[ v23 p648 ]
The decision of the Authority follows:
23 FLRA No. 85 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION, AND SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS, REGION II Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2369 Charging Party Case No. 2-CA-50323 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 practice 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. 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 adopts the Judge's findings, /*/ conclusions, and recommended Order dismissing the complaint. The Authority does not view the supervisor's remarks in this case as in any way constituting the kind of expression which is authorized by section 7116(e) of the Statute. The Authority's conclusion is based on the focus and import of the remarks as found by the Administrative Law Judge. ORDER IT IS ORDERED that the complaint in Case No. 2-CA-50323 be, and it hereby is, dismissed. Issued, Washington, D.C. October 22, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 2-CA-50323 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, AND SOCIAL SECURITY ADMINISTRATION, FIELD OPERATIONS, REGION II Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2369 Charging Party Richard Matthews Al Lipovsky For the Respondent Susan M. Roche, Esquire Edgar A. Jones, Esquire For the General Counsel Joseph Calafut, For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on August 29, 1985 by the Regional Director for the Federal Labor Relations Authority, New York, N.Y., a hearing was held before the undersigned on October 9, 1985 at New York, N.Y. This case arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101, et seq. (herein called the Statute). It is based on a First Amended Charge filed on July 18, 1985 by American Federation of Government Employees, AFL-CIO, Local 2369 (herein called the Union) against Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II (herein collectively called Respondent). The Complaint alleged, in substance, that on or about May 1, 1983 Respondent's Area V Director, Arne Tornquist, made a derogatory anti-union remark in a telephone conversation to a Union representative who was preparing to represent a grievant in a hearing before said Area Director, all of which allegedly violated Section 7116(a)(1) of the Statute. Respondent's Answer, dated September 23, 1985, denied the aforesaid allegation as well as the commission of any unfair labor practice. All parties were represented at the hearing. 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 the following findings and conclusions: Findings of Fact 1. At all times material herein American Federation of Government Employees, AFL-CIO has been the exclusive representative of a consolidated nationwide unit of Respondent's employees, including all employees located in the District and Branch Offices of Social Security Administration in the states of New York and New Jersey, with specified exclusions. 2. At all times material herein the American Federation of Government Employees, AFL-CIO has delegated to the National Council of Social Security Administration Field Operations Locals (Council) authority to act with representatives for collective bargaining on behalf of certain of Respondent's employees, including those employed at the Toms River, New Jersey Branch Office, and Respondent has so recognized the Council for that purpose. 3. At all times material herein the Union has acted as agent for the Council for the purposes of collective bargaining for certain of Respondent's employees, including employees at the Toms River, New Jersey Branch, and Respondent has recognized the Union for that purpose. 4. Both the Social Security Administration and American Federation of Government Employees, AFL-CIO, are parties to an agreement covering a nationwide unit of employees, including employees at the Toms River, New Jersey Branch. Said agreement contains a provision in Article 30, Section 4, as well as Appendix F, Part G, which states as follows: /2/ "Unless otherwise arranged, union representatives for field offices will be required to request and arrange with appropriate management officials in advance of their usage of official time by using the SSA-75." 5. Record facts show that on May 1, 1985 Alan H. Cannizzaro was employed as a claims representative at Respondent's Bridgeton, New Jersey Branch. He was the on-site representative for Bridgeton Branch, as well as second vice-president of the Union herein. His duties included handling grievances on behalf of employees, attendance at arbitration hearings, and filing unfair labor practice charges. 6. On May 1, 1985 Cannizzaro went to the Toms River, New Jersey Branch of Respondent to speak with employee Patricia D'Elia. He wanted to investigate a charge brought against D'Elia by management re misusing her title as a government official. Cannizzaro planned to represent the employee in connection with a proposal to suspend her for a day. 7. When the Union representative arrived at the Branch he was met by Joseph E. Lynch, the Operations Supervisor who asked why Cannizzaro was there. The latter explained he wanted to see employee D'Elia; that he was on official time signed by his supervisor. Lynch testified he knew that the Union official represented D'Elia re her proposed suspension, and he was aware that Area Director Arne Tornquist had been assigned to the matter. Since Lynch believed that this Area Director would be the proper official to authorize official time, he telephoned Tornquist to ascertain whether the Director had given approval therefor. Tornquist explained that he did not sanction official time for Cannizzaro's visit, and he told Lynch to put the Union representative on the phone. 