Petition for Writ of Certiorari — Nigro v. Federal Labor Relations Authority

Supreme Court, U.S.

- FILED

~ . 02157 6 apr 28 2003

No.

OFFICE OF FH -64 p3p--——----—

IN THE

Supreme Court of the United States

VERA NIGRO

Petitioner(s)

V.

U. S. FEDER AL LABOR

RELATIONS AUTHORITY

On Petition For Writ Of Certiorari

To The U.S. COURT OF APPEALS

FOR THE FOURTH CIRCUIT

>

PETITION FOR WRIT OF CERTIORARI

~

VERA NIGRO

Petitioner, Pro Se

c/o 43 Courage Lane

Stafford, Va 22554

(703) 221-0211

QUESTIONS PRESENTED

1. Whether the presumptive non-reviewability of the Federal Labor

Relations Authority (FLRA) in their decisions not to issue Unfair

Labor Practices (ULP) should be revoked, and revised to make new

law whereby, such decisions by FLRA (not to issue ULPs) would

be recognized as decisions for proper review by the Courts of

Appeals, especially when adverse actions are part of the case

brought before the Authority ?

2. Whether the non-reviewability of FLRA decisions not to issue

ULPs are unconstitutional (interfere with due process, etc.) and are

a detriment to Federal Employees, their rights particularly of due

process, (to include investigation methods [as witness interviews] —

and equal protection under the law.

3. Whether, unfair proceedings, errors, especially gross errors, and

arbitrary conduct and acts , by the FLRA (deliberate, or not) are

unconstitutional and wrongfully deny and interfere with Petitioner

and federal employees receiving full nights and proper adjudication

and remedies on their claims against government agencies and

unions ?

4. Whether the non-reviewability of the Federal Labor Relations

Authority (FLRA) in their decisions not to issue Unfair Labor

Practices (ULP), is unconstitutional, when Courts of Appeals

cannot review such determinations, and more so when, the Appeals

Court fails to assert proper jurisdiction in cases which

non-reviewability does not apply ? ;

a

il

5) Whether the FLRA misused its position and authority, by failing

to act reasonably, failing to act in good faith, failing to apply

reasonable standards and proper statutory interpretations and

failing to ensure proper regulation and statutory compliance and/or

did FLRA act in excess of its delegated powers contrary to the act

and the Constitution, which wrongfully promoted abuse against

Petitioner and other federal employees?

6) Whether the FLRA misinterpreted the statute at 7102 and 7116

and acted unreasonably and/or outside the bounds of

reasonableness, committed gross errors and as such rendered

unreasonable arbitrary, and capricious decisions in these cases in

violation of applicable law and statute in which the Court of

Appeals should have asserted jurisdiction for review over?

Related questions incorporated.

PARTIES TO THE PROCEEDING

All parties to the proceedings appear in the caption of the

case on the cover and we also include the United States. \3

Ml

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..........

PARTIES TO THE PROCEEDING... i

TABLE OF AUTHORITIES........... vi

OPINIONS BELOW............. I

JURISDICTION ........0...000.......... l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED............__. !

PROCEEDINGS BEFORE THE

COURT OF APPEALS... coc 3

STATEMENT OF THE CASE o.oo 4

BRIEF HISTORICAL FACTS... 5

eo 6

START OF WASH. D.C. FLRA ACTIONS... 9

THE CURRENT DISPUTE... 13

REASONS FOR GRANTING THE | 14

IV |

TABLE OF CONTENTS CONT. |

FURTHER SUPPORTING ARGUMENT............. 22 |

CHANGE IN LAW AND CONGRESSIONAL

IN ico seicres esiniaes is stshscans da ameabanenialeniie tates 26

ie I cintcsciperivbcsevtertadacrebabeetcevateasseanen 27

APPENDIX

2/5/03....Appeals Court Mandate Issuance................ App. | |

1/28/03..Appeals Court Denial Rehearing/Enbanc......App. 4 |

11/25/02. Appeals Court Judgment Ruling................ App. 8

Case Sample Crisco...............-:-sscccssssensesssssseesssneees App. 10 |

I Ne CI is sciedsvrrncsaerieemncine aeinemennnel App. 77

A PND WII ince hess cckccacerersetntarencnincacns App. 84

PRP mlies Fy catia carhapinercnneodninbecereaise App. 96

DU. FENG, BOM oo sencsesssciscsvcteeuns TO App. 96

PE Sitcom oes App.101

Vv

TABLE OF CONTENTS...Continued

APPENDIX CONT.

