated she didn't know why Klein had a grudge against her and didn't want her to be a Tax Auditor. Frederick told Eads her accusations were serious and asked Eads why she thought Klein didn't like her. Eads said she didn't know but speculated that it might be because Eads' husband, a Division Chief in another department, didn't select one of Klein's friends for a managerial position when an opening occurred in his Division. /3/ On the following day, June 4, 1981, Frederick called Klein into her office and informed Klein that Eads accused Klein of conditioning her evaluation on how well Eads got along with Klein's mother in the accounting class and that Eads said that Klein wanted Frederick's job and couldn't wait for her to retire. Klein attributed Eads' allegations to anger over her workload review and, although aggravated, Klein didn't think anything further would develop in the matter. Frederick concluded that Eads' allegations lacked evidence to support them. Thereafter, Eads applied for a Tax Auditor position and, as a result, Klein prepared a performance evaluation of Eads. Klein met with Eads on June 8 and Klein proceeded to show Eads her evaluation on the various performance factors. Eads disagreed with Klein's evaluation since it was that Eads' prior evaluation and, while still considering the first factor, asked Klein on what basis she came to her conclusions. Klein replied that she didn't have to explain to Eads the basis of her conclusions. Eads indicated that she wished to have a Union representative present at the meeting and Klein replied that Eads was not entitled to a representative during the discussion. Eads then left the meeting. Shortly thereafter, on that same day, Eads called Ron Todd, Chief, Resources Management Division, and Klein's second level supervisor. /4/ Eads related what had occurred during her evaluation meeting with Klein and said she felt she was entitled to know why her evaluation had been lowered. Todd replied that Klein was not required to explain the basis of her conclusions. Eads indicated her displeasure with that procedure and went on to inform Todd that she had been under a great deal of pressure to do homework for Klein's mother with whom she had taken an accounting course and that Klein told Eads her evaluation would depend on how well she got along with Klein's mother. Todd responded that he could not discuss anything like that with Eads and, while not directing her to do so, he told Eads that "Inspection" was the proper office to contact with such a matter. Todd called Branch Chief Frederick and told her of his conversation with Eads. On June 9, 1981 Frederick met with Klein and told her that Eads complained to Todd of Klein's refusing to discuss the evaluation with her and made the allegation that Klein conditioned her evaluation on how well Eads got along with Klein's mother. Klein became "upset" by accusations against what Klein interpreted as Eads' continuing allegations against her integrity and "misuse of power" and, with Frederick, contacted Murray Torrence, Louisville District Personnel Officer. After explaining the situation to Torrence, Klein suggested they call the Inspection Division before the matter went any further. Inspector Jim Cupp was summoned and Klein asked Cupp to conduct an investigation into the situation. Cupp indicated that he'd have to check with his supervisor before taking any action and suggested that Klein put her concerns in writing, which Klein did. On June 10 Frederick and Klein met with Eads and went over Eads' evaluation with her, factor by factor. Again Eads asked for explanations and again Klein refused to explain the reasons she had lowered Eads' evaluation, indicating that it was Eads' responsibility to explain why she thought she should be rated higher and convince Klein of her position. Eads again requested a Union representative and was refused. No agreement was reached on the evaluation. /5/ On June 15, 1981 Eads called Inspector Cupp and, after identifying herself, told him she was calling with regard to her supervisor Sharon Klein. Cupp responded that he had been called by Klein and already knew about the situation. Cupp told Eads that if he needed any additional information he would contact Eads. Eads never heard from Cupp thereafter. However, several weeks later Klein received a call from the Inspection Division and was informed that an investigation would not be conducted and, since the matter was viewed as an administrative problem, it would have to be handled at the "administrative level". Eads was not selected for the Tax Auditor position she sought and, on July 15, 1981, Chapter 25 submitted a grievance on behalf of Eads. The grievance alleged the selection was not made in accordance with Article 7, Section 1 and 4, Article 9 "or other applicable articles and sections" of the parties collective bargaining agreement. /6/ Klein testified that in late July or early August she received a telephone call from Retha Fuller, Respondent's District Training Officer. Fuller informed Klein that Eads had spent about an hour in her office complaining about her evaluation, stating that Klein told Eads that her evaluation would depend on how well she got along with Klein's mother and alleging that Klein was attempting to retaliate against Eads' husband through her because her husband had not selected one of Klein's friends for a job. /7/ Around this time, according to Klein, some employees indicated to her that they were aware that Eads had filed a grievance; they heard "through the grapevine" that Klein forced Eads to do personal favors for her; and that Eads stated to other employees that if Klein lost the grievance, Eads would personally see to it that