[ v16 p687 ]
The decision of the Authority follows:
16 FLRA No. 100 DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE MEMPHIS SERVICE CENTER Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 4-CA-912 DECISION AND ORDER The Administrative Law Judge issued her 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 action. Thereafter, the Charging Party filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. Except as noted below, the rulings are hereby affirmed. /1/ Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order, particularly noting that there were no exceptions to the Judge's conclusion that, in the circumstances, the Respondent violated section 7116(a)(1) of the Statute /2/ when it issued a reprimand to an employee for remarks made while she was representing a fellow employee in her Union capacity. /3/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Department of Treasury, Internal Revenue Service, Memphis Service Center, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its employees by reprimanding any representative of the National Treasury Employees Union, the exclusive representative of a unit of its employees, for protected conduct engaged in while performing representational duties. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Expunge from its files all records of, or references to, the reprimand given Belva Rosser which was confirmed by letter dated March 25, 1981, and acknowledge this action to Ms. Rosser in writing. (b) Post at the Memphis Service Center 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 Memphis Service Center, or his designee, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, 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. Issued, Washington, D.C., November 30, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, 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 interfere with, restrain, or coerce our employees by reprimanding any representative of the National Treasury Employees Union, the exclusive representative of a unit of our employees, for protected conduct engaged in while performing representational duties. 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 Statute. WE WILL expunge from our files all records of, or references to, the reprimand given Belva Rosser which was confirmed by letter dated March 25, 1981, and acknowledge this action to Ms. Rosser in writing. (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, Region IV, Federal Labor Relations Authority whose address is: Suite 501, North Wing, 1776 Peachtree Street, NW., Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324. -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE MEMPHIS SERVICE CENTER, Respondent and NATIONAL TREASURY EMPLOYEES UNION, Charging Party Case No. 4-CA-912 Harry G. Mason, Attorney for Respondent Brenda S. Green, Attorney for the General Counsel Federal Labor Relations Authority Joyce F. Glucksman, Attorney for Charging Party Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq, (Supp. III, 1979) (hereinafter referred to as the "Statute") and the Rules and Regulations of the Federal Labor Relations Authority (hereinafter, the "Authority"), 5 CFR Ch. XIV, Sec. 2410 et seq. By a Complaint dated June 29, 1981, the General Counsel of the Authority alleges that Respondent has interfered with, restrained and coerced employees in the exercise of rights granted to them by Section 7102 of the Statute and thereby has engaged in, and is engaging in unfair labor practices, in violation of Section 7116(a)(1) of the Statute. /4/ The act constituting the violation is alleged to be the giving of a reprimand to a union steward based upon the steward's representing a bargaining-unit employee during a discussion with a management official or supervisor. Respondent denies that the union steward was acting in her capacity as steward, at the time in question, and that the reprimand was based upon the representation. A hearing was held on December 2, 1981, in Memphis, Tennessee. The parties appeared, put in evidence, and examined and cross-examined witnesses. Briefs were filed by the Respondent and the Charging Party on January 22, 1982, and by the General Counsel on January 19. Based upon the record made at the hearing, my observation of the demeanor of the witnesses, and the briefs submitted, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact 1. At all times material herein, Respondent has been an agency, within the meaning of Section 7103(a)(3) of the Statute; and the National Treasury Employees Union (hereinafter, the "Union") has been the exclusive representative of employees of Respondent, including certain employees at the Memphis Service Center, Memphis, Tennessee. 