[ v10 p422 ]
The decision of the Authority follows:
10 FLRA No. 72 CONSUMER PRODUCT SAFETY COMMISSION, NEW YORK Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3477 Charging Party Case No. 2-CA-294 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair Labor Practices and recommending that it cease and desist therefrom and take certain affirmative actions. The Judge further found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. The General Counsel filed exceptions to the portion of the Judge's Decision discussed below. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendations. The complaint alleged that the Respondent violated section 7116(a)(1) of the Statute by its actions in issuing to employee (and also Union President) Louis L. Abramsky two communications which the General Counsel contends were threatening in nature and interfered with rights guaranteed under the Statute. The first of the two ("the Moore memo") ostensibly was a demand by Respondent's Director, Division of Personnel Management, Roland H. Moore, that Abramsky adhere to the terms of an agreement between Abramsky and the Respondent reached in January 1979 in settlement of a dispute relating to the withholding of a within-grade increase from Abramsky and a disciplinary action taken against him. Essentially, Abramsky had agreed to withdraw several pending actions and to institute no further actions on the letters involved in the dispute. Moore's memo, dated September 7, 1979, demanded that Abramsky withdraw several actions, including an unfair labor practice charge, which allegedly amounted to reinstitution of the actions which Abramsky had agreed in January to withdraw. Moore further indicated he would take "whatever legal steps are necessary to enforce the Agreement." The Judge found that Moore's memo, in essence, sought only to enforce a commitment made by Abramsky and did not otherwise attempt to proscribe his utilization of processes available under the Statute. Accordingly, he concluded that the Respondent did not violate the Statute as a result of the Moore memo. The General Counsel contends, in its exceptions, that the Judge has mischaracterized the unfair labor practice charge which Moore demanded be withdrawn. The General Counsel contends that the charge was not merely an attempt to revive the dispute which Abramsky had previously agreed to settle but, instead, challenged the validity of the settlement itself which Abramsky alleged had been obtained by coercive means. As the General Counsel acknowledges this intended challenge to the settlement was not "readily apparent from the fact of the charge." /1A/ Additionally, Abramsky had instituted several other actions which the Respondent viewed as an attempt to revive the dispute it believed had been settled. Noting particularly that the memo is limited to a demand that Abramsky abide by the terms of the January agreement and makes no mention of precluding any challenge to the validity of that agreement and given the context, the Authority views the Moore memo as being non-coercive in nature. Under these circumstances, and absent any evidence that the Respondent, through the Moore memo, sought to accomplish anything other than enforcement of the January 1979 settlement agreement, the Authority finds, in agreement with the Judge, that the Respondent's actions with respect to the Moore memo did not violate the Statute. Further, noting particularly the absence of exceptions, the Authority additionally hereby adopts that part of the Judge's conclusion finding that Respondent by its letter of January 15, 1980, which in effect warned employees that they would be subject to discipline if they resorted to, or invoked procedures protected under the Federal Service Labor-Management Relations Statute, violated section 7116(a)(1) of the Statute. See, e.g., United States Department of Treasury, Bureau of Alcohol, Tobacco, and Firearms, Chicago, Illinois, 3 FLRA 723 (1980) and Federal Election Commission, 6 FLRA No. 59 (1981). ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Consumer Product Safety Commission, New York shall: (1) Cease and desist from: (a) Warning employees that they will be subject to discipline if they resort to, or invoke, procedures protected under the Federal Service Labor-Management Relations Statute. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. (2) Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute. (a) Remove and expunge from its files any reference to the January 15, 1980 warning letter issued to Louis Abramsky and submit to Louis Abramsky a written acknowledgement of same. (b) Post at its facilities at the Consumer Product Safety Commission, New York, 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 Director of the Consumer Product Safety Commission, or his designee, and posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Director shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, Region II, Federal Labor Relations Authority, In writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges a violation as a consequence of issuance of the Moore memo, be, and it hereby is, dismissed. Issued, Washington, D.C., October 29, 1982 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT warn employees that they will be subject to discipline if they resort to, or invoke, procedures protected under the Federal Service Labor-Management Relations Statute. