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62 FLRA No. 45
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
OF GOVERNMENT EMPLOYEES
LOCAL 607, AFL-CIO
DECISION AND ORDER
October 26, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to a decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC). The Respondent filed an opposition to the GC's exceptions.
The complaint alleges that the Respondent violated § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) when a Lieutenant made a certain comment to a bargaining unit employee. The Judge dismissed the complaint.
Upon consideration of the Judge's decision and the entire record, we conclude for the reasons discussed below that the Respondent did not commit the ULP alleged in the complaint. Accordingly, we dismiss the complaint.
II. Background and Judge's Decision
The Respondent's administrative workweek starts on Sunday at 12:01 a.m. A Lieutenant at the facility had a practice of assigning overtime to correctional officers every other Saturday at 4:00 p.m., prior to the start of the new administrative workweek. The Union filed a grievance alleging that the Respondent violated the Fair Labor Standards Act (FLSA) by failing to pay employees for overtime that was scheduled prior to the start of the administrative workweek. As a result of the grievance, the Lieutenant was instructed to stop scheduling overtime prior to the start of the administrative workweek. Subsequently, a correctional officer (Officer) approached the Lieutenant on a Saturday and asked if he could work overtime from 10:00 a.m. to 2:00 p.m. the following day. The Lieutenant responded that the overtime could not be scheduled before 12:01 a.m. the next day, and he also "made some reference to the Union." Judge's Decision at 4. A complaint was filed alleging that the Lieutenant's comment to the Officer constituted an unfair labor practice within the meaning of § 7116(a)(1) of the Statute.
At the hearing, the parties' accounts of the conversation between the Officer and the Lieutenant varied greatly. The Officer testified that, when asked about scheduling the overtime, the Lieutenant responded using profanity, spoke in a "very aggravated" tone, and stated that he could not schedule the overtime "[b]ecause of your fucking union." Id. The Lieutenant denied using the word "fucking" and claimed that he told the Officer he could not schedule the overtime until the next day because of the administrative workweek, and that when asked why, he simply instructed the Officer to "see his union." Id. The Lieutenant acknowledged that he was "aware of a dispute between the Respondent and the Union concerning the overtime pay differential[.]" Id. During a subsequent conversation between the Officer and the Union President about the Lieutenant's comment, the Union President informed the Officer that the Union had filed a grievance.
The Judge found that "it is more likely than not that [the Lieutenant] raised his voice and used profanity in his conversation with" the Officer. Id. at 5. The Judge also found that the Lieutenant's "language and tone of voice were intemperate[.]" Id. at 6. However, the Judge concluded that the Lieutenant's comment "could not reasonably be construed as coercive" because the Officer's request for overtime had nothing to do with his status as a bargaining unit employee or his relationship with the Union. According to the Judge, the Lieutenant's comment could not reasonably have led the Officer to believe that he would be denied overtime because of his union membership since the Lieutenant did not stop assigning overtime. The Judge found that the "only reasonable interpretation" of the Lieutenant's comment was that the Officer "would not be approved for overtime when he submitted his oral request." Id. [ v62 p200 ] The Judge relied on the Officer's subsequent conversation with the Union President as a basis for finding that the Lieutenant's comment was not coercive, and ultimately concluded that, although the Officer "could have reasonably surmised that [the Lieutenant] was annoyed with the Union," there was no reason for him to be "discouraged from supporting the Union." Id.
Based on the foregoing, the Judge recommended an Order dismissing the complaint.
III. Positions of the Parties
A. GC's Exceptions
In its first exception, the GC argues that the Judge failed to resolve the parties' dispute over the content of the Lieutenant's comment. According to the GC, because the witnesses had different recollections of what was said, the Judge was obligated to "resolve the differences and make a finding of fact" as to the actual comment. Exceptions at 8. The GC asserts that the Judge's findings that the Lieutenant raised his voice and used profanity are insufficient to satisfy the Judge's obligation to resolve the parties' dispute over what was actually said. In this connection, the GC asserts that the "significant distinction" in the witnesses' testimony is whether the Lieutenant said he could not allow the Officer to work overtime "because of the Union" or whether he said he could not do so "because of the administrative work week[.]" Id. at 7-8. According to the GC, the Judge's error precludes the Authority from determining whether the Respondent violated § 7116(a)(1) of the Statute as alleged in the complaint and, therefore, a remand is necessary.
