U.S. DEPARTMENT OF THE AIR FORCE, 437TH AIRLIFT WING, AIR MOBILITY COMMAND, CHARLESTON AFB, SOUTH CAROLINA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1869
Office of Administrative Law Judges
U.S. DEPARTMENT OF THE AIR FORCE, 437TH AIRLIFT WING, AIR MOBILITY COMMAND, CHARLESTON AFB, SOUTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1869
Case Nos. AT-CA-80109
Phillip G. Tidmore, Esq. Major Douglas C. Huff, Esq. For the Respondent
Ms. Brenda Stallard For the Charging Party
Before: JESSE ETELSON Administrative Law Judge
That part of the consolidated complaint that arises from
Case No. AT-CA-80109 alleges that the Respondent committed two
unfair labor practices. It alleges that, by issuing a letter of
reprimand to employee Gail White based on her activities as a union
steward, particularly her giving advice to another employee
regarding an alleged child abuse incident witnessed by a third
employee, the Respondent violated sections 7116(a)(1) and (2) of
the Federal Service Labor-Management Relations Statute (the
Statute). The complaint also alleges that the Respondent committed
an independent violation of section 7116(a)(1) of the Statute when
a supervisor or management official telephoned White in order to
determine if anyone had reported a child abuse incident to her.
Respondent's answer denies that White was acting in her capacity as
union steward when she spoke to her fellow employee regarding the
alleged child abuse incident and denies that Respondent committed
the alleged unfair labor practices.
A hearing on the complaint was held on November 18 and 19,
1999, in Moncks Corner, South Carolina. Counsel for the General
Counsel and for Respondent filed posthearing briefs.
Findings of Fact
The material facts necessary to resolve this case are
virtually undisputed. The testimony of each witness with respect to
such facts was uncontroverted and appears to have been truthful.
Minor differences, which I find to be inconsequential, are
incorporated into the narrative below. These findings are based on
the record as a whole, but particularly on the testimony and the
documents on which the parties have relied in their briefs and
A. Organizational and Background
The Respondent, an "activity" of an "agency" within the
meaning of section 7103(a)(3) of the Statute, operates a Child
Development Center (CDC) that provides day care for younger
children. Gail White was employed at the CDC and was an officer and
steward of the Charging Party (the Union). White's supervisor,
Kristina Rose, is the person who issued the letter of reprimand
that is in issue here. White's third-level supervisor, Darrie
("Debbie") Ross, is the Director of the CDC and the person who
telephoned White asking about her knowledge of a reported incident
of child abuse.
Child care workers in a federally operated facility are
among the "covered professionals" who, under 42 U.S.C. § 13031, are
required, as soon as possible on learning of facts that give reason
to suspect that a child has suffered an incident of child abuse, to
report the suspected abuse to a designated agency. The agency
designated for this purpose at Respondent's CDC is an organization
referred to in the record as Family Advocacy. Failure to make a
timely report as required by 42 U.S.C. § 13031 is a Class B
misdemeanor. 18 U.S.C. § 2258.
CDC's child care workers receive appropriate annual training
which includes the requirements for reporting incidents of child
abuse and the consequences of failing in this responsibility. The
importance of these requirements is given due emphasis at the
Respondent and throughout the Air Force. It is the practice at CDC,
among other facilities, to remove an employee suspected of child
abuse from the facility immediately and place her on administrative
leave pending investigation of the incident.
B. White's Receipt of Information About a
Report of Child Abuse
On the evening of October 13, 1997, Mary Skelton, a CDC
employee, phoned her friend and colleague, Vickie Heller, another
CDC employee. In the course of their conversation, Skelton told
Heller that she had seen a CDC teacher grab a child, whom she could
not identify, by his or her shirt-front and yank the child toward
Heller asked Skelton whether she had reported the incident
to management. Skelton told Heller that she had not, and expressed
some reluctance to do so because she thought the teacher who was
involved had a special rapport with the CDC Director. Heller told
Skelton that she had to report the incident, and that if Skelton
did not, Heller would. This response seemed to Heller to have upset
Skelton, who just said okay. Their conversation ended very quickly
Heller's near-contemporaneous statement gives the date of
the observed incident, as reported to her by Skelton, as October
10. Skelton had, meanwhile, reported the incident orally to
Kristina Rose, and in a written statement, as having occurred on
On the morning of October 14, the day after her conversation
with Skelton, Heller saw White, then in a classroom with children.