2. Belva Rosser is a Union steward and is employed in the Sort and Sequence unit (the "Unit") of the Memphis Service Center. During the times pertinent herein, Betty Lewis was the supervisor of the Unit. 3. A controversy had arisen in the Unit over placing employees on an absence-without-leave (AWOL) status, for arriving late to work. The Union was representing employees in grievances over the AWOL matter. Ms. Rosser had handled three or four grievances involving Ms. Lewis. Ms. Lewis had never called Ms. Rosser any "names or anything like that," in their dealings over grievances. (TR. 137) /5/ Ms. Rosser had once told Ms. Lewis that she was being "ridiculous," to which Ms. Lewis merely replied that that was "(Ms. Rosser's) opinion." (TR. 54-55) 4. On March 13, 1981, Peggy Traylor, an employee in the Unit, walked into the work area just as the morning buzzer sounded, at 7:30 a.m. /6/ Ms. Lewis informed her that she would be placed on AWOL for 15 minutes. A heated discussion ensued at Ms. Lewis' desk. In the course of the discussion, Ms. Traylor told Ms. Lewis that she might as well "excuse her for the rest of the day because she was leavin'." (TR. 130) Ms. Lewis replied that she would then be placed on AWOL for eight hours. Ms. Traylor retorted that she did not care. Ms. Lewis first said "okay," and then told her: "No, you're just upset." (TR. 71) While Ms. Lewis was trying to calm Ms. Traylor, Ms. Rosser walked up to the desk, put her hand on the shoulder of Ms. Traylor, and told her not to argue with Ms. Lewis. At that point, Ms. Lewis asked Ms. Rosser to take Ms. Traylor out of the Unit. 5. In her testimony, Ms. Lewis admitted that, at the time Ms. Traylor and Ms. Rosser left the Unit on the first occasion on March 13, she, Ms. Lewis, "did not know whether (Ms. Traylor) was returning or not." (TR. 132) Ms. Lewis was under the impression that Ms. Traylor "wasn't goin' to say there (in the Unit) no matter what." (TR 134) Ms. Lewis also admitted that she had never known Ms. Traylor to leave the Unit without first requesting leave. Ms. Traylor did, in fact, fill out a leave slip on March 13, for leave to commence at 11:30 a.m. This leave slip was submitted after Ms. Traylor returned to the Unit, around 8:30 a.m. See TR 132-133. 6. While Ms. Rosser and Ms. Traylor were out of the Unit, Ms. Lewis received a phone call from the sister of Ms. Traylor. Ms. Lewis informed the sister that Ms. Traylor had left for the day. As a result of this information, Ms. Traylor's sister drove to the Memphis Service Center to pick up Ms. Traylor. When Ms. Traylor returned to the Unit, at 8:30 a.m., Ms. Lewis did not tell Ms. Traylor about the phone call. 7. About 9:30 a.m., Ms. Traylor's sister called again, to find out where Ms. Traylor was. Ms. Traylor then learned that Ms. Lewis had given Ms. Traylor's sister erroneous information, and caused her to make an unnecessary trip to the Center. Ms. Traylor then went to Ms. Rosser, as her "representative," told her of this situation, asked her to "represent" her, and speak to Ms. Lewis on her behalf, as she was "too angry" about the episode to speak for herself. (TR. 71-A, 76). 8. Ms. Rosser and Ms. Traylor then approached Ms. Lewis, at her desk. This occurred around 9:30 a.m. Ms. Rosser asked Ms. Lewis about the matter. Ms. Lewis replied that Ms. Traylor had left her with the impression that she was not going to stay for the rest of the day and, as far as Ms. Lewis was concerned, Ms. Traylor "was gone for the day." (TR. 12). Ms. Rosser reminded Ms. Lewis that it was at Ms. Lewis request that she, Ms. Rosser, took Ms. Traylor out of the unit. Ms. Rosser then told Ms. Lewis that she, Ms. Rosser, was going to take Ms. Traylor out of the Unit again. Ms. Lewis replied: "That's fine with me. Go ahead." (TR 134). Ms. Rosser then looked at Ms. Lewis and called her a "fool." (TR. 71-A, 134). Ms. Lewis replied, "Thank you." (TR. 12, 135). Ms. Rosser conducted herself in a calm manner. The employees working the closest to Ms. Lewis' desk each observed the conversation taking place between Ms. Lewis and Ms. Rosser, but did not overhear it. The conversation did not disrupt the work of the Unit. Later, it became common knowledge, in the Unit, that Ms. Rosser had called the Ms. Lewis a fool. Ms. Lewis, herself, told one employee in the Unit. Ms. Rosser also revealed the fact to certain employees in the Unit. 9. Ms. Rosser did not inform Ms. Lewis that she was acting as a Union steward when she approached Ms. Lewis's desk on the day in question. Nevertheless, Ms. Lewis conceded that she recognized that Ms. Rosser was acting in that capacity, whenever Ms. Rosser appeared with an employee to discuss an employee problem. 10. Each time Ms. Rosser took Ms. Traylor out of the Unit, on March 13, she signed out under "bank time" on the "Monthly Report of Negotiated Time Usage," and designated the purpose as being a "grievance." See GC Ex. 2. /7/ This time usage sheet is located next to the desk of Ms. Lewis. 