50:0583(81)CA - - VA Medical Center, Jamaica Plain, MA and Fraternal Order of Police - - 1994 FLRAdec CA - - v50 p583



[ v50 p583 ]
50:0583(81)CA
The decision of the Authority follows:


50 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

JAMAICA PLAIN, MASSACHUSETTS

(Respondent)

and

FRATERNAL ORDER OF POLICE

(Charging Party)

BN-CA-30274

_____

ORDER REMANDING CASE

July 24, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent did not file an opposition to the General Counsel's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by taking disciplinary action against an employee for activity that is protected under section 7102 of the Statute.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings of fact. For the following reasons, however, we do not adopt the Judge's conclusions of law. We remand the case to the Judge for further findings regarding whether the Fraternal Order of Police, Greater Boston Lodge, is a "labor organization" under the definition set forth in section 7103(a)(4) of the Statute.

II. Judge's Decision

The facts, which are fully set forth in the Judge's decision, are briefly summarized here. The American Federation of Government Employees holds exclusive recognition for a nationwide consolidated unit, which includes employees of the Respondent. At all times material to the matter in dispute, Michael Giannetti was employed by the Respondent as a police officer and David Spirio was acting Chief of the Respondent's police. The Respondent suspended Giannetti for 14 days for insubordination and making threatening remarks in a letter that Giannetti wrote to Spirio. The letter, which is substantially quoted in the Judge's decision, was on the letterhead of the Fraternal Order of Police, Greater Boston Lodge, and was signed by Giannetti as President.(1)

The Judge found that Respondent did not violate section 7116(a)(1) and (2) of the Statute as alleged and recommended dismissal of the complaint. The Judge concluded that Giannetti's letter was not protected by section 7102 or 7116(e) of the Statute. Specifically, the Judge found that the letter constituted flagrant misconduct and contained threats and promises of benefit.

In reaching his conclusions, the Judge assumed, but did not decide, that the Fraternal Order of Police was a labor organization under the definition set forth in section 7103(a)(4) of the Statute.(2) In connection with this issue, the Respondent objected to the General Counsel's attempt to present evidence at the hearing for the purpose of establishing that the Charging Party was a labor organization. In support of the objection, the Respondent asserted that Giannetti's actions could not constitute protected activity because the Charging Party had no "status" at the Medical Center in Jamaica Plain. Tr. at 15. The Judge acknowledged the Charging Party's lack of "status" at that facility and the following dialogue ensued:

[Judge]: I understand; I understand what you're saying. All that is involved at this point is whether the Fraternal Order of Police is a labor organization. I take it there's really no dispute about that?

[Respondent]: No. In the broad sense of the word, it is. I don't have any objection to that.

[Judge]: All right. Then that's all I'm interested in at the moment.

Tr. at 16. At that point, the General Counsel's efforts to present evidence on the question of whether the Charging Party was a labor organization ceased. Notwithstanding the foregoing, the Respondent disputes that Fraternal Order of Police is a labor organization within the meaning of section 7103(a)(4) of the Statute.

III. General Counsel's Exceptions

The General Counsel excepts to the Judge's failure to find that the Fraternal Order of Police is a labor organization within the meaning of the Statute. In conjunction with this exception, the General Counsel asserts that the Judge is responsible for any ambiguity that exists in the record on the issue. The General Counsel proposes that the Authority (1) interpret the exchange that occurred at the hearing that is summarized above as a concession by the Respondent that the Fraternal Order of Police is a labor organization within the meaning of section 7103(a)(4) of the Statute; or (2) remand the case to the Judge; or (3) take administrative notice of the fact that the Fraternal Order of Police seeks to represent and/or represents employees of Federal agencies. In support of the last option, the General Counsel cites the Authority's decision in Library of Congress, 16 FLRA 429 (1984), and attaches a copy of a certification of representative issued to Fraternal Order of Police Lodge #1, Rhode Island, under Executive Order 11491, as amended.

The General Counsel also excepts to the Judge's findings and conclusions that: Giannetti's letter constituted flagrant misconduct and, consequently, was not protected under section 7102 of the Statute; the protection of section 7116(e) was lost because the letter contained threats and promises of benefit; and no violation of section 7116(a)(1) and (2) occurred.