Heller told White, at that time, only that she needed to talk with
her about a Union issue. Sometime during the noon hour that day,
Heller returned to the classroom where White was then sitting while
the children had their nap. Heller told White that she wanted to
talk to her as the "Union person" rather than as an employee. White
told her that was not a problem.
Heller then told White about her conversation with Skelton,
adding that she (Heller) did not feel comfortable going to
management because of having been "written up" before and because
she had not seen the incident herself. Her statement about having
been "written up" apparently referred to a counseling she had
received the previous month for gossiping that was somehow linked
to the same employee whom Skelton had identified as having abused
the child (Tr. 21). Heller asked White what her rights were
concerning Skelton's report.
White was unable to give Heller a complete answer about her
rights or responsibilities concerning a situation of this kind, but
did tell her that she should tell Skelton to report the incident.
White also told Heller either that if Heller did not give Skelton
those instructions (Tr. 26), or that if Skelton did not make a
report (Tr. 84), that White would report it herself. Heller told
White that she would talk to Skelton later that day.
C. The Information is Pursued and
Heller saw Skelton a short while later and told her about
her conversation with White, including White's advice. Skelton
indicated to Heller that she would follow that advice. At
approximately 4:50 that afternoon, she reported the incident to
Kristina Rose. Skelton told Rose that she had told a co-worker
about the incident, in confidence, and that the co-worker had told
Gail White.(2) Rose notified
Director Ross and asked Skelton to make a written statement about
Ross interviewed Skelton almost immediately, in the presence
of Assistant Director Feleen Haynie. Skelton described the incident
to Ross, still without being able to identify the child. In a
contemporaneous written statement, Ross wrote that Skelton
identified the co-worker to whom she had reported the incident in
confidence as Lilia Bohorquez. Bohorquez had been present when
Skelton saw whatever it was that she saw but had not seen it
herself. Skelton, in the written statement she gave Ross, describes
informing Bohorquez of the incident immediately after she saw it.
At the hearing, Ross testified on direct examination that Skelton,
when asked by Ross, had identified Heller as the co-worker whom she
had informed about the incident. Later, on cross-examination, Ross
confirmed that Skelton had told her that she had also spoken to
Bohorquez about it.
When Ross finished questioning Skelton, she phoned White at
home while Assistant Director Haynie called or summoned Heller and
questioned her about her knowledge of the incident. Ross asked
White whether anyone had made a child abuse report to her. White
asked Ross what had happened since White had left the facility (Tr.
182) or why Ross was asking (Tr. 85).
Ross told White that there had been an allegation of child
abuse and asked her again whether she had been given such a report.
White then told Ross that she had received such a report. Ross
asked her who had reported it to her and White responded that it
was Vickie Heller. White also told Ross that Heller had received
the report from Mary Skelton. Ross, Kristina Rose, or both,
instructed White to make a written report (Tr. 88, 182). White did
so and gave it to Rose on October 15.
Ross and Haynie also interviewed Lilia Bohorquez. Bohorquez
denied any knowledge of the alleged incident or that Skelton had
told her anything about it, and repeated this denial in a written
statement on October 14. At some time, apparently also on October
14, Ross contacted the employee who allegedly abused the child, who
was at home, and told her she could not return to the CDC until
Family Advocacy advised them that she could return (Tr. 184).