11. "Bank time" is a form of "official time." (TR. 68). It is used when stewards confer with employees. Stewards must obtain the supervisor's approval to release an employee; and time so spent is put under "bank time." See TR. 90. Another form of "official time" is known as "administrative time." (TR. 81). Both are provided for in the collective bargaining agreement. Someone on "bank time" is performing "representational activities." (TR. 82) Use of official time is audited by both the Union and Respondent. Respondent never disputed the use of "bank time" by Ms. Rosser, for March. 12. Each time Ms. Rosser took Ms. Traylor out of the Unit, on March 13, they consulted with the chief steward about the incidents involved. During the first absence from the Unit, they filled out a grievance form, which was subsequently filed, pursuant to the negotiated grievance procedure. 13. On March 25, Ms. Rosser was sent a letter by the Chief of the Tax Accounts Division, "to confirm the oral admonishment given (her) by (her) manager for conduct unbecoming an Internal Revenue employee." (GC Ex. 3). /8/ The "conduct" was calling her manager a "fool," on March 13. The letter cautioned that "any future behavior of this nature or other misconduct, may result in more severe disciplinary action, including possible removal." The letter stated that a copy would be "retained by (her) manager for a period of two (2) years." The basis for the letter is cited as being Section 225.2 of the Internal Revenue Service's Handbook of Employee Responsibilities and Conduct, which states, in part, that "All relations with fellow employees and others must be conducted in a manner which will not needlessly cause dissention or discord among employees or disrupt official business." (GC Ex. 3). Discussion and Conclusions 1. The General Counsel has established, by a preponderance of the evidence, that Respondent violated Section 7116(a)(1) of the Federal Service Labor-Management Relations Statute when it issued a letter of admonishment to a Union steward for calling her supervisor a "fool" during the course of performing her duties as a steward. Section 7116(a)(1) makes it an unfair labor practice for an agency to restrain any employee in the exercise of rights protected by the Statute. One such right is the right to assist labor organizations, "freely and without fear of penalty or reprisal." See Section 7102, quoted in footnote 1, above. A union steward, representing a bargaining-unit employee over an employment-related matter, is assisting a labor organization, within the meaning of Section 7102. Contrary to Respondent's assertions, the steward here clearly was acting in such a representative capacity when she made the remark at issue. Upon the request of a bargaining-unit employee to represent her, the steward had just finished speaking to the supervisor about giving out erroneous information concerning the employee's presence at work, and was on her way out of the unit, with the employee, to consult with the chief steward about the matter. Respondent hinges its argument on the ground that the steward was at the supervisor's desk simply "to ask for bank-time," and "bank-time" is used only for "conferring with employees," not with "management." (RBr 4). In fact, the steward was at the desk both to secure "bank time" and to discuss the matter with the supervisor. See finding 8, above. But regardless of how the steward happened to designate her time usage, she was acting in her capacity as a union steward when the remark was made; and this is what controls whether the action was a protected one, under the Statute. In ruling on the use of "intemperate language in the conduct of labor management relations in the Federal sector," this Authority "neither defends nor endorses" such usage; but it recognizes that: "The employee's right to engage in protected activity permits leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect of its supervisory staff on the job site." See Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington and Bremerton Metal Trades Council, AFL-CIO, 2 FLRA 54, 55 (1979). The Authority draws the line at "flagrant misconduct by an employee (however), even though occurring during the course of protected activity . . . ." (Ibid.) In the Puget Sound case, a chief steward shook his fist in the face of a general foreman, threatened to get his "ass," by means of an unfair labor practice proceeding, and "stormed out" of the office. See 2 FLRA at 75. This incident took place in a foreman's office, in the presence of another foreman. It was an "isolated incident," after a history of incidents which had interfered with the rights