Klein would be fired. Klein further testified that one employee requested a transfer from her section because the "constant talking about the grievance" was resulting in a divisive atmosphere among employees. In her testimony Eads acknowledged relating to some coworkers the substance of her contention that her appraisal was adversely affected by her not assisting Klein's mother. She further testified that she discussed the matter on the telephone at her work station and indicated the phone conversations could be readily overheard by her coworkers. Immediately after talking to Fuller, Klein contacted Personnel Officer Torrence and sought advice as to the propriety of seeking private legal counsel regarding the situation. Klein expressed concern that what she viewed as Eads' malicious allegations made outside of the grievance procedure to Klein's supervisor and other employees were impeding her ability to function as a manager. According to Torrence, Klein indicated that she viewed as malicious, statements by Eads that Klein told her if she did not assist her mother in her course work, she would hold it against her when rating her work and Klein's lack of integrity in rating Eads. Torrence also testified that Klein was concerned that Eads alleged Klein required her to provide advice to Klein concerning the maintenance of her lawn in order to obtain a proper appraisal. Torrence told Klein that what she did as a private citizen would be strictly her own business and the decision was hers to make as she chose. By letter dated August 3, 1981 Klein, after a first step meeting on Eads' grievance, notified Chapter 25 that she found no merit in Eads' allegations that she purposely falsified her work records to depreciate her performance and denied "several other allegations" made by Eads during the meeting which, in Klein's view, adversely reflected on her ability and integrity. Klein stated she considered such allegations "to be a wanton personal attack" on her and denied the relief requested. A second step grievance meeting was conducted on August 17, 1981 and, by letter to Chapter 25 dated August 21, Frederick indicated that after considering the information the Union and Eads presented, she also found no merit to the grievance. Meanwhile, Klein contacted an attorney and after explaining the situation to him, explored what could be done regarding the allegations Eads was making outside of the grievance procedure. On September 1, 1981 the attorney sent the following letter to Eads: Please be advised that this office has been retained by Mrs. Sharon Klein to represent her concerning allegations made by you which are defamatory in nature and will, if not retracted, diminish the esteem, respect and confidence in which Mrs. Klein is held by her fellow employees. In a memorandum to you dated June 10, 1981, your branch chief, Doris Frederick, advised you that the proper procedure for pursuing the allegations you have made is for you to prepare a written list of the misconduct charges and present them to the Inspection Division. That memo also states that her supervisor, Mr. Todd, told you, upon hearing your allegations, to put these allegations in writing and direct them to Inspection. As of this date, you have failed to do so, but continue to made oral allegations of misconduct on the part of Mrs. Klein, not only to her immediate superior, Doris Frederick, but also to the division chief, Ron Todd. Further, it is our information that you have made allegations to Retha Fuller that Mrs. Klein may be trying to retaliate for various actions taken by your husband. Your refusal to put these allegations in writing and proceed properly through channels and your insistence to continue your allegations of misconduct on the part of Mrs. Klein can be interpreted only to mean that you have no interest in seeing the truth brought out, nor do you want an investigation. Your sole purpose seems to be to cause irreparable damage to the career of Mrs. Klein. This will not be tolerated. Consider this a demand that you immediately cease making all allegations of misconduct relating to Mrs. Klein, both to the parties named above, and all other if any. Consider this a further demand that you either present evidence to back up your allegations, bringing forward and naming and witnesses you may have so that Mrs. Klein can confront you and her other accusers, or retract the statements that have been previously made by contacting those individuals to whom they were made and telling them that there is no evidence to substantiate your allegations. My client is prepared to proceed with whatever legal steps necessary to protect her good name and her position with the Internal Revenue Service. She takes this action with regret, knowing that it is necessary to work with you in the future. In light of this, I would suggest that the matter is not yet out of control. Cessation of all allegations that cannot be substantiated would greatly reduce tensions and lead to the possibility of all parties involved being able to reasonably discuss this matter and defuse it without further legal action. If legal action is necessary, however, it will be taken. On September 1, 1981 Klein's attorney sent the following letter to Chapter 25: Please be advised that this office has been retained by Sharon Klein to represent her rights regarding a defamation of her character by Jane Eads. It is my understanding that Ms. Eads is pursuing a grievance through your local union against Ms. Klein. She has also, outside of the grievance procedure, made oral statements to fellow employees as to alleged misconduct of Ms. Klein. This has been done despite having been told on separate occasions and in writing by