IV. Analysis and Conclusions

We conclude that Giannetti's letter did not constitute flagrant misconduct. Also, we reject the Judge's reliance on section 7116(e). Based on these conclusions, the question of whether Fraternal Order of Police, Greater Boston Lodge, is a labor organization within the meaning of section 7103(a)(4) is pivotal to the disposition of this case and we remand for further findings on this issue.

A. Protection under Section 7102

Under section 7102 of the Statute, employees have the protected right to form, join, or assist any labor organization or to refrain from such activity. This right includes the presentation of the labor organization's views to "heads of agencies and other officials of the executive branch of the Government . . . ." 5 U.S.C. 7102(1). Under section 7102, employee action to publicize labor disputes or issues that have a direct bearing on conditions of employment is protected activity. E.g., Department of the Navy, Naval Facilities Engineering Command, Western Division San Bruno, California, 45 FLRA 138, 148-49, 155 (1992) (Member Armendariz concurring in part and dissenting in part) (Naval Facilities Engineering Command). It is well established that this protection extends to the publicizing of such disputes or issues through the media. E.g., Bureau of Prisons, Federal Correctional Institution (Danbury, Connecticut), 17 FLRA 696, 696-97 (1985) (FCI, Danbury).

Consistent with section 7102, however, an agency has the right to discipline an employee who is engaged in otherwise protected activities for actions that "exceed the boundaries of protected activity such as flagrant misconduct." U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 385, 389 (1990) (Tinker Air Force Base). The Authority has found that remarks or actions that are of such an "outrageous and insubordinate nature" as to remove them from the protection of the Statute constitute flagrant misconduct. Naval Facilities Engineering Command, 45 FLRA at 156; Tinker Air Force Base, 34 FLRA at 390. With particular relevance to this case, statements to the media lose their statutory protection if, for example, they compromise an agency's ability to accomplish its mission, disrupt discipline or are disloyal. See United States Forces Korea/Eighth United States Army, 17 FLRA 718, 728 (1985); FCI, Danbury, 17 FLRA at 697-98. Cf. Kinder-Care Learning Centers, Inc., 299 NLRB 1171, 1171 (1990) (under section 7 of the National Labor Relations Act (NLRA), employees' right to engage in protected activity includes communicating with third parties, such as news reporters and the public in general, regarding an ongoing labor dispute so long as the communications are not disloyal, reckless, or maliciously untrue).

We find that the statements concerning Spirio contained in Giannetti's letter were not of such an outrageous and insubordinate nature as to constitute flagrant misconduct. Giannetti's statements were of the same tenor as the comments regarding two supervisors in a letter that was found to constitute activity protected under section 7102 in U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212 (1995). In that decision, the Authority found that the letter, which accused supervisors of lying and overbearing and abusive treatment of subordinates, was not flagrant misconduct. Id. at 216. Cf. Dreis & Krump Manufacturing Company, Inc. v. NLRB, 544 F.2d 320, 328-29 (7th Cir. 1976) (employee's statements attributing "malice, gross negligence, carelessness and dissembling" to his supervisor were not so "offensive, defamatory or opprobrious so as to remove them from the protection of the [NLRA]"). Compare Tinker Air Force Base (while employee's actions in refusing to leave a work area were insubordinate, they did not constitute flagrant misconduct) with Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553 (1990) (employee's conduct in remaining on the telephone to discuss union business while a life-threatening situation needed his attention was unprotected).

That Giannetti threatened to publicize allegations of mismanagement and cronyism does not alter our conclusion. In particular, we have no basis for assuming that the threatened disclosures would compromise the Respondent's ability to accomplish its mission, disrupt discipline, be disloyal or otherwise be of such an outrageous or insubordinate nature as to remove those disclosures from any statutory protection they might otherwise have. Moreover, the statutory protection of publicity concerning labor disputes and issues bearing on conditions of employment would be undermined if threats to engage in such protected conduct were not also protected. Cf. NLRB v. Servette, Inc., 377 U.S. 46, 57 (1964) (Court held that the statutory protection for the distribution of handbills would be undermined if the threat to engage in that activity was not protected); Keokuk Gas Service Co. v. NLRB, 580 F.2d 328, 335 (8th Cir. 1978) ("The threat to assert a § 7 right must be protected if the exercise of such right is to be fully secured. An employer's discharge of employees threatening to assert a § 7 right inherently discourages exercise of such right[.]").

