[ v20 p660 ]
20:0660(77)CA
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.