both Doris Frederick and Ron Todd that all such allegations should be in writing and should be directed to the Inspection Division. It is our opinion that these allegations may constitute slander in that they have defamed the character of Ms. Klein with both her superiors and fellow employees. We recognize the right of an employee to file a grievance against his or her supervisor and we have no intention of attempting to stifle the orderly transaction of proper procedures. We must advise you, however, that if at any time, it becomes apparent that Ms. Eads is making these accusations outside the normal channels with union encouragement, both the union and any individual personally involved with encouraging Ms. Eads to follow such a course of conduct will be named as co-defendants in any lawsuit brought against her. We strongly encourage you to be sure that you have witnesses that can document what Ms. Eads is alleging Ms. Klein did. I don't think I need to remind you, Mr. Hall, that you have, on previous occasions, prosecuted grievances on behalf of other employees against Ms. Klein and made statements that you had witnesses to back up the alleged conduct, when in fact you did not. While it is not our intention to stifle a legitimate union grievance, it could well be that a court of law, in viewing a pattern of unsubstantiated grievances against one individual, may determine that there is a concerted effort of harassment and defamation involved. Ms. Klein is prepared to take whatever action is necessary to fully protect her rights, not only as an Internal Revenue Service employee, but also as a citizen of the United States who has full recourse to its court system, outside of the NTEU union proceedings. It is suggested that any grievance prosecuted by your union be a well researched and substantial one. This letter is not an allegation of wrongdoing on the part of the union or any of its stewards to date. It is merely a statement that Ms. Klein will protect her rights against any individual or organization that violates them, and this should be considered as such. After the letters issued Klein brought them to the attention of Branch Chief Frederick and Personnel Director Torrence. Although the evidence does not disclose on what date the letters were shown to Frederick and Torrence, Torrence testified he saw the letters "several weeks" after the letters were sent. The record reveals that a third step meeting on Eads' grievance was held on September 11, 1981 between Eads, the Union and management and on September 25, Chief of Resources Management Division Todd issued his decision wherein he found no merit to the grievance. After a fourth step meeting, the grievance was denied by Respondent's District Director on January 28, 1982. Thereafter, the matter was heard before an arbitrator on April 8, 1982. In an opinion dated June 3, 1982 the arbitrator considered, inter alia, the timing of the June 1981 promotional appraisal and the matter of Eads' assisting Klein's mother. The arbitrator found that Eads' evaluation was not fair and objective and Eads was improperly omitted from the best qualified list for consideration for the Tax Auditor vacancy. Discussion and Conclusions Respondent contends that the letters of September 1, 1981 from Klein's attorney to Eads and Chapter 25, which I conclude clearly conveyed a threat to resort to the civil courts for alleged defamation of character, were not violative of the Statute. More specifically, Respondent contends that the actions the letters addressed were not activities protected by the Statute; threatening to file a law suit in the circumstances of this case was not a violation of the Statute; and, in any event, the issuance of the September 1 letters was an act of a private citizen not attributable to Respondent. With regard to its contention that the attorney's letters of September 1 addressed activity not protected by the Statute, Respondent acknowledges that employees are engaged in protected activity while presenting grievances within the confines of the grievance procedure. However, Respondent argues that the letters challenge only the utterance of statements made outside the grievance procedure. I reject this contention. Nowhere in the letter to Eads is it indicated that only those alleged statements Eads was making outside the grievance process were sought to be suppressed. Indeed, the grievance is not mentioned anywhere in the letter. While the letter specifically refers to Eads making allegations to Frederick, Todd and Fuller, it does not state that any allegations which Eads may have made during her second and third separate grievance meetings before Frederick and Todd were not to be considered as objectionable statements. Rather, the letter broadly demands, under the threat of legal action, the Eads cease making all allegations of misconduct relating Mrs. Klein to Frederick, Todd and Fuller and all other parties. The letter also broadly "demands" that Eads present evidence and witnesses to support her allegations or retract her allegations. Thus, if the demand were followed, Eads arguments in support of her grievance would be substantially curtailed since frequently matters in controversy in the grievance process are not supportable by specific evidence or third party witnesses and must be resolved by inference based upon the facts presented. As to the letter to Chapter 25, the early portion of that document is addressed to allegations of misconduct made by Eads "outside the grievance procedure, acknowledges the right of an employee to file a grievance against a supervisor and disclaims any "... intention of attempting to stifle the orderly transaction of proper procedures." However, the