File 3: Opinion of Member Pope
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Dissenting Opinion of Member Carol Waller Pope:
The majority errs by finding that the original charge provided an insufficient basis for issuing the complaint. Accordingly, I dissent. [n1]
Under Authority regulations, a charge must include "[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 [Statute] alleged to have been violated, and the date and place of occurrence of the particular acts[.]" 5 C.F.R. § 2423.4(a)(5). A complaint must contain, as relevant here, "[t]he facts alleged to constitute an unfair labor practice; [and] [t]he particular sections of 5 U.S.C. chapter 71 and the rules and regulations involved[.]" 5 C.F.R. § 2423.20(a). A complaint "need bear only `a relationship' to a charge and closely relate to the events cited in the charge." United States DOJ, Office of Justice Programs, 50 FLRA 472, 476 (1995) (citing United States DOJ, Bureau of Prisons, Allenwood Fed. Prison Camp, Montgomery, Pa., 40 FLRA 449, 455 (1991) (Allenwood), rev'd as to other matters sub nom. United States DOJ v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993)). Further, the sufficiency of a complaint is not judged on the basis of rigid pleading requirements. See Dep't of Transp., FAA, Fort Worth, Tex., 55 FLRA 951, 956 (1999).
It is clear that the original charge satisfied the requirements of 5 C.F.R. § 2423.4(a)(5), that the complaint satisfied the requirements of 5 C.F.R. § 2423.20(a), and that the complaint was sufficiently related to the charge.
As for the charge, even a cursory reading of the original charge demonstrates that it complies with 5 C.F.R. § 2423.4(a)(5). That charge stated, in pertinent part:
The agency, by its agents Mike Grasso and D. Needham violated Section 7116(a)(1), (3), (5), and (8) in certain written and oral contacts with Patrick Maher, then President of AFGE, Local 368 . . . . Grasso and Needham told Maher to influence higher-level union officials to support . . (HIMP) . . . They also told Maher 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. . . . The violations occurred on or about September 6 and 9, 2000. By its actions, [the Respondent] bargained in bad faith with the [NJCFIL] and attempted to control the [NJCFIL] in violation of 7116(a)(5) and (3), respectively; and did control Local 368 in violation of 7116(a)(3).
G.C. Exh. 1(a). Thus, the charge contained: (1) a statement of the facts alleged to constitute an unfair labor practice; (2) the sections of the Statute alleged to have been violated; and (3) the date and place of the alleged violations.
Further, the complaint satisfied the requirements of 5 C.F.R. § 2423.20(a). In particular, the complaint stated, in pertinent part, that: (1) on September 6, 2000, the Respondent sent an e-mail to unit employees stating that a private plan manager wanted to "pull out of" HIMP unless a modification were negotiated; (2) the e-mail encouraged local union officials to contact and tell a higher-level union official to negotiate modifications to HIMP; and (3) by this conduct, the Respondent "committed an unfair labor practice in violation of 5 U.S.C. § 7116(a)(1) and (5)." G.C. Exh. 1(c), paragraphs 10, 11, 12. Thus, the complaint specified the facts alleged to constitute the specified violation of the Statute.
Both the original charge and the complaint allege violations of § 7116(a)(1) and (5) of the Statute. See G.C. Exhs. 1(a) and 1(c). Both the original charge and the complaint also allege actions taken by the same Respondent official on the same date. [n2] See id. Both the original charge and the complaint allege that communications by Respondent's officials -- the disputed e-mail -- violated the Statute. See id. This is all that the Authority's regulations require.
The majority places great, and undue, emphasis on the fact that although the original charge alleged only that the Respondent communicated with the Local Union president, the complaint alleges that the communication took place with other unit employees as well. There are two things wrong with this emphasis. [n3]
First, this emphasis exaggerates the unimportant. In this connection, it is undisputed that both the charge and the complaint allege that the same e-mail, sent on the same date, violated § 7116(a)(1) and (5). It also is undisputed that this same e-mail was sent to the local [ v59 p76 ] union president and other unit employees. The only relevant difference is that the complaint specified that other unit employees were recipients and the charge did not. That is, the charge's failure to allege that the e-mail was sent to the local union president "and other unit employees" is its fatal deficiency.
