[ v17 p304 ]
The decision of the Authority follows:
17 FLRA No. 42 U.S. DEPARTMENT OF JUSTICE U.S. MARSHALS SERVICE Respondent and INTERNATIONAL COUNCIL OF DEPUTY U.S. MARSHALS LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2827 Charging Party Case No. 2-CA-40016 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision and the Respondent filed an opposition to the General Counsel's exceptions. 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, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. ORDER IT IS ORDERED that the complaint in Case No. 2-CA-40016 be, and it hereby is, dismissed. Issued, Washington, D.C., March 21, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 2-CA-40016 James G. Bennett, Esq. Ronald R. Frazee, Esq. For the Respondent Robert J. Fabii, Esq. Barbara S. Liggett, Esq. For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case This case arose under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based on a first amended charge filed on November 22, 1983 by International Council of Deputy U.S. Marshals Locals, American Federation of Government Employees, Local 2827, (herein called the Union) against the U.S. Department of Justice, U.S. Marshals Office (herein called the Respondent). A Complaint and Notice of Hearing was issued on December 28, 1983 by the Acting Regional Director for the Federal Labor Relations Authority, Region II. The said Complaint alleged, in substance, that on or about October 3, 1983 Respondent suggested to employees they would be scrutinized more closely re their telephone usage and promptness in reporting for duty; that such suggestion was made as a result of the Union President's exercise of protected activity - all in violation of Section 7116(a)(1) of the Statute. Respondent filed an Answer dated January 20, 1984 which denied the aforesaid allegations as well as the commission of any unfair labor practices. A hearing was held before the undersigned on February 7, 1984 at Philadelphia, Pennsylvania. All parties were represented thereat. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter briefs were filed which have been duly considered. /1/ Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make following findings and conclusions: Findings of Fact 1. At all times material herein, the American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals has been, and still is, the exclusive bargaining representative of Respondent's nonprofessional employees worldwide, including intermittent and term deputies and excluding certain employees not relevant herein. 2. Both Respondent and American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals are parties to a collective bargaining agreement. The said agreement, by its terms, became effective on January 29, 1982 and remains in full force and effect thereafter for a three year period. 3. At all times material herein, American Federation of Government Employees, Local 2827 (herein called the Union) has acted as the agent of American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals, regarding collective bargaining and other labor relations matters affecting employees at Respondent's Camden New Jersey location. 4. On September 3, 1983 Starlord Pickett, Acting President of the Union /2/ and a Deputy U.S. Marshal employed at the Camden, New Jersey Office, filed a step one grievance on behalf of the Union with Eugene Liss, U.S. Marshal for the District of New Jersey. In this written grievance Pickett stated that Liss had made "various changes" in working conditions without notifying the Union or giving it an opportunity to negotiate the changes - all in violation of Article XXXI of the Master Agreement. Pockett requested that Liss discuss this grievance as required under Article XXV of the said Agreement. 5. In a letter dated September 9, 1983 /3/ Liss wrote Pickett acknowledging receipt of the step one grievance. The Marshal stated that the letter-grievance filed by Pickett did not set forth specifics and Liss had no idea of the Union's particular complaint. Liss requested that Pickett mention specific contractual violative acts with attending dates. 6. By letter dated September 19 Pickett filed a step two grievance, addressed to Liss, wherein he enumerated the changes unilaterally instituted by the Marshal. These changes did not include, or make mention of, the usage of FTS telephones by employees in the Camden office, or the charging of leave to a Camden employee if he returned late from lunch or reported late to work. /4/ 7. Several days after September 19 Liss called Leon Cunningham, Supervisory Deputy Marshal at Camden, New Jersey. The Marshal notified Cunningham he would be in Camden on October 4. He also told the supervisor to have Pickett available to discuss a grievance which the Union official filed against Liss. /5/ 8. On October 4 Marshal Liss visited the Camden office and conferred for a short time with Pickett. Both individuals discussed the matters mentioned in