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL remove and expunge from our files any reference to the January 15, 1980 warning letter issued to Louis Abramsky and submit to Louis Abramsky a written acknowledgment of same. (Agency or Activity) Dated: . . . By: (Signature) 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 its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region II, whose address is: 26 Federal Plaza, Room 241, New York, New York 10278, and whose telephone number is: (212) 264-4934. -------------------- ALJ$ DECISION FOLLOWS -------------------- Ronald E. Deutsch, Esq. Gary Cheetam For the Respondent Allan W. Stadtmauer, Esq. Steven Sharfstein, Esq. For the General Counsel Louis Abramsky For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case This is a proceeding which arose under the Federal Service Labor-Management Relations Statute (herein called the Act). Pursuant to a Complaint and Notice of Hearing issued on May 30, 1980 by the Regional Director, Federal Labor Relations Authority, New York, N.Y., a hearing was held before the undersigned on October 7, 1980 at New York, N.Y. The Complaint herein was based on a second amended charge filed on May 22, 1980 by American Federation of Government Employees, Local 3477 (herein called the Union) against Consumer Product Safety Commission (herein called the Respondent). It alleged, in substance, that Respondent violated Section 7116(a)(1) of the Act by: (a) issuing a memorandum on September 7, 1979 to employee Louis L. Abramsky threatening reprisal unless the employee withdrew an unfair labor practice charge; (b) issuing a letter on January 15, 1980 to employee Louis L. Abramsky threatening him with disciplinary action if he challenged a proposed suspension by means other than specified channels. Respondent filed an answer to the complaint, dated June 11, 1980, wherein it denied the commission of any unfair labor practices. All parties were represented at the hearing. They were afforded full opportunity to be heard, to adduce evidence and to examine as well as cross-examine witnesses. Thereafter briefs /1/ were filed with the undersigned which have been duly considered. Upon the entire record in this case, from my observation of the witnesses, and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: 1. At all times material herein the Union has been, and still is, the collective bargaining representative of Respondent's professional and non-professional employees at its New York Area office. 2. In July, 1978 Respondent denied a within grade increase in salary to Louis L. Abramsky, an employee-investigator who is also president of the Union herein. 3. As a result of an incident between Abramsky and Gilbert Rodin, Respondent's Director of Operations, which occurred on September 18, 1978, a three-day suspension was thereafter given to Abramsky. 4. Between July, 1978 and January 30, 1979 Abramsky filed several grievances and unfair labor practice charges pertaining to the aforementioned actions by Respondent directed against him. In connection therewith he made a written request on November 28, 1978 for data under the Freedom of Information Act. 5. On January 30, 1979 Respondent and Abramsky /2/ executed a written agreement in an effort to resolve the pending disputes between them. The Respondent, on its part, agreed to reduce the aforesaid suspension to a written reprimand, and to grant Abramsky a within grade increase no later than February 25, 1979. Abramsky, on his part, agreed to withdraw, settle, or conclude (a) certain specified grievances therefore filed by him, (b) appeals regarding his denial of the within-grade increase, and (c) his requests under the Freedom of Information Act. He also agreed not to file any administrative actions, including unfair labor practice charges arising out of the September 18, 1978 incident and the withholding of his within-grade increase. 6. On February 7, 1979 Executive Director Michael A. Brown wrote Abramsky that, in accordance with the January 30 agreement, the three day suspension previously given the employee was reduced to a letter of reprimand. The letter by Brown was, by its language, to serve as an official reprimand for Abramsky's discourteous conduct toward Supervisor Gilbert Rodin as well as for his failure to obey supervisory orders. Further, it was stated that the letter would remain in Abramsky's personnel file for one year. 7. On February 14, 1979 Respondent authorized in writing the within-grade increase to Abramsky, effective on February 25, 1979, as well as the cancellation of the three day suspension of the employee. 8. Subsequently, on July 19, 1979 Abramsky made a written request, under the Freedom of Information Act, for data used by Respondent in denying him a within-grade increase. Management replied by letter dated August 2 wherein it informed Abramsky that he had agreed not to file any actions or suits arising out of the denial of his within-grade increase and the September 18, 1978 incident; that the employee entered into a written agreement to that effect on January 30, 1978; and that Respondent intended to enforce said agreement. 