22:1037(101)CA - National Institute for Occupational Safety Health, Cincinnati, OH and AFGE Local 3840 -- 1986 FLRAdec CA
[ v22 p1037 ]
The decision of the Authority follows:
22 FLRA No. 101 NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, CINCINNATI OPERATIONS, CINCINNATI, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3840, AFL-CIO Charging Party Case No. 5-CA-50016 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 Respondent filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order as modified below. In agreement with the Judge's conclusion, the Authority finds that Respondent violated section 7116(a)(1) of the Statute, within the totality of circumstances of this case, by coercively interrogating a unit employee and thereafter proposing disciplinary action against the employee in connection with her refusal to supply the names of employees referenced in her court affidavit. /1/ In determining that the interrogation of employee Handke resulted from her exercise of protected activity, we note particularly the Judge's findings on page 12 of his decision: The circumstances presented in this case indicate that the affidavit was prepared by Handke while acting as a representative of the Union. The questions posed and answered in the affidavit reflect that it was executed by Handke in a representational capacity in an effort to remedy discriminatory practices affecting bargaining unit members. . . . Handke's representational activity dominates the picture presented by the evidence. At the time the affidavit was planned she was concluding her term as president of the Union. She was a Union representative on the Respondent's EEO Committee. Her work location was the focal point of Union activity, and in 1981-1982, she had served as a Union steward. Further, we fully agree with the Judge's findings on page 16 that "(t)he conduct conveyed to Handke, and other bargaining unit members, the clear message that discipline and/or harassment would follow as a direct result of the pursuit of legitimate Union interests." ORDER /2/ Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing Jan Handke, or any other employee in the exercise of rights assured by the Federal Service Labor-Management Relations Statute, by conducting interrogations concerning protected union activity, and by threatening disciplinary action for failing to disclose details of information relating to such protected union activity. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Post at its facilities at the National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio, 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 an appropriate official and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all 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 Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., July 31, 1986. /s/ Jerry Lee Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT interfere with, restrain, or coerce Jan Handke, or any other employee, in the exercise of rights assured by the Federal Service Labor-Management Relations Statute, by conducting interrogations concerning protected union activity, and by threatening disciplinary action for failing to disclose details of information relating to such protected union activity. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is: 175 Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604, and whose telephone number is: (312) 353-6306. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 5-CA-50016 NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, CINCINNATI OPERATIONS, CINCINNATI, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3840, AFL-CIO Charging Party Alan S. Dorn, Esquire For the Respondent Judith A. Ramey, Esquire For the General Counsel James P. Agee, Esquire For the Charging Party Before: LOUIS SCALZO Administrative Law Judge DECISION Statement of the Case This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as "the Statute"), and the Rules and Regulations issued thereunder. The complaint alleged that on or about June 19, 1984, and July 16, 1984, the National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio (Respondent or NIOSH), through the conduct of Philip J. Bierbaum and F. Sutton Kay, violated Section 7116(a) (1) of the Statute by interrogating a representative of American Federation of Government Employees, Local 3840, AFL-CIO (Charging Party or Union) concerning the identities of five NIOSH employees referred to in an affidavit prepared by the representative in conjunction with a pending court case, and in conjunction with representational duties performed on behalf of the Union. The complaint also alleged that on the same dates the Respondent, through Bierbaum and Kay violated Section 7116(a)(1) by threatening to discipline the Union representative for failing to reveal the identities of the five NIOSH employees referred to in the affidavit. Counsel representing the Respondent contend that Respondent's representatives were conducting a legitimate inquiry to help establish evidence of discriminatory practices, and further that under the circumstances presented herein the conduct outlined was not violative of Section 7116(a)(1). The parties were represented by counsel during the hearing and were afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Based upon the entire record herein, including exhibits, and other relevant evidence adduced at the hearing, and briefs filed by the parties, I make the following findings of