Exhibit Concerning Case Agreement with FLRA....App. 102

Listing of Cases involved in Argeement................. App. 106

TABLE OF AUTHORITIES

Cases: PAGE:

Air force v. FLRA

RF EET sisscreshicsconensaseccanseasenaineaieaaan iguana 16

Boire v. Greyhound Copr. (1964)

FIO Le OIE vinvnssstamneli viieceeaieinncananebaninedeas 19,

Chevron U.S.A. v. Natural Res. Def. Council (1984)

66T Us O84, GAP iiviccconcniimioiaiemaaagaiadaaian 16.

Chicago v NLRB

O58 F BB IGTD iiisicntcrnctcmnmotniaaaaaaaaaan 16,22

Dunlop v. Bachowski (1975)

GEE CFD FO sicveiincininknilenicma ames 16,19,21

Fay v. Douds |

E14 F. BA TED (CECE IDE) isin 16,18.

FEC v. Atkins

Judge Williams ............+. seis dakindansidiaianin 16,18.

Griffith :

608 CS. AOR. DE FF icin 16,22

Heckler v, Cheney (1985)

$70 CLE. GBT, GBF sctsiincsnssnss cpitniagnieniconpennaracimnmaands 16,18

ee ee ee, ee ae eee shed

eS

vil

TABLE OF AUTHORITIES...Continued

CASE: PAGE:

Kalaharos v. NFFE

ABO US. 527, 529 cccccccscccssccsscssscescessescensscenseneanassnensrensnesnens 22.

Leedom v. Kyne (1958)

358 U.S. 1B4 vcccccoscccsrosscsscsvcreessoversssensescnessesoonscsnconoensoesasees PA

Montana Air

783 F 2d 237 785 F 2d 1098 ...cccccsccssssesreessesreeseesneenscecasenes

Ralpho v. Bell

186 U.S. App. D.C. 368, 569 F. 2d 607 (D.C. Cir 1977) ... 23.

United Gas v. Mc Comb (1979)

MAD U.S. $29 acccccceccscscerscssocssccsccccvcncssscsccescssscsensessvesseosoossees 16,

US v. Batcheler

AAD U.S. 114 srccscsssccsscccsessscsnccenssccesssenneennenees avsceprinoaninanionens 20.

Constitution, statutes and regulation: 7

U.S. Constitution Amend. 14 .......:c0seeeeeee RS 16,24,25

Civil Service Reform Act (CSRA) 1978 101s 16,18,22

ID US.C. 433 secccsrccecsrossocssrscervonscseessenscenssvsscesnsesesenassonss

F U.S.C. QDAQG A cccccccescsscscsscssecssesssesscssccensesencnssesseoscenes 19.

Vill

TABLE OF AUTHORITIES...Continued

CASE: | PAGE:

(FSLMRS) 5 U.S.C. 71

(FICE <FESS FIO, CRED cneccccistainscinnivcessnsainnniinninnn 2,3,4,5,20,23

MISCELLANEOUS:

HOMELAND SECURITY ACT, PUB L. NO. 107-296 .......... 26.

Re ee EN Ge Fe ecsckidecetnninaomnntie 16,20

159 GUID TOGP on cscesceirevserseee cstseiacnebiiedtenislanideadiiaviaieiianis 16,22

Bee Ce MR TAG, 2 itecininiceemnntniindanss 20,21,22

BS CID iesesisitcntisnnticneststemninninsnneitaieanimnneininieiaiag | 16,19,20.

FEE, FOI: wccenicnneseenticininninsininnnniinesnemanstiaist 16.

OPINIONS BELOW ;

The opinions/ orders of the Court of Appeals for the 4th Circuit

denying rehearing and rehearing enbanc is reported in Appendix at

Pet. App. 1-9. The opinion/ orders of the Court of Appeals for the

4th Circuit concerning judgment is reported in Appendix at Pet.

App. 1-9.

JURISDICTION

The judgment of the Court of Appeals for the 4th Circuit was

entered on November 25, 2002. The petition for rehearing and

rehearing enbanc was denied on January 28, 2003. The jurisdiction

of this Court is invoked under 28 U.S.C. 12547, further 28 U.S.C.

2403 (a) may apply.

CONSTITUTION, STATUTE, AND REGULATION

INVOLVED

The Fourteenth Amendment to the United States Constitution

provides ” All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law:; nor

deny to any person within its jurisdiction the equal protection of

the laws.

" Federal Government employees working for the United States

government, assert that the Constitution is suppose to apply to

l

them and its full force and effect apply even when they walk

through the workplace doors everyday, and engage in the use of

the administrative processes within the federal government.