of stewards. (Id. at 75-76). The Authority found that "the steward's conduct was not sufficiently flagrant to remove it from the ambit of protected activity . . . ." (Id. at 55). In arguing that the conduct here at issue was so flagrant, Respondent points to the unprovocative nature of the prior relationship between Ms. Rosser and Ms. Lewis, who had generally gotten along with each other during meetings over grievances. Respondent also notes that Ms. Rosser's conduct took place in an open work area, in the presence of bargaining-unit employees, at least one of which (Ms. Traylor) heard the remark at the time it was made, and others later learned about it. Finally, Respondent points to the fact that the steward made the remark in a calm and calculated manner, and argues that she is thus not entitled to the degree of leeway usually available to union officials for emotional behavior. While these facts are basically undisputed, they still do not add up to a case of misconduct so flagrant as to strip the steward of the protection to which she would otherwise be entitled, while acting in her representational capacity. While the steward was herself calm, she was caught up in an emotional situation between the employee she was representing, and her supervisor. The steward did not disrupt order on the job site. While she did exhibit a degree of disrespect for the supervisor, this must be balanced against the fact that the supervisor had, indeed, been acting in a somewhat foolish manner, by putting an employee in an AWOL status for arriving at the last minute, giving out erroneous information about which she not certain, and then not telling the employee about it. Ideally, labor and management representatives should never indulge in any type of conduct which is demeaning to the other, particularly in the presence of other employees. Nevertheless, allowing to stand the admonishment suffered by the steward in this case, over an isolated incident that did nothing to disrupt the work in the Unit and was provoked, in some measure, by the foolish behavior of the supervisor, would unduly restrain the steward in her future handling of grievances. As Respondent states, at page 6 of its brief: "A balance must be struck between leeway for impulsive behavior and the employer's right to maintain order and the respect for the supervisor on the job site." (RBr 6) In this case, the scales tip towards allowing "leeway." 2. The Charging Party, in its brief, renews its motion to amend the complaint by adding an allegation that Section 7116(a)(2) of the Statute has been violated by the conduct of the Respondent. (CPBr 12-14) This motion was originally made at the close of the General Counsel's case "to conform to the evidence." (TR. 122) It was denied on the ground that having to defend this charge with no time for adequate preparation, would violate Respondent's due-process rights. See TR. 126. Section 7116(a)(2) makes it an unfair labor practice "to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment." The evidence relied upon the the Charging Party is that Respondent acted in a discriminatory manner, in admonishing the union steward for calling her supervisor "a fool," in that others had called the supervisor "worse things" and not been admonished. (TR. 125) Preparing against such a charge involves considerable more preparation than for the one alleged in this Complaint. The request to amend is again denied. 3. The Charging Party, in its brief, renews its objection to disclosing to Respondent, for purposes of cross-examination, affidavits obtained from employees to support issuance of the Complaint. See CPBr 9-12 and TR 24-32. After certain witnesses had testified on behalf of the General Counsel, Respondent requested production of any written statements, in counsel's possession, which were given by the witnesses concerning the case. Respondent requested the statements for possible use in impeaching the witnesses on cross-examination. The General Counsel had no objection to complying and explained that it was the "policy" of the office "to turn over statements after the witnesses have testified." (TR 29) The Charging Party did object to the production and claims that the General Counsel was "without authority to make these affidavits available to respondent and was acting in violation of the FLRA's rules and regulations." (CPBr 9) The regulation relied upon by the Charging Party is found in 5 CFR Ch XIV, Part 2423, which relates to "Unfair Labor Practice Proceedings." As to the matter at hand, it provides as follows: Section 2423.7 Investigation of charges. (a) The Regional Director, on behalf of the General Counsel, shall conduct such investigation of the charge as the Regional Director deems necessary. (b) During the course of the