fact, conclustions and recommendations. Findings of Fact General Background Information The record reveals that the Respondent's activities in Cincinnati are operated and supervised by the Centers for Disease Control, Department of Health and Human Services (CDC), through a facility in Atlanta, Georgia known as Headquarters, National Institute for Occupational Safety and Health. The Union is the exclusive representative of a unit of Respondent's employees consisting of certain professional and nonprofessional General Schedule and Wage Grade employees. /3/ Philip J. Bierbaum has served as the Deputy Director of Respondent's Division of Surveillance, Hazard Evaluations and Field Studies (DSHEFS) since 1976. F. Sutton Kay has been employed as Operation Management Officer for DSHEFS, under Bierbaum, since 1977 or 1978. The Union official referred to in the complaint was identified as Jan Handke, an epidemiologist in DSHEFS. Handke served as President of the Union for a one year period ending on May 7, 1984, when the position was taken over by James P. Agee, Handke's successor (Tr. 17, 22-23). During the preceding year (1982-1983), Handke served a term as the Union's Vice-President, and during the year 1981-1982 she served as the Union's Steward for DSHEFS (Tr. 22). Since October 10, 1982, Handke has served as a Union representative on the Respondent's Equal Employment Opportunity (EEO) Committee. The Committee was established under the terms of the collective bargaining agreement governing the labor relations of the Respondent and the Union (Jt. Exh. No. 1 at 9; Tr. 18-19). The EEO Committee meets quarterly for the purpose of assisting the Respondent to develop and implement a more effective EEO program (Jt. Exh. No. 1 at 10). The Committee deals generally with affirmative action policy, and discusses individual problems at times (Tr. 133). Hanke was also selected to serve as the Union's EEO Fair Practices Coordinator. The selection was made at a Union meeting in June of 1984 by James P. Agee, the current Union President (Tr. 17). Handke's identification with the Union was further established by the fact that during the period that she served as President of the Union, her office was enlarged to provide additional space for the Union as required by the collective bargaining agreement (Tr. 23-24). Union files were maintained at her office work location in space provided by the Respondent, and Union business was conducted at her work location. Handke's Association with Union Representational Duties on Behalf of James E. Peguese James E. Peguese was employed as an industrial hygienist in DSHEFS from approximately 1981 until May of 1984 (Tr. 24-25). He filed two grievances, both of which were handled by the Union (Tr. 152). The first was filed in March of 1984 to protest an unsatisfactory performance rating (Tr. 27, 116). /4/ The grievance interposed objection to the rating and also alleged a failure to follow relevant provisions of the collective bargaining agreement in the preparation of Peguese's performance rating (Tr. 118). Peguese's second grievance related to Respondent's denial of a within-grade pay increase (Tr. 27-28). It was not pursued to arbitration because it was felt that the arbitrator's decision relating to the first grievance would dispose of issues posed in the second (Tr. 28). As President of the Union Handke discussed Peguese's grievances with Union stewards assigned to handle them, and met with Peguese and stewards on at least three occasions to discuss them (Tr. 29-31). She was involved in decisions made at each step of the grievance procedure (Tr. 30-31). In the latter part of March 1984, after the initiation of the Peguese grievances, Peguese was served with a letter of proposed separation (Tr. 31). Peguese retained Lee Thompson, a Columbus, Ohio attorney to represent him in connection with this proposed adverse action (Tr. 37-38, 134). The removal action, like the two earlier grievances involved the issue of poor performance (Tr. 118-119, 153). In addition to Peguese's use of the adverse action procedure to oppose Respondent's proposed letter of separation, Peguese also initiated an EEO complaint in an attempt to defeat Respondent's efforts to remove him (Tr. 33-34, 153). The complaint, based upon a charge of racial discrimination, alleged that Bierbaum and Kay were the officials responsible for the discriminatory conduct designed to effect his removal (Tr. 72, 118, 150-151). On March 30, 1984, Peguese designated the Union to represent him during the informal stage of his EEO complaint, and Jan Handke was designated to serve as his Union representative (G.C. Exh. No. 2, Tr. 33-34). Handke accompanied Peguese to a meeting with the EEO Counselor assigned to the case, and her name appears on the "Designation of Representative" form as well as other documents filed in connection with the informal stages of the EEO proceeding (Tr. 34-35). As a result of this Union representational activity, Handke was very familiar with the issues raised in the Peguese EEO complaint (Tr. 151-152). Circumstances Surrounding Preparation of Affidavit for Filing in James E. Peguese v. United States, et al, Case No. C-1-84-896, Untied States District Court, Southern District of Ohio Following the issuance of the EEO Counselor's report in the latter part of April 1984, Peguese retained his attorney Lee Thompson to replace Handke as the representative of record for the formal stage of the EEO proceeding (Tr. 33-34, 38). At