The Federal Statute at issue is the Federal Service Labor

Management Relations Statute (FSL-MRS), 5 U.S.C. 71 as it fails

to meet the minimum requirements of due process and equal

protection in that it does not provide ali federal empioyees fair

proceedings and proper remedies and deprives parties of due

process, equal protection, property, liberty and life rights which it

should not. Even more, it does not protect parties making

complaints to the Authority, from deliberate gross errors, and

non-standardize processes which are created and performed

arbitrarily by some Regions and Counsel of the FLRA, which

cause the wrongful non-issuance of a ULP. Further, the statute

does not provide all aggrieved parties rights to the same reviews

and remedies.

5 U.S.C. 7123. JUDICIAL REVIEW; ENFORCEMENT

"(a) Any person aggrieved by any final order of the Authority

other than an order under-

(1) section 7122 of this title (involving and order by an

arbitrator), unless the order involves an unfair labor practice

under section 7118 of this title, or........... may, during the 60 day

period beginning on the date on which the order was issued,

institute an action for judicial review of the

Authority's order in the United States court of appeals in the

circuit in which the person resides or transacts business or in the

United States Court of Appeals for the District of Columbia."

OE

5 U.S.C. 7118

"(a) (1) If any agency or labor organization is charged by

a person with having engaged in or engaging in an unfair labor

practice, the General Counsel shall investigate the charge and may

issue and cause to be served upon the agency or labor organization

a complaint. In any case in which the General Counsel does not

issue a complaint; the General Counsel shall provide the person

making the charge a written statement for the reasons for not

issuing the complaint.

5 U.S.C. 7116 is reported in Appendix at Pet. App. 96-100

PROCEEDINGS BEFORE THE COURT OF APPEALS

The aggrieved status for the Petitioner which brought her before

the Court of Appeals, came from the final decision(s) and order(s)

in these case(s) issued by the Federal Labor relations Authority,

(FLRA), in WA-CA-00652, Vera Nigro V. Internal Revenue

Service, (IRS) on July 9, 2002; WA-CO-00653, Vera Nigro v.

National Treasury Employees Union, (NTEUV), on July 10, 2002;

WA-CO-01-00631, Vera Nigro v. National Treasury Employees

Union, (NTEV), on July 11,2002; and, WA-CO-0I1-0035, Vera

Nigro v. National Treasury Employees Union, (NTEU), on July 9,

2002.

On September 4, 2002 the Petitioner (Ms. Nigro) pursuant to 5

U.S.C. 7123, filed a timely petition for review within 60 days, with

the U.S. Court of Appeals for the 4th Circuit. Questions concerning

FLRA, the Statute and Constitution were raised by petitioner to the

Court of Appeals and the constitutional validity of surrounding

statutes which rely on FLRA. The FLRA (Respondent) filed a

Ue

(9 2° 02) Motion to Dismiss the petitions on lack of jurisdiction

based on an assertion of non-reviewability. Petitioner filed a

(10 7 02) Opposition Motion to the FLRA's Motion to Dismiss

citing the Court had jurisdiction bused on the nature of the issues

presented in the petitions, particularly that they were

distinguishable from other cases. The FLR4A filed a reply to the

Petitioners Opposition Motion and said they could make all the

errors they wanted. Petitioner replied to FLRA’s reply in 10:22 02

citing cuse which demonstrated errors can und should be

challenged and reviewed by the Court of Appeals. The Appellate

Court thereafter denied the petitions for review without comment

on November 25, 2002. The Petitioner then filed for a rehearing

and rehearing enbanc. The Appellate Court without review or

comment denied rehearing and rehearing enbanc on January 28,

2003.

The Court of Appeais had jurisdiction based on construction of

the Statute (5 U.S.C. 7/), Congressional intent, to include section

7123, and related exceptions, the Constitution, and through cause

for the establishment of new law and/or a moderate change to

existing law, but declined to assert jurisdiction.

STATEMENT OF THE CASE

These cases arose out of the FLRA engaging in a pattern of

improper acts to undermine and derail the Petitioner's cases and

her related co-complainant's cases. All in relation to the pattern of

abuse and hostility the Petitioner's and her co-compliainants, were

facing from the IRS and NTEU working together to adversely

affect these individuals. The pattern of improper acts talked of

a ORE ABA eR ne ee ek RY we

include the FLRA undermining the cases (not investigating, not —

taking information, not interviewing witnesses, etc. ), failing to

assert proper jurisdiction, failure to assert/ enforce the statute at

7116 (a) and (b), and related law Vaca v Sipes at a minimum, and

remedy to the Petitioner's cases and her co-complainants cases up

to and including the FLRA failing to issue ULP's in those matters.

