23:0648(85)CA - HHS, SSA and SSA Field Operations, Region II and AFGE Local 2369 -- 1986 FLRAdec CA



[ v23 p648 ]
23:0648(85)CA
The decision of the Authority follows:


 23 FLRA No. 85
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION, AND 
 SOCIAL SECURITY ADMINISTRATION 
 FIELD OPERATIONS, REGION II
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2369
 Charging Party
 
                                            Case No. 2-CA-50323
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practice alleged in the complaint and recommending that
 the complaint be dismissed in its entirety.  Thereafter, the General
 Counsel 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 adopts the Judge's
 findings, /*/ conclusions, and recommended Order dismissing the
 complaint.  The Authority does not view the supervisor's remarks in this
 case as in any way constituting the kind of expression which is
 authorized by section 7116(e) of the Statute.  The Authority's
 conclusion is based on the focus and import of the remarks as found by
 the Administrative Law Judge.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 2-CA-50323 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C. October 22, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
  
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 Case No.: 2-CA-50323
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION, AND SOCIAL SECURITY 
 ADMINISTRATION, FIELD OPERATIONS,
 REGION II
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2369
    Charging Party
 
    Richard Matthews
    Al Lipovsky
          For the Respondent
 
    Susan M. Roche, Esquire
    Edgar A. Jones, Esquire
          For the General Counsel
 
    Joseph Calafut,
          For the Charging Party
 
    Before:  WILLIAM NAIMARK
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on August 29,
 1985 by the Regional Director for the Federal Labor Relations Authority,
 New York, N.Y., a hearing was held before the undersigned on October 9,
 1985 at New York, N.Y.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101, et seq. (herein called the Statute).  It is
 based on a First Amended Charge filed on July 18, 1985 by American
 Federation of Government Employees, AFL-CIO, Local 2369 (herein called
 the Union) against Department of Health and Human Services, Social
 Security Administration, and Social Security Administration, Field
 Operations, Region II (herein collectively called Respondent).
 
    The Complaint alleged, in substance, that on or about May 1, 1983
 Respondent's Area V Director, Arne Tornquist, made a derogatory
 anti-union remark in a telephone conversation to a Union representative
 who was preparing to represent a grievant in a hearing before said Area
 Director, all of which allegedly violated Section 7116(a)(1) of the
 Statute.
 
    Respondent's Answer, dated September 23, 1985, denied the aforesaid
 allegation as well as the commission of any unfair labor practice.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed which have been
 duly considered.  /1/
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein American Federation of Government
 Employees, AFL-CIO has been the exclusive representative of a
 consolidated nationwide unit of Respondent's employees, including all
 employees located in the District and Branch Offices of Social Security
 Administration in the states of New York and New Jersey, with specified
 exclusions.
 
    2.  At all times material herein the American Federation of
 Government Employees, AFL-CIO has delegated to the National Council of
 Social Security Administration Field Operations Locals (Council)
 authority to act with representatives for collective bargaining on
 behalf of certain of Respondent's employees, including those employed at
 the Toms River, New Jersey Branch Office, and Respondent has so
 recognized the Council for that purpose.
 
    3.  At all times material herein the Union has acted as agent for the
 Council for the purposes of collective bargaining for certain of
 Respondent's employees, including employees at the Toms River, New
 Jersey Branch, and Respondent has recognized the Union for that purpose.
 
    4.  Both the Social Security Administration and American Federation
 of Government Employees, AFL-CIO, are parties to an agreement covering a
 nationwide unit of employees, including employees at the Toms River, New
 Jersey Branch.  Said agreement contains a provision in Article 30,
 Section 4, as well as Appendix F, Part G, which states as follows:  /2/
 
          "Unless otherwise arranged, union representatives for field
       offices will be required to request and arrange with appropriate
       management officials in advance of their usage of official time by
       using the SSA-75."
 
    5.  Record facts show that on May 1, 1985 Alan H. Cannizzaro was
 employed as a claims representative at Respondent's Bridgeton, New
 Jersey Branch.  He was the on-site representative for Bridgeton Branch,
 as well as second vice-president of the Union herein.  His duties
 included handling grievances on behalf of employees, attendance at
 arbitration hearings, and filing unfair labor practice charges.
 
    6.  On May 1, 1985 Cannizzaro went to the Toms River, New Jersey
 Branch of Respondent to speak with employee Patricia D'Elia.  He wanted
 to investigate a charge brought against D'Elia by management re misusing
 her title as a government official.  Cannizzaro planned to represent the
 employee in connection with a proposal to suspend her for a day.
 
    7.  When the Union representative arrived at the Branch he was met by
 Joseph E. Lynch, the Operations Supervisor who asked why Cannizzaro was
 there.  The latter explained he wanted to see employee D'Elia;  that he
 was on official time signed by his supervisor.  Lynch testified he knew
 that the Union official represented D'Elia re her proposed suspension,
 and he was aware that Area Director Arne Tornquist had been assigned to
 the matter.  Since Lynch believed that this Area Director would be the
 proper official to authorize official time, he telephoned Tornquist to
 ascertain whether the Director had given approval therefor.  Tornquist
 explained that he did not sanction official time for Cannizzaro's visit,
 and he told Lynch to put the Union representative on the phone.
 