about the same time Thompson filed an action in the United States District Court for the Southern District of Ohio to enjoin the adverse action proceeding brought to remove Peguese (Tr. 41-42). At this point Thompson was acting as Peguese's representative in defense of the removal action, as attorney of record in the EEO proceeding, and as Peguese's attorney in the District Court action. However, the Union continued to represent Peguese in connection with grievances filed under the negotiated grievance procedure. Peguese advised Handke of Thompson's interest in Handke's preparation of an affidavit relating to knowledge gained by Handke through her representation of Peguese during the informal stage of the EEO proceeding (Tr. 42). Upon the basis of knowledge gained as a Union official Handke agreed to express her view that Peguese had been subjected to racial discrimination (Tr. 151). On May 5, 1984, just prior to the expiration of her term as Union President, Handke wrote Thompson to confirm that she would prepare an affidavit as a witness in the District Court proceeding, but noted that she would need a list of questions Thompson wished to have answered in the affidavit (G.C. Exh. No. 3). Thompson's questions were delivered to Handke on May 7, 1984, and the affidavit was prepared by Handke on May 7 and 8, 1984. She utilized Union grievance files located in her office to verify some of the dates incorporated into her responses (Tr. 45-46). The affidavit, included in the record as G.C. Exh. No. 4, reflects questions and answers relating to Handke's Union membership; Union offices held during 1983 and 1984; /5/ responsibilities an duties assumed as Union Vice-President, and President; Handke's personal knowledge regarding Respondent's proposals to remove white and black employees in 1983 and 1984; and whether Handke thought the Peguese removal action involved unfair treatment. Question (7) of the affidavit requests Handke to state her "personal knowledge regarding management at NIOSH-Cincinnati Operations proposing to remove white and black employees in 1983 and 1984." Handke's affidavit reflected the following language relative to this inquiry: In June 1983 Mr. Jon Ruse, head of the Personnel Office at NIOSH-Cincinnati Operations gave the only black clerk-typist in his office a letter stating she would be fired. The date of implementation was about two days before she would have completed her one-year probationary period as a permanent employee and have the right to appeal to the Merit System Protection Board. She refused to resign so that she would have the right to file a formal EEO complaint and clear her name. As a result of pressure on management at NIOSH-Cincinnati Operations by concerned employees, she was then immediately rehired by another supervisor as a temporary employee. Since then she has informed me she received two "exceeded" ratings on her annual performance evaluation in January, 1984. In July 1984 /6/ a white clerk-typist in the Division of Surveillance, Hazard Evaluations and Field Studies (DSHEFS) discussed with me a letter she received proposing that she be fired. This firing was reversed by officials in Atlanta and she was allowed to transfer to another Division. Around December 1983 a white health technician in DSHEFS received a letter proposing that he be fired. This firing was reversed by officials in Atlanta and he was given a 30-day suspension. In March 1984 a black industrial hygienist in DSHEFS received a letter proposing that he be fired. This action is currently being appealed to officials in Atlanta. In April 1984 my immediate supervisor informed me he was going to fire (sic) a black clerk-typist. I argued strongly that this was unfair and discriminatory since she was being treated differently from a white male doctor in the same Section who was asked to resign by the Director of DSHEFS. (This white male doctor subsequently transferred to a different supervisor.) My immediate supervisor then reversed his decision and the clerk-typist was laid off. The affidavit reflects that Handke refused to name the individuals referred to in Question (7). She repsonded that she could not reveal the names because of "confidentiality." (G.C. Exh. No. 4 at Question (8)). Her testimony at the hearing established that she did not intend to conceal the identity of the individuals referred to from "NIOSH management," and that she included sufficient detail for management to identify the employees involved (Tr. 71, 109-110). To this end she supplied relevant dates, and identifying data relating to employee job titles, race, sex, and office location, together with descriptive phrases about surrounding circumstances (Tr. 109-110). However, she did not wish to disclose the names of employees publicly in the affidavit because she wanted to protect the reputations of the employees who had in the past been subjected to proposed removals, and because she had been advised by the Union's District Office to consider the names confidential until the District Judge ordered her to reveal the names (Tr. 108-109). Her testimony established that these matters involved Union grievances which were considered confidential by the Union (Tr. 110). The record revealed the following relative to the Union's representational interest in the episodes outlined in the Handke affidavit: In June 1983 Episode /7/ -- This episode involved Florence Darks, an employee in Respondent's Personnel Office. She was not a member of the