22:1037(101)CA - National Institute for Occupational Safety Health, Cincinnati, OH and AFGE Local 3840 -- 1986 FLRAdec CA



[ v22 p1037 ]
22:1037(101)CA
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