    8.  A telephone conversation ensued between Tornquist and Cannizzaro
 re the purpose of the latter's visit to the Toms River Branch.  /3/ The
 Union official told the Director he had an approved SSA-75 /4/ which was
 signed by his supervisor.  Tornquist said it had to be sanctioned by the
 hearing official /5/ before the supervisor could approve it.
 Cannizzaro, who was upset at the confrontation, said he didn't give a
 shit, he would do as he pleased.  Upon rhetorically asking Cannizzaro if
 the Union representative considered himself real big in the Union now,
 Tornquist said that Cannizzaro was just a little "union shit".
 Cannizzaro replied he didn't appreciate being called such a name, and he
 then called the Area Director a "fat fuck".
 
    After being asked by Tornquist if he intended to file an unfair labor
 practice against the Director, Cannizzaro said he probably would do so.
 Tornquist replied that the Union official should go ahead and do so;
 that Cannizzaro had not made one stick yet.  Cannizzaro stated he could
 leave and return later but it would just be a waste of time and money;
 that he gets paid for filing grievances and unfair labor practices.  The
 Area Director told the Union representative he was a waste to the agency
 and interfered with its mission, but that Cannizzaro should stay there
 and "do what you have to do -- meet with the employee and leave nice and
 early."
 
    9.  After the telephone conversation Cannizzaro met with Patricia
 D'Elia.  He explained what occurred and asked her if she wanted him to
 withdraw from the case.  D'Elia stated she did not want Cannizzaro to
 withdraw.
 
    10.  Thereafter Cannizzaro wrote letters to Paul Dudak, Area Director
 IV, and Alex Bussy, Assistant Regional Commissioner.  He mentioned what
 transpired during his conversation with Tornquist, as well as the fact
 that the latter called him a "little union shit".  Cannizzaro complained
 about Tornquist's behavior and asked that another person be appointed to
 hear D'Elia's grievance so the employee could get a fair and unbiased
 decision.  A reply from Dudak stated that management makes its own
 determination and would exercise its authority on this issue.
 
                                Conclusions
 
    The simple issue herein is whether Area Director's remarks to Union
 representative Cannizzaro, during a telephone conversation on May 1,
 1985, were coercive in nature and violated Section 7116(a)(1) of the
 Statute.
 
    General Counsel contends that Cannizzaro was engaged in protected
 activity at the time, /6/ that, although no explicit threat was made by
 Tornquist, his comments implied that the Union official's right to
 conduct his duties was "under attack";  that the statements interfered
 with Cannizzaro's right to conduct his legitimate representational
 activities.
 
    The Authority has had occasion to consider several cases wherein
 statements by supervisors were made to employees which were allegedly
 coercive in nature.  In determining if remarks by management interfered
 with protected activity, and tended to coerce, the test is whether an
 employee could reasonably infer coercion from the statement by a
 supervisor.  Federal Mediation and Conciliation Service, 9 FLRA No. 31.
 Such determination is not based on the employer's intention or the
 perception of the involved employee -- either of which may properly be
 characterized as subjective in nature.
 
    General Counsel has alluded to several cases in support of its
 position that Tornquist's statements to Cannizzaro constituted
 interference with the latter's functions as a union representative.  In
 particular, reference is made to U.S. Army Military Traffic Management
 Command, Eastern Area, Bayonne, N.J., 16 FLRA No. 123;  Social Security
 Administration, Baltimore, Maryland, 14 FLRA No. 80;  Department of the
 Treasury, Internal Revenue Service, Louisville District, 11 FLRA No. 64.
 
    The undersigned has reviewed the cited cases but is not persuaded
 that they are determinative in deciding the matter at hand.
 
    In U.S. Army Military Traffic Management Command, supra, a union
 steward, who had received a formal reprimand for failing to work on
 assignments, requested additional official time to prepare his reply.
 The deputy, to whom he made the request, asked "why don't you stop this
 Union nonsense and do your job like you're supposed to do instead of
 like you were in 82"?  It was held that this implied disapproval of the
 steward's unionism and chilled the exercise of his right to join or
 assist a labor organization.  In the case at bar the Area Director was
 concerned with the failure of Cannizzaro to obtain his prior approval to
 confer with the grievant.  He did not attempt to thwart the Union
 representative from speaking to D'Elia, nor did he suggest that
 Cannizzaro should cease his representational functions.  I do not
 conclude that, as in the cited case, such "chilling" effect resulted
 from Tornquist's calling the representative a "little union shit" or
 that the latter was a waste to the agency.
 
