United States, Department of Agriculture, Food Safety and Inspection Service, Washington, D.C. (Respondent) and American Federation of Government Employees, AFL-CIO and National Joint Council of Food Inspection, Locals, AFGE (Charging Parties)

[ v59 p68 ]

59 FLRA No. 13

UNITED STATES
DEPARTMENT OF AGRICULTURE
FOOD SAFETY AND INSPECTION SERVICE
WASHINGTON, D.C.
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO

AND

NATIONAL JOINT COUNCIL
OF FOOD INSPECTION
LOCALS, AFGE
(Charging Parties)

WA-CA-01-0181

_____

DECISION AND ORDER

August 29, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

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 (Judge) filed by the General Counsel. The Respondent filed an opposition to the exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). The Judge dismissed the complaint on the basis that it was time-barred under § 7118(a)(4)(A) of the Statute. In the alternative, the Judge determined that the complaint should be dismissed because the General Counsel failed to prove that the Respondent violated § 7116(a)(1) and (5) of the Statute.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II.      Background and Judge's Decision

      The National Joint Council of Food Inspection Locals, American Federation of Government Employees (the Council) is the exclusive representative of a unit of the Respondent's employees, including inspectors. Under the traditional method for inspecting slaughterhouse plants, inspectors inspect at fixed locations throughout the plant. In May 1999, the Respondent and the Council entered into a memorandum of understanding which established a pilot inspection models project called "HIMP." Under this program, certain plants are staffed with fewer federal inspectors, and those inspectors supervise plant employees who have the responsibility for conducting inspections. One of the plants in the HIMP pilot program is in Austin, Minnesota. Local 368 of the Council is the Council's agent in Austin.

      In the last week of August and the first week of September 2000, the President of Local 368 conducted a poll of the plant's bargaining unit employees to determine what staffing levels the membership thought were appropriate. He testified, without contradiction, that no representative of the Respondent influenced his decision to conduct a poll.

      On September 6, 2000, after the poll was completed, a representative of the Respondent working at the Austin plant sent an e-mail to bargaining unit employees at the plant. The e-mail stated as follows:

[The plant owner] has told [the Respondent's HIMP Project Manager] that if three inspectors are to go on line to provide oversight at fixed positions, then he wants to pull out of HIMP and return to complete traditional inspection. [The Project Manager] responded simply by saying, "If that's what you want to do, then let's make that happen as soon as possible." If we only put one inspector on the line, then [the plant owner] is willing to continue to work with the program, but the one inspector idea doesn't seem to be getting much consideration by Washington (because the AFGE won't settle for it).
I don't know if either [the plant owner or the Project Manager] is bluffing or not, but it's looking more likely that we might be going back to traditional. [The Project Manager] told [the plant owner] that the most powerful influence would be if the local union people would officially contact [the Council Regional Vice President] and tell him in no uncertain terms that you support the HIMP program and that you want the union to negotiate with management on [ v59 p69 ] modifying the program in a manner that is more acceptable to plant management.
Therefore, the purpose of this message is to encourage Local 368 to do whatever you feel led [sic] to do regarding contacting upper union officials if you want to see HIMP continue.

GC Exh. 2.

      On September 8, 2000, the President of Local 368 sent the results of the poll to, among others, the Respondent and to the President of the American Federation of Government Employees, AFL-CIO (AFGE) in Washington, D.C.

      On December 26, 2000, a charge was filed against the Respondent. The name and address of the Charging Party were listed as American Federation of Government Employees, AFL-CIO, Washington, D.C. The charge alleged that the Respondent committed unfair labor practices by actions of two of its representatives on or about September 6 and 9, 2000. Specifically, the charge alleged that the representatives told the President of Local 368 in "written and oral contacts" to "influence higher-level union officials to support the [HIMP], a major agency initiative affecting conditions of employment, which the Charging Party was then opposing in its labor-management relationship with the Charged Party." General Counsel Exhibit (Ex.) 1(a). The charge further alleged that the representatives told the President of Local 368 "to influence the Charged Party to change its position regarding the number of bargaining unit members who should be assigned to work on a HIMP processing line." Id. In so doing, the charge specifically alleged that the Charged Party had "bargained in bad faith with the [Council] and attempted to control the [Council] in violation of 7116(a)(5) and (3), respectively; and did control Local 368 in violation of 7116(a)(3)." Id. The charge was signed by the President of AFGE.

