AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1164, AFL-CIO and CARYN CAISSE,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1164, AFL-CIO
CARYN CAISSE, an Individual
Caryn Caisse Pro Se
Lawrence L. Kuo Gary J. Lieberman Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that Respondent (AFGE, Local 1164/Union) violated section 7116(b)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(b)(1) and (2), and independently violated section 7116(b)(1), when the Union's president, Andrew Krall, wrote a letter to Salem District Office, Social Security Administration (SSA), requesting that the district director investigate and take remedial action against the Charging Party (Caryn Caisse). The complaint alleges that the Union wrote the letter because Caisse was not a member of the Union and the Union believed that Caisse had made derogatory comments regarding the Union and/or officials of the Union.
The Union's answer admitted the jurisdictional allegations
of the complaint and that the Union wrote such a letter, but denied
that it was for reasons that violated the Statute.
For the reasons explained below, I conclude that a
preponderance of the evidence does not support the alleged
violations and recommend that the complaint be dismissed.
A hearing was held on April 5, 1999, in Boston,
Massachusetts. The parties were represented and afforded a full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The Union
and the General Counsel filed helpful briefs. Based on the entire
record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of
law, and recommendations.
Findings of Fact
A. SSA, the Union, and the Charging Party
SSA Salem District Office, Salem, Massachusetts, provides
services to the public pursuant to various SSA programs. It is
staffed by two management officials, an operations supervisor and a
district manager, and approximately fifteen non-management
employees, including service representatives, claims
representatives, and an administrative support staff.
AFGE, AFL-CIO, is the exclusive representative of a
nationwide consolidated unit of employees appropriate for
collective bargaining at SSA. AFGE, Local 1164, is an agent of AFGE
for the purpose of representing SSA employees, including service
representatives, in the six New England states, including
bargaining unit employees at the Salem District Office.
Andrew Krall has been the Union's president since May 1994.
He is employed as a claims representative in the SSA's Worcester
District Office, which is located approximately 80 to 90 miles away
from SSA's Salem District Office.
William Ross is a teleservice contact representative at
SSA's Boston teleservice center. He has been the Union's area two
vice president since November 1993.
William H. Thoms, Jr., a SSA claims representative, is the
Union's steward at the Salem District Office. Mr. Thoms has held
this position for about the last five or six years and spends about
ten to fifteen percent of his duty time in his capacity as the
The Charging Party, Caryn Caisse, is an employee under 5
U.S.C. § 7103(a)(2) and a member of the bargaining unit represented
by the Union. Ms. Caisse has been employed as an service
representative for about four years and has been employed with SSA
for almost 12 years.
B. The Union Distributes Information Concerning Workflow Changes to its Members at the Salem District Office
On May 26, 1998, Mr. Thoms sent an electronic mail (e-mail)
message to Union members only entitled, "Poll re proposed workflow
changes." Thoms did not send Union members a copy of management's
proposed changes, which he had received, but he summarized the
proposed changes in his message and asked members to comment on
various options he laid out or to propose their own solutions so
that he could bargain with management.
Thoms did not provide a copy of this message to Ms.
Caisse. Ms. Caisse has never been a member of the Union nor has she
ever paid dues to the Union. In July 1998, Ms. Caisse was the only
bargaining unit employee at the Salem district office who was not a
member of the Union.
Ms. Caisse and Mr. Thoms were not personal friends.
They were distant and cool on a personal basis and dealt with one
another professionally on a strictly business-like basis.
Ms. Caisse found out about Mr. Thoms's e-mail message by
being shown a copy by another service representative. The next day,
Ms. Caisse contacted Mr. Thoms to request a copy of the workflow
change and to be included in receiving future changes.
Mr. Thoms understood from Ms. Caisse's request that she was
dissatisfied about not being included in his e-mail poll of Union
members. Thoms told Ms. Caisse that, if she wanted input into the
Union's position, she should join the Union. He said if she had a
problem with the way the change was implemented by management, he
would represent her if she wanted to file a grievance. Ms. Caisse
informed Mr. Thoms that she did not wish to join the Union and did
not wish to file a grievance.
Later that day, Mr. Thoms sent an e-mail message to Mr.
Krall, with a copy to Ms. Caisse, regarding his conversation with
Ms. Caisse and asked Mr. Krall if the statements he had made to Ms.