On October 15, Vickie Heller made her written statement. She
wrote that on the day following her conversation with Skelton, "I
consulted my union steward Gail White as to what I should do since
I had not observed the incident personally. She advised me that the
worker who observed the incident should report it and if she didn't
Ross called Family Advocacy that evening. The next morning,
October 15, she hand-carried and delivered to them a package
containing her interview notes and the employee statements. Later
the same day, Family Advocacy informed Ross that the investigation
would not proceed any further because (1) the report was untimely
and (2) the child could not be identified. A Family Advocacy
official informed CDC that he had serious concerns about the
staff's understanding of their responsibility to make timely
reports. Accordingly, he scheduled additional training for the
staff. On advice of Family Advocacy, the accused employee was
notified on October 15 that she could return to work.
D. Some Employees were
On October 20, 1997, Kristina Rose held a meeting with Gail
White at which Rose informed her of possible disciplinary action.
White was given the opportunity of making an oral response at that
meeting. There is no evidence in the record of what White said at
On November 7, Mary Skelton received a notice of
"Termination of Employment" for failing to "report a case of
suspected child abuse immediately upon witnessing it." On November
12, Vickie Heller received a "Notice of Proposed Suspension for
five calendar days for failing immediately "to report what
[Skelton] had told you." This proposed suspension became a final
decision and was implemented.
Also on November 12, White received a "Memorandum of
Reprimand." It was to be placed in her Official Personnel Folder
for a period of two years and could affect the extent of future
disciplinary action, including removal. The memorandum, issued by
Rose, refers to their October 20 meeting and Rose's consideration
of the (undisclosed) response White made at that time. The basis
for the reprimand was that:
On 14 October 1997 Vickie Heller reported to you that Mary Skelton had witnessed an
employee inappropriately mishandling a child on 8 October 1997. Ms. Heller told you that
the incident had not been reported. You told Ms. Heller to tell Ms. Skelton that she should
report the incident. However, you made no attempt to report what you had been told, nor
did you follow up to insure that Ms. Skelton or Ms. Heller had indeed reported the incident.
You completed your shift and left the Center. When you left the Center Ms. Heller nor Ms.
Skelton had reported the incident. By not reporting the alleged abuse you allowed someone
who was suspected of abuse to continue to be in direct
contact with children.
Although Kristina Rose issued the disciplinary memoranda to
Heller and White, Director Ross had previously discussed the matter
of their discipline with Rose.
The employee whom Skelton had accused with respect to the
incident was not disciplined. Neither was Lilia Bohorquez.
According to Ross, Bohorquez was not disciplined because she denied
any knowledge, so that Ross, unable to ascertain whether she was
telling the truth, simply forwarded her statement to Family
Advocacy (Tr. 194-95, 200-03).
Analysis and Conclusions
A. Alleged Section 7116(a)(1)
A union representative cannot be compelled to divulge
confidential information given to the representative by a unit
employee unless the agency establishes an "extraordinary need" for
the information. Federal Bureau of Prisons, Office of Internal
Affairs, Washington, D.C., 53 FLRA 1500, 1509 (1998).
(Bureau of Prisons). A conversation in which such
information was given is protected activity, and interference with
its confidentiality violates section 7116(a)(1). U.S. Department
of the Treasury, Customs Service, Washington, D.C., 38 FLRA
1300, 1308-09 (1991) (Customs Service).
However, interference, restraint or coercion within the
meaning of section 7116(a)(1) occurs only when, under all the
circumstances, the conduct that was directed at an employee tends
to coerce or intimidate the employee, or when the employee could
reasonably have drawn a coercive inference from it. Department
of the Air Force, Ogden Air Logistics Center, Hill Air Force Base,
Utah, 35 FLRA 891, 895 (1990) (OALC). Moreover, section
7116(a)(1) proscribes only coercion "of any employee in the
exercise by the employee of any right under this chapter." Even
when the employee who is coerced has engaged in protected activity,
the coercion must have been with respect to such past, present, or
future activity. The question, then, is whether the allegedly
coercive action was directed at protected activity or whether, even
if the activity at which it was directed occurred contemporaneously
with protected activity and was somehow associated with it, the
focus was on matters in which management had a legitimate interest
and not on the protected activity itself. See Bureau of
Prisons at 1509-13, 1530-34.