B. Protection under Section 7116(e)

The Judge's reliance on section 7116(e) is misplaced. By its terms, section 7116(e) provides that speech described therein shall not constitute an unfair labor practice or grounds for setting aside an election. There is no claim in this case that Giannetti's statements constituted an unfair labor practice or that they were related to the conduct of an election. Accordingly, section 7116(e) does not apply here.

C. Whether Giannetti Assisted a Labor Organization

Based on the foregoing, Giannetti's letter to Spirio would constitute protected activity if Giannetti wrote it to assist a labor organization within the meaning of section 7102 of the Statute, and discipline taken against Giannetti for writing the letter would violate section 7116(a)(1) and (2) of the Statute. It is undisputed that Giannetti's letter was written on behalf of the Fraternal Order of Police, Greater Boston Lodge, to an official of the Respondent, an executive agency within the meaning of section 7102. Therefore, we find that Giannetti was assisting the Fraternal Order of Police, Greater Boston Lodge when he sent the letter to Spirio. Whether the Fraternal Order of Police, Greater Boston Lodge, meets the definition of labor organization in section 7103(a) therefore becomes critical to determining if a violation of the Statute occurred.(3)

We reject the General Counsel's argument that the Respondent conceded at the hearing that the Fraternal Order of Police is a labor organization within the meaning of the Statute. We conclude that the exchange that occurred at the hearing, on which the General Counsel relies, is ambiguous on this point. Neither Library of Congress, 16 FLRA 429, nor the certification submitted by the General Counsel establish that the Fraternal Order of Police, Greater Boston Lodge, meets the definition of labor organization set forth in section 7103(a)(4) of the Statute. For example, neither the decision nor the certification involves the Greater Boston Lodge and neither establishes that either the Fraternal Order of Police or the Greater Boston Lodge is an organization in which employees pay dues; this is an explicit requirement of the statutory definition that did not exist under the Executive Order. The record is insufficient for us to decide whether the Fraternal Order of Police, Greater Boston Lodge, is a labor organization as defined by section 7103(a)(4) of the Statute.

In these circumstances, we will afford the General Counsel the opportunity to submit evidence on this question as it sought to do at the hearing. Therefore, we remand the case to the Judge for the purpose of reopening the record and according the parties the right to submit evidence, examine and cross-examine witnesses, and enter into stipulations of fact, as appropriate, concerning whether the Fraternal Order of Police, Greater Boston Lodge, meets the definition of labor organization set forth in section 7103(a)(4) of the Statute. The Judge should make a determination on this question and issue a recommended decision and order resolving the complaint in accordance with his determination and our conclusions herein.

V. Order

This case is remanded to the Judge for further proceedings consistent with this decision.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

U.S. DEPARTMENT OF VETERANS AFFAIRS, MEDICAL CENTER, JAMAICA PLAIN, MASSACHUSETTS

Respondent

and

FRATERNAL ORDER OF POLICE

Charging Party

Case No. BN-CA-30274

Alan L. Rosenman, Esquire
For the Respondent

Carol Waller Pope, Esquire
For the General Counsel

Mr. Michael C. Giannetti
For the Charging Party

Before: WILLIAM B. DEVANEY
Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq.(1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether an employee acting on behalf of a labor organization other than the exclusive representative is engaged in protected activity and/or whether that employee was disciplined in violation of §§ 16(a)(1) and (2) of the Statute?

This case was initiated by a charge filed on December 8, 1992 (G.C. Exh. A). The Complaint and Notice of Hearing (G.C. Exh. C) issued on December 3, 1993, and set the hearing for January 10, 1994, pursuant to which a hearing was duly held on January 10, 1994, in Boston, Massachusetts, before the under-signed. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the oppor-tunity to present oral argument which each party waived. At the conclusion of the hearing, February 10, 1994, was fixed as the date for mailing post-hearing briefs and Respondent and General Counsel each timely mailed a brief received on February 14, 1994. Upon consideration of the entire record, I make the following findings and conclusions:

Findings of Fact

1. The American Federation of Government Employees, AFL-CIO (AFGE), is the exclusive representative of a nation-wide consolidated unit of employees appropriate for collective bargaining at the United States Department of Veterans Affairs, including employees at its Medical Center, Jamaica Plain, Massachusetts (Respondent). American Federation of Government Employees, Local 2143 (Union) is an agent of AFGE for representation of unit employees, including non-supervisory police officers at Respondent.

