U.S. Department of Veterans Affairs (Respondent) and American Federation of Government Employees, Local 1687, AFL-CIO (Charging Party/Union)

[ v56 p696 ]

56 FLRA No. 117

U.S. DEPARTMENT OF VETERANS AFFAIRS
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1687, AFL-CIO
(Charging Party/Union)

CH-CA-80325

_____

DECISION AND ORDER

September 26, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC). The Respondent filed an opposition to the exceptions.

      The complaint alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by interrogating a Union steward (the steward) concerning a unit employee's statements to the steward, and by presenting the steward with a settlement agreement concerning an equal employment opportunity (EEO) complaint filed against the steward.

      Upon consideration of the Judge's decision and the entire record, we find that the Respondent violated section 7116(a)(1) of the Statute by interrogating the steward concerning the unit employee's statements and by presenting the steward with the settlement agreement.

II.     Background and Judge's Decision

      As relevant here, after the Respondent issued a proposed admonishment to a unit employee, the employee had a conversation with a Union steward, who drafted a written response and submitted it to the Respondent. The response alleged, among other things, that the unit employee had been subjected to a "hostile environment" at work, and that her supervisor (the supervisor) had a "discriminatory bias" towards her. Judge's Decision at 2, 1.

      Thereafter, the supervisor filed an EEO complaint against the steward based on the statements contained in the written response. An EEO investigator sent a preliminary affidavit to the steward, and also interrogated the steward about the basis for statements made in the written response, including statements made by the unit employee to the steward. Subsequently, the EEO investigator found that a preponderance of the evidence supported a finding that statements in the written response constituted "illegal discriminatory harassment" of, and created a "hostile working environment" for, the supervisor. Judge's Decision at 5. The local EEO coordinator then contacted the steward "to see what he would accept by way of a settlement" and provided him with a settlement agreement, which the steward rejected. Id. at 6.

      The GC issued a complaint alleging that the Respondent violated section 7116(a)(1) of the Statute by interrogating the steward and by presenting the steward with the settlement agreement. GC Exhibit 1(c) at 3.

      The Judge determined that, by signing the written response to the proposed admonishment and submitting it to the Respondent, the steward waived the confidentiality of any statements made in that response. The Judge found that there was no evidence that the steward had been asked questions regarding the unit employee's confidential statements, or that the questioning had been coercive.

      Based on the foregoing, the Judge concluded that the interrogation did not interfere with, restrain, or coerce the steward in the exercise of rights protected under the Statute. Accordingly, he recommended that the complaint be dismissed.

III.     Positions of the Parties

A.     GC's Exceptions

      The GC argues that the Respondent violated section 7116(a)(1) of the Statute by interrogating the steward. According to the GC, cooperation by employees in the investigation of EEO complaints is mandatory, and the steward was aware that he faced discipline if he did not cooperate.

      The GC contends that the Judge erred by resolving the complaint on the ground that the steward waived the confidentiality of the communications. According to the GC, the Respondent never raised a waiver defense, and as such, the Judge should not have resolved the complaint on that basis.

      The GC also contends that the Judge erred by failing to address the allegation in the complaint that the [ v56 p697 ] presentation of the settlement agreement to the steward violated section 7116(a)(1) of the Statute because it discouraged the steward from engaging in protected activity. In this connection, the GC asserts that the settlement offer would have required the steward to state that he would cease and desist from the "harassment" found by the EEO investigator, and that this alleged "harassment" -- the statements in the written response -- constituted protected activity. Exceptions at 27.

      In addition to the traditional ULP remedies, the GC requests that the Authority order the Respondent to distribute copies of the notice to the Respondent's EEO investigators. According to the GC, distribution to EEO investigators is appropriate because the Respondent assigns individuals from other locations to conduct EEO investigations at the site involved in this case. The GC also requests that the Authority order the Respondent to post the notice at its facilities nationwide and to direct the Respondent to have its official responsible for administering the Respondent's EEO program nationwide sign the notice.

B.     Respondent's Opposition

      The Respondent claims that the Judge correctly determined that the steward had no right to keep confidential any statements made in the response to the proposed admonishment. The Respondent also claims that there is no evidence that the steward was coerced.