9. On August 7, 1979 Abramsky, as union president, filed an unfair labor practice charge (2-CA-98) against Respondent alleging a violation of Section 19(a)(2) and (4) of Executive Order 11491, as amended. It was averred therein that on January 30, 1979 Buchanan informed Abramsky he would be given a within-grade increase plus three days back pay if he dropped a grievance, as well as all possible unfair labor practice charges stemming from an assault upon him; that if he didn't drop the charges and grievances he would not receive such benefits. /3/ 10. Under date of September 7, 1979 Respondent's Director, Division of Personnel Management, Roland H. Moore sent a memorandum to Abramsky regarding his requests for information under the Privacy Act, which related to the reprimand given him and the withholding of his within-grade increase. In this letter it was stated that Abramsky had agreed, under the January 30, 1979 agreement, not to pursue the within-grade increase and reprimand controversies; that management in return agreed to reduce the suspension and authorize the increase. Further, the employer recited that Abramsky violated the said agreement by filing an appeal to the Merit System Protection Board based on withholding the increase, by filing an unfair labor practice charge regarding this matter, and by requesting information under the Privacy Act concerning this issue. Respondent stated in the memo that it expected Abramsky to honor the agreement by withdrawing the aforementioned appeal, unfair labor practice charges, and requests under the Privacy Act; that if he failed to do so, Respondent would take whatever legal steps were necessary to enforce the agreement. 11. Under date of January 15, 1980 Respondent's Director, Richard D. Swackhammer, wrote Abramsky that management proposed to suspend the employee without pay for 30 days. The proposed suspension was, as stated, based upon (a)insubordination by Abramsky on October 26, 1979 resulting from his failure to follow orders of his supervisor and initiate assigned inspection duties, (b) dishonesty and untruthfulness in regard to statements made by him on October 25, 1979. The Director informed Abramsky of his right to file answer to the proposed suspension, and the employee was advised he could contact Daryl Stevens, Division of Personnel Management regarding any questions as to his procedural rights. The final statement in the aforesaid letter apprised Abramsky that he was expected to follow only those procedures as outlined and as set forth in 5 CFR 752.301. Any deviation from said procedure, Swackhammer stated, would not be acceptable and might be grounds for further disciplinary action. Conclusions The issue presented for determination is simply stated: Whether the written communications from Respondent to Abramsky, on September 7, 1979 and January 15, 1980 respectively, constituted a violation of Section 7116(a)(1) of the Act. (a) In respect to the memorandum of September 7, 1979 (herein called the Moore memo), General Counsel contends that it constitutes a threat to invoke legal action if the individual did not withdraw his unfair labor practice charge of August 7, 1979. As such, it is argued, the memo interferes with employee rights and violates Section 7116(a)(1) of the Act. In support of its contention General Counsel cited cases in both the private and public sectors wherein an employer was found to have engaged in interfered by acts which hindered the assertion of employee rights. Thus, in Mandel Security Bureau, Inc. 202 NLRB 117, an employer, who had engaged in protected concerted activity, was transferred by the employer to a different project. Thereafter he filed an unfair labor practice charge with the National Labor Relations Board alleging that the transfer was discriminatory. The employer offered to return the individual to his former site provided the employee would "cease his concerted activity, withdraw the charges . . . and refrain from future charges". It was held that, by the imposition of such condition, the employer engaged in acts of interference in violation of the National Labor Relations Act. Likewise in the public sector the employer was found to have violated Section 19(a)(1) of Executive Order 11491, as amended, by threatening to discipline an employees who invoke the grievance procedure improperly. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington A/SLMR No. 582. Although the General Counsel advances a seemingly tenable argument in support of its position, I am persuaded that the cited cases are distinguishable from the one at hand. In the Mandel case, supra, the conditions imposed by the employer involved not only a cessation by the employer of protected concerted activity and the withdrawal of charges, but also a commitment by the employee not to file any future charges. The Moore memo, by its language, was concerned with the charge filed the previous month. It dealt solely with the commitment by Abramsky to abide by the agreement made with management on January 15, 1979, viz. the employer to grant the within-grade increase and reduce a disciplinary action in return for the individual's promise not to file a charge with respect to those matters. The memo does not purport to outlaw the filing of any unfair labor practices in the future arising out of other disputes between the parties. Neither does it state, as in the Mandel case, that the employee must cease from engaging in all protected concerted activities. The broad proscription in the cited case makes the holding, in my opinion, inapplicable to the case at bar. Moreover, the Puget Sound Naval Shipyard case, supra, involves a threat in regard to the use of the grievance process by employees. As