File 2: Opinion of Member Pope
[ v62 p203 ]
Member Pope, dissenting:
There is no dispute that the Respondent discontinued its practice of assigning overtime before the start of the administrative workweek because of the Union's grievance and that the Lieutenant was aware of the dispute between the Respondent and the Union concerning overtime pay. Against this factual backdrop, I find that the Lieutenant's comment to the Officer that he could not assign overtime "[b]ecause of your fucking Union" was violative on its face, because the comment disparaged the Union for Respondent's decision to discontinue the practice of assigning overtime in a certain manner. [n1] By referring to the Union this way, the Lieutenant indicated his disdain not only for the Union, but also for the Union's efforts in seeking overtime pay for employees. As such, a reasonable employee could easily have been discouraged by the Lieutenant's comment from supporting the Union. That is, the Officer could reasonably have drawn a coercive inference from the Lieutenant's comment, as the comment tended to discourage support of the Union's efforts in seeking overtime pay for bargaining unit employees. See, e.g., Soc. Sec. Admin., Balt., Md., 18 FLRA 249, 258 (1985) (SSA) (supervisor's inquiry as to why the employee had filed a grievance and his statement that the employee was only hurting himself violated § 7116(a)(1) because it tended to chill the employee in the exercise of his statutory right to process his grievance); see also Lehigh Lumber Co., 230 NLRB 1122, 1125 (1977) (employer violated § 8(a)(1) of the National Labor Relations Act (NLRA) when it remarked that the union was no good and was "screwing" employees). Although, as the majority notes, the Lieutenant did not expressly threaten to take retaliatory action, unlike the respondent in U.S. Penitentiary, the majority errs in finding that fact dispositive because, consistent with the objective standard for finding a violation of § 7116(a)(1), an express threat is not necessary. See, e.g., SSA, 18 FLRA at 258.
Similarly, the majority errs in its attempt to distinguish the circumstances of this case from those in United States Customs Serv. Region I, (Boston, Mass.), 15 FLRA 309 (1984) (Customs), where a manager told employees that the respondent was discontinuing its practice in one location of allowing employees to use stools while performing their duties because of the union's action in filing a grievance at another location concerning the use of stools. In particular, the majority's attempt to distinguish Customs on the ground that the agency there "initiated specific negative action" ignores that Customs, like the case now before the Authority, is a statement -- not an action -- case. Majority Opinion, slip op at 5. In Customs, the Authority found simply that the manager's statement "concerning the purported reason for the removal of stools . . . i.e., because of the filing of a grievance by an employee . . . tended to coerce and restrain employees in the exercise of rights guaranteed by the Statute in violation of section 7116(a)(1)." Customs, 15 FLRA at 310. Moreover, the circumstances here are similar to those in Tocco, Inc. and Kelley Dilbeck, 323 NLRB 480 (1997), where the National Labor Relations Board (NLRB) found that an employer violated § 8(a)(1) of the NLRA, when its president told an employee that the employer's educational assistance policy had been eliminated, and the employee's request for benefits under the policy had been denied, because of the union. [n2]
In contrast to the foregoing precedent, the circumstances in the decisions relied on by the majority are dissimilar to those here. Majority Opinion, slip op at 4-5, citing Dep't of the Army, Reserve Pers. Ctr., St. Louis, Mo., 32 FLRA 665 (1988); Dep't of Health & Human Serv., Soc. Sec. Admin., 23 FLRA 648 (1986); Dep't of the Air Force, 63rd Civil Eng'rs Squadron, Norton Air Force Base, Cal., 22 FLRA 843 (1986). In this regard, none of the disputed comments in those decisions disparaged the affected union as an institution. In addition, none of those comments was directed toward a unit employee; all such comments were made in a labor-relations context and were directed toward union officials. The circumstances of labor-management relations discussions between a manager and a union official are obviously different from those circumstances involving discussions between involving a manger and a unit employee. The majority fails to appreciate this difference.
Based on the foregoing, I dissent.
Footnote # 1 for 62 FLRA No. 45 - Opinion of Member Pope