2. Mr. Michael C. Giannetti is a non-supervisory police officer employed by Respondent and is a member of the Union's bargaining unit(2) (Tr. 12). Mr. Giannetti is a member of the Fraternal Order of Police (FOP) (Tr. 16) and has been Presi-dent of the Greater Boston Lodge since 1989 (Tr. 16). There is no dispute that FOP is a labor organization in a generic sense (Tr. 15-16); but Respondent asserts that FOP is not a "labor organization" within the meaning of § 3(a)(4) of the Statute (Tr. 15). FOP does not represent any of Respondent's employees (Tr. 29), although Mr. Giannetti testified that fourteen non-supervisors (patrolmen) and three supervisors of Respondent's approximately twenty-seven security officers (Tr. 30) were members of FOP.

3. Department of Veterans Affairs' police (security) are not armed (Tr. 43). Mr. David Spirio, Chief of Respondent's Police since May 1994 (Tr. 41), and acting Chief in October 1992 (Tr. 42) and until his promotion to Chief, testified without contradiction that Respondent and the Union in January 1991, signed a local policy, corrected on August 27, 1992 (Tr. 47), which provided in paragraph 4E8 that, ". . . no personal items will be added to or worn with the uniform without the written permission of the Chief." (Tr. 48)

4. In the fall of 1992, Respondent learned that some of its police officers had attended a funeral and had been armed (Tr. 43). Acting Chief Spirio, on October 5, 1992, issued by electronic "E" mail, to each of Respondent's police officers, the following message:

"There have been some instances where it was believed that officers from this facility were wearing the uniform outside of here, and wearing a firearm along with the remainder of the uniform. One of these situations would be a fellow officer's funeral. It has been determined that we have two options: (1) wear the VA duty uniform as prescribed (without firearm) or (2) wear civilian clothing along with the firearm. No officer is to wear the VA duty uniform along with a firearm when off of this property, since you are representing the VA by wearing the uniform in the first place." (G.C. Exh. 4; Tr. 19, 43).

5. By memorandum dated October 9, 1992, given to all officers, Acting Chief Spirio, stated:

"On 10/5/92 I released a mailman message concerning the wearing of a firearm while in the VA police duty uniform. Since that time I have received negative feedback from an officer on that subject.

"I have done a little more research and have come up with the national policy covering this situation. This policy, in addition to the local policy, clearly states that personal items will not be added to, or worn with, the duty uniform.

"I re-state my previous message by indicating that no officer is to wear a firearm along with the VA police duty uniform. Any violation of this directive will result in disciplinary action." (G.C. Exh. 5; Tr. 20).

6. On October 11, 1992, on FOP letterhead, Mr. Giannetti, as President of the Greater Boston Lodge, wrote Chief Spirio as follows:

"As of right now you are holding the position of acting chief of the V.A. Police in Boston taking over for Robert LeBlanc who suddenly transferred to another duty station within the V.A. system.

"There were many problems concerning the V.A. Police when Mr LeBlanc was at the helm. You also were a source for the many problems concerning officers from this service. Recently you involved your-self (sic) in a matter that didnot (sic) concern you involving VA Police officers who attended a service for a fellow Police officer killed while on duty. I stated in a meeting in your office that I thought you were reaching very far for trouble, I left you a message on the in-house V.A. computer system regarding this matter and the problems you should be concerned with that are more important issues.

"Your attitude showed thru with your response via a memo from your office. I now feel that the situation between you and certain officers are not going to change because of your vendetta attitude which is unprofessional. Because of this you should not be holding the position within the VA system. I beleive (sic) that there will be more problems in the future that will hurt the VA Police service and it's members.

"Answer me this Mr Spirio, What would the Front office think if they saw a (sic) article regarding thier (sic) medical (sic) Center in the Federal Times concerning mismanagement and cronyism within the VA system but focusing on the Boston Police Service.

"What would the front office think if they saw your name mentioned several times stating FACTS over the last 3 years involving you and your so called investigations against officers who you have a dislike for. The F.O.P. has many pieces of evidence you have provided to us over the last several years. We believe that we were a force behind the departure of Robert LeBlanc the former chief of the VA Police in Boston.