investigation all parties involved will have an opportunity to present their evidence and views to the Regional Director. (c) In connection with the investigation of charges, all persons are expected to cooperate fully with the Regional Director. (d) The purposes and policies of the Federal Service Labor-Management Relations Statute can best be achieved by the full cooperation of all parties involved and the voluntary submission of all potentially relevant information from all potential sources during the course of the investigation. To this end, it shall be the policy of the Authority and the General Counsel to protect the identify of individuals and the substance of the statements and information they submit or which is obtained during the investigation as a means of assuring the Authority's and the General Counsel's continuing ability to obtain all relevant information. (Emphasis suggested by the Charging Party. See CPBr 11.) The ability to obtain relevant information is not impeded by the policy of the General Counsel to give up the statements of employees, once their identify has been revealed and their story told on the witness stand at the trial of the matter as to which the statements relate. Rather, it is in accord with Federal court decisions that have recognized that the need to preserve the anonymity of employees who give statements to investigators probing violations of Federal labor laws, ceases once the employees take the stand and give their testimony, or direct examination. See, e.g., a case arising under the Fair Labor Standards Act and cited by the Charging Party, at page 12 of its brief, Brennan v. Engineered Products, Inc., 506 F.2d 299, 302-304 (C.A.8, 1974). Brennan clearly recognizes the distinction between an employer attempting to learn, through early pretrial discovery, the identity of which of its employees gave statements and their substance, and its later attempt, at the trial to obtain such information for impeachment purposes. Early in the stages of a case, the protection is justified because the case might eventually settle and/or the case proved without the need call the employee witness who gave the statement. But once the case has come to trial, and the employee has taken the stand and testified, the protection becomes virtually meaningless. The National Labor Relations Board has a specific regulation allowing such production after an employee testifies. See 29 CFR 102.118(b). This regulation was adopted after a Federal court held that the "Jencks Rule," /9/ applies to administrative hearings. See National Labor Relations Board v. Adhesive Products Corp., 258 F.2d 403, 408 (C.A.2, 1959) and footnote 6 to Texas Industries, Inc. v. National Labor Relations Board, 336 F.2d 128, 133, cited by the Charging Party at page 12 of its brief. The Charging Party relies on the fact that this Authority failed to specifically adopt the Board's 29 CFR 102.118(b) regulation, while adopting subpart (a) of that regulation protecting statements of employees from disclosure pursuant to a subpoena. See pages 9-11 of the Charging Party's brief and compare the Authority's regulation in 29 CFR 2411.11. The failure of the Authority to specifically adopt such a regulation might be of some persuasive value were it not for the explanation given by the Authority in the Part-by-part Analysis of Comments and Changes on its Final Rules. See 45 Fed.Reg. 3483 (1/7/80), where the Authority qualifies its Section 2423.7(d) policy of protecting the identify of individuals and the substance of the statements and information they submit, by explaining that the policy "is without prejudice to whatever rights any party may have at a hearing to examine material." One such right is that accorded to a Respondent by the so-called "Jencks Rule," as explained above. The Charging Party's renewed objection is again overruled. The parties raise a few other issues. However, their resolution would only extend, without altering this Decision, and the order to be recommended. Accordingly, they will not be addressed. Ultimate Findings and Order By the Acts described in the Complaint, Respondent has violated Section 7116(a)(1) of the Federal Service Labor-Management Relations Statute. Accordingly, it is ORDERED, pursuant to 5 U.S.C. 7118(a)(7)(A) (Supp. III. 1979) and the Rules and Regulations of the Federal Labor Relations Authority, 5 CFR Ch. XIV, Sec. 2423.29(b)(1), that the Department of Treasury, Internal Revenue Service, Memphis Service Center: 1. Cease and desist from: a. Restraining employees from assisting labor organizations by reprimanding their agents for nonflagrant types of misconduct while performing representational duties. b. In any like or related manner, violating Section 7116(a)(1) of the Federal Service Labor Statute. 