third paragraph of that letter indicates it is the matters involved in the grievance itself which are of concern to Klein's attorney, the substantiation and substantiality of which could trigger recourse to the court system. Thus, while professing to be interested only in Eads' statements made outside the grievance procedure, the letter clearly conveys that the Union's handling of those matters encompassed by the grievance are also open to the possibility of legal action. It is quite apparent that Eads' statements made outside the grievance process are essentially intertwined with the matters involved in her grievance. Thus, Klein's August 3 first step reply to Eads' grievance indicates that Eads' allegations, which Klein thought was a "wanton personal attach" on her were the subject of the grievance at that step. Meetings were conducted at the next two steps which Eads attended and since the allegations concerning Eads' relationship with Klein's mother was considered by the arbitrator, it is reasonable to infer that the matter was at least part of the grievance at all the various steps. Indeed, counsel for Respondent acknowledged that the allegations concerning Klein's mother were part of the grievance and the same allegations raised at the hearing herein were raised when the grievance was being processed. (Tr. 116-117) The right to file a grievance and a union's right to represent employees are significant rights afforded by the Statute and it is essential to preservation of those rights that employees are free from interference in utilizing the grievance machinery to vindicate perceived wrongs. It has been long held by the Authority that interference with the right to file a grievance tends to discourage the exercise of the freedom of employees to form, join or assist labor organizations, rights protected by the Statute. Of United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois, 3 FLRA 724 (1980) and cases cited therein; Federal Election Commission, 6 FLRA 327 (1981). Of course an employee's conduct while engaging in protected activity may be such as to remove the conduct format he ambit of protected activity. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979). However, the Authority has held that such misconduct must be flagrant. Id; Cf. Department of Housing and Urban Development, San Francisco Area Office, San Francisco, California, 4 FLRA 460 (1980) and National Labor Relations Board, Region 1, Boston, Massachusetts, 5 FLRA 622 (1981). For similar holdings in cases arising under the National Labor Relations Act see Union Carbide Corporation, 171 NLRB 1651 (1968); Harding Glass of Missouri, Inc., 158 NLRB 136 (1966); Liberty Nursing Homes, Inc., d/b/a Liberty House Nursing Home of Lynchburg, 245 NLRB 1194 (1979); N.L.R.B. v. Thos. Power Tool Company, 351 F.2d 584 at 587 (7th Cir. 1965); and N.L.R.B. v. Illinois Tool Works, 153 F2d 811 (7th Cir. 1946). In the case herein Eads' statements ascribed what she thought were Klein's reasons for not giving Eads what she thought was a "fair and objective" evaluation as required by the contract and what Eads' statements were uttered to two of Klein's superiors, the District Training Officer (a managerial employee) in response to a question, and a limited number of employees in her work unit. In addition, Eads' allegations which Klein understandably objected to were confined to matters concerning her evaluation and were part of the grievance filed by Eads to challenge her evaluation and open to resolution in the grievance process. In the circumstances of this case and weighing the competing interests herein, noting particularly the importance of keeping access open to the grievance procedure to resolve disputes arising form the employment relationship, I conclude that Eads' assertions were not so flagrant or egregious as to remove them form the ambit of protected activity. I also conclude that Klein's threat to take legal action constituted a conduct violative of section 7116(a)(1) of the Statute. The Authority held in Consumer Product Safety Commission, 4 FLRA 809 (1980), that the filing of a civil libel suit does not, in itself, constitute an unfair labor practice under the Statute. /8/ However, that decision did not broach the issue of whether a threat to file a suit would violate the Statute. In Consumer Product Safety Commission, supra, Judge William B. Devaney pointed out the purpose and intent of section 7116 (a)(1) of the Statute and section 8 (a)(1) of the National Labor Relations Act are closely related and accordingly, it is helpful to consider the treatment of such matters by the National Labor Relations Board (the Board herein). In Clyde Taylor Company, 127 N.L.R.B. 103, 108 (1960), the Board, while recognizing that it "... should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exercise of such right as an unfair labor practice," nevertheless found that a threat to sue for libel because of the filing of unfair labor practice charges, or unless they were withdrawn, constituted an unfair labor practice. The Board reasoned: Such a threat, express or implied, is of a harassing nature. It would normally tend to intimidate an individual contemplating filing a charge, from doing so, or one, who has filed a charge, to withdraw it. Accordingly, we agree with the Trial Examiner that such a threat restrains employees in the exercise of the right to file charges under the Act and thus is coercive and violative of Section 8(a)(1). By this, we do not mean to deny the existence of the normal right of all persons to resort to the civil courts to obtain and adjudication of their claims. We interdict her only the making of a threat by an employer to resort to the civil courts