Second, this emphasis ignores that there is not now, and has never been, a requirement that the General Counsel may argue only what is contained in a charge. In this regard, it is well and long established, in both the Federal and private sectors, that a charge serves merely to initiate an investigation and to determine whether a complaint in a matter should be issued. See NLRB v. Fant Milling Co., 360 U.S. 301, 307-08 (1959) (Fant Milling); Allenwood, 40 FLRA at 455. As stated by the United States Supreme Court, "[a] charge . . is not to be measured by the standards applicable to a pleading in a private lawsuit[;] [i]ts purpose is merely to set in motion the machinery of an inquiry[,]" and an investigation of a charge is not confined to the "specific matters alleged in the charge . . . " Fant Milling, 360 U.S. at 307-09. Although a complaint must bear "a relationship" to the charge on which it is based, it need not be its identical twin. Allenwood, 40 FLRA at 455.
The complaint in this case bears the necessary relationship to the original charge. [n4] The majority's holding to the contrary mocks both our regulations and applicable precedent.
Finally, I do not believe that the disputed e-mail can reasonably be construed as merely passing along information to unit employees. The e-mail (from Respondent's representative to several unit employees, including the then-President of Local 368) stated, in pertinent part:
Kelly Wadding has told Mike Grasso that if three inspectors are to go on line . . then he wants to pull out of HIMP . . . . Mike Grasso 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 Kelly 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 Grasso or Kelly is bluffing or not . . . . Mike Grasso told Kelly that the most powerful influence would be if the local union people would officially contact [the president of NJCFIL] and tell him in no uncertain terms that you support the HIMP program and that you want the union to negotiate with management on 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 to do regarding contacting upper union officials if you want to see HIMP continue.
GC Exh. 2.
Finding that the e-mail merely transmitted general information strains credibility. By its plain terms, the e-mail expressly urged unit employees to urge NJCFIL to change its bargaining position, with the threat that the plant would withdraw from the HIMP program if the NJCFIL did not do so. As such, it is a bypass. [n5] See HUD Locals, 54 FLRA at 1279 (citing Iowa Nat'l Guard & Nat'l Guard Bureau, 8 FLRA 500, 513 (1982)).
For the foregoing reasons, I would find that the Respondent violated § 7116(a)(1) and (5) of the Statute.
Footnote # 1 for 59 FLRA No. 13 - Opinion of Member Pope
Because I find that the complaint is properly before us based on the original charge, I need not address the amended charge. I note, in this regard, that the Judge's statement that the complaint was based solely on the amended charge, Judge's Decision at 6, is patently false. The complaint, by its terms, is based on both the original and amended charges. See G.C. Exh. 1(c), paragraphs 3, 4.
Footnote # 2 for 59 FLRA No. 13 - Opinion of Member Pope
Footnote # 3 for 59 FLRA No. 13 - Opinion of Member Pope
In addition, the concurrence takes issue with a finding -- erroneously attributed to me -- that the original charge "actually gave the Agency adequate notice of a bypass allegation." Concurrence at 1. This is wrong. I believe that the facts alleged in the charge were sufficient to support the allegation in the complaint that the Respondent violated § 7116(a)(1) and (5) -- nothing more and nothing less. In fact, I believe it is irrelevant whether the charge alleged a bypass. It is necessary only that the facts in the charge bear a reasonable relationship to the facts forming the basis for the complaint. Here, they undoubtedly do.
Footnote # 4 for 59 FLRA No. 13 - Opinion of Member Pope
In any event, procedural irregularities do not provide a basis for dismissing a complaint unless a respondent shows that it was prejudiced by the irregularities. See, e.g., United States DOJ, INS, W. Reg'l Office, Labor-Management Relations, Laguna Niguel, Cal., 58 FLRA 656, 658 (2003) (Chairman Cabaniss concurring and Member Armendariz dissenting on other grounds); Dep't of the Army, Harry Diamond Labs., Adelphi, Md., 9 FLRA 575, 575 n.1 (1982).
Footnote # 5 for 59 FLRA No. 13 - Opinion of Member Pope
In reaching this conclusion, it is not necessary to find that the local Union President, or any other unit employee, actually felt coerced by the Respondent. There is nothing in Authority case law even hinting that this is a relevant consideration. See, e.g., Dep't of the Treasury, IRS, Kan. City Serv. Ctr., Kan. City, Mo., 57 FLRA 126, 129-30 (2001); United States DOJ, INS, N.Y. Office of Asylum, Rosedale, N.Y., 55 FLRA 1032, 1038-39 (1999) (then-Member Cabaniss dissenting); United States DOJ, Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 51 FLRA 1339, 1346-47 (1996). The local Union President's poll of unit employees, conducted prior to receiving the disputed e-mail, is similarly irrelevant, in my view.