Caisse were correct. Mr. Thoms's message, titled "Protest by
non-member," described Ms. Caisse as a "Non-member [service
representative] Caryn Caisse, (former clerical in the [area
director's] office and [administrative assistant] in the Boston
The following day, Ms. Caisse asked Mr. Thoms whether
Mr. Krall had informed him if he were correct. Mr. Thoms told Ms.
Caisse that, according to Mr. Krall, Ms. Caisse did not have the
right to receive the polls under the duty of fair representation.
Ms. Caisse replied that she did not wish to be polled but only
wanted to know about changes in her workflow. Mr. Thoms further
discussed the duty of fair representation and stated that if she
wanted to get the mailings, she knew what to do; that before Ms.
Caisse came to the office it was one hundred percent union and he
would like to see it that way again.(1)
C. Collective Bargaining Agreement and SSA Annual Personal
Reminders Re Courtesy
Article 3, Section 2A of the 1996 Collective
Bargaining Agreement provides, in pertinent part:
The parties agree that in the interest of
maintaining a congenial work environment, both
supervisors and employees will deal with each other
in a professional manner and with courtesy, dignity,
Section B of the 1997 SSA Annual Personnel Reminders
provides, in pertinent part:
You are responsible for observing the requirements
of courtesy and consideration while dealing with
coworkers or serving the public and must conduct
yourself with propriety.
D. Proposed Suspension of Thoms
On July 10, 1998, Mr. Thoms' suspension for two days was proposed for, among other things, writing an e-mail message to the staff which contained "rude and discourteous remarks regarding the District Manager" which "not only embarrassed the Manager but also caused a disruption in the office by upsetting the staff." The notice stated that this conduct violated the courtesy provisions of "Section B of the Annual Personnel Reminders booklet." The notice also stated that Supervisor Rice, in considering the proposed suspension, "considered the fact that, despite several discussions, [Thoms'] continue[s] to be rude and discourteous to management."
On July 13, 1998, Union vice president William Ross, as
Thoms' representative, requested the materials used as the basis
for the proposed action. Included in the package he received were
two documents which indicated to Ross that Ms. Caisse was one of
the employees who had expressed the view to management that Thoms'
e-mail comments concerning the district manager were not personally
approved of and were offensive.
The same day that Ross received the material he contacted
both Thoms and Krall to advise them of the agency's basis for the
proposed suspension, including the apparent comments by
E. Another Protest by Ms. Caisse
After another polling of Union members by Thoms in
late June 1998, Caisse contacted Union vice president Ross in the
Boston teleservice center sometime around July 13 or 14, 1998, and
requested to file a grievance against Thoms for harassment for not
including her in the polling in the office. Ross explained that
there was no provision for filing a grievance between employees,
but she could file a grievance against management if she
Ross was aware of Caisse's previous complaint to Thoms so he
advised Thoms to avoid Caisse and not come in direct confrontation
E. The July 21, 1998, Conversation
On July 21, 1998, Ms. Caisse was at her desk conversing with
coworkers Denise Putnam and Tracy Clothey, who were also at their
desks a few feet away. During this conversation, Ms. Caisse, Ms.
Putnam, and Ms. Clothey were discussing the suicide of Dennis
Wilson, a SSA employee of the Brookline, Massachusetts Office.
While Ms. Caisse, Ms. Putnam, and Ms. Clothey were engaged in this
conversation, Mr. Thoms walked by.
Ms. Caisse incorporated Mr. Thoms into the conversation and
asked Mr. Thoms if he knew Dennis Wilson. Mr. Thoms asked whether
Wilson was one of the Beach Boys, a reference to the musical group.
Ms. Caisse answered "No," and explained that Mr. Wilson was a
claims representative who had committed suicide by jumping off the
roof of the Brookline SSA office building.
Thoms said, "Why should I know him?" Caisse replied, "Well,
I thought you might know of him because he was a loudmouth [or big
mouth] who worked with Bill Ross [Union vice president] and I
thought the union might know of him."(3)
Mr. Thoms replied to Ms. Caisse, "Why, should I go and jump
off a building now too?".(4)Thoms
then left the area and the conversation ended.
Later that day both Caisse and Thoms discussed their
versions of the conversation with Supervisor Rice.