8. A telephone conversation ensued between Tornquist and Cannizzaro re the purpose of the latter's visit to the Toms River Branch. /3/ The Union official told the Director he had an approved SSA-75 /4/ which was signed by his supervisor. Tornquist said it had to be sanctioned by the hearing official /5/ before the supervisor could approve it. Cannizzaro, who was upset at the confrontation, said he didn't give a shit, he would do as he pleased. Upon rhetorically asking Cannizzaro if the Union representative considered himself real big in the Union now, Tornquist said that Cannizzaro was just a little "union shit". Cannizzaro replied he didn't appreciate being called such a name, and he then called the Area Director a "fat fuck". After being asked by Tornquist if he intended to file an unfair labor practice against the Director, Cannizzaro said he probably would do so. Tornquist replied that the Union official should go ahead and do so; that Cannizzaro had not made one stick yet. Cannizzaro stated he could leave and return later but it would just be a waste of time and money; that he gets paid for filing grievances and unfair labor practices. The Area Director told the Union representative he was a waste to the agency and interfered with its mission, but that Cannizzaro should stay there and "do what you have to do -- meet with the employee and leave nice and early." 9. After the telephone conversation Cannizzaro met with Patricia D'Elia. He explained what occurred and asked her if she wanted him to withdraw from the case. D'Elia stated she did not want Cannizzaro to withdraw. 10. Thereafter Cannizzaro wrote letters to Paul Dudak, Area Director IV, and Alex Bussy, Assistant Regional Commissioner. He mentioned what transpired during his conversation with Tornquist, as well as the fact that the latter called him a "little union shit". Cannizzaro complained about Tornquist's behavior and asked that another person be appointed to hear D'Elia's grievance so the employee could get a fair and unbiased decision. A reply from Dudak stated that management makes its own determination and would exercise its authority on this issue. Conclusions The simple issue herein is whether Area Director's remarks to Union representative Cannizzaro, during a telephone conversation on May 1, 1985, were coercive in nature and violated Section 7116(a)(1) of the Statute. General Counsel contends that Cannizzaro was engaged in protected activity at the time, /6/ that, although no explicit threat was made by Tornquist, his comments implied that the Union official's right to conduct his duties was "under attack"; that the statements interfered with Cannizzaro's right to conduct his legitimate representational activities. The Authority has had occasion to consider several cases wherein statements by supervisors were made to employees which were allegedly coercive in nature. In determining if remarks by management interfered with protected activity, and tended to coerce, the test is whether an employee could reasonably infer coercion from the statement by a supervisor. Federal Mediation and Conciliation Service, 9 FLRA No. 31. Such determination is not based on the employer's intention or the perception of the involved employee -- either of which may properly be characterized as subjective in nature. General Counsel has alluded to several cases in support of its position that Tornquist's statements to Cannizzaro constituted interference with the latter's functions as a union representative. In particular, reference is made to U.S. Army Military Traffic Management Command, Eastern Area, Bayonne, N.J., 16 FLRA No. 123; Social Security Administration, Baltimore, Maryland, 14 FLRA No. 80; Department of the Treasury, Internal Revenue Service, Louisville District, 11 FLRA No. 64. The undersigned has reviewed the cited cases but is not persuaded that they are determinative in deciding the matter at hand. In U.S. Army Military Traffic Management Command, supra, a union steward, who had received a formal reprimand for failing to work on assignments, requested additional official time to prepare his reply. The deputy, to whom he made the request, asked "why don't you stop this Union nonsense and do your job like you're supposed to do instead of like you were in 82"? It was held that this implied disapproval of the steward's unionism and chilled the exercise of his right to join or assist a labor organization. In the case at bar the Area Director was concerned with the failure of Cannizzaro to obtain his prior approval to confer with the grievant. He did not attempt to thwart the Union representative from speaking to D'Elia, nor did he suggest that Cannizzaro should cease his representational functions. I do not conclude that, as in the cited case, such "chilling" effect resulted from Tornquist's calling the representative a "little union shit" or that the latter was a waste to the agency. It was concluded in the Social Security Administration case, supra, that a supervisor's threat to throw the union representative out of his office, and his preventing a grievance meeting between the representative and an employee, was violative of 7116(a)(1). The case at bar presents a different situation. Tornquist did not prevent the meeting between Cannizzaro and D'Elia, nor did he interfere with the right of the Union representative to confer with the employee. In the cited case the management official refused to verify the fact that the union agent had already received permission to see the grievant. Moreover, the