bargaining unit. Handke became aware of the matter as a result of employees reporting to her as the Union President, and then as a result of Darks asking the Union to represent her in connection with an EEO complaint arising out of management efforts to terminate her employment. Handke was designated as her representative (G.C. Exh. No. 5, Tr. 47-48). Thereafter Handke represented her as a Union representative during the informal stage of her EEO complaint, and as an individual during the formal stage of the EEO proceeding (Tr. 50-51). The matter was of special concern to the Union and was the subject of Union Executive Committee discussion on more than one occasion (Tr. 52-53, 55). The informal stage of the EEO proceeding lasted many months (Tr. 54), and involved a number of Union sponsored initiatives (Tr. 56). The July 1983 Episode -- This matter involved Linda Smith, a bargaining unit employee in DSHEFS. Smith requested the Union to represent her when management threatened to terminate her employment (Tr. 58-60). Smith sought out Handke personally; and Handke and another Union official served as designated Union representatives (G.C. Exh. No. 6, Tr. 62, 127-128). Although Smith did not file a formal grievance, the Union represented her interests in the matter through informal contacts with management (Tr. 126-127, 131). The matter was resolved by classifying Smith as a handicapped person with a learning deficiency. She was demoted and retained as an employee (Tr. 63). The December 1983 Episode -- This segment of the affidavit involved Dorris Hale a bargaining unit employee in DSHEFS. Handke became aware of the case when Hale received a letter indicating that management planned to terminate Hale's employment. Hale contacted the Union and requested representation, and a Union representative handled Hale's administrative appeal (Tr. 64-65). Handke had conversations with Hale, and discussed strategy with the designated Union representative (Tr. 66-67). As a Union representative Handke also had conversations with Bierbaum, Kay and other management officials concerning the Hale matter (Tr. 67-68). The March 1984 Episode -- This paragraph of the affidavit refers to the previously outlined efforts to terminate the employment of James E. Peguese because of poor performance. The April 1984 Episode -- This element of the affidavit refers to a matter involving one Kim Gordon, a black clerk-typist who was not a member of the bargaining unit. Handke became personnally aware of the plan to terminate Gordon, and in a personal capacity, intervened on Gordon's behalf with management officials (Tr. 69-70). Handke Interrogated by Bierbaum and Kay Following Filing of Handke Affidavit in United States District Court Action On May 9, 1984, Lee Thompson, acting as Peguese's attorney, filed the Handke affidavit in the United States District Court proceeding brought to obtain a temporary restraining order in the Peguese adverse action proceeding (Tr. 72). The affidavit was submitted to the District Court as the statement of a witness testifying on behalf of Peguese to establish an evidentiary basis for a temporary restraining order. The filing of the affidavit came to the attention of Kay, who then phoned Everett L. Martin, Chief of Labor and Employee Relations for CDC in Atlanta (Tr. 160). Martin and Kay decided that it would be necessary to interrogate Handke to obtain the exact identity of individuals that Handke referred to in factual situations outlined in her affidavit. According to Kay and Martin it was further determined that Kay should undertake this assignment so that the names could be turned over to the appropriate people at CDC for the purpose of initiating further investigation to determine whether discriminatory actions had in fact occurred (Tr. 161, 172-173, 186). /8/ However, as will be described in more detail herein, Respondent's representatives were then completely aware of the identity of individuals referred to in the affidavit. One purpose of the interrogation was made clear. The interrogation was proposed as part of Respondent's efforts to prepare a defense for the use in the District Court action (R. Exh. No. 2 at 11). Kay summoned Handke to his office on June 19, 1984. She attended the meeting with C. K. Wang, Vice President of the Union, who acted as her representative (Tr. 73). At the meeting Kay and Bierbaum advised Handke that the allegations were serious, and that disclosure of the identity of the individuals to Kay and Bierbaum was necessary to permit NIOSH to initiate an investigation into discriminatory practices to see if they existed, and to provide a basis for appropriate action (Tr. 105, 112, 162). Kay's testimony indicated that he and Bierbaum were the individuals conducting the investigation (Tr. 166). They asked her if she had prepared the affidavit, whether or not she had signed it, and then requested her to identify the individuals referred to in the document (Tr. 75-76, 163). The record as a whole indicates the first two questions were unnecessary inasmuch as Kay and Bierbaum knew that she had prepared the affidavit before Kay scheduled the interview. It was also clearly established that Kay and Bierbaum, and/or other NIOSH officials knew the identity of the individuals referred to in the document. This fact was admitted during the interview (Tr. 77, 79, 143, 149, 173-175, 178-179, 181). Handke acknowledged that the affidavit was hers but refused to name the individuals because of