Department of Housing and Urban Development, Region X, Seattle, Washington and American Federation of Government Employees, Local 3294 (Authority decision, June 25, 1991)

Final FLRA decision. The Authority adopts the judge's unfair labor practice finding and orders HUD Region X to stop threatening employees over grievances and post a notice. An aggrieved person may seek judicial review of this final order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). A petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

An employee at HUD Region X filed a grievance, and a manager told him the agency would retaliate. An administrative law judge found that the threat interfered with the employee's statutory rights. HUD challenged the finding, arguing that the complaint was barred and that the judge should have accepted a later affidavit and rejected the employee's uncorroborated testimony. The Authority upheld the judge's procedural and credibility rulings and adopted his unfair labor practice finding. It ordered HUD to stop making such threats, post a notice for 60 days, and report its compliance.

Decision snapshot

• Authority: Employee grievance rights and unfair labor practices under 5 U.S.C. § 7116(a)(1).
• Outcome: Judge's finding affirmed; cease and desist and notice posting ordered.
• Key point: An agency may not threaten retaliation for filing a grievance, and the judge's witness credibility finding stood on this record.

Full text (FLRA public release)

[ v41 p363 ]

41:0363(38)CA

The decision of the Authority follows:

41 FLRA No. 38

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT, REGION X

SEATTLE, WASHINGTON

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3294, AFL-CIO

(Charging Party)

9-CA-90655

DECISION AND ORDER

June 25, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by telling a unit employee that the Respondent would retaliate against him for filing a grievance. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings made by the Judge and find that no prejudicial error was committed. We affirm the rulings. In particular, we affirm the Judge's ruling that the complaint was not barred by section 7118(a)(4)(A) of the Statute. See generally U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 40 FLRA 449, 454-455 (1991). We affirm also the Judge's denial of the Respondent's motion to supplement the record with a post-hearing affidavit allegedly bearing on the credibility of the General Counsel's witness. The Judge presiding at the hearing has discretion to determine whether the record should be reopened for additional evidence or argument. See 5 C.F.R. §§ 2423.19, 2423.19(k), 2423.22(a). We conclude that the Judge did not abuse his discretion by refusing to reopen the record in this case.

Finally, we reject the Respondent's exception that the Judge erred in crediting the uncontradicted testimony of the General Counsel's witness because the General Counsel provided no corroborating evidence to substantiate the testimony. The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has the benefit of observing the witnesses. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility finding. See Antilles Consolidated School System, 39 FLRA 496 (1990).

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Housing and Urban Development, Region X, Seattle, Washington, shall:

1. Cease and desist from:

(a) Making statements to employees which interfere with, coerce, or restrain any employee in exercising their right accorded by the Statute to file and process grievances freely and without fear of penalty or reprisal.

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor Management Relations Statute.

2. Take the following affirmative actions in order to
   effectuate the purposes and policies of the Statute:

(a) Post at its facilities within the Department of Housing and Urban Development, Region X, Seattle, Washington area, 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 Regional Administrator, and 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.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT interfere with, restrain, or coerce our employees by making statements to employees which interfere with, coerce, or restrain any employee in exercising their rights accorded by the Federal Service Labor-Management Relations Statute to file and process grievances without fear of penalty or reprisal.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

(Activity)

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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103 and whose telephone number is: (415) 744-4000.

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