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55 FLRA No. 148
U.S. DEPARTMENT OF AGRICULTURE
FOOD SAFETY AND INSPECTION SERVICE
WASHINGTON, D.C.
(Respondent)
and
NATIONAL JOINT COUNCIL OF FOOD
INSPECTION LOCALS, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
(Charging Party)
WA-CA-80531
_____
DECISION AND ORDER
September 28, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I Statement of the Case
This unfair labor practice is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions.
The Judge determined that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by suspending the Charging Party's Southern Council Vice President for activity protected by the Statute. The Judge found that the Vice President's use of an obscenity in referring to a management official during a labor-management meeting did not constitute flagrant misconduct and, as such, was not removed from the protection of the Statute. The Judge also determined that the record failed to establish that a Memorandum of Understanding (MOU) between the parties permitted the Respondent to suspend the Vice President for less than flagrant misconduct. The Judge recommended a make-whole remedy.
Upon consideration of the Judge's decision, the Respondent's exceptions, [n1] and the entire record, we adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1) and (2) of the Statute by suspending the Vice President for protected activity. [n2]
II. Order
Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Agriculture, Food Safety and Inspection Service, Washington, D.C., shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing bargaining unit employees by disciplining Charles Stanley Painter or any representative of the National Joint Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of a unit of employees, for protected conduct engaged in while performing union representational duties.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Rescind the 5-day suspension given to Charles Stanley Painter, expunge from its files all records of and references to this suspension, and make Painter whole by reimbursing him for the losses he [ v55 p876 ] incurred as a result of the 5-day suspension, including backpay with interest, and any other benefits lost due to the suspension.
(b) Post at its facilities located in Alabama and Mississippi, where bargaining unit employees represented by the National Joint Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, are located, 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 Food Safety and Inspection Service Administrator, and they shall be 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. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Atlanta Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Department of Agriculture, Food Safety and Inspection Service, Washington, D.C., violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify employees that:
WE WILL NOT interfere with, restrain, or coerce employees by disciplining Charles Stanley Painter or any representative of the National Joint Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of a unit of employees, for protected conduct engaged in while performing union representational duties.
WE WILL NOT in any like or related manner interfere with,restrain or coerce bargaining unit employees in the exercise of rights assured to them by the Federal Service Labor-Management Relations Statute.
WE WILL rescind the 5-day suspension given to Charles Stanley Painter, expunge from our files all records of and references to this suspension, and make Painter whole by reimbursing him for the losses he incurred as a result of the 5-day suspension, including backpay with interest, and any other benefits lost due to the suspension.
________________________
(Agency)
Dated:__________By:__________________________
(Signature) (Title)
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, Atlanta Region, Federal Labor Relations Authority, whose address is: Marquis Two Tower, Suite 701, 285 Peachtree Center Avenue, Atlanta, GA 30303, and whose telephone number is: (404) 331-5212.
File 1: Authority's Decision in 55 FLRA No.
148
File 2: ALJ's Decision
Footnote # 1 for 55 FLRA No. 148 - Authority's Decision
In part, the Respondent's exceptions dispute the Judge's credibility resolutions. The demeanor of witnesses is an important factor in resolving issues of credibility and only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. U.S. Department of the Treasury, Internal Revenue Service, Austin Compliance Center, Austin, Texas, 51 FLRA 629 (1995), and the cases cited therein. We have examined the record and find no basis for reversing the Judge's credibility determination.
Footnote # 2 for 55 FLRA No. 148 - Authority's Decision
In determining that the parties' MOU did not provide a defense to the Respondent's unlawful activity, the Judge cited and applied the proper standard, initially set out in Internal Revenue Service, Washington D.C., 47 FLRA 1091, 1103 (1993), for resolving such claims. See Judge's Decision at 9-10. As such, contrary to the Respondent's argument, it is unnecessary to address the Judge's statement that there was no "clear and unmistakable waiver" in this case. Id. at 10. In this regard, we note that the Respondent's exceptions appear to rely, in part, on decisions addressing the "covered by" defense. See Exceptions at 5. As this case does not involve an alleged refusal to bargain under the Statute, the "covered by" defense does not apply. See Social Security Administration, Region VII, Kansas City, Missouri, 55 FLRA 536, 538 (1999). In addition, we reject the Respondent's exception to the portion of the Judge's recommended remedy requiring the Respondent's Administrator to sign the remedial Notice. See U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA 1400, 1401-02 (1994).