I find instructive in this regard the following passage from
the decision of the Administrative Law Judge in Armored Transfer
Service Inc., 287 NLRB 1244, 1250 (1988) (this finding not
excepted to before the Board):
There can be little doubt that the pointing of a shotgun at strikers can have a chilling effect
on protected activity. It is also true that proof of coercive intent is not needed and that
conduct is unlawful as long as it may reasonably be found to interfere with the free exercise
of employee rights under the Act. (Citation omitted.) However, there must be some nexus
between the conduct and the protected activity beyond mere coincidence. A person may be
held responsible for unintended consequences of his lawful act, but only where those
consequences are reasonably foreseeable. [The employer] was trying to protect himself from
a possible robbery under circumstances where he had no knowledge and indeed no reason
to believe that there was a labor dispute. Under those circumstances, I do not believe that his
conduct constituted a violation of the Act . . . .
Furthermore, the Supreme Court, in a leading case on the
issue of employer motivation in cases of interference with the
exercise of employee rights to engage in protected activity,
appears to have made part of the requisite showing the fact that
the employer knew that the employee was engaging in protected
activity at the time the incident resulting in discipline occurred.
Although the case arose in a somewhat different context (as the
excerpt below will show), and although the decision has been
subject to different interpretations over the years, I find it,
too, to be instructive and worthy of being reckoned with:
Section 7 grants employees, inter alia, "the right to self-organization, to form, join, or assist
labor organizations." Defeat of those rights by employer action does not necessarily depend
on the existence of an anti-union bias. Over and again the Board has ruled that § 8(a)(1) is
violated if an employee is discharged for misconduct arising out of a protected activity, despite
the employer's good faith, when it is shown that the misconduct never occurred. (Citations
omitted.) In sum, § 8(a)(1) is violated if it is shown that the discharged employee was at the
time engaged in a protected activity, that the employer knew it was such, that the basis of the
discharge was an alleged act of misconduct in the course of that activity, and that the employee
was not, in fact, guilty of that misconduct.
NLRB v. Burnup and Sims, Inc., 379 U.S. 21, 22-23
The difficulty with the attempt to show section 7116(a)(1)
coercion in the instant case is that the record reveals no broach
of the subject of White's representative status, with respect to
the information she received from Heller, in the course of the
questions Ross directed to White. When Ross asked White whether
anyone had made a child abuse report to her, White hesitated and
appeared reluctant to answer. However, there is no evidence that
she gave Ross any indication that the reason for her reluctance was
that she had received the information in her union capacity. Ross,
had she been so informed, would have had the opportunity to frame
any further questions so as to avoid interfering with the
confidential relationship. In fact, White could have informed Ross
at any time during the conversation that her questions threatened
to compromise the confidentiality with which she believed the
information to be encumbered. What Ross might properly have done in
that event is not to be adjudicated here.
Nor do I believe that the fact that White was a union
steward, and that Ross knew that she was, is sufficient to have put
Ross on notice that the matter about which she was inquiring was
one in which White's reputed involvement was in her representative
capacity. White became a steward in 1994 and the Union's Fifth Vice
President in 1995. Her activities in those roles were, basically,
the filing of grievances for four named CDC employees, perhaps the
advising of other employees, and participation in some negotiations
and a partnership council, although it is not clear which of these
activities preceded the October 1997 events underlying this case
(Tr. 82-83, 112-13). Although she negotiated with Ross about a
local CDC matter on at least one occasion, which may or may not
have preceded October 1997, the record does not make White out to
be so prominent a union official as to have required Ross to assume
that White had been informed of the incident in her union capacity.
In these circumstances, it was reasonable for Ross to rely on White
to tell her if she had. I conclude that the questions Ross asked
White did not constitute interference, restraint, or coercion
within the meaning of section 7116(a)(1).