      On July 18, 2001, a "first amended charge" was filed against the Respondent. The name and address of the Charging Party were listed as National Joint Council of Food Inspection Locals, AFGE, Remlap, Alabama. This charge alleged that the Respondent committed an unfair labor practice in violation of § 7116(a)(1) and (5) on or about September 6, 2000, when its representative "bypassed the Union and interfered with the right of employees to rely on the Union for representation by sending an email message to bargaining unit employees encouraging them to put pressure on the National Joint Council, AFGE at the national level to change its position in negotiations over [HIMP]." General Counsel Ex. 1(b). The charge was signed by the Chairman of the Council.

      On July 31, 2001, the General Counsel issued a complaint alleging that the Respondent committed an unfair labor practice in violation of § 7116(a)(1) and (5) of the Statute when its representative sent an e-mail message on September 6, 2000, "to bargaining unit employees . . . encourag[ing] local union officials to contact a national-level union official to tell him in no uncertain terms that they supported HIMP and that they wanted the union to negotiate with management on modifying the program in a manner that was more acceptable to plant management." General Counsel Ex. 1(c).

      Before the Judge, the Respondent moved to dismiss the complaint on the basis that the complaint was time-barred under § 7118(a)(4)(A) of the Statute. [n2] Among other things, the Respondent argued that the July 2001 complaint "completely changed the charges filed against the Respondent from an interference to a bypass." Respondent's post-hearing brief at 3. The General Counsel opposed the Respondent's motion.

      The Judge found that the original charge filed in December 2000 "basically [alleged] control or domination in violation of § 16(a)(3)." Judge's Decision at 5. [n3] In this regard, the Judge noted that this charge alleged that, by contacts with the President of Local 368 on or about September 6 and 9, 2000, the Respondent sought to have the President influence higher-level union officials to support the HIMP project. The Judge also noted that the charge was filed by the President of AFGE.

      The Judge then found that the amended charge filed in July 2001 alleged that, on or about September 6, 2000, the Respondent "`bypassed the Union and interfered with the right of employees to rely on the Union for representation by sending an email message to bargaining unit employees encouraging them to put pressure on the National Joint council . . . to change its position in negotiations over the HIMP project'." Id. at 5-6 (quoting the amended charge).

      The Judge then determined as follows: [ v59 p70 ]

The allegation [in the amended charge] of a by-pass was a new and separate cause of action; was not related to the unfair labor practice alleged in the original charge; and did not grow out of them while the proceeding was pending before the Authority; and was filed by an independent entity, the National Joint Council. Because the new allegation of bypass occurred more than six months before the first amended charge was filed it is barred by § 18(a)(4)(A) of the Statute; and, inasmuch as the [c]omplaint is based solely on the first amended charge, the [c]omplaint must be dismissed.

Id. at 6.

      Moreover, the Judge determined that even if the complaint were not barred by § 7118(a)(4), the allegations of the complaint did not support a conclusion that the Respondent committed an unfair labor practice. In this regard, the Judge specifically found that the General Counsel failed to show by a preponderance of the evidence that the e-mail to bargaining unit employees bypassed the Union leaders or that it unlawfully urged them to contact other union representatives. The Judge found that, to the contrary, pursuant to the parties' "Relationship by Objective (RBO)" agreement, [n4] the e-mail "merely informed the employees that Plant management" had told the Project Manager "that if three fixed position inspectors were required" he "wanted to pull out of HIMP, and if they wanted HIMP to continue, they should let . . . their National Council representative, know they supported HIMP and ask that he try to find an alternative to save HIMP." Id. at 7, 8. In sum, the Judge concluded that the Respondent "did not coerce any employee to do anything; did not by-pass employees; and did not interfere with the exercise of any right afforded employees by the Statute." Id. at 8.

      Having found that the complaint was barred by § 7118(a)(4)(A) or, in the alternative, that the Respondent did not violate § 7116(a)(1) and (5) of the Statute, the Judge dismissed the complaint.

III.     Positions of the Parties

A.     General Counsel's Exceptions

      The General Counsel excepts to the Judge's decision in three respects:

1.     Timeliness of its Post-Hearing Brief

      The General Counsel argues that the Judge erred by not considering the General Counsel's post-hearing brief. In this respect, the General Counsel argues that the post-hearing brief was timely filed with the Judge and that its supporting documentation, including an employee affidavit attesting to this fact and corroborating evidence of service, supports this conclusion.

2.     Sufficiency of the Charge

      The General Counsel does not directly except to the Judge's determination that the July 2001 charge constituted a new charge that cannot serve as a basis for the bypass allegation. [n5] However, the General Counsel does argue that the December 2000 charge itself provided the basis for issuing the complaint.