such, the remarks clearly interfere with rights assured under the Order, and they are neither restrictive nor pegged to a specific agreement on the part of the employee. The distinction between the broad limitation laid down by the employer in the Mandel case and the inspection of a more limited condition was recognized by the National Labor Relations Board in U.S. Postal Service, 234 NLRB No. 116. In the latter case the employer reduced a disciplinary action from discharge to suspension conditioned upon the employer's promise not to grieve or appeal the suspension before various agencies. The General Counsel contended that Section 7 of the Act protected the rights of employees to use the processes of such agencies when protesting actions by management. The Board distinguished the Mandel case and acknowledged that the employee could bind himself not to overturn settlement of the dispute with the employer. Further, the condition laid down by the employer did not preclude the individual from filing charges or appeals in respect to any future matters. Respondent argues that, by the term of the January 30, 1979 agreement, Abramsky waived his right to file a charge regarding the two matters which were the subject of the instrument. It insists that the Moore memo reflected an intention to enforce that commitment, and not to prescribe the utilization of the Act's protective processes as to other disputes. I agree. It is true that a waiver of an existent right under the Act should be clear and unmistakable. /4/ I am convinced Abramsky manifested clearly that he would accept the benefits from management and thereby "settle" the dispute between them. As such, the commitment, on his part, not to file a charge or grievance with respect to the disputed issues which were resolved constitutes a clearly expressed waiver in that regard. Further, I am in accord with Respondent's contention that the January 30, 1979 agreement comports with the attempt, in the public sector, to encourage parties to resolve disputes before filing charges under the Act. See Section 2423.2(a) of the Rules and Regulations. Accordingly, and for reasons expressed hereinabove, I am constrained to conclude that the Moore memo of September 7, 1979 did not constitute interference, restraint, or coercion under Section 7116(a)(1) of the Act. Therefore, I shall dismiss that portion of the complaint which involves an obligation in that regard. (b) In respect to the letter of January 15, 1980 (Swackhammer letter) directed to Abramsky, Respondent maintains that no attempt was made therein to inform Abramsky of his rights, remind him of the established negotiated procedure under the collective bargaining agreement, and to remind the employee to follow established legal procedures for adverse action under 5 CFR 752. While the foregoing intentions may have motivated the Swackhammer communication, it is clear that the language contained therein was not so limited. Thus, while Respondent informed Abramsky he could file an answer to management's proposed suspension, he was expected to follow only certain procedures in the event he contested the employer's disciplinary action. Such procedures were restricted to those set forth for adverse actions in the code. As set forth in the Swackhammer letter, Abramsky would be subject to further discipline should he invoke any other procedure to obtain redress for management's action in suspending him for 30 days. The broad proscription set forth in the aforesaid letter would apparently render unacceptable the filing of an unfair labor practice charge against management. Such a filing is not one of the established procedures to correct adverse actions under 5 CFR 752, and thus would not be acceptable to management. Moreover, the cited Section of the Code limits the filing of grievances to those established under an administrative agency grievance procedure. This particular grievance procedure, with its exceptions and limitations as set forth in 5 CFR 752 et seq., does not afford a bargaining unit employee the same rights to which he is entitled under the Act in respect to filing contract grievances. An employer may not, under threat of retaliation, foreclose or preclude an employee from filing a grievance under a negotiated grievance procedure. See Federal Aviation Administration, Air Traffic Control Tower, Greater Pittsburgh Airport, Pittsburgh, Pa., A/SLMR No. 90. In the cited case the employer informed the employee it would take a strict interpretation of a disputed grievance which he had filed. The Assistant Secretary held this statement had the effect of interfering with, restraining and coercing the individual in the exercise of his right under the Executive Order, including the right to invoke the negotiated grievance machinery. In my view an employee must feel free to file an unfair labor practice charge, or resort to the negotiated grievance procedure, when he deems action by management to be inimical to his interests. An employee may neither impede the employee in seeking redress, nor may it warn him that unfavorable consequences will ensue if he pursues his rights under the Act. Thus, management may not threaten to, or impose, discipline in the event an employee files an unfair labor practice charge against it. Airway Facilities Field Office, Federal Aviation Administration, St. Petersburg, Fla., A/SLMR No. 776. In the case at bar I am persuaded that the