B. White's Memorandum of
1. The Confidential Nature of the
Communication, as it was Known to Respondent
By the time it disciplined White, Respondent was on notice
that the source of White's third-hand knowledge of the alleged
incident was a communication she had received from a constituent
who had consulted her as a union representative. Heller had so
informed Respondent in her October 15 written statement and,
although there was no testimony about it one way or another, it
seems more likely than not that she gave Assistant Director Haynie
the same information she later put into her written statement, when
Haynie spoke with her on the evening of October 14.
Respondent had no reason to doubt Heller on this point. In
fact, Respondent, in all other aspects of its response to this
incident, accepted and relied on the explanations of the employees
it had questioned about their actions. It relieved Ms. Bohorquez of
any responsibility, based on nothing more than her denial that she
knew anything about the incident, notwithstanding that her
statement was in conflict with Skelton's. Bohorquez's offense, if
Skelton were to be believed, would have been of much greater
consequence than Heller's, or than White's purported offense, since
Bohorquez, if her denial was false, could have reported the
incident at a time when her information would have been crucial to
the investigation and have avoided the delay that Family Advocacy
and Director Ross had found so disturbing. While I am in no
position to determine whether it was Skelton or Bororquez who was
telling the truth, I find it implausible that Respondent would have
pursued that potential offense no further, based on Bohorquez's
self-exculpation, and, at the same time, have failed to rely on
Heller's statement explaining her contact with White.
Nothing in the record indicates that Respondent doubted
Heller. It argues, however, that White must be deemed to have been
in the status of a child care worker and not that of a union
representative when Heller spoke to her because White had not
filled out the necessary form to perform union representational
duties at the time, and had not requested official time from her
supervisor. If there is a logic to this argument, it is a hollow
logic that is remote from everyday reality. I reject it without
further elaboration, confident that the intelligent reader will not
Respondent would also have it that the communication between
Heller and White cannot be considered confidential because there
was no disciplinary proceeding in progress at the time of the
communication. The Authority has never placed such a condition on
finding that a communication between an employee and her union
representative was confidential. See U.S. Department of Justice,
Washington, D.C. and U.S. Immigration and Naturalization Service,
Northern Region, Twin Cities, Minnesota and Office of Inspector
General, Washington, D.C. and Office of Professional
Responsibility, Washington, D.C., 46 FLRA 1526, 1528, 1570-71
(1993), reversed and remanded on other grounds, 39 F.3d 361
(D.C. Cir. 1994)(DOJ). Here, it is apparent at least that Heller
regarded her communication as confidential.
2. Application of the
Respondent cites court decisions for the proposition that,
in order for a privilege to exist under Rule 501 of the Federal
Rules of Evidence, four criteria must be satisfied, the final
criterion being that the injury that would inure to the
confidential relationship by disclosure must plainly outweigh the
important societal interest in obtaining all evidence necessary to
ensure the correct disposal of litigation. See, for example, In
Re Grand Jury Subpoenas Dated January 20, 1998, 995 F.Supp. 332
(E.D.N.Y. 1998). This proposition was designed to govern the
development or recognition of new rules of privilege under the
principles of common law. Id. at 334. Its applicability in
the present context is not self-evident. Meanwhile, the Authority
having in effect established an employee-union representative
privilege in Customs Service and its progeny, arguments
against its very existence must be directed to it.
If there was a privilege, Respondent argues, White waived
it by failing to assert it when Ross questioned her on October 14.
I find the question of waiver during White's conversation with Ross
to be irrelevant to the issue of the lawfulness of her reprimand.
The reprimand was based on her failure to report the information
she received from Heller immediately on receiving it. A later
"waiver" cannot have affected whatever duty she had to report the
information at the time Respondent contends she should have done
so. Moreover, one must be clear about: (1) what one means by saying
that the privilege was waived, especially when the alleged waiver
was accomplished by someone other than person on whose behalf the
privilege primarily exists; and (2) about the purposes for which it
is supposed to have been waived.
Respondent seeks two additional escape routes from the
requirement to honor the confidentiality of the communication in
question. One is by way of the Authority's "extraordinary need"
exception. The other is in the nature of a public policy exception
that, Respondent contends, should exempt this information from the
requirements of the Statute.