These cases are distinguishable from other cases and the events and

circumstances in those cases on the issue of non-reveiwability of

FLRA in these matters.

Brief historical facts

In relation to the cases concerning the IRS (those are prefixed

with WA-CA). The IRS had always attacked and threatened Ms.

Nigro's employment with the Service over her union activities

dating back to 1992 when she came to National Office IRS. Ms.

Nigro previously used administrative processes against the IRS in

those matters with none of the problems she faced from FLRA in

the current issues at hand. Ms. Nigro's issues were settled and/or

won against IRS management.

In relation to the cases against the NTEU, both National and the

Local Chapter 65, are prefixed by WA-CO-. Ms. Nigro was once

removed as a Steward by the Local Chapter President, prior to Jerry

Feith, and whom Calvin Pollard (the Chapter President talked of in

case WA-CO-Ol-0035 supported); because she opposed that

President, not bargaining over employees working conditions, and

because that President was closing out employee grievances behind

their backs. Finally, Nigro was told "she was being mean to

management by filing and processing grievances against them".

This Chapter President, was subsequently removed by the

membership for his non-negotiaition policies and wrongful closing

of employees grievances, in and around 2/1996. During the 2/1996

membership proceedings it was disclosed to Ms. Nigro by

affiliates of the National NTEU that they did not want Jerry Feith

as President of the Chapter 65, that National NTEU wanted to

have an election so they could put Calvin Pollard in office instead.

Ms. Nigro did not agree with candidate picking and was an

opponent against Pollard and ran on the Feith ticket instead.

More significant tensions between the IRS, National NTEU and

Nigro began in 8/1997 when the then National NTEU President

told Nigro and other union officials that they (the National Office

Employees) were "toast’ in relation to a planned Reduction in

Force (RIF) at IRS. They were also told, they'd better not fight,

because there was nothing they could do about it. Nigro and the

other union officials (of the Feith/Nigro Administration) took

exception to the comments and more differences began to arise

between them and

National NTEU and IRS over these parties policies towards

employees.

In 1999 National NTEU was removed as the exclusive

representative from the Pension Benefit Guaranty Corporation

(PBGC) in D.C., for engaging in similar hostile and improper

actions (like thosé we talk about and assert in these petitions, i.e.

case/ arbitration dumping) towards those employees of PBGC. .

FLRA was informed of these matters.

Facts:

The cases of Ms. Nigro came about in conjunction and in

relation to a series of cases over hostilities and threats upon

6

Pa ARSE RSs PO es ae RR te ee

PROMO RK RSPR Tce 2 os te SS

Petitioner and some of her IRS co-workers. The cases were sent to -

the Washington D.C. Regional Office of the FLRA. The related

Unfair Labor Practices (ULP's) began over a threat made on

September 1, 1999 by Mr. Ferris, the National Executive Vice

President of NTEU stating the mother union was out to get rid of

these particular local officials of which Ms. Nigro was one. These

particular local Chapter officials Jerry Feith, Vera Nigro, John

Laird oppose the mother union's failure to better represent

employees: they opposed National NTEU stated policies of

"Partnership" with IRS, (when the employer is just constantly

attacking employees); they oppose Ms. Kelley's support of Al Gore

( whom we said was only harming and downsizing the government

employees) ; they oppose new awards agreement for Employees,

(that would take money out of members pockets, and it has.

Members now receive about $ 438.00 less); they oppose the

wrongful imposition of Section 1203 on employees, and the

National NTEU telling us don't make waves over such issues and

disagreed because it could cost federal employee jobs; they oppose

the IRS Reorganization (and how we said it was not going to work

properly and hasn't); and they opposed Mr. Rossotti (IRS

Commissioner) not divesting himself which was improper, to name

a few items. Nigro was also an opposing candidate to Ms. Kelley

and Mr. Ferris in the August 1999 National Union Elections, the

individuals that later made the threats. (See Appendix Pet App.

80-91 Laird case sample WA-CO-00308). After these threats were

made by the Executives of the National NIEU, consultation was

sought by the Petitioner with the Boston Region of the FLRA.

Upon their recommendation (the Boston Region's), that such an

outrageous threat should be documented and would most likely

result in further adversity to the threatened parties, it was

recommended ULP's be filed to document the events from that

5

point on. Ms. Nigro began filing ULPs and assisting others in filing

ULPs after this event based on that recommendation.