possible civil liability related to her disclosure under the circumstances; because she did not know the legal basis for Kay and Bierbaum insisting upon disclosure, and lastly, because the affidavit had been filed in connection with the then pending Federal court case (Tr. 164). Bierbaum and Kay strongly disagreed with her refusal and conveyed to Handke, erroneous information to the effect that the court case had been settled (Tr. 77-78, 164). On behalf of Handke, Wang informed Kay and Bierbaum that the Federal case was still pending and that there were appropriate court procedures for interrogating witnesses (Tr. 76-77). Kay and Bierbaum insisted that she answer and threatened her with discipline for failing to reveal the names (Tr. 78). Handke repeatedly stated that she would be willing to provide the names "in the proper legal format." (Tr. 78-79). Kay and Bierbaum became uncertain about the status and the effect of the Federal case and decided to terminate the interrogation at this point (Tr. 166). Following the meeting Handke wrote directly to the Director of DSHEFS to express concern about Division policy concerning such interviews, and to inquire whether he thought the meeting appropriate (Tr. 80, 83). Her Union representative sent a similar letter to Kay and Bierbaum. He noted objections to the questioning because of the pending court case, and mentioned the need to follow appropriate civil procedure in such cases (Tr. 83-84). As a followup Kay contacted Everett Martin in Atlanta concerning the interview. Martin stated that he would communicate with the Office of the United States Attorney as they were handling Respondent's defense in the District Court proceeding (Tr. 168). Martin called Kay back to advise that Kay and Bierbaum should postpone any further questioning (Tr. 168, 187). However, on July 13, 1984, Martin phoned Kay to advise that he (Martin) had again discussed the matter with the United States Attorney's Office and that an Assistant United States Attorney had advised that they could resume their interview of Handke (Tr. 169, 187-188). On July 16, 1984 Kay and Bierbaum again summoned Handke to a meeting for the purpose of continuing the interrogation (Tr. 80-81). Bierbaum conducted most of the interrogation on this occasion (Tr. 169). C. K. Wang again represented Handke. In response to an inquiry from Wang concerning a failure to reply to Handke's and Wang's letters concerning the propriety of the June 19th meeting, Bierbaum stated that the letters were not worthy of a response (Tr. 83-84). Bierbaum stated that the United States Attorney's Office had advised that the questions previously posed would have to be answered, and repeated the three questions asked on June 19th even though Handke had previously stated that she had prepared and signed the affidavit, and even though they knew the identity of the individuals referred to therein (Tr. 86-87, 169-170). He and Kay repeatedly demanded answers, and at 3:20 P.M. threatened her with discipline based upon insubordination if she did not respond by 3:30 P.M. (Tr. 87-88, 89). Again Handke stated that she would cooperate in an appropriate legal setting (Tr. 89). At 3:30 P.M. Bierbaum declared that the meeting was over (Tr. 89). Wang again addressed letters to NIOSH on behalf of Handke after this meeting, and Bierbaum had verbal conversations with Wang about the matter (Tr. 182). Bierbaum indicated that there would be no response to his letters, because the Respondent's position had been stated (Tr. 182-183). On August 7, 1984, Handke was served with a notice that NIOSH intended to suspend her for a period of six months for her refusal to identify the individuals referred to in the affidavit (G.C. Exh. No. 7). The notice stated that Handke's refusal to answer questions by management representatives, "cannot be tolerated." On August 12, 1984, Handke wrote to a representative of the Respondent and provided the information demanded (G.C. Exh. No. 9). As a result of the proposal to suspend, Handke wrote to United States District Court Judge S. Arthur Spiegel, who was handling the District Court proceeding, and requested a protective order to prevent further interrogation by Kay and Bierbaum, and to effect a withdrawal of the proposed six-month suspension (Tr. 96). The Charging Party also sought to intervene in the proceeding to protect from harassment, Union members who had filed affidavits in the District Court proceeding, as well as others who might be called as witnesses (R. Exh. No. 2, at 2). Judge Spiegel issued a show cause order requiring that NIOSH establish why such an order should not be granted (Tr. 96-97, G.C. Exh. No. 10). At a scheduled hearing before Judge Spiegel on October 12, 1984, it was argued that Handke and Wang had been subjected to harassment and interrogations outside of the regular procedures of the court, that NIOSH had sought to circumvent discovery procedure, and had conspired to deter witnesses from testifying fully and truthfully in violation of 42 U.S.C. Section 985. It was argued that threats of discipline and suspension were improper under the circumstances presented, and could materially affect the testimony of the witnesses in the District Court proceeding. It was argued that Handke had not refused to answer in an appropriate forum; and that since Kay and Bierbaum were officials alleged to have been guilty of discriminatory practices in the District Court action, and in the Handke affidavit, serious questions were posed