With respect to "extraordinary need," Respondent notes that
such a need was found to have been established in Bureau of
Prisons, but shows no similarity between that case and this
except for the fact that in each there was an investigation into
the possibility of violence. In Bureau of Prisons, the
relevant issue was whether the agency had shown that it had a need
to conduct an investigation into an alleged threat of violence. 53
FLRA at 1510. The Authority concluded that an "extraordinary need"
existed in the specific context presented, including the fact that
"no confidential employee- union communication was implicated."
Id. at n.7.
In the instant case, there is no dispute over the need for
an investigation. A showing of "extraordinary need," however, would
require a basis from which to conclude that the investigation could
not have proceeded, or at least would have been seriously
compromised, in the absence of the information to be derived from
the confidential communication. Since Respondent had already
interviewed the purported witness to child abuse and was
contemporaneously interviewing the person to whom the witness had
reported the incident, it is difficult to credit the need to follow
the trail of reports, to persons further removed from the source,
as being "extraordinary." Absent any plausible indication that
White knew anything about the incident that neither Skelton nor
Heller had revealed, the term "extraordinary need" hardly fits
The public policy exception that Respondent advocates here
appears to be based on (1) White's duty, under 42 U.S.C. § 13031,
to report any suspected child abuse as soon as possible, about
which duty she knew or should have known as a result of the
training she received and (2) the proposition that the privilege
"may be good as against management . . . but it is not good against
the world," DOJ, 39 F.3d at 369.
With respect to White's purported duty under 42 U.S.C. §
13031, Respondent has provided no basis for concluding that
Congress intended to have such reporting requirements override the
requirements of the Statute as interpreted by the Authority. Such
an exception to the privilege would, if applied here, leave nothing
about which Heller could have consulted White in confidence
concerning this matter. Nor does Respondent's inability to enforce
the requirements of 42 U.S.C. § 13031 by direct disciplinary action
enable employees to ignore those requirements with impunity.
Violation of that provision is, as noted above, a Class B
prosecution for such a crime might also affect the defendant's
The argument that the privilege may be good as against
management but not "against the world" appears to be little more
than another form of the contention, treated above, that the
privilege cannot exist unless it meets the criteria for recognizing
new privileges for litigation purposes. The short answer is that
the privilege is not being asserted here "against the world," but
against management, as the discipline imposed on White was for her
failure to inform management.(4)
Respondent interfered with employees' exercise of their
right to communicate with their union representatives in confidence
by disciplining White for failing to reveal that communication in a
manner deemed timely by Respondent. Such interference violated
section 7116(a)(1) of the Statute and calls for rescission of the
Remedies for unfair labor practices under the Statute should
be designed to recreate the conditions that would have been there
had there been no unfair labor practices, United States
Department of Justice, Bureau of Prisons, Safford, Arizona, 35
FLRA 431, 444-45 (1990). Accordingly, the Authority, may provide
affirmative relief with respect to a section 7116(a)(1) violation
and "has required an agency found to have committed a section
7116(a)(1) violation to make employees whole for any losses
suffered as a result of the agency's illegal actions." U.S.
Department of Health and Human Services, Food and Drug
Administration, Pacific Region and National Treasury Employees
Union, Chapter 212, 55 FLRA 331, 337 n.13 (1997).
The remedy would be essentially the same if this action were
held also to have violated section 7116(a)(2). See U.S.
Department of Agriculture, Food Safety and Inspection Service,
Washington, D.C., 55 FLRA 875 (1999). I therefore find it
unnecessary to decide whether the discipline also violated section
7116(a)(2). See NLRB v. Burnup and Sims, Inc.,
supra.(5) Accordingly, I recommend
that the Authority issue the following order:
Pursuant to section 2423.41(c) of the Authority's
Regulations and section 7118 of the Federal Service
Labor-Management Relations Statute (the Statute), the U.S.