record showed that the conduct displayed by management was not an isolated incident but part of a larger problem in the office. In the Internal Revenue Service, Louisville District case, supra, the union steward was criticized by a chief of one of the employer's division for calling the personnel office on behalf of an employee. /7/ The Chief upbraided the steward, stating the latter was "out of line"; that he sticks his nose into things and causes trouble -- that he had done it again. These remarks, it was held, would be interpreted by a reasonable employee to constitute management hostility toward the steward's contacting the personnel office on behalf of an employee and toward his representational activities. I view the aforesaid factual situation far removed from the one at bar. The management official in the cited case evinced a clear hostility to the efforts of the steward to engage in his union duties and act on behalf of an employee who felt aggrieved. Moreover, he admonished the steward to refrain from getting involved in such representation. While Tornquist, in the instant case, was upset that Cannizzaro had not solicited his approval beforehand, the record does not support the conclusion that the Director declared or implied that Cannizzaro should abstain from pursuing his representational duties. It is urged herein that calling Cannizzaro a "little union shit" was anti-union in nature, and that the union official would necessarily think twice before deciding to continue as D'Elia's representative. This remark, however, was not made in the context of open hostility to the Union. Neither was it made, in my opinion, in a deliberate attempt to discourage Cannizzaro from continuing his representational duties. The statement flowed from Tornquist's apparent slight at not being contacted before Cannizzaro went to Toms River to see the grievant. As such, the remark -- made solely to the Union official -- disparaged the latter as a private conversation, and it may well be deemed an expression of Tornquist's personal views rather than a position of agency management. The language used by the Area Director, as well as the cursing of the latter by Cannizzaro, may well have exceeded the bounds of proper expression. However, passions were seemingly high, and, in respect to the statement by Tornquist, I conclude any taint of disparagement did not justify the conclusion that a reasonable man would be coerced into discontinuing his representation of an aggrieved employee. In sum, it is concluded that the Area Director's remarks did not constitute interference, restraint or coercion and were not violative of Section 7116(a)(1) of the Statute. See Army and Air Force Exchange Service (AAFES), Ft. Carson, Colorado, 9 FLRA No. 69; Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA No. 32. It is therefore recommended that the Authority issue the following Order: ORDER It is hereby Ordered that the Complaint in Case No. 2-CA-50323 be, and the same hereby is, dismissed. WILLIAM NAIMARK Administrative Law Judge Dated: February 19, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) In response to the General Counsel's contention in its exceptions that the cases relied upon by the Judge were not dispositive, the Authority notes a recent case which involves similar facts and the same determination. Department of the Air Force, 63rd Civil Engineers Squadron, Norton Air Force Base, California, 22 FLRA No. 91 (1986). (1) Subsequent to the hearing Respondent filed two motions with the undersigned: (a) Motion, and an amendment thereto, to correct portions of Respondent's post hearing brief, (b) Motion to Strike portions of General Counsel's brief. The Motion, and its amendment, to correct portions of Respondent's brief constitute spelling and grammatical changes. No objection was interposed thereto. Said Motion is granted as requested. The Motion to Strike portions of General Counsel's Brief is based on the fact that said brief refers to an article of a collective bargaining agreement; that said agreement was never received in evidence and thus no reference should have been made thereto. Apart from the fact that said article of the agreement was acknowledged by Respondent's witness, the undersigned has relied solely upon matters contained in the record in his decision. The said Motion is denied. See Internal Revenue Service, 16 FLRA No. 119. (2) Although General Counsel neglected to introduce the agreement in evidence, the Respondent's Area Director, Arne Tornquist, testified to the existence of the agreement, as well as the quoted provision requiring advance approval of the usage of official time by union representatives. (3) Several versions of this conversation were testified to by the witnesses. The facts set forth herein represent the credited version thereof. (4) Approval of this form is official authorization to represent someone at another office or location. (5) Tornquist was the third-step grievance official who would ultimately act as the hearing officer re D'Elia's grievance. (6) Cannizzaro's intercession on behalf of employee D'Elia, and his effort to discuss her grievance as a Union representative, are clearly protected activities. Moreover, a union representative is entitled to freedom to process grievances without harassment. However, the right is not absolute. See Philadelphia Naval Shipyard, 4 FLRA No. 38. (7) The employee, working at location A, had been selected to work at location B. The steward was attempting to intercede for the employee in an effort to have the job itself moved to location A so the employee would not be required to move.