      The General Counsel notes that under § 2423.4(a)(5) of the Authority's Regulations, a charge need not provide a legal theory or cause of action, but need only set forth a "clear statement of the basic facts alleged to constitute an unfair labor practice, the sections of the Statute alleged to have been violated, and the date and place of occurrence of the particular facts." Exceptions at 9. As such, the General Counsel asserts that "an unfair labor practice charge serves only to initiate an investigation by the General Counsel, and is sufficient in a proceeding under the Statute if it informs the alleged violator of the general nature of the violation charged against it." Id. at 10.

      The General Counsel asserts that the December 2000 charge is sufficient under § 2423.4(a)(5) of the Authority's Regulations because it informed the Respondent of the general nature of the alleged bypass violation. In this regard, the General Counsel contends that the Judge erred in determining that the charge basically alleged control or domination in violation of § 7116(a)(3) of the Statute. The General Counsel contends that "[a]n agency unlawfully bypasses a union by, among other things, urging bargaining unit employees to exert pressure on the union to take a certain course of action with respect to conditions of employment." Id. at 10. According to the General Counsel, the charge put the Respondent "on notice that the events complained of were communications [by the Respondent] on September [ v59 p71 ] 6 and/or 9, 2000, exhorting the exertion of pressure on higher officials of the Council to change its position with respect to HIMP." Id. at 11.

      Moreover, the General Counsel asserts that the charge alleged that "the complained of communication was both an act of bad faith and an act of control of Local 368[,]" and that "an unlawful bypass is a form of bargaining in bad faith." Id. In addition, noting that the charge alleges that the Respondent violated § 7116(a)(1), (3) and (5) of the Statute, the General Counsel notes that an "unlawful bypass is violative of section 7116(a)(1) and (5) of the Statute." Id.

      Finally, the General Counsel contends that "[a] complaint is valid if the allegations in it bear a relationship to the underlying unfair labor practice charge and are closely related to the events complained of in the charge." Id. at 12. The General Counsel contends that the only information in the complaint that was not contained in the original charge concerned "the scope of the transmission of [the Respondent's] message: the charge does not state that the message was sent to unit employees in addition to the president of Local 638." Id. Therefore, according to the General Counsel, the complaint in this case is valid "because the allegations in it bear a relationship to the initial charge and are closely related to the events about which AFGE complained in the charge." Id. In this regard, the General Counsel states:

The Judge's assertion that the complaint is based on the amended charge apparently rests on his erroneous conclusion that the initial charge did not include a bypass allegation. In addition, the amendment simply removed the sections of the Statute set forth in the initial charge that are not relevant to an unlawful bypass allegation, and described the alleged bypass more clearly than the initial charge.

Id. at n.8.

3.     Merits

      The General Counsel argues that the Judge improperly relied on the parties' RBO in determining that the e-mail sent by the Respondent's representative did not constitute an improper bypass. The General Counsel contends that the RBO cannot "change either party's statutory rights or duties." Id. at 13.

      Moreover, the General Counsel argues that the Judge relied on portions of the RBO despite the fact that testimony about the RBO should not have been admitted into evidence. In this respect, the General Counsel contends that it was unaware that testimony of a witness reading from the RBO would be offered as a defense, as it was not on any list of documents intended to be introduced into evidence and the Respondent did not otherwise disclose prior to the hearing that it intended to rely on this document. As such, it argues that the Judge's failure to sanction the Respondent by precluding the admission of this evidence was an abuse of discretion.

      Furthermore, the General Counsel alleges that even if this testimony is properly in evidence, the Judge's determination that the e-mail message was sent pursuant to the RBO is in error. The General Counsel argues that there was no direct evidence supporting the Judge's finding, as the Respondent's representative who sent the e-mail was not called as a witness and no other witness provided testimony as to whether the Respondent's representative sent the e-mail pursuant to this RBO. Moreover, the General Counsel argues that the RBO "imposes no duty on supervisors like [a representative of the Respondent], and is not self-enforcing." Id. at 15. Similarly, the General Counsel argues that no other evidence was offered that shows that the Respondent's representative had sent out such e-mail pursuant to the RBO in the past. As such, it contends that the Judge erred in finding that the Respondent's actions were lawful under the RBO.