Thoms reported the incident by e-mail to Union president
Krall who was out of town at the time. Upon return and after
reviewing the message, Krall contacted Thoms and offered to send a
letter to District Manager Stone.
G. Krall's July 27, 1998, Letter to District Manager
On July 27, 1998, Union president Krall wrote to District
Manager Stone, in pertinent part:
I'm sure you're aware of the tragic death of Dennis
Wilson, an SSA employee in the Brookline office.
Unfortunately, it seems that one Salem employee chose
to try and disgrace Dennis' memory and the union with
a highly rude, inflammatory comment. Shortly after
learning of the tragedy, she approached Bill Thoms,
advised him that the person had committed suicide, then
went on to suggest that Bill should know the deceased
because he had worked with Bill Ross and was a "union
You recently proposed to suspend Bill Thoms for two days
for much less provocative and damaging actions. I expect
you to promptly investigate this matter and initiate
remedial action. If you fail to do so and report back to
me by August 5, 1998, I will assume you condone those
hideous slurs and initiate appropriate action of my
Krall sent copies of the letter to SSA regional commissioner
and area director and also to Union officials, including Thoms, but
he did not send it to Caisse or other bargaining unit employees in
On the morning of July 29, 1998, Ms. Caisse's first-line
supervisor, Elaine Rice, spoke with Caisse and showed her the
letter from the Union. After Caisse described her recollection of
the conversation, she asked Rice what was her understanding of
"remedial action." Rice explained that it could be disciplinary
action, possibly including a suspension or placing something in
Caisse's personnel file, but no decision had been made, and she
just wanted Caisse's side of the story. Later, Caisse obtained a
copy of the letter and shared it with other unit employees.
By letter dated August 3, 1998, District Manager Stone
replied to Mr. Krall's July 27, 1998, letter. The letter stated, in
I am responding to your letter dated July 27, 1998,
regarding an alleged incident in the Salem Social
Security office. Upon investigation of the matter,
your stated version of events could not be verified.
While we have concluded no action can be taken based
upon your allegations, let me assure you that rude or
discourteous behavior by any employee in the Salem
office is not condoned. (Resp. Exh. 6.)
Mr. Krall was not satisfied with Ms. Stone's response and
filed a grievance against SSA on August 5, 1998.(5)
Discussion and Conclusions
As noted, the unfair labor practice complaint alleges that
the Union violated section 7116(b)(1) and (2) of the Statute, and
independently violated section 7116(b)(1), when Union president
Andrew Krall wrote the Salem district office, requesting that the
district director investigate and take remedial action against
Caryn Caisse. The complaint alleges that the Union wrote the letter
because Caisse was not a member of the Union and the Union believed
that Caisse had made derogatory comments regarding the Union and/or
officials of the Union.
The record reflects that the Union requested SSA to
investigate and take remedial action because "it seems one Salem
employee [Ms. Caisse] chose to disgrace Dennis'[an employee who
committed suicide] memory and the union with a highly rude and
inflammatory comment" by stating to Union steward Bill Thoms that
he should know the person "because he had worked with Bill Ross
[Union vice president] and was a 'union big mouth'." The Union
stated that if SSA "fail[ed] to do so and report back to me by
August 5, 1998, I will assume you condone those hideous slurs and
initiate appropriate action of my own."
Section 7102 of the Statute guarantees to each employee of the Federal Government the right, freely and without fear of penalty or reprisal, to form, join, or assist a labor organization, or to refrain from any such activity, and to be protected in the exercise of such right. Section 7102 of the Statute protects an employee's right to speak out for or against a union. American Federation of Government Employees, Local 3475, AFL-CIO, 45 FLRA 537, 549 (1992)(AFGE, Local 3475); Overseas Education Association, 11 FLRA 377 (1983) (OEA).