In its second exception, the GC argues that the Judge's legal analysis is "faulty and not consistent with Authority precedent." Id. at 9. In this regard, the GC asserts that the Lieutenant's comment was coercive because he blamed the Union for the Officer's inability to work overtime, not because he made a threatening remark about the Officer's unit status or his relationship with the Union. As such, the GC argues that the Judge did not consider the Lieutenant's comment in the proper context. See id. at 10 (citing United States Penitentiary, Florence, Colo., 53 FLRA 1393, 1404 (1998) (U.S. Penitentiary); United States Customs Serv. Region I (Boston, Mass.), 15 FLRA 309 (1984) (Customs)). In addition, the GC asserts that the Judge erred because "there is no requirement to show that the alleged coercive remark actually coerced employees or was carried out against the entire bargaining unit." Id. at 11. Finally, the GC asserts that the Judge erred by relying on the Officer's subsequent conversation with the Union President in assessing whether, at the time the comment was made, the comment "had a reasonable tendency to interfere with" the Officer's rights. Id. at 12.
B. Respondent's Opposition
The Respondent disputes the GC's claim that the Judge erred in not making a factual finding as to the Lieutenant's actual comment to the Officer. In this regard, the Respondent asserts that the Judge resolved the factual dispute when he "weighed th[e] evidence in favor of the General Counsel . . . ." Opposition at 4. According to the Respondent, the Judge "found in favor of the General Counsel with respect to virtually every fact in the case, including the material facts." Id. at 6. The Respondent also asserts that the Judge correctly found that the Lieutenant's comment had nothing to do with the Officer's union involvement or his bargaining unit status. Therefore, the Respondent asserts that the Judge correctly found no violation of the Statute.
IV. Analysis and Conclusions
The standard for determining whether management's statement or conduct violates § 7116(a)(1) is an objective one. The question is whether, under the circumstances, the statement or conduct tends to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. See Marine Corps Logistics Base, Barstow, Cal., 33 FLRA 626, 637 (1988); see also Bureau of Engraving & Printing, 28 FLRA 796 (1987). While the circumstances surrounding the making of the statement are considered, the standard is not based on the subjective perceptions of the employee or on the intent of the employer. See Dep't of the Army Headquarters, Wash., D.C., 29 FLRA 1110, 1124 (1987).
As an initial matter, we address the GC's claim that the Judge erred by not resolving the parties' dispute over the content of the Lieutenant's comment and, as a result, a remand is warranted. In this regard, the Officer testified that, when asked about scheduling the overtime, the Lieutenant responded using profanity, spoke in a "very aggravated" tone, and stated that he could not schedule the overtime "[b]ecause of your fucking union." Judge's Decision at 4. The Lieutenant denied using the word "fucking" and attributed his inability to schedule the overtime to administrative policy. The Judge found as undisputed fact that "[the Lieutenant] told [the Officer] that he could not schedule the overtime [ v62 p201 ] prior to 12:01 a.m. on April 18 and that [the Lieutenant] made some reference to the Union." Id. at 4. The Judge also specifically credited the testimony of the Officer by finding it "more likely than not that [the Lieutenant] raised his voice and used profanity . . . ." Judge's Decision at 5.
While the GC is correct that the Judge did not make a finding as to the specific words used by the Lieutenant, any error by the Judge in this regard does not warrant a remand of the case, for two reasons. First, the Judge found it more likely than not that the Lieutenant raised his voice and used profanity, indicating as a general matter that he credited the testimony of the Officer. Second, we conclude below that the statement testified to by the Officer would not violate the Statute. As such, there is no need to determine whether the statement testified to by the Lieutenant, which is less likely to violate the Statute, is supported by the record. We therefore assume, for purposes of this decision, that the statement was made as testified to by the Officer.
