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46:0526(49)CA - - Bureau of the Census and Edward Hanlon - - 1992 FLRAdec CA - - v46 p526

[ v46 p526 ]
The decision of the Authority follows:

46 FLRA No. 49







(Charging Party/Individual)


(41 FLRA 436 (1991))


November 13, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the Fourth Circuit in Department of Commerce, Bureau of the Census v. FLRA, Nos. 91-2188 and 91-2239 (4th Cir. Oct. 2, 1992) (Commerce). The complaint alleged that the Respondent's references in a record of infraction and a letter of proposed removal to Edward Hanlon's filing of grievances and unfair labor practice (ULP) charges violated section 7116(a)(1) of the Statute by interfering with, restraining, or coercing employees in the exercise of their rights under the Statute. In accordance with the instructions of the court, we will dismiss the complaint.

II. Background

From 1985 to 1987, Edward Hanlon, an employee of the Respondent, was actively engaged in union organizational and representational activities of which the Respondent was aware. In November 1987, Hanlon's supervisor issued him a written record of infraction which, among other things, cited Hanlon's alleged misuse of administrative and judicial procedures by filing numerous actions including Privacy Act and Freedom of Information Act requests, ULPs, grievances and lawsuits with the intent and effect of impeding the Respondent's efficiency.

After receiving the record of infraction, Hanlon filed a ULP charge alleging that the Respondent had committed a ULP by disciplining him for exercising his statutorily protected right to file ULP charges and other employment actions. In early December 1987, Hanlon received from the Respondent a letter of proposed removal which also cited his alleged misuse of adminsistrative and judicial procedures. Hanlon amended the earlier-filed ULP charge to add, among other things, a claim that the letter of proposed removal constituted a ULP.

On January 8, 1988, Hanlon was removed from his position. Three days later, he filed a grievance challenging his removal. In February 1988, the General Counsel issued a ULP complaint alleging that the Respondent's references in the record of infraction and the letter of proposed removal to Hanlon's earlier filing of ULP complaints and other actions violated section 7116(a)(1) of the Statute.

The Respondent argued before an Administrative Law Judge that the complaint was barred under section 7116(d) of the Statute because once the Respondent initiated discharge procedures against Hanlon, his sole remedy lay in the Merit Systems Protection Board (MSPB) procedure.(*/) The Judge rejected this contention and found that both preliminary actions were properly before the Authority as a ULP complaint. On the merits, the Judge concluded that the Respondent violated the Statute as alleged.

In Bureau of the Census, 41 FLRA 436 (1991) (Census), the Authority found, in agreement with the Judge, that section 7116(d) of the Statute did not preclude the Authority from asserting jurisdiction over the ULP complaint and that the Respondent violated section 7116(a)(1) of the Statute.

In Commerce, the court disagreed with the Authority's conclusion that section 7116(d) of the Statute did not bar the ULP complaint. The court found that Congress's intent compelled a finding that the record of infraction and the letter of proposed removal were inseparable from the removal action. The court found, therefore, that the "sole jurisdiction lies in the MSPB." Commerce, slip op. at 10. Because the court found that the Authority lacked jurisdiction to decide the ULP complaint, the court did not address the merits of the complaint. Accordingly, the court reversed the Authority's decision in Census and remanded the case to the Authority with instructions to dismiss the complaint.

III. Analysis and Conclusions

In accordance with the instructions of the court, we will dismiss the complaint.

IV. Order

The complaint is dismissed.

(If blank, the decision does not have footnotes.)

*/ Section 7116(d) of the Statute provides:

Issues which can properly be raised under an appeals procedure may not be raised as an unfair labor practice prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.