Philosophical differences became more heated as the IRS

increased its hostilities against employees. After the comments

made by the NTEU on September 1, 1999 it definitely appeared

the Agency felt it was open season on Feith, Nigro, Laird, and

those who openly supported them. It was also clear the agency was

using its position to create adverse conditions for employees and

not resolving issues or negotiating. It was clear IRS and NTEU

wanted Feith and Nigro out.

Issues between the IRS and NTEU became even more intense after

Nigro was adversely affected by illegal actions levied (irrational

suspension, then removal from her Computer Specialist Position,

at that time, in February 2000 during the height of many of the

issues) on her by the IRS with clear NTEU involvement. (See

Appendix, Pet. App. 10-83 for case like Denise Crisco and the

sampling of the John Laird cases).

Differences/ issues further heated up between Nigro and the

NTEU,specifically, Colleen Kelley, Kim Mosely and John Mc

Eleney, after Ms. Nigro brought to Ms. Kelley in Apni 2000, the

concerns of her members, who felt National NTEU was not

representing them properly. Nigro asserted to Kelley she wanted

better representation from the National NTEU. Nigro based her

request on input from members and issues and events she had

observed. Kelley wanted Nigro to help her eliminate arbitration

cases National NTEU had invoked for Chapter 65, and Nigro

would not and did not agree to the union closing already invoked

arbitration cases. Nigro also informed Kelley she disagreed with

her policy on "Partnership", "Awards", and Al Gore.

8

OY WEAR

After the Apni 2000 meeting, National NTEU representatives

Moseley and Mc Eleney then set out to derail employee cases in

Chapter 65 and interfere with Chapter Operations. Ms. Nigro

resisted and the other employees who were being affected resisted

and as was recommended after the threat of September 1, 1999, the

Petitioner's and her co-compiainant's filed ULP's with the FLRA in

D.C. (See Appendix, Pet App 80-95 Crisco Case).

Start of Washington D.C. FLRA actions

The first case in which the series starts WA-CO-00308 was met

with hostility and illegal means of closing by the (D.C.) FLRA

agents. The Regional agent went into a fit of anger upon a witness

speaking up, and then the Regional Director tried to close the case

down under a pretense of non-cooperation because the complainant

(John Laird) vacated the room in fear of being attacked by the

agent. The Regional Director apologized and said what happened

to Mr. Laird was wrong, but he still dismissed the case (See

Appendix, Pet. App. 78). The case was appealed and reopened

12/00 for investigation. Case WA-CO-00308, was significant as it

was here the National NTEU made its threats of removai known

towards Mr. Feith, Ms. Nigro and Mr. Laird, but it also showed a

premeditation by the FLRA towards the complainants. This first

case which set the stage has been the last one they processed 8/02.,

it should have been the first one they processed, but this does show

a demonstrated manipulation of case processing to disadvantage

Ms. Nigro and her other co-complainants.

In the Fall of 2000 new FLRA agents were on the cases. The new

FLRA Regional Agents created an agreement with the

complainants involved in the cases Ms. Nigro, Mr. Laird,

9

Ms. Crisco, Ms. Hatch, Ms. Mack, etc. to combine the 30 some

cases involved and to use each case as evidence for the other and

use the background evidence supplied by Ms. Nigro, concerning

the documented facts of hostility by the union and the employer

against these individuals. That the totality of the circumstances

would be evaluated and that no case wouid be closed until all cases

were investigated.

In Winter 2000 during the taking of testimony for the cases the

agents began hinting to Ms. Nigro and other co-complainants

involved in the cases, that the Regional Director was not going to

let these cases go forward, but the agents said they were processing

as originally agreed upon in a totality of all cases filed.

In and around Spring of 2001 before all the cases were

investigated or all the information for the cases was collected, and

any of the witnesses were interviewed, the complainants (including

the Petitioner) had to force agents to even take information, and

were being consistently faced with the agents refusal to do their

jobs. Amidst ail this; the Regional Director began closing the

cases, In an unsequenced unrelated manner. (See Case list in

Appendix.

Pet App. 106 ).