A labor organization's interference with section 7102 rights
is an unfair labor practice under section 7116(b)(1), and an effort
to have a bargaining unit employee disciplined because the employee
engaged in such protected activity violates section 7116(b)(1) and
(2) of the Statute. AFGE, Local 3475 (union violated Statute
by attempting to have agency discipline an employee for misuse of
government time and equipment where union representatives were
involved in the same unauthorized use and the real motivation was
employee's protected activity of criticizing union officers); OEA
(union violated Statute by requesting agency to discipline an
employee for improper use of equipment where practice permitted
other employees to so use the equipment and real motivation was the
employee's distribution of an open letter critical of the local
president). Cf. Sheet Metal Workers International Association,
Local 97, 7 FLRA 799 (1982)(union attempt to have agency
discipline an employee with a long record of anti-union activity
for an assault upon a union steward did not violate the Statute;
union was reacting to threats to health and safety, disruption of
work, and justifiable alarm that agency was not taking appropriate
A. The Respondent Did Not Violate Section 7116(b)(1)
As the Authority stated in American Federation of
Government Employees, Local 987, Warner Robins, Georgia, 35
FLRA 720, 724 (1990):
The standard for determining whether a union's statement
violates section 7116(b)(1) of the Statute is an
objective one. The question is whether, under the
circumstances, employees could reasonably have drawn a
coercive inference from the statement. See Federal
Employees Metal Trades Council, AFL-CIO, and International
Association of Bridge, Structural and Ornamental Iron
Workers, Local 745, AFL-CIO, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 12 FLRA 276, 296 (1983)
(Federal Employees Metal Trades Council). As in cases
involving a violation of section 7116(a)(1) of the Statute,
the standard for a section 7116(b)(1) violation is not
based on the subjective perceptions of the employee or on
the intent of the speaker. See Department of the Army
Headquarters, Washington, D.C. and U.S. Army Field
Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29
FLRA 1110, 1124 (1987).
Considering the objective facts and circumstances, a
preponderance of the evidence does not demonstrate that Ms. Caisse
could reasonably infer that the Union was threatening or coercing
her in the exercise of her protected right to criticize the Union
and refrain from membership in it.
The Union's July 27, 1998, letter addressed Ms. Caisse's
remarks on July 21, 1998. It was written in light of Mr. Thoms'
proposed discipline for rude and discourteous remarks, which
allegedly violated the courtesy provisions of the Annual Personnel
Reminders booklet. The Union alleged that Thoms' remarks were "much
less provocative and damaging" than Ms. Caisse's and asked for an
investigation and remedial action. The request can reasonably be
interpreted as a request for SSA to take disciplinary action
against Ms. Caisse under the courtesy provisions if justified by
the circumstances. Given Mr. Thoms' proposed discipline and the
reasonably perceived nature of the Ms. Caisse's remarks regarding
the deceased employee and Mr. Thoms, this was a legitimate request.
It, in effect, asked for evenhanded application of the courtesy
provisions by management.
Surprisingly, in view of their distant relationship, Ms.
Caisse had initiated the conversation with Mr. Thoms, and her
comments to him were reasonably perceived as a "rude, inflammatory
comment" about Thoms and the deceased employee, thus resulting in
such a request by the Union. The requested investigation and the
resulting inquiry by management of Ms. Caisse did not constitute an
improper inquiry or interference with her protected rights. She was
merely asked for her recollection of the conversation, "her side of
the story," and assured that no decision had been made concerning
"remedial action." It is apparent that both the Union and
management saw the inquiry as relating to SSA's courtesy provisions
as management advised the Union, upon completion of its
investigation, that "[w]hile we have concluded no action can be
taken based upon your allegations, let me assure you that rude or
discourteous behavior by any employee in the Salem office is not
The Union's statement, that it would "initiate appropriate
action" if SSA failed to do so, also did not constitute
interference with Ms. Caisse's rights under the Statute. The
Union's statement cannot be interpreted as a threat by the Union to
take "inappropriate" action against Ms. Caisse, and the Union did
proceed to take what is "appropriate action" under its collective
bargaining agreement by filing a grievance against management
following its receipt of management's response.
B. The Respondent Did Not Violate Section 7116(b)(2)
"In order to find that a union has violated section 7116(b)(2) of the Statute, the record must show that the union caused or attempted to cause an agency to discriminate in connection with an employee's hiring, tenure, promotion, or other conditions of employment." American Federation of Government Employees, Local 1931, AFL-CIO, Naval Weapons Station Concord, Concord, California, 34 FLRA 480, 488 (1990).