as a tactic calculated to restrain employees in the exercise of rights guaranteed by the Act. Thereafter, the Board held in numerous cases that while the actual filing of a civil suit may be privileged, the threat thereof is not accorded the same treatment. See S. E. Nicholas Marcy Corp. et al., 229 NLRB 75 (1977); Wolverine World Wide, Inc., 243 NLRB 425 (1979); Pabst Brewing Company, 254 NLRB 494 (1981); and International Brotherhood of Electrical Workers, Local Union No. 11E , AFL-CIO, 258 NLRB 374 (1981). But see United Aircraft Corporation, 192 NLRB 382 (1971) where the Board held that the threat to file a civil suit unless unfair labor practice charges were withdrawn was not an unfair labor practice where the statement was an integral part of an attempt to effectuate an overall settlement of the dispute between the parties. As in so many cases arising out of the employment relationship, the issues herein require the balancing of competing rights and interests. Without doubt, Klein was genuinely concerned that her reputation as a supervisor be protected by what she saw as malicious statements by Eads. On the other hand, Eads similarly had legitimate concern that she had not been appraised in a "fair and objective" manner as required by the collective bargaining agreement. The Supreme Court has recognized that the filing of a suit against an employee who engages in activity protected by the National Labor Relations Act can place employees on notice that anyone who engages in such conduct is subject to the possibility of burdensome litigation and thus has a chilling effect on engaging in such activities. /9/ As indicated in Cycle Taylor, the threat to file a law suit is of a "harassing nature" and therefore also produces a similar chilling effect. But the right of access to a court to seek redress from alleged wrongs has been recognized to be an aspect of the First Amendment right to petition the Government for redress of grievances. /10/ It may be claimed that the right to threaten to file a law suit is merely the exercise of free speech, i.e. announcing that one will engage in a legally permissable action. however, it is well settled that free speech as guaranteed by the Constitution does not extend to coercive statements violative of the National Labor Relations Act. In the case herein, the threat of a civil action against Eads was stated in broad terms and could reasonable be interpreted to require Eads to desist from making statements in or out of the grievance procedure which adversely reflected on Klein or impugned her motives. The threat to the Union was directly related to the Union's full and vigorous representation of Eads while processing her grievance. Thus, an attempt by the Union to argue and support Eads' grievance by urging, based upon Eads' testimony, that Klein was improperly motivated when evaluating Eads could occasion a law suit. Accordingly, in the circumstances herein I conclude that the threats of civil action expressed in the letters of September 1, 1981 inherently interfered with and restrained Eads and the Union in the exercise of rights assured by the Statute, thereby violating section 7116(a)(1). I further conclude that the issuance of the September 1 letters is attributable to Respondent. /11/ Respondent takes the position that Klein had neither express nor implied authority to take legal actions on behalf of the agency and accordingly, the agency cannot be held responsible for such conduct. It is well settled in cases arising under the National Labor Relations Act that an employer's responsibility for the actions of supervisors is not to be determined by strictly following the theory of respondent superior or the rules of agency. International Association of Machinists, Tool and Die Makers, Lodge No. 35 v. N.L.R.B., 311 U.S. 80 (1940) and Furr's Inc. v. N.L.R.B., 381 F.2d 562 (10th Cir. 1967). Thus in International Association of Machinists, etc, supra, the Supreme Court stated: The employer, however, may be held to have (engaged in illegal conduct) even though the acts of the so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of respondent superior. We are dealing here not with private rights (Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738) nor with technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process form all taint of an employer's compulsion, domination, or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible. In the case herein, the letters from Klein's attorney appear on their face to indicate that Klein's threats were being made in her capacity as an individual. Even though these letters do not state that the agency was not involved, there is no specific reference to the agency being a party to any court action. In addition, the letters specifically state that the attorney was retained by Klein and it is Klein who is concerned with her character and reputation. The foregoing might well support a finding that indeed the threats should be interpreted as purely private and thereby warrant a conclusion that respondent should not be held liable for Klein's conduct. However, an examination of the attendant circumstances cannot end there. Thus, the underlying facts reveal that the initial matter giving rise to this controversy arose out of the employer-employee relationship: Klein carrying out her official duties as a supervisor on behalf of Respondent in evaluating Eads and Eads contesting the evaluation by complaining to her superiors and envoking the contractual grievance procedure alleging a violation of the Union-management collective bargaining agreement. Eads' allegations challenging Klein's motivation when evaluating her were made in support of Eads' contention that