      The Respondent disputes the GC's assertion that a waiver defense was not raised before the Judge. According to the Respondent, the GC "notes in his argument that this issue was raised in the pre-hearing conference and proof was taken fully on this issue at the Hearing." Opposition at 2. The Respondent also disputes the GC's assertion that the Judge neglected to address the allegation that the settlement offer violated section 7116(a)(1) of the Statute. According to the Respondent, the Judge "notes this allegation on page 6 and in his conclusion found that [the steward] was not coerced or intimidated." Id. at 3.

      The Respondent contends that finding a violation would be "not only contrary to the Statute but also to Title VII of the 1964 Civil Rights Act, as amended." Id. In this regard, the Respondent asserts that the filing of an EEO complaint is a protected right, and that accepting the GC's arguments "would prevent individuals from seeking protection" of their rights and "would prevent agencies from investigating allegations of violations of these rights and from insuring compliance with Title VII." Id.

IV.     Analysis and Conclusions

A.     The Respondent Violated Section 7116(a)(1) of the Statute

      The standard for determining whether management's statement or conduct violates section 7116(a)(1) is an objective one. The question is whether the statement or conduct would tend to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. See Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 956, 962 (1990). Although the surrounding circumstances are taken into consideration, the standard is not based on the subjective perceptions of the employee or the intent of the employer. See id.

      Applying this standard, the Authority has held that statements that discourage employees from becoming union stewards or otherwise assisting the union violate section 7116(a)(1) of the Statute. See Ogden Air Logistics Center, Hill Air Force Base, Utah, 34 FLRA 834, 838-39 (1990). The Authority has also held that a respondent violates section 7116(a)(1) of the Statute by requiring a union representative to disclose, under threat of disciplinary action, the content or substance of statements made by an employee to that union representative in the course of representing the employee in a disciplinary proceeding. See U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 1300, 1308 (1991) (Customs Service). However, the Authority will not find a violation where "the right to maintain the confidentiality of the conversations had been waived or some overriding need for the information was established." Id. at 1309.

      In this case, there is no dispute that the steward was required to disclose the substance of the unit employee's statements that had been made to the steward during the course of the steward's representation of the unit employee in a disciplinary proceeding. See Transcript at 44-46, 26-27. Further, there is no dispute that the steward was aware that he could have been disciplined if he had failed to cooperate during the investigation. See id. at 42-43. As a result, even if the EEO investigator's questions were not asked in a coercive manner, the steward could have reasonably drawn a coercive inference from the questions, i.e., that he would be subject to discipline if he did not provide full and accurate answers. Accordingly, under Customs Service, unless the confidentiality of the statements was waived, or the Respondent's other defenses have merit, the Respondent violated the Statute by interrogating the steward. [n1]  [ v56 p698 ]

      With regard to the presentation of the settlement agreement to the steward, our review of the Judge's decision indicates that, apart from the Judge's factual finding that a settlement offer was presented to the steward, the Judge did not address the allegation that this conduct violated the Statute. See Judge's Decision at 6. However, the parties fully litigated this issue before the Judge, and the record provides us with a sufficient basis to resolve the claim. [n2] 

      In this connection, it is undisputed that, by its terms, the settlement agreement required the steward to "[a]ssure the [EEO] Complainant that the harassment identified by the EEO Investigator" and "any other intimidating activity will stop immediately." GC Exhibit 12 at 1. It is clear -- and also undisputed -- that the "harassment" identified in the settlement agreement encompassed statements made by the steward in the reply to the proposed admonishment. Put simply, the settlement agreement sought to limit the steward's representation of unit employees in connection with disciplinary proceedings. There is no question that "the Statute clearly assures the right and duty of a union to represent employees in disciplinary proceedings." Customs Service, 38 FLRA at 1308. See also 5 U.S.C. § 7102 (employees have the right "to form, join, or assist any labor organization," including the right to "act for a labor organization in the capacity of a representative" and to do so "freely and without fear of penalty or reprisal[;]"; 5 U.S.C. § 7114(a)(1) ("[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents"). As such, on its face, the settlement agreement would tend to coerce or intimidate employees in the exercise of protected rights. Accordingly, unless the Respondent's defenses have merit, the Respondent's presentation of the settlement agreement to the steward violated section 7116(a)(1) of the Statute. See Customs Service, 38 FLRA at 1309.