The Petitioner and her co-complainants were shocked, and the

Washington Region would not tell them what was going on. It was

clear something was wrong, that the cases were being closed

without benefit of consideration of the other information reievant

to each of them, nor the benefit of the background documentation

that was given for each of them, nor witness testimony. The

Region was merely dumping the cases, rubber stamping the wishes

id

wate tan Wa a

matters, (See Appendix, Pet. App. 10-95 Crisco, Laird and Nigro

cases samples). The closings further demonstrated that the

information for the cases was not being applied, used or

considered, nor were the witnesses being interviewed. These events

were documented in the Petitioner's appeals to the FLRA's Office

of General Counsel (OGC) and her co-compiainants appeals to the

OGC, (See Appendix at Pet. App. 101-106). These issues came out

in the appeals of these cases. The problem was, that the actions of

the Regional Office automatically created disadvantaged appeal

circumstances for all the complainants, which should not have

existed. Appeals began on the 30 cases that spring.

FLRA made Ms. Nigro and the other complainant's related to her

cases, agree the 30 cases would be merged and worked in a totality

of the circumstances fashion. The FLRA after securing this

agreement and then seeing the complaint's including Ms. Nigro

were coming forward with evidence, witnesses and testimony

against the ill deeds of the IRS and NTEU in what they find was

collusion of those parities, then made changes to the stated

investigation plans to undermine the cases. Again the FLRA would

not interview witnesses it said it would, would not take evidence,

started closing cases so evidence could not be put on the record,

decided behind the backs of the complaints to work each case

separately and not consolidate them to ensure evidence would be

missed. (See Appendix, Pet. App. 102-106).

The acts by the FLRA undoing the case processing agreement,

deliberately being hostile and abusing their authority in trying to

create technical glitches to close down the complainants cases.

Then FLRA deliberately not investigating, not taking evidence

from the complainants, deliberately not interviewing witnesses

11

which supported the complainant's assertions and charges, the

using of unsworn statements of the NTEU or IRS over the

complainants and then closing down the cases to merely reflect the

wishes of the NTEU and/or IRS over the compiainants and not

giving the complaints the proper opportunity to respond to NTEU

and IRS assertions; clearly shows the premeditation, abuse of

discretion against the Petitioner and her co-complainants, by the

FLRA.

The history of the cases shows clearly that the FLRA

deliberately manipulated the law, failed to apply the statute. Then

tried to create conditions for these individuals which did not exist.

Tried to create unreachable standards to ensure these complainants

could not achieve them, and all decisions made by FLRA, were

fruits of the poisoned tree called manipulated case and

investigatory processing. Further, the complainants have no true

knowledge that their cases were even worked by the FLRA since

ali they received were a generic letters. A generic inconclusive

letter does not demonstrate these complainants (Ms. Nigro, etc.)

ever received proper consideration or due process as intended by

Congress in the creation of these FLRA administrative processes.

Therefore, the FLRA can not assert that it performed its duty and

therefore, we assert they are reviewable by the Appeals Court.

The Supreme Court can see that the FLRA'S usual non-

reviewable arguments should not apply in these cases. The cases

are distinguishable and come under different circumstances than

the other cases which have come before this Court and other courts

in the past concerning the non-reviewability matter. These cases

require the Supreme Court's review and a modification to the law

of non-reviewability.

a

4

The Court of Appeals for the 4th Circuit departed from cases and

laws which determined such review was warranted by them.

The current dispute

The above issues are incorporated as part of the current dispute

and it arising. *

Ms. Nigro's main ULPs (WA-CA-00652 and WA-CO-00653)

came about after it was disclosed to her that the IRS and the NTEU

were plotting her removal from her Computer Specialist Position,

at that time, from the IRS Work place and the Union. Ms. Nigro's

cases were filed over that asserted suspension and firing plot, (see

cases WA-CA-00652 and WA-CO-00653). Further

| WA-CO-01-00631 was filed after Ms. Nigro tried to find out why

her union was not arbitrating her seven (7) arbitrations concerning

’ her illegal adverse actioris but could not. It was clear the National

NTEU proceeded to continue to carry out their part of the disclosed

plot and continued harm against Ms. Nigro, by not arbitrating her

cases.

Finally, WA-CO-0/-0035 was filed when the IRS/ NTEU used

the fabricated adverse personnel actions to attack Ms. Nigro and

harm her character in the workplace by publishing Ms. Nigro's

personal information all over IRS websites Nationwide, and then

NTEU used Ms. Nigro's personal information in campaign posters

as the main issue for their selected candidate, Calvin Pollard

(National NTEU's favored candidate, see Brief historical facts).

This was the information Pollard chose to use to win in his

campaign for the local Chapter 65 election that spring to fall, 2000.

The FLRA in their decisions not to issue ULPs were arbitrary

and went against rationality. The FLRA demonstrated on Ms.