the evaluation was not fair and objective as required by the contract. Further, management was put on notice of Klein's disposition to seek legal counsel and did nothing to caution or dissuade Klein. In addition, the letters alleged to have violated the Statute did not convey the impression that all aspects of the matters involved in the grievance were clearly excluded form the threat. Moreover, after becoming aware that the letters of September 1 issued, Respondent did nothing to repudiate the letters, disallow any participation therein or explain its position on the matter and take such other action to convey it was not a party to conduct which would interfere with the presentation of the grievance. Accordingly, evaluating the evidence, I conclude that Respondent is responsible for the conduct of its supervisor and is therefore liable for the unfair labor practice conduct found herein. See N.L.R.B. v. Big Three Industrial GAs and Equipment Co., 579 F.2d 304 (5th Cir. 1978) and Link-Belt Co., 311 584, 599 (1941). In view of the entire foregoing I conclude that Respondent, by the conduct described herein, violated section 7116(a)(1) of the Statute and recommend the Authority issue the following: ORDER Pursuant to section 2433.29 of the Federal Labor Relation Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Treasury, Internal Revenue Service, Louisville District shall: 1. Cease and desist form: (a) Threatening court action against Jane Eads or any other employee for making protected statements related to the processing of a grievance. (b) Threatening court action against National Treasury Employees Union, the employees' exclusive representative, for pursuing a grievance on behalf of Jane Eads or any other employee. (c) 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 Federal Service Labor-Management Relations Statute: (a) post at its Louisville, Kentucky District Office 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 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. Reasonable steps shall be taken 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 Rule and Regulations, notify the Regional Director, Region IV, Federal abhor Relations Authority, 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Georgia 30309, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. (s)--- SALVATORE J. ARRIGO Administrative Law Judge --------------- FOOTNOTES$ --------------- /1/ The findings herein are generally a composite of the credited portions of various witnesses' testimony. /2/ Eads testified that in January 1981 she submitted an individual development plan outlining various courses she was to enroll in at the University of Louisville during the Spring semester. According to Eads, shortly thereafter Klein told Eads that Klein's mother would be taking one of the same accounting courses Eads was enrolled in and asked her to identity herself to her mother and her next evaluation would depend on how well she got along with her mother. Apparently Eads did give assistance Klein's mother in the course but ceased helping her towards the end of the semester. Klein testified that she thought there were "one or two times" her mother called and asked Klein if it would be all right to ask Eads to take some notes for her since she was unable to be present at the class and Klein ". . . just asked (Eads) if she would mind doing a favor." However, Klein denied attempting "to put any pressure" on Eads in this regard. /3/ In subsequent exchange of memoranda between Frederick and Eads, Frederick recalled Eads indicating during the discussion that Klein wanted Frederick's job. Eads version was that Klein stated she had Frederick's job when Frederick retired. /4/ Eads testified that she did not contact Frederick since Frederick was not in the office at that time. /5/ Eads' evaluation, dated June 12, 1981, indicated her performance had slipped in various areas from her evaluation of November 28, 1980. /6/ The agreement clearly requires that all performance appraisals and promotion evaluations must be "fair and objective". /7/ Although not testifying to the content of the conversation, Eads testified that she had a discussion with Fuller in late July or early August when Eads attempted to obtain a copy of her individual development plan which she misplaced. According to Eads, the conversation concerning the evaluation was prompted by Fuller asking EAds why she thought Klein lowered her evaluation from the one Klein had previously given. Fuller did not testify at the hearing. /8/ For treatment of this issue by the Supreme Court in a case arising under the National Labor Relations Act see Bill Johnson's Restaurants, Inc. v. N.L.R.B., 103 S. Ct. 2161. /9/ Bill Johnson's Restaurants, Inc., supra, at 2161. /10/ Id. /11/ There is no contention that Klein was not responsible for the letters sent by her attorney. In any event, such a contention, if made, would be rejected on the facts of this case. 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 STATUTE We hereby notify our employees that: WE WILL NOT threaten court action against Jane Eads or any other employee for making protected statements related to the processing of a grievance. WE WILL NOT threaten court action against National Treasury Employees Union, the employees' exclusive representative, for pursuing a grievance on behalf of Jane Eads or any other employee. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Stature. --- (Activity or Agency) Dated:--- By:--- (Signature) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region IV, Federal Labor Relations Authority, whose address is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, GA 30309 and whose telephone number is (404) 881-2324.