"Over the last few months the Federal Times has done articles regarding problems in the VA at certain medical centers concerning a rash of deferent (sic) issues within those medical centers. And in every situation, Washington sent investi-gators into those area,s (sic) and always removed those who were the heart of the problem.

"As I stated to you in writing, you have more important issues at hand within the Boston VA area. Crime and incidents are on the rise, drugs are a major problem, the holidays are in the near future and robberies will be on the rise. This year alone the VA had a police officer shot, a (sic) officer held hostage and gun incidents are involving VA,s (sic) are climbing. The safety of the officers are at risk every day while they perform their duties. And all you can find time to do is see what penny-annie (sic) items concerning certain officers who do-not (sic) have respect for you. These will also be brought to the (sic) attention in this article.

"Do you think the front office will support you concerning the issues that will be mentioned in the article. I (sic) sure they thought that the problems in the Police Service were over. Who's (sic) head do you think they will put on the chopping (sic) if someone has to be removed to solve the problems. The VA Police officers in Boston deserved (sic) someone who is honest, caring and supported (sic) of their officers, none of the qualities you possess. Your professional and personal life in the VA has many flaws which are well known. Those flaws will be brought to light if necessary by the F.O.P.

"The Police Administration and the Police officers must work together if the VA Police Service is going to improve to become a better service for the benefit of all concern (sic). Your past evidence shows you do-not (sic) want to work together, your attitude is do what I say, not what I do. The F.O.P. has been very successful in bringing issues to light and to the proper authorities for action.

"This letter will be a show of proof that this F.O.P. local has tried to iron out issues that concern their membership and to improve the relationship between management and officers. If you do we are here and if you do-not (sic) then we will send and call our information and evidence to our contact at the Federal Times.

"I hope we can end this past practice of vendettas and harrasment (sic) toward a certain group of officers for only the reason that they want to do their jobs as professional Police officers and be respected as such." (G.C. Exh. 3)

7. On October 19, 1992, Acting Chief Spirio issued to Mr. Giannetti notice of a proposed 14 calendar day suspension. The notice stated, in part, as follows:

"1. This is to notify you that it is proposed to suspend you for fourteen (14) calendar days based on the following reasons:

a) You were insubordinate when you sent me a letter dated October 11, 1992 which was rife with insolent remarks such as:

"...you should not be holding the posi-tion...", "Your vendatta (sic) attitude is unprofessional", "You should be concerned with [things] that are more important...", etc.

b) You made threatening remarks to me in this same letter such as:

"Answer me this Mr. Spirio, what would the front Office think if they saw an article regarding their medical center in the Federal Times concerning mismanagement ...", We believe we were a force behind the departure of Robert LeBlanc ...", "Whose head do you think they will put on the chopping ...", etc.

"2. You have the right to reply to this notice personally or in writing, or both personally and in writing . . .

. . . ." (G.C. Exh. 6)

8. By letter dated October 25, 1992, Mr. Giannetti, on FOP letterhead, as on October 11, 1992 (G.C. Exh. 3), supra, responded, in part, as follows:

"In regards to a letter dated October 19th (sic) relating to the problems in the VA Police Service in Jamaica Plain in which we outlined to solve some of these problems and if not what actions the F.O.P. will take.

. . . ." (G.C. Exh. 7)

9. The Union, by letter dated November 3, 1992, responded and requested that the proposed suspension be revoked. (G.C. Exh. 8).

10. By letter dated November 16, 1992 (G.C. Exh. 9), the proposed suspension was made final; Mr. Giannetti did not appeal this decision (Tr. 28); and he was suspended for fourteen days from November 29 through December 12, 1992 (Tr. 26).

Conclusions

§ 2 of the Statute provides, in part, as follows:

"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. . . ." (5 U.S.C. § 7102).

While § 2 says "any labor organization", § 3(a)(4) defines "labor organization" and it would seem to follow that "labor organization" in § 2 must be a "labor organization" as defined in § 3(a)(4). Assuming, but not deciding, that FOP is a "labor organization" as defined in § 3(a)(4)(3), § 2 protects the right of an employee, during non-worktime in non-work areas, to "assist" a labor organization other than the exclusive representative. Department of Commerce, Bureau of The Census, 26 FLRA 719, 721 (1987); Social Security Adminis-tration, 45 FLRA 303, 323 (1992). Moreover, § 16(e) of the Statute protects, "The expression of any personal view, argument, opinion or the making of any statement" as long as such expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions. Oklahoma City Air Logistics Center (AFLC) Tinker Air Force Base, Oklahoma, 6 FLRA 159, 161, 180-187 (1981).