concerning the legitimacy and real intent of their interrogations. As a result of argument presented to District Court Judge Spiegel during the October 12th hearing, the need for a protective order was recognized by the District Court (R. Exh. No. 2 at 11-13, 16, 19-20). However, the protective order became unnecessary by reason of NIOSH assurances that the proposed six-month suspension would be revoked, that all reference to insubordination in relation to the Peguese case would be deleted from Handke's personnel file, that Mrs. Handke would be deposed by the Government in accordance with the Federal Rules of Civil Procedure; and lastly that no alleged discriminating official would be permitted to conduct any hearing, investigation, or interrogation of Ms. Handke in regard to the NIOSH investigation of Peguese's charges of discrimination, or in regard to the allegations made in the Handke affidavit submitted to the District Court. An order providing a basis for the resolution of the matter along the foregoing lines was entered by Judge Spiegel on October 19, 1984 (G.C. Exh. No. 11). Discussion and Conclusions Counsel representing the General Counsel contends that the Respondent, through the conduct of Bierbaum and Kay on June 19th and July 16th, violated Section 7116(a)(1) of the Statute by interfering with, restraining or coercing Handke in the exercise of rights accorded to her under Section 7102 of the Statute. Section 7116(a)(1) provides in pertinent part: (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 . . . Section 7102(1) of the Statute provides: "Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right -- (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities . . . A determination of whether a statement violates Section 7116(a)(1) must take into consideration all of the circumstances surrounding the making of the statement. Internal Revenue Service, Mid-Atlantic Service Center, 4 A/SLMR 519, A/SLMR No. 421 (1974); U.S. Customs Service, Region IV, Miami, Florida, 1 FLRA No. 108 (1979), 1 FLRA 942; Veterans Administration Medical Center, Shreveport, Louisiana, 3 FLRA No. 65 (1980), 3 FLRA 429. That standard by which one may determine interference, restraint or coercion, is not the subjective perceptions of the employee, nor is it the intent of the employer. Rather the test is whether, under the circumstances of the case, the employer's conduct may reasonably tend to coerce or intimidate the employee, or, in the case of a statement, whether the employee could reasonably have drawn a coercive inference from the statement. The effect of the employer's statements must be judged in light of circumstances in which words, innocent in and of themselves, may be understood as threats. Federal Mediation and Conciliation Service, 9 FLRA No. 31 (1982), 9 FLRA 199; Department of the Treasury, Internal Revenue Service, Louisville District, 11 FLRA No. 64 (1983), 11 FLRA 290. The circumstances presented in this case indicate that the affidavit was prepared by Handke while acting as a representative of the Union. The questions posed and answered in the affidavit reflect that it was executed by Handke in a representational capacity in an effort to remedy discriminatory practices affecting bargaining unit memebers, particularly James Peguese. Handke's representational activity dominates the picture presented by the evidence. At the time the affidavit was planned she was concluding her term as president of the Union. She was a Union representative on the Respondent's EEO Committee. Her work location was the focal point of Union activity, and in 1981-1982, she had served as a Union steward. The Union acted as Peguese's representative in connection with two grievances which arose out of personnel actions relating to an unsatisfactory performance rating, and denial of a within-grade pay increase. These grievances had not been resolved as of the date of the alleged unfair labor practice herein, and were then being handled by the Union. As the Union president, Handke played an important role in the formulation of Union decisions relating to the processing of these grievances. The Respondent's action to remove Peguese in the latter part of March 1984, was the culmination of Respondent's efforts against Peguese. Like the grievances, the removal action turned upon allegations of poor performance. Although, Peguese retained private counsel to represent him in the removal action, he resorted to the Union to help him through the filing of an EEO complaint alleging that Bierbaum and Kay had discriminated against him in connection with the removal action. Handke was Peguese's designated Union representative during the informal stage of the EEO proceeding. Although Peguese retained a private attorney to represent him during the formal stage of the EEO proceeding, Handke was called upon to assist Peguese's attorney in his handling of Peguese's effort to resist removal. These efforts finally assumed the form of an injunction proceeding initiated by Peguese in the United States District Court. Handke was specifically asked to provide, in affidavit form, information of value which she had gathered through her handling of the informal stage of the EEO proceeding as a Union official. In effect she was assisting Peguese's attorney in the transition required as a result of Peguese's change in designated representatives, and she was at the same time stating, in an appropriate forum, the official position of the Union regarding