the step two grievance letter. No reference was made by either person as to the usage of FTS telephones by Camden employees, or the charging of leave to Camden employees if they returned late from lunch or reported late to work. 9. Following the conversation with Pickett, and on the same day, Liss conferred with Cunningham. The Marshal testified he was concerned about the usage of telephones at Camden; that it was difficult to communicate between headquarters and Trenton due to the fact that the Camden phones were continually in use. Liss told Cunningham that the excessive usage was difficult to understand since there was not much warranty work being undertaken; that the public, as well as some attorneys, complained they couldn't communicate with the Camden office. Liss told the supervisor to "get tough with his phones" and to supervise them. The Marshal also advised Cunningham that the latter could interrupt a lengthy phone conversation to ascertain if it was official business being discussed. The reference was made by Liss, during their discussion, as to charging leave if employees reported late to work or after lunch. Liss did not mention that Pickett had filed a grievance or refer to it. 10. On October 6, Cunningham called a meeting of his deputies. /6/ Attending thereat were Pickett, William Gunning, Barry Frost, and Boston Bennett - all deputies attached to the Camden office. The supervisor stated /7/ that there had been complaints regarding the operation of the office; that someone gave information to the Marshal that the Camden office was being run in a loose manner. He also referred to having met with Liss on the previous day; that the Marshal had met with one of the deputies, but the name of the deputy was not mentioned. Cunningham mentioned that while the office was being run satisfactorily, certain rules needed to be enforced and it was necessary to tighten procedures. He indicated that warrant files should be kept accessible in the event a deputy was not on hand; that the deputies should observe the chain of command and advise him if they want to talk to the Marshal. Cunningham referred to the fact that the hours were from 8:30 a.m. to 5:00 p.m. and if a deputy reported late he would have to take leave. The supervisor commented he came in at 8:30 and was not asking the deputies to do anything unusual. He mentioned that one-half hour was allotted for lunch and if a deputy exceeded that time, he must put in a leave slip. Cunningham also told the deputies that phones must be used only for official business; that the calls should be kept short and limited to about three minutes. He suggested that it may be necessary to monitor phone calls where the usage is excessive. /8/ 11. The record reflects that subsequent to the meeting on October 5 Cunningham monitored some of the phone calls in the Camden office, and that this practice has continued. Conclusions General Counsel maintains that, based on the statements made by Supervisor Cunningham to the deputies on October 5, Respondent violated Section 7116(a)(1) of the Statute. It is contended that the supervisor suggested to the employees he intended to restrict the use of telephones, as well as charge the deputies leave if late for work or upon returning from lunch, because Pickett had met with Marshal Liss re a grievance filed by the union official. Management is proscribed, under Section 7116(a)(1) from interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute. It is quite clear that included within such protective activity is the filing of grievances. See United States Department of Interior, Office of the Secretary, U.S. Controller for the Virgin Islands, 11 FLRA No. 91. In determining whether statements by management re the filing of grievances by employees tends to interfere with such protected activity, certain standards must be considered. Thus, it does not suffice to consider subjective perceptions or reactions by employees. By the same token, the intent of the employer is not the test in deciding whether statements constitute interference. The decisive factor is whether, under the circumstances, an employee may reasonably infer intimidation or coercion based on management's remarks. The essential query is whether such statements tended to interfere, coerce or restrain employees. Federal Mediation and Conciliation Service, 9 FLRA No. 3. Careful consideration of the record herein convinces me that, contrary to General Counsel's assertions, Cunningham did not suggest to the deputies on October 5 that he was instituting changes because Pickett had filed a grievance or met with Marshal Liss in respect a thereto. While it is true that the supervisor knew that Deputy Pickett had filed a grievance and had met with Liss on October 4, the record does not support a reasonable inference that Cunningham announced there would be closer scrutinizing of working conditions based on Pickett's activities in that regard. Despite the artful and well expressed