      With regard to the interrogation, the GC argues that the Judge erred by resolving this matter based on a waiver defense that was not raised below. The Authority has held, in this connection, that a respondent bears the burden of raising and establishing defenses to a ULP complaint. See Headquarters, National Guard Bureau, Washington, D.C., Nevada Air National Guard, Reno, Nevada, 54 FLRA 316, 322 (1998), petition for review denied, 200 F.3d 590 (9th Cir. 2000). If a party fails to raise a defense before the judge, then the judge errs by resolving the case on the basis of that defense. See Social Security Administration, Region VII, Kansas City, Missouri, 55 FLRA 536, 539 n.3 (1999).

      Our examination of the entire record supports the GC's claim. In this regard, the Respondent did not raise a waiver defense in its answer to the complaint or in its brief to the Judge. See GC Exhibit 1(i) (Respondent's Answer to Complaint); Respondent's Post-Hearing Brief. In addition, although the Respondent claims that proof was taken on the issue of waiver during the hearing, the Respondent points to no particular evidence and our review of the transcript reveals that this issue was not discussed during the hearing. See Transcript. Further, the Respondent's assertion that "the General Counsel himself notes in his argument that this issue was raised in the pre-hearing conference" is unsupported. Opposition at 2. The GC's discussion of the defenses raised at the pre-hearing conference concerns only the Respondent's other defenses, not a waiver defense. See Exceptions at 16-17. Thus, our review of the record supports the GC's argument that the Judge improperly relied on a defense that was not raised by the Respondent.

      The Respondent's other defenses also lack merit. In particular, the Respondent provides no basis for concluding that either its obligation to conduct EEO investigations, or the EEOC's encouragement of settlements, required it to interrogate the steward about confidential communications made during the course of representation or to present the steward with a settlement agreement discouraging future protected activities. Nothing in the EEO regulations specifies what actions agencies are required to take in conducting EEO investigations. The Respondent also does not assert, and the record [ v56 p699 ] does not support a conclusion, that the Respondent would have been unable to investigate the complaint without interrogating the steward, or that precise terms of the proffered settlement agreement were necessary to effectuate settlement. We note, in this connection, that the EEOC has held that EEO complaints cannot be predicated upon a union official's statements that were made during the course of representing another employee. See Boggs v. Department of Veterans Affairs, No. 98-1368, 2000 WL 366195, at *2 (E.E.O.C. Mar. 31, 2000).

      In these circumstances, we conclude that the Respondent's actions in interrogating the steward and presenting the steward with the settlement agreement violated section 7116(a)(1) of the Statute.

B.     The Respondent Is Directed to Distribute Copies of the Notice to its EEO Investigators

      In determining whether requested, nontraditional remedies are appropriate, the Authority applies the following standard:

[A]ssuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to recreate the conditions and relationships with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct.

F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 161 (1996) (citation and internal quotations omitted). The Authority has upheld a judge's order requiring a respondent to distribute copies of a notice to all supervisors and management officials. See U.S. Penitentiary, Florence, Colorado, 53 FLRA 1393, 1394 (1998).

      It is undisputed that the Respondent assigns individuals from other locations to conduct EEO investigations at the site involved in this case. Consequently, as those individuals are not likely to see the posted notice, distributing copies of the notice to them is reasonably necessary to effectuate the policies of the Statute. Accordingly, we direct the Respondent to distribute copies of the attached notice to its EEO investigators nationwide.

C.     The GC's Request to Direct the Individual in Charge of Administering the Respondent's EEO Program Nationwide to Sign the Notice is Denied; The Respondent is Directed to Provide a Copy of the Notice to That Individual

      The Authority typically directs the posting of a notice signed by the highest official of the activity responsible for the violation. See U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA 312, 322 (1997) (Standiford Air Traffic Control Tower). The Authority has stated that, by requiring the highest official to sign the notice, a respondent "signif[ies] that the Respondent acknowledges its obligations under the Statute and intends to comply with those obligations." U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA 1400, 1402 (1994) (citation omitted).