      Additionally, the General Counsel asserts that the e-mail to the bargaining unit amounted to a bypass because it urged bargaining unit employees to exert pressure on the exclusive representative to take certain actions. Id. at 16. In this respect, it argues that the Respondent and the Council were in disagreement over HIMP (the Respondent was opposed to it but AFGE and the Council were in favor of it), and that the inspectors and local Union officials at the plant actually favored HIMP because, although it limited the number of inspectors, it paid those inspectors higher salaries. The General Counsel argues that the Respondent's representative "exploited" this situation. Id. at 17. Moreover, the General Counsel argues that the e-mail was "rife with false statements that tended to encourage the employees to exert pressure on the Council." Id. at 20. As such, the General Counsel argues that the communication amounted to a bypass.

B.     Respondent's Opposition

1.     Timeliness of the General Counsel's Post-                    Hearing Brief

      The Respondent contends that the General Counsel's post-hearing brief was untimely and that the Judge correctly determined that he could not consider the [ v59 p72 ] brief. The Respondent argues that the evidence provided by the General Counsel is insufficient to show that the Judge erred.

2.     Sufficiency of the Charge

      The Respondent contends that under Authority precedent, "bypass" and "interference" are two distinct violations of the Statute. Opposition at 8. According to the Respondent, bypass "deals with a disregard of a [u]nion and attempts to deal directly with [u]nit employees[,]" acts which are "in derogation of the exclusive representative's right to represent its employees." Id. at 4. "At the heart of interference[,]" according to the Respondent, "is protected activity conducted by [u]nit employees." Id.

      The Respondent asserts that the complaint alleges bypass, and that the December 2000 charge alleged only interference, not bypass. The Respondent argues that it did not have sufficient notice that it was being accused of bypassing the Union until the second charge was filed in July 2001. Further, it contends that the complaint is based on the second charge, and that the second charge was untimely for the reasons stated by the Judge. Finally, noting that allegations in the complaint must bear a relationship to the charge and be closely related to the events providing the basis for the charge, the Respondent asserts that the General Counsel has failed to establish this relationship.

3.     Merits

      The Respondent argues that the RBO did not surface until later in the process because it "had not been charged with, or understood that it was charged with, bypass until the amended charge was filed and a complaint issued." Id. at 9. Moreover, the Respondent argues that the RBO authorizes and encourages this type of communication. In this respect, it argues that all its representative did was "pass on information" that he knew "was of interest to employees based on their inquiries to him." Id. at 8.

      With respect to the specific allegation of bypass, the Respondent contends that the number of inspectors working the line is a nonnegotiable condition of employment, and, as such, there was no need for the Respondent to act in the manner as alleged by the Council. Id. at 9. Moreover, the Respondent contends that the local Union acted on its own without pressure in contacting the Council with its poll results. As such, it argues that the General Counsel has failed to prove that it committed a bypass.

IV.     Analysis and Conclusions

A.     The General Counsel's post-hearing brief was timely filed

      Although the General Counsel's post-hearing brief was not received by the Office of Administrative Law Judges until July 2002, the postmark on the envelope containing the brief is clearly dated January 14, 2002, which was the due date for filing the brief. [n6] Under § 2429.27(d) of the Authority's Regulations, the "date of service or date served shall be the day when the matter served is deposited in the U.S. mail[.]" Accordingly, as reflected by the postmark on the envelope containing the General Counsel's post-hearing brief, the General Counsel timely served its post-hearing brief. Accordingly, we will consider arguments set forth in the General Counsel's exceptions that were made in that brief.

B.     The complaint is barred by § 7118(a)(4)(A) of the Statute

      Section 7118(a)(4)(A) of the Statute provides, with exceptions not relevant here, that "no complaint shall be issued on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority." The intent of this provision is to foster stable collective bargaining relationships and prevent the litigation of stale charges. Air Force Flight Test Ctr., Edwards Air Force Base, Ca., 55 FLRA 116, 120 (1999).

      As noted above, the General Counsel does not directly except to the Judge's determination that the July 2001 charge constituted a new charge that cannot serve to provide a basis for the bypass allegation. However, because it requests that the Authority consider arguments made in its post-hearing brief, and we have determined that those arguments were in fact timely filed and should have been considered, we will first address this contention.

      In his decision, the Judge determined that the second charge was filed by an "independent entity." Judge's Decision at 6. In this respect, the General Counsel stated in its complaint that the initial charge was brought by AFGE, AFL-CIO, and that the amended charge was brought by the Council. Moreover, the Respondent in its opposition contends that the "amended charge was also filed by a separate and independent entity, the National Joint Council. Although the [Council] may be affiliated with the AFGE, AFL-CIO, [ v59 p73 ] it is an independent entity holding exclusive representation rights with the [Respondent]." Opposition at 8.