Swackhammer letter, by warning Abramsky that if he sought redress for the discipline imposed by Respondent through any channels other than those prescribed in 5 CFR 752, was violative of the Act. It constituted a threat by management in the event he pursued such other procedures, and the latter could well include invoking his rights under the Act herein. Accordingly, I find that by issuing said letter Respondent has interfered with, restrained and coerced its employees in violation of Section 7116(a)(1) of the Act. Having found that Respondent violated Section 7116(a)(1) of the Act by virtue of the letter it sent to Louis Abramsky on January 15, 1980, I recommend the Authority issue the following order. ORDER Pursuant to Section 7118(e) of the Federal Labor-Management Relations Statute and Section 2423.29 of the Rules and Regulations, it is hereby ordered that the Consumer Product Safety Commission shall: 1. Cease and desist from: (a) Warning employees that they will be subject to discipline if they resort to, or invoke, procedures protected under the Federal Service Labor-Management Relations Statute in order to redress any action directed against them by management. (b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the policies of the Federal Service Labor-Management Relations Statute: (a) Remove and expunge any reference to the January 15, 1980 warning letter issued to Louis Abramsky from its files and submit to Louis Abramsky a written acknowledgement of same. (b) Post at its facilities at Consumer Product Safety Commission, New York, N.Y., copies of the attached notice marked "APPENDIX" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of Consumer Product Safety Commission, and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places where notice to employees are customarily posted. The Director shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Federal Labor Relations Authority in writing, within 30 days from the date of this order, what steps have been taken to comply herewith. WILLIAM NAIMARK Administrative Law Judge Dated: January 26, 1981 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT to A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT warn employees that they will be subject to discipline if they resort to, or invoke, procedures protected under the Federal Service Labor-Management Relations Statute. WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL remove and expunge any reference to the January 16, 1980 warning letter issued to Louis Abramsky from its files and submit to Louis Abramsky a written acknowledgement of same. (Agency or Activity) Dated: . . . By: (Signature) 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 directly with the Regional Director, Federal Labor Relations Authority, Region 2, whose address is: 26 Federal Plaza, Room 241, New York, New York 10278. /1A/ The charge in question stated the "Basis of Complaint" as follows: On January 30, 1979, the U.S. Consumer Product Safety Commission (CPSC) by its agent and representative, Roger Buchanan, Chief, Labor Relations Branch, CPSC, informed Louis L. Abramsky, President, American Federation of Government Employees, AFL-CIO, Local 3477, that CPSC will give Louis L. Abramsky, President a within-grade salary increase plus three (3) days of back pay, if Louis L. Abramsky, President drops a grievance filed under the Union Contract and any possible Unfair Labor Practice charges in connection with an assault and battery inflicted on the President by the Director of Operations, New York Area Office, CPSC. The President was also told that if he does not drop these said charges (grievance under the Union Contract and possible Unfair Labor Practice charges), he will not receive a within-grade increase and three days of back pay. The President is also an employee of the U.S. Consumer Product Safety Commission. Note: Mr. Buchanan followed the orders of the Executive Director and possibly other officials within the U.S. Consumer Product Safety Commission. --------------- FOOTNOTES$ --------------- /1/ In the brief Respondent contends that, while paragraph 7 of the Complaint was based on an allegation in the second amended charge, the Respondent did not receive that charge until one day before the complaint was received. Thus it argues the employer was not afforded an opportunity to reply to said charge. Since the Authority's own Rules and Regulations (2423.7) was not followed, it is moved that, at least, paragraph 7 of the complaint be dismissed. Motion is denied. Apart from the fact that I do not deem it within my province to pass upon the propriety of the regional investigation, the matter was fully litigated at the hearing. Note is taken of a recent decision in the private sector Newport News Shipbuilding and Dry Dock Co., et al. v. NLRB et al. 80-1342 (October 9, 1980). The 4th Circuit ruled that it could not interfere with the Board's investigation of a case unless its action was arbitrary. I do not view the actions of the regional office to have been arbitrary. Moreover, paragraph 7 of the complaint is supported by an allegation to the same effect in the second amended charge. Thus DHEW, SSA, 1 FLRA No. 37 is inapposite. /2/ The agreement was entered into with Abramsky as employee-investigator and as President of the Union. /3/ The charge was dismissed on February 13, 1980 as being untimely filed. /4/ NASA Kennedy Space Center, Florida, A/SLMR No. 223.