Nigro's cases they were not impartial and misusing their authority

and position when they faiied to investigate and used an after the

fact fabricated story by NTEU in harming Ms. Nigro and interfered

with her adjudicating her claims. The FLRA, helped to cover up

the NTEU's collusion with IRS against Ms. Nigro by their actions.

The FLRA's decision from the Regional Director was fraught with

bad faith actions, and did not reflect the issues which were

presented in the case. Such activity is not the intent of Congress

when creating the statute nor the FLRA and giving such power to

the FLRA. The same can be said for the other cases which were to

be combined into Ms. Nigro's, those of Mr. Lairds, Ms Crisco's,

Ms. Hatch's, (see Appendix, Pet App. 10-83).

—

REASONS FOR GRANTING THE WRIT PETITION

The U. S. Court of Appeals decided an important questions of

Federal Law that, has not been, but should be, settled by the

Supreme Court, and or decided an important federal questions in a

way that conflicts with relevant decisions of this Supreme Court

and other Courts to include, the 4th Circuit departed from their

own and usual course of judicial proceedings. Further,

opinion/order of the 4th Circuit Court of Appeals is in conflict

with decisions of the U.S. Supreme Court, other Courts, and the

conflict is not addressed in the opinion. Moreover, a change in the

law which occurred after the case was submitted was overlooked

by 4th Circuit.

i4

The instant Wnit Petition involves one or more questions of

exceptional importance as Petitioner's case is based upon

constitutional challenges, claims and grounds and urgency, due in

part to petitioner's fundamental right to liberty, property and due

process being abridged by acts, and errors of NTEU, IRS and

FLRA as set forth in the petitions to the 4th Circuit, those exhibits

and other documents entered for the cases. The petitions to the 4th

Circuit and now to the Supreme Court contain constitutional

claims. The claims and questions of exceptional importance which

should be and can only be answered by this Supreme Court, and

which affords this court jurisdiction over such claims are: Those

listed on page i and below. ;

1) Actions and errors in administrative processes, which

impeded due process and equal protection for Petitioner and other

federal employees are unconstitutional and in direct conflict with

the U.S. Constitution. Petitioner asserts federal employees should

be able and should have the nght to challenge statutory process, all

procedural errors, government agencies and their opinions/

decisions and federal statutes which interfere with, denies, or

obstructs his/her constitutionally protected federal protected rights.

2) Federal employees rights must be expanded to ensure better

and more effective avenues of adjudication of their claims, because

federal employees are wrongfully suffering deprivation at the hands

of federal unions and the administrative processes in the federal

government.

3) That the public interest demands due process and equal

protection for federal employees in all areas.

The Appeals Court's decision order is contrary to the Civil

Service Reform Act and the Constitution of the United States;

more specifically the Due Process and Equal Protection Clauses of

Aal

the 14th Amendment; and the decision of the Appeais Court

directly conflicts with the United States Supreme Court in cases as

470 U.S. 821. Mc Culioch 376 U.S. 473, 358 U.S. 184442 U.S.1/14

489 U.S.529. 421 U.S. 560 the Constitution 14th amendments the

CSRA of 1978 and other court decisions as Fay V Douds. FEC v

Atkins, Judge Williams. 131 U.S. App. D.C. 55.735 Sunp 1069.25 1

U.S. App. D.C. 239. Griffith. Surrat Templeton. Baher. Boire.

Chicago v. NLRB. 633 F. 2d 1079. Mc Nary. Airforce v. FLRA.

Ral 2429.11:5 U.S.C. 7123 at a minimum, and the conflicts are not

addressed in the opinion. The reasons that follow also show the

Appeals Court did have jurisdiction and could have asserted

jurisdiction.

The Appeais Court's decision is inconsistent with the

Constitution at 14th Amendment, because it did not provide due

process and equal protection under the law to the Petitioner.

Further, the Appeals Court's decision is inconsistent, because

constitutional rights (federal rights) are at stake, challenged and

claimed by the Petitioner. The Petitioner showed that FLRA has

abrogated it responsibility by ignoring constitutional claims of the

petitioner during her cases, similar to Kyne. Surratt and

Templeton. Under such declarations the 4th Circuit declared in

633 F. 2d 1079 it would be compelled to act, but did not. The

Appeals Court's decision is further inconsistent because gross

errors are reviewable by the Court, éspecially when they interfere

with due-process, especially in adverse action cases, Judicial

involvement, is open for "instances of constitutional dimension or

gross violation of the statute” /3/ U.S. App D.C. 55 and the Kyne

exception and the

16

oo Sate OR ur desis eric gen inn

Constitution as FLRA's actions and errors are reviewable, because

they block federal employee due process, and property interests

and frustrate the purpose of which the Act was to counter.