Department of the Air Force. 437th Mobility Command,
Charleston, Air Force Base, South Carolina, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing
bargaining unit employees by disciplining Gail White or any
representative of American Federation of Government Employees,
Local 1869 for protected conduct engaged in while performing union
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured them by the Statute.
2. Take the following affirmative actions in order to
effectuate the purposes and policies of the Statute:
(a) Rescind the memorandum of reprimand given
to Gail White and expunge from its files all records of and
references to this reprimand.
(b) Post at its facilities copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commanding Officer of the 437th Air Mobility Command and
shall be posted and maintained for 60 consecutive days there-after
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.
(c) Pursuant to section 2423.41(e) of the Authority's
Regulations, notify the Regional Director of the Atlanta Region,
Federal Labor Relations Authority, in writing, within 30 days from
the date of this Order, as to what steps have been taken to
Issued, Washington, D.C., January 28, 2000.
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER
FEDERAL LABOR RELATIONS
The Federal Labor Relations Authority has found that the U.S.
Department of the Air Force, 437th Airlift Wing, Air Mobility
Command, Charleston Air Force Base, South Carolina, 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 interfere with, restrain, or coerce employees by
disciplining Gail White or any representative of American
Federation of Government Employees, Local 1869, for protected
conduct engaged in while performing union representational
WE WILL NOT in any like or related manner interfere with,
restrain or coerce employees in the exercise of rights assured to
them by the Federal Service Labor-Management Relations
WE WILL rescind the memorandum of reprimand given to Gail
White and expunge from our files all records of and references to
Date: ____________________ By: __________________________
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 any of its provisions, they may communicate with
the Regional Director, Atlanta Regional Office, Federal Labor
Relations Authority, whose address is: Marquis Two Tower, Suite
701, 285 Peachtree Center Avenue, Atlanta, GA 30303-1270, and whose
telephone number is: (404) 331-5212.
1. Case Nos. AT-CA-80109 and AT-CA-90221 were consolidated at the complaint stage of this proceeding and remained so when the matter went to hearing. During the hearing, Counsel for the General Counsel, with my approval, withdrew the complaint allegations arising from Case No. AT-CA-90221. The remainder of this decision relates only to Case No. AT-CA-80109.
2. Rose testified that Skelton identified Vickie Heller as the co-worker she had informed (Tr. 160). However, it is not clear that Rose intended to say that Skelton identified Heller during their October 14 conversation. Nor, based on the written statements of Rose, Skelton, and Ross, is it clear that it was Skelton from whom Rose received this information.
4. Although 42 U.S.C. § 13031 would have required any report of child abuse by CDC employees to have been made to Family Advocacy, there is no indication in the record that the employees were so trained. Rather, their instructions were to report such incidents to their supervisors (Tr. 88-89, 157). In any event, Family Advocacy is an organizational component connected to the Respondent (Tr. 183), not a law enforcement agency or an investigator for a litigant.
5. Analysis of whether Respondent committed the section 7116(a)(2) unfair labor practice of discrimination "to encourage or discourage membership in any labor organization" is complicated by what I view as the paucity if not absence of evidence of antiunion animus or motivation, usually associated with such violations although not mentioned in the Authority's lead decision on unlawful discrimination, Letterkenny Army Depot, 35 FLRA 113 (1990). One way out of this difficulty might be the Authority's adoption of the private sector doctrine of "inherently destructive" employer actions, NLRB v.Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967), a step the Authority has not yet found it necessary to take. See 305th Air Mobility Wing, McGuire Air Force Base, New Jersey, 54 FLRA 1243, 1245, 1250 n.3, 1264 (1988). A second difficulty in analyzing this case under section 7116(a)(2) is in determining whether Respondent established a Letterkenny defense by showing that it would have disciplined White for failing to make a report whether or not she had received the information in connection with protected activity. A subsidiary question is whether the Authority would entertain this defense where, as here, Respondent arguably raised it in substance (Br. at 9) but did not expressly identify it as such or did not label it correctly. See Social Security Administration, Region VII, Kansas City, Missouri, 55 FLRA 536, 539 n.3, 544 (1999).