The Supreme Court, in a case under the Executive Order, held that,

". . . the same federal policies favoring uninhib-ited, robust, and wide-open debate in labor disputes are applicable. . .(4) (Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 (1974) (hereinafter referred to as, "Letter Carriers").

and that,

". . . we see nothing in the Executive Order which indicates that it intended to restrict in any way the robust debate which has been protected under the NLRA. Such evidence as is available, rather, demon-strates that the same tolerance for union speech which has long characterized our labor relations in the private sector has been carried over under the Executive Order. . . ." (id., at 275).

The Authority has adopted the reasoning of Letter Carriers, supra, Department of The Navy, Naval Facilities Engineering Command, Western Division, San Bruno, California, 45 FLRA 138, 155-156 (1992) (hereinafter referred to as "San Bruno"). Indeed, the Authority has made it clear that, ". . . to exceed the protection of the Statute . . . remarks must have constituted 'flagrant misconduct.'". American Federation of Government Employees, National Border Patrol Council, 44 FLRA 1395, 1402 (1992); San Bruno, supra, 45 FLRA at 156. Nevertheless, as the Authority has stated,

". . . flagrant misconduct by an employee, even though occurring during the course of protected activity, may justify disciplinary action by the employer. . . ." Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54, 55 (1979). To like effect, see: Veterans Administration Regional Office, Denver, Colorado, 2 FLRA 668, 675-676 (1980); U.S. Depart-ment of The Air Force, Randolph Air Force Base, San Antonio, Texas, 46 FLRA 978, 979 (1992)(". . . the disputed statements in the Union's letter . . . were made during the course of protected activity. As such, the statements are protected unless they constitute flagrant misconduct.").

Assuming that Mr. Giannetti was engaged in protected activity in sending his letter of October 11, 1992, and/or that Mr. Giannetti made a statement protected by § 16(e) of the Statute, his statements constituted flagrant misconduct and/or his statement was not protected § 16(e) because of his threats. Thus, by way of example, Mr. Giannetti in his letter of October 11, stated,

"As of right now you are holding the position of acting chief . . .

". . . Recently you involved your-self (sic) in a matter that didnot (sic) concern you involving VA Police officers who attended a service for a fellow Police officer killed while on duty . . .

". . . What would the Front office think if they saw a (sic) article regarding thier (sic) medical Center in the Federal Times concerning mismanagement . . . focusing on the Boston Police Service.

"What would the Front office think if they saw your name mentioned . . . The F.O.P. has many pieces of evidence . . .

. . .

"As I stated to you in writing, you have more important issues at hand . . . This year alone the VA had a police officer shot, a (sic) officer held hostage and gun incidents are involving VA,s (sic) are climbing. The safety of the officers are at risk every day while they perform their duties. . . .

. . .

"This letter will be a show of proof that this F.O.P. local has tried to iron out issues that concern their membership and to improve the relationship between management and officers. If you do we are here and if you do-not (sic) then we will send and call our information and evidence to our contact at the Federal Times.

. . . ." (G.C. Exh. 7).

Indeed, his assertion that, "The F.O.P. has many pieces of evidence" and if you do not do as we say, "we will send . . . our . . . evidence . . ." is blatant blackmail and quite possibly extortion. It is one thing to argue a point, express an opinion or make a statement, as to which it long has been recognized that due allowance must be made for intemperate, abusive or insulting language, Letter Carriers, supra; Veterans Administration Regional Office, Denver, Colorado, supra; U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, supra; but it is quite another to assert possession of evidence of alleged misconduct which will be withheld if Respondent does as told but will be disclosed if it does not.

In his response of October 25, 1992, to the proposed suspension, Mr. Giannetti stated, inter alia,

". . . every member who signs on as a (sic) active member accepts the F.O.P. as thier (sic) representa-tive as a Police Association and have the right to address their problems as such. . . ." (G.C. Exh. 7).