      Upon review of the record, we find that the charge of July 2001 cannot be considered an "amended charge" as it was brought by a party other than the Charging Party. See 5 C.F.R. § 2423.9; 2423.3(b). As such, this charge is precluded from serving as the basis for the complaint as it is untimely. 5 U.S.C. § 7118(a)(4)(A).

      Additionally, the General Counsel argues that the December 2000 charge itself provided the basis for issuing its complaint. For the following reasons, we find that the December 2000 charge does not provide a basis for issuing the complaint.

      A charge "is sufficient in an administrative proceeding if it informs the alleged violator of the general nature of the violation charged against him[.]" United States Dep't of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pa., 40 FLRA 449, 455 (1991). Similarly, under 5 C.F.R. § 2423.4(a)(5), the charging party must include in its charge:

A clear and concise statement of the facts alleged to constitute an unfair labor practice, a statement of the section(s) and paragraph(s) of the Federal Service Labor-Management Relations Statute alleged to have been violated, and the date and place of occurrence of the particular acts[.] (Emphasis added.)

      In this case, the original charge, unlike the complaint, did not indicate that the alleged unfair labor practice was based on a communication from the Respondent's representative directly to members of the bargaining unit instead of to Local 386. In fact, the original charge makes the exact opposite allegation; namely, that the communication sought to enlist the assistance of Local 386 in influencing higher-level Council and/or AFGE officials. Specifically, in its charge, the charging party (AFGE) specified that the basis of its allegation was the claim that two representatives of the Respondent made "certain written and oral contacts with [the] then President of AFGE Local 368" to have him "influence higher-level union officials" of the charging party. General Counsel Ex. 1(a). As the Judge properly found, the charge "basically [alleged] control or domination in violation of § 16(a)(3)." Judge's Decision at 5.

      Accordingly, even if the original charging party may have intended to file a charge claiming something akin to bypass (a proposition that is unsupported in the record), the charge did not sufficiently inform the Respondent of the general nature of a bypass charge, as required by Allenwood, because it made absolutely no reference to a critical factual element of a bypass allegation: the claim that communications were made directly to unit employees instead of to the exclusive representative. Indeed, where, as here, the charge expressly alleges that a respondent was attempting to control a union, a respondent could not reasonably be expected to also be prepared to defend an allegation that its action simultaneously had the effect of bypassing a union, unless such an allegation was clearly set forth in the charge. In this case, it was not set forth, clearly or otherwise, in the December 2000 charge. Therefore, the charge did not comply with § 2423.4(a)(5) of the Authority's Regulations because it did not include a "clear and concise statement of the facts alleged to constitute" a bypass unfair labor practice.

      The General Counsel contends that the December 2000 charge was sufficient to place the Respondent on notice of its alleged unfair labor practice because it included facts associated with the allegation of bypass, i.e., the September 6 e-mail communication by the Respondent's representative, and that it alleged not only union domination but also that the Respondent bargained in bad faith with the Council. However, the General Counsel concedes, as it must, that the original charge "does not state that the message was sent to unit employees in addition to the president of Local 368." Exceptions at 12. Moreover, the General Counsel's claim, that "[a]n agency unlawfully bypasses a union by, among other things, urging bargaining unit employees to exert pressure on the union to take a certain course of action with respect to conditions of employment" that undermines the exclusive representative, further illustrates the deficiency in the charge. Id. at 10. The General Counsel's description of what constitutes an unlawful bypass recognizes that a basic element needed to prove a charge of bypass is a factual allegation that an agency communicated directly with bargaining unit members. As is evident from the original charge, this is the very factual allegation that is missing from the charge.

      Accordingly, in these circumstances, the December 2000 charge did not comply with § 2423.4(a)(5) of the Authority's Regulations and did not inform the Respondent of the general nature of the bypass violation charged against it in the complaint. Therefore, this charge does not provide a basis for the complaint. Moreover, since the July 2001 charge was filed by a party other than the Charging Party, it is not an "amended charge," but rather an untimely initial charge, and therefore cannot serve as the basis for the complaint. Consequently, the complaint is barred by § 7118(a)(4)(A) of the Statute and must be dismissed.

V.     Order

      The complaint is dismissed.


File 1: Authority's Decision in 59 FLRA No. 13
File 2: Opinionof Chairman Cabaniss
File 3: Opinion of Member Pope
File 4: ALJ's Decision


Footnote # 1 for 59 FLRA No. 13 - Authority's Decision

   Chairman Cabaniss' concurring opinion, and Member Pope's dissenting opinion, are set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 13 - Authority's Decision

   Section 7118(a)(4)(A) states that, with exceptions not relevant here, "no complaint shall be issued on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority."


Footnote # 3