2. Take the following affirmative action: a. Remove the letter to Belva J. Rosser, dated March 25, 1981, from office files and destroy, expunge from all files all references to such letter, and acknowledge this action to Ms. Rosser, in writing. b. Post, at the Memphis Service Center, copies of the attached notice marked "Appendix B," 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 Center and posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material; and c. Notify the 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. ISABELLE R. CAPPELLO Administrative Law Judge Dated: March 3, 1982 Washington, D.C. APPENDIX A 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 STATED CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS We Hereby Notify Our Employees That: WE WILL NOT restrain employees in their assistance to labor organizations by reprimanding their agents for nonflagrant types of misconduct, while performing representational duties. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. WE WILL remove from our files and destroy the letter to Belva Rosser of March 25, 1981, expunge from our files all references to such letter, and acknowledge the removal to Ms. Rosser, in writing. (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 of the Federal Labor Relations Authority, Region 4, whose address is: 1776 Peachtree Street, NW., Suite 501 - North Wing, Atlanta, Georgia 30309 and telephone number is: (404) 881-2324. --------------- FOOTNOTES$ --------------- /1/ The Charging Party excepted to the Judge's ruling permitting disclosure by the General Counsel to the Respondent, for purposes of cross-examination, of written statements previously obtained from employees to support issuance of the complaint, after such witnesses had testified at the hearing. The Judge relied on the "Jencks Rule" as set forth by the U.S. Supreme Court in Jencks v. United States, 353 U.S. 657 (1957). The Authority specifically adopts the Judge's ruling, for the reasons she stated, noting that the "Jencks Rule" has been held applicable to administrative hearings. See Communist Party of the United States v. Subversive Activities Control Board, 254 F.2d 314 (D.C. Cir. 1958); N.L.R.B. v. Adhesive Products Corp., 258 F.2d 403 (2d Cir. 1958). /2/ Section 7116(a)(1) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for any agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter(.) /3/ At the hearing, NTEU moved to amend the complaint to conform to the evidence, which NTEU contends would support a section 7116(a)(2) violation. The Judge denied the motion and NTEU has excepted to the ruling. The Authority adopts the conclusion of the Judge, noting that the General Counsel opposes the motion to amend the complaint, and noting further that the Order herein fully remedies the violation. /4/ The statutory provisions provide: Sec. 7102. Employees' right Each employee shall have the right to form, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right-- . . . (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and (2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter. Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . /5/ "TR refers to the transcript. Corrections to the transcript proposed by the Charging Party, and several additional ones, are set out in Appendix A. Other abbreviations used in this Decision are as follows. "GCEx" refers to the exhibits of the General Counsel. "GCBr" refers to the brief of the General Counsel, "RBr" to that of the Respondent, and CP Br" to that of the Charging Party. /6/ Ms. Lewis testified that she arrived a few minutes after the buzzer went off. The contrary testimony of Ms. Traylor and Ms. Rosser is supported by that of Emma Mathis, an impartial observer working in the Unit on the morning of March 13. See TR 98. Accordingly, I have credited the testimony of Ms. Traylor, Ms. Rosser, and Ms. Mathis on this point. /7/ Ms. Lewis at first denied that Ms. Traylor signed in or out. See TR. 132. On cross-examination she was shown her initials on the usage sheet for the 7:30-8:30 period when Ms. Rosser left the unit with Ms. Traylor. She then admitted to a faulty memory about the first time Ms. Traylor went out. See TR. 132 and 140-141. I credit the evidence that Ms. Traylor did sign in and out on each of the two times she left the unit on March 13. /8/ No such oral admonishment was ever given. /9/ The "Jencks Rule" was first articulated by the Supreme Court in Jencks v. United States, 353 U.S. 657, on June 3, 1957 and, on September 2, 1957, was enacted as the Jencks Act, 18 U.S.C. 3500. The "Rule" requires the United States, in criminal proceedings, and on motion by the defendant "to produce any statement . . . of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." 18 U.S.C. 3500(b).