    It was concluded in the Social Security Administration case, supra,
 that a supervisor's threat to throw the union representative out of his
 office, and his preventing a grievance meeting between the
 representative and an employee, was violative of 7116(a)(1).  The case
 at bar presents a different situation.  Tornquist did not prevent the
 meeting between Cannizzaro and D'Elia, nor did he interfere with the
 right of the Union representative to confer with the employee.  In the
 cited case the management official refused to verify the fact that the
 union agent had already received permission to see the grievant.
 Moreover, the record showed that the conduct displayed by management was
 not an isolated incident but part of a larger problem in the office.
 
    In the Internal Revenue Service, Louisville District case, supra, the
 union steward was criticized by a chief of one of the employer's
 division for calling the personnel office on behalf of an employee.  /7/
 The Chief upbraided the steward, stating the latter was "out of line";
 that he sticks his nose into things and causes trouble -- that he had
 done it again.  These remarks, it was held, would be interpreted by a
 reasonable employee to constitute management hostility toward the
 steward's contacting the personnel office on behalf of an employee and
 toward his representational activities.  I view the aforesaid factual
 situation far removed from the one at bar.  The management official in
 the cited case evinced a clear hostility to the efforts of the steward
 to engage in his union duties and act on behalf of an employee who felt
 aggrieved.  Moreover, he admonished the steward to refrain from getting
 involved in such representation.  While Tornquist, in the instant case,
 was upset that Cannizzaro had not solicited his approval beforehand, the
 record does not support the conclusion that the Director declared or
 implied that Cannizzaro should abstain from pursuing his
 representational duties.
 
    It is urged herein that calling Cannizzaro a "little union shit" was
 anti-union in nature, and that the union official would necessarily
 think twice before deciding to continue as D'Elia's representative.
 This remark, however, was not made in the context of open hostility to
 the Union.  Neither was it made, in my opinion, in a deliberate attempt
 to discourage Cannizzaro from continuing his representational duties.
 The statement flowed from Tornquist's apparent slight at not being
 contacted before Cannizzaro went to Toms River to see the grievant.  As
 such, the remark -- made solely to the Union official -- disparaged the
 latter as a private conversation, and it may well be deemed an
 expression of Tornquist's personal views rather than a position of
 agency management.  The language used by the Area Director, as well as
 the cursing of the latter by Cannizzaro, may well have exceeded the
 bounds of proper expression.  However, passions were seemingly high,
 and, in respect to the statement by Tornquist, I conclude any taint of
 disparagement did not justify the conclusion that a reasonable man would
 be coerced into discontinuing his representation of an aggrieved
 employee.  In sum, it is concluded that the Area Director's remarks did
 not constitute interference, restraint or coercion and were not
 violative of Section 7116(a)(1) of the Statute.  See Army and Air Force
 Exchange Service (AAFES), Ft. Carson, Colorado, 9 FLRA No. 69;  Oklahoma
 City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6
 FLRA No. 32.
 
    It is therefore recommended that the Authority issue the following
 Order:
 
                                   ORDER
 
    It is hereby Ordered that the Complaint in Case No. 2-CA-50323 be,
 and the same hereby is, dismissed.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  February 19, 1986
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In response to the General Counsel's contention in its exceptions
 that the cases relied upon by the Judge were not dispositive, the
 Authority notes a recent case which involves similar facts and the same
 determination.  Department of the Air Force, 63rd Civil Engineers
 Squadron, Norton Air Force Base, California, 22 FLRA No. 91 (1986).
 
    (1) Subsequent to the hearing Respondent filed two motions with the
 undersigned:  (a) Motion, and an amendment thereto, to correct portions
 of Respondent's post hearing brief, (b) Motion to Strike portions of
 General Counsel's brief.
 
    The Motion, and its amendment, to correct portions of Respondent's
 brief constitute spelling and grammatical changes.  No objection was
 interposed thereto.  Said Motion is granted as requested.
 
    The Motion to Strike portions of General Counsel's Brief is based on
 the fact that said brief refers to an article of a collective bargaining
 agreement;  that said agreement was never received in evidence and thus
 no reference should have been made thereto.  Apart from the fact that
 said article of the agreement was acknowledged by Respondent's witness,
 the undersigned has relied solely upon matters contained in the record
 in his decision.  The said Motion is denied.  See Internal Revenue
 Service, 16 FLRA No. 119.
 
    (2) Although General Counsel neglected to introduce the agreement in
 evidence, the Respondent's Area Director, Arne Tornquist, testified to
 the existence of the agreement, as well as the quoted provision
 requiring advance approval of the usage of official time by union
 representatives.
 
    (3) Several versions of this conversation were testified to by the
 witnesses.  The facts set forth herein represent the credited version
 thereof.
 
    (4) Approval of this form is official authorization to represent
 someone at another office or location.
 
    (5) Tornquist was the third-step grievance official who would
 ultimately act as the hearing officer re D'Elia's grievance.
 
    (6) Cannizzaro's intercession on behalf of employee D'Elia, and his
 effort to discuss her grievance as a Union representative, are clearly
 protected