43:1036(86)CA - - DOL, Employment and Training Administration, San Francisco, CA and Lou Ann Bassan - - 1992 FLRAdec CA - - v43 p1036
[ v43 p1036 ]
The decision of the Authority follows:
43 FLRA No. 86
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF LABOR
EMPLOYMENT AND TRAINING ADMINISTRATION
SAN FRANCISCO, CALIFORNIA
LOU ANN BASSAN, AN INDIVIDUAL
DECISION AND ORDER
January 17, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's decision. The Respondent filed exceptions, and the General Counsel filed cross-exceptions and an opposition to the Respondent's exceptions. The Respondent filed an opposition to the General Counsel's cross-exceptions.
The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when it terminated employee Lou Ann Bassan. The complaint alleged that Bassan was terminated because she "'joined or assisted'" the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (AFGE), and "'exercised rights enumerated in the collective bargaining agreement between Respondent and AFGE, and/or otherwise exercised rights protected by the Statute.'" Judge's decision at 2. The Judge found that the Respondent violated the Statute as alleged.
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended order.(1)
The Judge found that an employee was discharged because she submitted highly critical comments to her supervisor concerning newly announced performance standards. The Judge further found that in submitting those comments, the employee was asserting a right contained in Article 43, Section 3 of the parties' collective bargaining agreement, entitled Procedures for Developing Elements and Performance Standards. Accordingly, if as found by the Judge, the assertion of a negotiated contract right is protected, the Respondent violated the Statute by discharging the employee.
This case presents an issue not directly addressed previously (2) by the Authority: whether the assertion by an individual employee of a right set forth in a collective bargaining agreement is protected as a "right to form, join, or assist [a] labor organization," within the meaning of section 7102 of the Statute.(3) It is well settled in the private sector that such conduct is protected under section 7 of the National Labor Relations Act (NLRA), which protects employees' rights "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection." (Emphasis added.)(4) In contrast, section 7102 of the Statute does not expressly cover concerted activities. Thus, an analysis of employee rights under section 7102 of the Statute is necessary.
To interpret the scope of employee rights guaranteed in section 7102 of the Statute, the Judge examined the U.S. Supreme Court's decision in National Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822 (1984) (City Disposal). In City Disposal, the Court affirmed the National Labor Relations Board's doctrine that the invocation of a right rooted in a collective bargaining agreement is an integral part of the process that gave rise to that agreement and therefore is concerted activity that is protected under the NLRA. The Judge concluded that under the Statute an employee's assertion of a right contained in a collective bargaining agreement constitutes protected activity within the meaning of section 7102 because the Court in City Disposal "makes it clear that such act is merely a continuation of the right explicitly recognized to form, join or assist a labor organization in collective bargaining." Judge's decision at 18.
The Respondent excepted to this finding of the Judge. The Respondent argues that when the Court discussed "concerted activity" in City Disposal, the Court was focusing on the portion of section 7 of the NLRA that refers to "other concerted activity," and was not referring to the portion of section 7 regarding the right "to form, join, or assist labor organizations." Respondent's brief at 5-7.
We agree with the Judge's conclusion, and adopt his analysis as set out in his decision. Clearly, all concerted activity is not protected under the Statute as it is under the NLRA. However, as the Court pointed out in City Disposal with regard to the NLRA, the purposes of the Statute "explicitly include the encouragement of collective bargaining . . . ." 465 U.S. at 833-34. Particularly relevant to our inquiry is the Court's statement that:
by applying § 7 to the actions of individual employees invoking their rights under a collective-bargaining agreement, the . . . doctrine preserves the integrity of the entire collective-bargaining process; for by invoking a right grounded in a collective-bargaining agreement, the employee makes that right a reality, and breathes life, not only into the promises contained in the collective-bargaining agreement, but also into the entire process envisioned by Congress as the means by which to achieve industrial peace.
Id. at 835-36. This statement applies just as strongly in the context of the Statute and the legislative intent to ensure "the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them[.]" 5 U.S.C. § 7101. Thus, we conclude, as did the Judge, that when an individual employee asserts a right that emanates from a collective bargaining agreement, that employee is engaging in the protected activity under section 7102 of the Statute of assisting the union that negotiated the agreement. In reaching this conclusion, we also note the Court's characterization of joining and assisting a labor organization as concerted activities that are, by their nature, "related to collective action . . . ." Id. at 832.
Accordingly, we find that as the Charging Party was discharged for asserting a contractual right, the discharge violated section 7116(a)(1) and (2) of the Statute. We shall order an appropriate remedy.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Department of Labor, Employment and Training Administration, San Francisco, California, shall:
1. Cease and desist from:
(a) Terminating, or otherwise discriminating against, employees because they have exercised rights set forth in the collective bargaining agreement between the U.S. Department of Labor and the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, activity that is protected by the Federal Service Labor-Management Relations Statute.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Offer Lou Ann Bassan immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole, consistent with applicable laws and regulations, for any loss of income she may have suffered by reason of her unlawful termination by paying to her a sum of money equal to the amount she would have earned or received from the date of her termination to the effective date of the offer of reinstatement, less any amount earned through other employment during the above-noted period.
(b) Post at its San Francisco Regional office, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Administrator, Employment and Training Administration and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT terminate or otherwise discriminate against our employees because they have exercised rights set forth in the collective bargaining agreement between the U.S. Department of Labor and the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, activity that is protected by the Federal Service Labor-Management Relations Statute.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL offer Lou Ann Bassan immediate and full reinstatement to her former position or a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole, consistent with applicable laws and regulations, for any loss of income she may have suffered by reason of her unlawful termination by paying her a sum of money equal to the amount she would have earned or received from the date of her termination to the date of the offer of reinstatement, less any amount earned through other employment during the above-noted period.
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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
(If blank, the decision does not have footnotes.)
1. In view of our decision, it is unnecessary to pass upon the General Counsel's cross-exception concerning the Judge's decision to take official notice of evidence not introduced at the hearing.
2. The Authority adopted a decision by an administrative law judge that found the exercise of a right derived from a collective bargaining agreement to be protected activity under the Statute. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Detroit Teleservice Center, Detroit, Michigan, 42 FLRA 22, 58-60 (1991). However, no exceptions were raised to that portion of the judge's decision, and the Authority did not address the issue.
3. Section 7102 of the Statute states:
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 o