File 3: Opinion of Member Pope
[ v59 p75 ]
Dissenting Opinion of Member Carol Waller Pope:
The majority errs by finding that the original charge provided an insufficient basis for issuing the complaint. Accordingly, I dissent. [n1]
Under Authority regulations, a charge must include "[a] clear and concise statement of the facts alleged to constitute an unfair labor practice, a statement of the section(s) and paragraph(s) of the [Statute] alleged to have been violated, and the date and place of occurrence of the particular acts[.]" 5 C.F.R. § 2423.4(a)(5). A complaint must contain, as relevant here, "[t]he facts alleged to constitute an unfair labor practice; [and] [t]he particular sections of 5 U.S.C. chapter 71 and the rules and regulations involved[.]" 5 C.F.R. § 2423.20(a). A complaint "need bear only `a relationship' to a charge and closely relate to the events cited in the charge." United States DOJ, Office of Justice Programs, 50 FLRA 472, 476 (1995) (citing United States DOJ, Bureau of Prisons, Allenwood Fed. Prison Camp, Montgomery, Pa., 40 FLRA 449, 455 (1991) (Allenwood), rev'd as to other matters sub nom. United States DOJ v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993)). Further, the sufficiency of a complaint is not judged on the basis of rigid pleading requirements. See Dep't of Transp., FAA, Fort Worth, Tex., 55 FLRA 951, 956 (1999).
It is clear that the original charge satisfied the requirements of 5 C.F.R. § 2423.4(a)(5), that the complaint satisfied the requirements of 5 C.F.R. § 2423.20(a), and that the complaint was sufficiently related to the charge.
As for the charge, even a cursory reading of the original charge demonstrates that it complies with 5 C.F.R. § 2423.4(a)(5). That charge stated, in pertinent part:
The agency, by its agents Mike Grasso and D. Needham violated Section 7116(a)(1), (3), (5), and (8) in certain written and oral contacts with Patrick Maher, then President of AFGE, Local 368 . . . . Grasso and Needham told Maher to influence higher-level union officials to support . . (HIMP) . . . They also told Maher to influence the Charged Party to change its position regarding the number of bargaining unit members who should be assigned to work on a HIMP processing line. . . . The violations occurred on or about September 6 and 9, 2000. By its actions, [the Respondent] bargained in bad faith with the [NJCFIL] and attempted to control the [NJCFIL] in violation of 7116(a)(5) and (3), respectively; and did control Local 368 in violation of 7116(a)(3).
G.C. Exh. 1(a). Thus, the charge contained: (1) a statement of the facts alleged to constitute an unfair labor practice; (2) the sections of the Statute alleged to have been violated; and (3) the date and place of the alleged violations.
Further, the complaint satisfied the requirements of 5 C.F.R. § 2423.20(a). In particular, the complaint stated, in pertinent part, that: (1) on September 6, 2000, the Respondent sent an e-mail to unit employees stating that a private plan manager wanted to "pull out of" HIMP unless a modification were negotiated; (2) the e-mail encouraged local union officials to contact and tell a higher-level union official to negotiate modifications to HIMP; and (3) by this conduct, the Respondent "committed an unfair labor practice in violation of 5 U.S.C. § 7116(a)(1) and (5)." G.C. Exh. 1(c), paragraphs 10, 11, 12. Thus, the complaint specified the facts alleged to constitute the specified violation of the Statute.
Both the original charge and the complaint allege violations of § 7116(a)(1) and (5) of the Statute. See G.C. Exhs. 1(a) and 1(c). Both the original charge and the complaint also allege actions taken by the same Respondent official on the same date. [n2] See id. Both the original charge and the complaint allege that communications by Respondent's officials -- the disputed e-mail -- violated the Statute. See id. This is all that the Authority's regulations require.
The majority places great, and undue, emphasis on the fact that although the original charge alleged only that the Respondent communicated with the Local Union president, the complaint alleges that the communication took place with other unit employees as well. There are two things wrong with this emphasis. [n3]
First, this emphasis exaggerates the unimportant. In this connection, it is undisputed that both the charge and the complaint allege that the same e-mail, sent on the same date, violated § 7116(a)(1) and (5). It also is undisputed that this same e-mail was sent to the local [ v59 p76 ] union president and other unit employees. The only relevant difference is that the complaint specified that other unit employees were recipients and the charge did not. That is, the charge's failure to allege that the e-mail was sent to the local union president "and other unit employees" is its fatal deficiency.
Second, this emphasis ignores that there is not now, and has never been, a requirement that the General Counsel may argue only what is contained in a charge. In this regard, it is well and long established, in both the Federal and private sectors, that a charge serves merely to initiate an investigation and to determine whether a complaint in a matter should be issued. See NLRB v. Fant Milling Co., 360 U.S. 301, 307-08 (1959) (Fant Milling); Allenwood, 40 FLRA at 455. As stated by the United States Supreme Court, "[a] charge . . is not to be measured by the standards applicable to a pleading in a private lawsuit[;] [i]ts purpose is merely to set in motion the machinery of an inquiry[,]" and an investigation of a charge is not confined to the "specific matters alleged in the charge . . . " Fant Milling, 360 U.S. at 307-09. Although a complaint must bear "a relationship" to the charge on which it is based, it need not be its identical twin. Allenwood, 40 FLRA at 455.
The complaint in this case bears the necessary relationship to the original charge. [n4] The majority's holding to the contrary mocks both our regulations and applicable precedent.
Finally, I do not believe that the disputed e-mail can reasonably be construed as merely passing along information to unit employees. The e-mail (from Respondent's representative to several unit employees, including the then-President of Local 368) state