In some respects this may be correct(5); but FOP is not the exclusive representative of Respondent's police officers - the Union is. Nor does FOP enjoy "equivalent status" within the meaning of § 16(a)(3) of the Statute. It would be presump-tuous and inappropriate to speculate on the permissible scope of lawful activity of such a labor organization under the Statute; but the protected right of Mr. Giannetti to speak as a union representative, i.e. as the spokesman for FOP under 16(e), was lost because his letters contained threats and promise of benefit. Thus, his letter of October 11, 1992, stated, inter alia, that,

". . . The F.O.P. has many pieces of evidence . . . Those flaws will be brought to light if necessary by the F.O.P. . . . If you do we are here and if you do-not (sic) we will send and call our information and evidence. . . ." (G.C. Exh. 3)

In his letter of October 25, 1992, he emphasized, referring to his letter of October 11, 1992, although he erroneously stated October 19,

". . . we outlined to solve some of these problems and if not what actions the F.O.P. will take." (G.C. Exh. 7)

Statements on behalf of a labor organization which interfere with the right of the exclusive representative to act for all employees in the bargaining unit are not protected and would constitute unfair labor practices. Moreover, if Respondent dealt with FOP it would violate § 16(a)(3) and, FOP's attempt to coerce Respondent to deal with it and to accede to its demands is unprotected activity. Accordingly, Respondent did not violate § 16(a)(1) or (2) of the Statute by its disciplinary action against Mr. Giannetti for his letter of October 11, 1992.

Having found that Respondent did not violate §§ 16(a)(1) or (2) of the Statute, it is recommended that the Authority adopt the following:

ORDER

The Complaint in Case No. BN-CA-30274 be, and the same is hereby, dismissed.

_______________________________
WILLIAM B. DEVANEY
Administrative Law Judge

Dated: July 14, 1994
Washington, DC




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. We note that the American Federation of Government Employees, Local 2143 (Local 2143), submitted a response to the proposed suspension requesting that it be revoked and that no further action be taken against Giannetti. General Counsel Exhibit 8. In addition, Giannetti testified that he had discussed with an official of Local 2143 the Respondent's policy that caused Giannetti to write the letter to Spirio and that the official had promised to take action if employees were disciplined for contravening the policy. Tr. at 21.

2. In this case, the Judge, the General Counsel and the parties generally have used the name Fraternal Order of Police without including a reference to the Greater Boston Lodge.

3. The Respondent asserted before the Judge that "a letter written on behalf of other than the exclusive representative" cannot be protected. Post-hearing brief at 3. In support of this assertion, the Respondent cited a statement in Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987), that under the Statute agencies may discipline a union representative "for activities which are not specifically on behalf of the exclusive representative . . . ." As that case involved activity on behalf of an exclusive representative, the quoted statement was dictum and did not constitute a holding that activity on behalf of a labor organization that is not an exclusive representative can never be protected under section 7102. By its terms, that section refers to "labor organization" and not "exclusive representative." Moreover, the Authority has found in some cases that activity on behalf of a labor organization that is a rival to the incumbent exclusive representative is protected under section 7102. E.g., Internal Revenue Service, North Atlantic Service Center, 7 FLRA 596 (1982) (distribution of union literature on behalf of a rival of the incumbent exclusive representative in the employee cafeteria during non-work time is protected under section 7102 of the Statute).


ALJ's Footnotes Follow:

1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(2) will be referred to, simply, as "16(a)(2)".

2. Mr. Giannetti is a dues paying member of the Union (Tr. 12-13) and in 1991 had been a Union shop steward (Tr. 13); however, he was not a Union steward after 1991 (Tr. 14).

3. Strictly speaking, there is no evidence or testimony that FOP, "has as a purpose the dealing with an agency . . ."; however, I am aware that General Counsel stated,

". . . the Fraternal Order of Police is the recognized exclusive representative at various V.A. facilities through the country, including Providence, Rhode Island.

"I have that certification available for your review for the Providence facility. . . ." (Tr. 8; see, also, Tr. 14-15).

4. i.e., as the Court stated,

". . . Linn [Linn v. Plant Guard Workers, 383 U.S. 53 (1966)] recognized that federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty. . . ." (Letter Carriers, supra, 418 U.S. at 283).

5. For example, most of us belong to various organizations and such organizations may take positions on behalf of their members. A civic association may