urgings of the General Counsel, I am constrained to conclude that the deputies could not reasonably draw such an inference. While it is true that Cunningham knew that Liss met with Pickett on October 4 re a grievance, the complaints lodged by the union official therein pertained to conduct - or the lack thereof - by Liss as Marshal and head of the New Jersey District. There was no accusation or criticism leveled by Pickett against his immediate supervisor. Further, Liss made no reference to the specifics of the grievance, nor was he unduly critical of the Camden office, when he spoke to Cunningham on October 4. The Marshal did not upbraid the supervisor in any severe manner but was concerned about the excessive use of the telephones by the deputies. In respect to the latter, he directed that Cunningham take some action to restrict such usage. Under the circumstances, it is difficult to abide by General Counsel's theory that the supervisor informed the men there would be closer scrutinizing because of Pickett's grievance. Although it does not avail one to speculate re the motive for Cunningham's actions, it seems reasonable to conclude, based on the record herein, that he was tightening the reins pursuant to the command of Marshal Liss on the previous day. None of the evidence supports a conclusion that Cunningham did become stringent in enforcing the rules as a result of Pickett's activity. In meeting with the deputies on October 5, the supervisor made no reference to Pickett on his filing a grievance which in anyway reflected adversely upon the Camden office. No adverse inference may be properly drawn against Respondent based on Pickett's testimony that Cunningham looked at him during the meeting. The deputies who testified herein attest to the fact that Cunningham spoke to all of them and did not direct his remarks to anyone person. No reference was made to any union or protected activity on the part of Pickett or other employee. The state of the record persuades me that the supervisor of the deputies was sensitive to the criticism expressed by Liss; that he sought to respond thereto by limiting the usage of phones, and also insisted there be no tardiness after lunch breaks or upon reporting for work - all of which constituted adherence to proper procedures. In sum, I conclude that Cunningham's remarks to the deputies on October 5 contained no coercive statements and no threats of interference with their protected rights under the Statute. Moreover, the record herein does not, in my opinion, warrant the inference that the supervisor's comments on October 5 - including his insistence upon limited usage of the telephones and reporting on time for work or upon returning from lunch - were made as a result of Pickett's filing a grievance with the Marshal concerning other working conditions. Having concluded that Cunningham's statements on October 5 did not tend to interfere, restrain or coerce the deputies, I conclude Respondent did not violate Section 7116(a)(1) of the Statute as alleged. Accordingly, it is recommended that the complaint be dismissed in its entirety. WILLIAM NAIMARK Administrative Law Judge Dated: November 15, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Subsequent to the hearing the General Counsel filed with the undersigned a Motion to Correct Transcript. No objection having been interposed thereto, and it appearing that the corrections are proper, the motion is granted. The transcript is hereby corrected as reflected in the Appendix which is annexed to this decision. /2/ Pickett also served as Regional Vice-President of the International Council of U.S. Marshals and as regional representative for the national union. /3/ Unless otherwise indicated, all dates hereinafter mentioned occur in 1983. /4/ There were 9 alleged changes by Liss of which Pickett complained. They included such items as: rotating Newark Deputies but not others; changing method of transporting prisoners which affected overtime for Trenton and Camden Deputies; changing mileage calculations to detriment of Trenton Deputies; reprisal against a union official for seeking to file a grievance. /5/ Pickett testified he always sent a copy to Cunningham of any correspondence to Liss. Thus it is contended the supervisor was aware of Pickett's grievance. On the state of the record, and in view of Cunningham's denial that he received the grievance, there is insufficient proof that the specifics of the grievance were known to the supervisor. /6/ Those in attendance at this meeting testified to different versions of what was said thereat. The findings herein represent the credited version of remarks by Cunningham. /7/ Record facts reflect Cunningham calls periodic staff meetings, and that he has held 3 or 4 meetings with his deputies during the past 18 months. /8/ Although Pickett testified Cunningham looked at him during the meeting, other deputies testified that the supervisor's remarks were directed at all in attendance.