Respondent's efforts to remove Peguese. In addition to the Union's deep interest and involvement in Peguese's grievances, Peguese's EEO complaint, and court proceedings, the Union and/or Handke had vital representational interests in other episodes of alleged discrimination referred to by Handke in her affidavit. Specifically, this interest stemmed from the designation of Handke and/or others as Union representatives assigned to assist other alleged discriminatees referred to in the affidavit. There was no legitimate basis for the Bierbaum and Kay interrogations. It was acknowledged that Respondent's representatives were aware of the identity of the individuals referred to in the affidavit. This circumstance gives rise to considerable inquiry, as do repetitive efforts to establish Handke's authorship of the affidavit filed in the District Court proceeding. Even though she acknowledged her authorship and her signature during the June 19, 1984 meeting, she was again subjected to interrogation concerning these elements on July 16, 1984. A number of reasons may be cited to establish the absence of any legitimate basis for conducting the interrogations described, or for using threats of discipline for refusal to respond to questions. Perhaps the most glaring and noticeable is the fact that Handke was either a witness, or a prospective witness in a pending District Court proceeding. The Bierbaum and Kay confrontations with Handke were extra-judicial in nature and outside the purview of discovery procedures prescribed in the Federal Rules of Civil Procedure. This element was clearly recognized by United States District Court Judge Spiegel (G.C. Exh. No. 10, R. Exh. No. 2, G.C. Exh. 11). Discriminatory practices in the Federal Government are prohibited by 42 U.S.C.A. Section 2000e-16(a). Section 2000e-16(b) of Title 42 grants authority to the Equal Employment Opportunity Commission (EEOC) to enforce the policy of nondiscrimination in the Federal Government; and instructs the EEOC to issue rules and regulations necessary to carry out its responsibilities under Section 2000e-16. The EEOC has issued regulations requiring Federal agencies to establish programs for equal opportunity in employment. 29 C.F.R. Section 1613.201 et seq. Section 1613.203(k) of Title 29 C.F.R. requires agencies to "(P)rovide for the prompt, fair, and impartial consideration and disposition of complaints involving issues of discrimination on grounds of race, color, religion, sex or national origin." The EEOC mandates specific procedures and requires agencies to attempt to resolve complaints of discrimination on an informal basis according to established EEOC guidelines before a formal complaint of discrimination can be filed. 29 C.F.R. Section 1613.204(d)(4), Section 1613.213, and Section 1613.214. The interrogations utilized by Respondent's representatives in this case contravened established EEOC procedures, and were not authorized by law. Even assuming a legitimate intent to develop evidence of the discriminatory practices alluded to in Handke's affidavit, Respondent's representatives should have referred the matter to appropriate investigatory officials and should have avoided the Bierbaum-Kay confrontations with Handke. /9/ It is also well-settled that an agency may not conduct fact-gathering sessions without limitation when preparing for third party proceedings. In Internal Revenue Service and Brookhaven Service Center, 9 FLRA No. 132 (1982), 9 FLRA 930 the Authority held: . . . Thus, while management may ascertain facts in preparing its case for third-party proceedings without the presence of the exclusive representative, the unit employees have the right under section 7102 of the Statute to 'form, join, or assist any labor organization, or to refrain from such activity, freely and without fear of penalty or reprisal(.)' Accordingly, where management exercises its right to interview unit employees in preparation for third-party proceedings, but does not take necessary precautions to preserve employees' protected rights, and instead acts in a manner which 'interferes with, restrains, or coerces' the employees, it violates section 7116(a)(1) of the Statute. To protect employees' rights under section 7102 while management attempts to ascertain necessary facts, the Authority concludes that (1) management must inform the employee who is to be questioned of the purpose of the questioning, assure the employee that no reprisal will take place if he or she refuses, and obtain the employee's participation on a voluntary basis; (2) the questioning must occur in a context which is not coercive in nature; and (3) the questions must not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with the employee's statutory rights. In this manner, the necessary balance between the rights of management and the rights of employees and their exclusive representatives will best be preserved. This rule may appropriately be applied to the facts of this case. The record disclosed that the interrogations and threats did in part relate to Respondent's preparations for the District Court proceeding. Evidence introduced by the Respondent reflects that they arose in part out of Respondent's effort to prepare a defense concerning evidence introduced through a Union official in the District Court case (R. Exh. No. 2 at 11). The Union's involvement, interest, and participation in the litigation initiated on behalf of Peguese was obvious. Respondent was under an obligation to