      As there is no allegation that the violations that occurred here were the result of the Respondent's nationwide EEO policy, there is no basis for finding that the individual in charge of administering the Respondent's EEO program nationwide is "the highest official of the activity responsible for the violation." Standiford Air Traffic Control Tower, 53 FLRA at 322. Instead, consistent with Authority precedent, we find that the appropriate individual to sign the notice is the highest management official at the location where the violations occurred. That management official can most effectively reassure employees that the Respondent intends to comply with its obligations under the Statute. However, we find that an additional measure is reasonably necessary in order to ensure that the head of the EEO program is made aware of the violations, and we direct the Respondent to distribute a copy of the notice to the head of the EEO program.

D.     The Respondent Is Directed to Post the Notice Wherever Employees of the Local Bargaining Unit Are Employed

      "In determining the scope of a posting requirement, the Authority considers the two purposes served by the posting of a notice." U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA 388, 394 (1999) (citations omitted). First, the notice provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced. Second, in many cases, the posting is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute. See id. at 394-95. The Authority has denied requests for nationwide postings [ v56 p700 ] where violations were committed solely by the local subdivision of an agency and did not involve higher-level organizational components of the agency. See, e.g., Wyoming Air National Guard, Cheyenne, Wyoming, 27 FLRA 759, 763 (1987).

      The GC has not alleged that the Respondent's actions have affected employees other than those included in the local unit. Thus, there is no basis for concluding that a nationwide posting is appropriate. Further, as discussed previously, there is no basis for concluding that violations occurred at any locations other than the location at issue here. To the extent that the request for a nationwide posting is based on a concern for deterring future violations at other locations, the direction to distribute copies of the notice to the Agency's EEO investigators and the head of the EEO program should address that concern.

V.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Respondent shall:

      1.     Cease and desist from:

           (a)     Requiring Union representatives to disclose, under threat of disciplinary action, the content of statements made by unit employees to the Union representatives in the course of representing the employees in disciplinary proceedings.

           (b)     Presenting Union representatives with settlement agreements requiring them to cease and desist from protected activity.

           (c)     In any like or related manner, interfering with, restraining, or coercing bargaining unit 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 all of its facilities where local bargaining unit employees are located copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the highest management official at the location where the violations occurred 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 ensure that such Notices are not altered, defaced, or covered by any other material.

           (b)     Distribute copies of the Notice to EEO investigators and the head of its EEO program.

           (c)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago 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
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Veterans Affairs violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify employees that:

WE WILL NOT require Union representatives to disclose, under threat of disciplinary action, the content of statements made by unit employees to the Union representatives in the course of representing the employees in disciplinary proceedings.

WE WILL NOT present Union representatives with settlement agreements requiring them to cease and desist from protected activity.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      ________________________
(Activity)

Date:_________ By:                              ___________________________

      (Signature) (Title)

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, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312) 353-6306.


File 1: Authority's Decision in 56 FLRA No. 117
File 2: ALJ's Decision


Footnote # 1 for 56 FLRA No. 117 - Authority's Decision

   The Respondent does not claim that it had an overriding need for the information under Customs Service.


Footnote # 2 for 56 FLRA No. 117 - Authority's Decision

   Counsel for the GC and counsel for the Respondent addressed this allegation in their opening statements. See Transcript at 11, 13. Further, the steward provided undisputed testimony that he received the settlement agreement in the mail subsequent to a conversation with the local EEO coordinator, during which the local EEO coordinator asked whether the steward "wish[ed] to abide by the settlement and apologize" to the supervisor. Id. at 47-49. In addition, the supervisor testified that he had input into the drafting of the settlement agreement. See id. at 70. The local EEO coordinator also testified that, after speaking with the supervisor, he informed the steward that the supervisor wanted an "apology" and a "promise not to invade [the supervisor's] legal rights and discriminate against him anymore," and that he then drafted the settlement agreement based on the supervisor's comments. Id. at 86. The parties also addressed the allegation regarding the settlement agreement in their post-hearing briefs, with th