Although the Lieutenant's comment was intemperate and expressed some degree of frustration with the Union, such comments do not automatically violate the Statute. See, e.g., Dep't of the Army, Reserve Pers. Ctr., St. Louis, Mo., 32 FLRA 665, 668 (1988) (a legitimate question asked of a union president in front of unit employees in a "`loud' tone of voice" not coercive). Further, no basis is provided for concluding that the use of profanity, standing alone, necessarily would tend to coerce or intimidate an employee. Thus, the fact that the Lieutenant's comment included profanity does not require a conclusion that the Respondent violated the Statute. See, e.g., Dep't of Health & Human Serv., Soc. Sec. Admin., 23 FLRA 648, 654 (1986) (comment to union official that he was a "union shit" did not violate the Statute); see also Dep't of the Air Force, 63rd Civil Eng'rs Squadron, Norton Air Force Base, Cal., 22 FLRA 843, 855 (1986) (comment to union official that if he was going to "stir shit," then he should plan on getting some on himself, did not violate the Statute).
In arguing that the Judge erred in failing to find a violation of § 7116(a)(1) of the Statute, the GC relies on U.S. Penitentiary, where the Authority found that the respondent violated the Statute by making certain remarks about a grievance filed by the charging party. The GC's reliance is misplaced, however, because unlike the case now before the Authority, the respondent in U.S. Penitentiary not only referenced a grievance filed by the charging party, but also expressly threatened to take retaliatory action if the charging party continued processing the grievance. U.S. Penitentiary, 53 FLRA at 1402. In particular, the respondent's agent stated that, if the charging party continued to process the grievance, then he would "ensure that the staff's arrival and departure times were more closely monitored." Id. at 1404. As the statement threatened changes in employees' conditions of employment if the charging party did not withdraw its grievance, it was inherently coercive and intimidating. However, unlike in U.S. Penitentiary, there is no contention that the Lieutenant's remarks in the present case threatened any retaliatory action in response to the Union's grievance. Thus, the GC's reliance on U.S. Penitentiary is misplaced.
The GC's reliance on Customs is also misplaced. There, the Authority adopted a judge's decision finding that a manager's comment "tended to coerce and restrain employees in the exercise of rights guaranteed by the Statute in violation of section 7116(a)(1)." Customs, 15 FLRA at 310. In Customs, a manager told employees that the respondent was permanently discontinuing a practice of allowing employees at one location to use stools while performing their duties "because of [u]nion activity elsewhere." Id. at 318. The "[u]nion activity elsewhere" was a grievance filed over the respondent's refusal to permit an employee in another location to use a stool. Id. Thus, in response to a union contention that the agency's action in one location was improper, the agency took permanent (allegedly improper) adverse action in another location and attributed it directly to the union.
Here, however, it is undisputed that the Lieutenant did not deny the overtime request or threaten any adverse consequences. Instead, he explained that he could no longer schedule overtime prior to 12:01 a.m. This matter is distinguishable from Customs where, as discussed above, the Agency initiated specific negative action as a result of a Union grievance and communicated this to employees. While it is not clear whether the employee here requested and worked overtime the following day, April 18, there is no demonstration that the Lieutenant denied overtime or any other benefit to any employee or that his comments tended to coerce or restrain employees in the exercise of rights guaranteed by the Statute. Thus, there is simply no reason to assume that a supervisor's statement, whether intemperate or not, that he had been required to follow a particular practice because of the Union would tend to coerce or restrain an employee. As such, taking the entire factual context of the situation into account, we find that [ v62 p202 ] the statement did not violate § 7116(a)(1) and we dismiss the complaint. See Army & Air Force Exch. Serv. (AAFES), Ft. Carson, Colo., 9 FLRA 620, 627 (1982) (coercive effect of statement is evaluated under the "entire factual context"). [n2]
The complaint is dismissed.
Footnote # 1 for 62 FLRA No. 45 - Authority's Decision
Footnote # 2 for 62 FLRA No. 45 - Authority's Decision
In so doing, we reject the Judge's partial reliance on the Officer's conversation with the Union President subsequent to the Lieutenant's comment. The relevant point in time for determining whether the comment was coercive is at the time the comment was made, not at a later time, when the comment is clarified. See, e.g., Roney Plaza Mgmt. Corp., 310 NLRB 441 (1993) (assessing the coercive nature of a statement under § 8(a)(1) of the National Labor Relations Act in view of the circumstances "at the time the statement was made"). Accordingly, we do not adopt this aspect of the Judge's decision.