The framework of Letterkenny Army Depot, 35 FLRA 113 (1990)(Letterkenny) applies in cases of alleged discrimination by a labor organization. American Federation of Government Employees, Local 1345, Fort Carson, Colorado, 53 FLRA 1789 (1998). Under the Letterkenny framework, the General Counsel must initially establish that the employee was engaged in protected activity and that the activity was a motivating factor in the treatment of the employee. Thereafter, a respondent may seek to establish an affirmative defense that there was a legitimate justification for its action and that the same actions would have been taken even in the absence of the protected activity. Federal Emergency Management Agency, 52 FLRA 486, 490 n.2 (1996).
Applying the Letterkenny framework, I conclude that
although Ms. Caisse was engaged in protected activity by exercising
her right to refrain from joining the Union, which was known to the
Union, and was reasonably perceived by the Union to have made a
derogatory reference to Union members or officials, which was also
protected activity, the General Counsel did not establish that this
activity was a motivating factor in the Union's treatment of her.
Further, the Union established that there was a legitimate
justification for its action.(6)
As noted above, the reasonably perceived nature of Ms.
Caisse's remarks regarding the deceased employee and Mr. Thoms
prompted the Union's legitimate request for a management
investigation to ensure evenhanded application of the courtesy
provisions in light of the recent proposed disciplining of Mr.
Thoms for a violation of these same provisions. As set forth above,
the request for an investigation and the resulting inquiry by
management of Ms. Caisse concerning her comments does not support a
finding that the Union caused or attempted to cause SSA to take any
action adverse to Ms. Caisse's conditions of employment because she
exercised rights protected by the Statute. The inquiry did not
change or affect any of Caisse's employment
It is concluded that a preponderance of the evidence does
not establish that the Union violated section 7116(b)(1) and (2),
and independently violated section 7116(b)(1), when the Union's
president, Andrew Krall, wrote the July 27, 1998, letter to Salem
District Office, SSA.
Based on the above findings and conclusions, it is
recommended that the Authority issue the following Order:
The complaint is dismissed.
Issued, Washington, DC, June 10, 1999.
GARVIN LEE OLIVER
Administrative Law Judge
1. The complaint does not allege that the Union violated the Statute by not including the Charging Party in its polling about work flow changes. The General Counsel points out that this evidence shows that the Union's President, Mr. Krall, was on notice of the Charging Party's status as a non-member.
Mr. Krall acknowledged that he knew of Ms. Caisse "since the polling incident in May of 1998."
2. Ms. Caisse testified that, in a conversation with management about Thoms' e-mail comments concerning the district manager, she did express the view that she did not personally approve of Thoms' comments and thought they were offensive, but she did not suggest that Thoms should be disciplined or state that she was angry with Thoms because of the message.
3. Thoms testified that Caisse used
the words "union loudmouth or union big mouth" to describe Wilson.
Ms. Caisse denied that she used these words, but did say Wilson
"could be loud and obnoxious." Clothey testified that Caisse's
words were, "I thought you might know of him because he is a
loudmouth and I thought the union might know of him." Clothey
testified that Caisse said "loudmouth or big mouth or something
like that" and Thoms seemed offended when he heard "union" and
"loudmouth" or "big mouth."
I find from the composite testimony, and particularly that of Clothey, that the words "union" and "loudmouth" or "big mouth" were not used together by Caisse in referring to Wilson, but were used in the same sentence. Given the guarded relations between Caisse and Thoms, I conclude that Thoms could have reasonably gained the impression that the words were used together as a derogatory reference to him and the deceased, or as stated in the Union's letter set forth below, "went on to suggest that Bill should know the deceased because he had worked with Bill Ross and was a 'union loud mouth'."
6. Mr. Kroll testified that he wrote the letter to: (1) protect Thoms since Ms. Caisse had supplied information used in Thoms' proposed suspension for discourteous conduct and may have made the statement to further provoke him; (2) to request evenhanded application of the courtesy provisions by the district manager; and (3) to protest the inappropriate reference to the employee who committed suicide. Based on the record as a whole and the information that Mr. Kroll had received, I conclude that it is inherently probable that the event occurred in the manner described and credit his testimony.
7. Consistent with section 7102, an employee engaged in otherwise protected activity could only be disciplined by an agency for remarks or actions that exceeded the boundaries of protected activity such as flagrant misconduct. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 80-83 (1985)(collecting cases). Ms. Caisse's remarks concerning the deceased employee could, of course, be separately considered under the agency's applicable courtesy provisions.