comply fully with the carefully established guidelines in Internal Revenue Service and Brookhaven Service Center. It is clear that the Respondent failed to do so. On the basis of the foregoing it is concluded that interrogations and threats would necessarily have had a chilling effect on Handke's continued participation in Union activity. The conduct conveyed to Handke, and other bargaining unit members, the clear message that discipline and/or harassment would follow as a direct result of the pursuit of legitimate Union interests. It operated to interfere with, restrain, and coerce her and other bargaining unit members in the exercise of the statutory right to engage in Union activity. Accordingly, it is concluded that the Respondent violated Section 7116(a)(1) by subjecting Handke to interrogation and threats as alleged in the complaint. Having found that the Respondent violated Section 7116(a)(1) of the Statute, it is recommended that the Authority issue the following Order: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio, shall; 1. Cease and desist from: (a) Interfering with, restraining or coercing Jan Handke, or any other employee in the exercise of rights assured by the Federal Service Labor-Management Relations Statute, by conducting interrogations concerning protected union activity, and by threatening disciplinary action for failing to disclose details of information relating to such protected union activity. /10/ (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute: (a) Post at its facilities at the National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Director, Division of Surveillance, Hazard Evaluation, and Field Studies, National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous 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 other material. (b) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V. Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. /s/ LOUIS SCALZO Administrative Law Judge Dated: May 23, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) In so concluding the Authority finds it unnecessary to pass upon whether the Respondent contravened established Equal Employment Opportunity Commission (EEOC) regulations and other laws cited by the Judge. (2) The Authority agrees with the Judge that, in light of the District Court Order providing for the revocation of Handke's suspension and for deletion of all relevant references to insubordination in Handke's personnel file, a cease and desist order, together with a posting, would best effectuate the purposes and policies of the Statute. (3) The Union represents about 300 bargaining unit members out of a total of approximately 500 to 600 employees engaged on behalf of the Respondent in Cincinnati. (4) This grievance eventually went to arbitration and was pending decision at the time of hearing. (5) The affidavit indicates that she served as President during the period "May 1983-April 1984"; however, it appeared from the record that Handke's successor was the President Elect until he assumed office on May 7, 1984, and that Handke's term of office did not technically terminate until May 7, 1984 (Tr. 17, 22-23). (6) Handke's testimony established that the date used in the affidavit was a typographical error, and that "July 1983" was intended (Tr. 58). (7) For convenience the five episodes mentioned by Handke in reply to Question (7), are referred to by dates used in the Handke affidavit. (8) Martin's testimony established that neither Handke nor Peguese were suspected of any criminal activity or wrongdoing in connection with the information presented in the affidavit (Tr. 203-204). (9) Although it would be inappropriate within the context of this case to determine the applicability of federal criminal statutes, it is noted that the interrogation and threats might be considered as possible violations of 18 U.S.C. Section 1512. Among other things this Section prohibits tampering with a witness in a United States District Court proceeding. Furthermore, under the provisions of Section 2302(b)(8) (A)(i) of Title 5, United States Code, it is a "prohibited personnel practice" to take disciplinary action against any employee as reprisal for disclosing information which an employee reasonably believes evidences a violation of any law, rule or regulation. It is also noted that this policy is reflected in the collective bargaining agreement governing the labor relations of the parties (Jt. Exh. No. 1, at 11). (10) Counsel representing the Respondent seeks a cease and desist order and an appropriate posting, together with any further relief deemed just and proper. In light of the District Court Order providing for the revocation of Handke's suspension, and for deletion of all relevant references to insubordination in Handke's personnel file, it is determined that a cease and desist order, together with a posting would best effectuate the purposes and policies of the Statute. 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 interfere with, restrain, or coerce Jan Handke, or any other employee, in the exercise of rights assured by the Federal Service Labor-Management Relations Statute, by conducting interrogations concerning protected Union activity, and by threatening disciplinary action for failing to disclose details of information related to such protected Union activity. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region V, whose address is: 175 Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306.