Our claims above are supported because the Supreme Court

found in Leedom, courts may assert jurisdiction when a clear and

mandatory provision of the Act is violated by the agency. The

agency acts without statutory authority and its interpretation of the

statute is flawed. Petitioner showed these were the actions by

FLRA with regards to her case and in light of the direct evidence

she put forward from other Supreme Court cases the Appeals Court

should have asserted jurisdiction. More support was found as the

Supreme Court also held that a district court could exercise

jurisdiction over general due process challenge to Immigration and

Naturalization Service's administration "Special Agricultural

Worker" status, even though the controlling statute made individual

status determinations unreviewable, Mc Nary 498 U.S.

Further, Jurisdiction can be had when an order of the Board is

made in excess of its delegated powers and contrary to the Act. 358

U.S. 184

Ms. Nigro's constitutional challenges that she has been denied

due process under the 14th amendments with respect to adverse

actions. That the Constitutional challenges she brings forward are

for the good of all current and future federal employees, the issues

affect all federal employees in receiving due process before they

are adversely affected and have their property, liberty interests

restrained and interfered with. That federal employees have

property interest in their jobs, and that federal employees are being

denied and/or having their due process denied and obstructed by

17

improper acts and/or errors in these federal administrative

processes. Over such matters which interfere with federally

protected rights, the Court can assert jurisdiction. CSRA (1978).

Respondents also satisfy constitutional standing requirements.

Their inability to obtain due process meets the genuine "injury

infact" requirement that helps assure the court will adjudicate "a

concrete living contest between adversaries~. FEC V. Atkins, Con

gress did not intend to cut off constitutional claims, Judge

Williams.

Congressionai intent is to ensure due process and that the

government agencies and Courts should look to ensure due process

and equal protection is upheld for federal employees. Petitioner

raised due process and constitutional claims to FLRA in her ULPs

and to the 4th Circuit. Constitutional claims are a main function

for the agency to under take, but FLRA did not. The Supreme

Court has held that a colorable claim that the agency's refusal to

institute proceedings violated constitutional rights. 470 US. 821.

Further, that most of the law in this area is based on Congressional

intent, and it is Congressional intent that there be more latitude in

these areas of administrative processes which affect federal

employees.

A Court has jurisdiction over constitutional claims and issues.

CSRA (1978). These petitions have always raised and cited such

claims, see petitioners ULPs and Court filings and exhibits. The

District court has jurisdiction of a cause of action that asserts a

violation of constitutional rights, Fay. Federal courts have equity

powers and can assert them in this case as the questions and claims

raised meet the outlined test; public questions particularly high in

the scale of national interest because of the international

18

complexion, Mc Culloch; where there is a substantial showing that

Board action has violated the constitutional rights of the party,~

Douds.

A Court has jurisdiction over unreasonable and outlandish

interpretations, even in the course of the alleged non- enforcement

: decision. Whenever it can be said that an erroneous assessment of

the particular facts before the Board has led it to a conclusion

which does not comport with the law, judicial review is to the

| Court of Appeals, Borre.

Further, a Court has jurisdiction to review when there is no

decision rendered as determined by the Supreme Court in

Bachowski. Petitioner has demonstrated in her case to the Appeals

Court that FLRA has not rendered a General Counsel decision. The

generic letter is not a decision, nor does it demonstrate proceedings

per the statute were ever upheld by the General Counsel in the

cases. But in the alternative, all letters from proceedings within

FLRA are considered decisions. A Court has jurisdiction to review

Authority decisions and orders. To this we add that pursuant to the

Authority's own regulations at 2429.17 regarding "Reconsideration"

employees who received the generic letters can motion for

reconsideration after OGC declines to issue a ULP. The Authority’

in its own regulations and practices have recognized that the

non-issuance of a ULP is a final decision or order of the Authority

upon which Reconsideration can be granted. Therefore, that the

Authority recognizes that the non-issuance of a ULP is a decision

and/or order of the Authority. Therefore, the Court has jurisdiction

to review.

Due process, protection of due process and equal protection

19

under the law, for federal employees is an ultimate intent of

Congress, the FLRA Statute and the U.S. Constitution. Jurisdiction

is appropriate by the Court when there is a "strong and clear"

demonstration that a clear and mandatory provision of the Act has

been violated, Mc Culloch.

Ms. Nigro asserted and demonstrated gross violations of the

statute by FLRA and constitutional claims and challenges which

the Court did not address. ‘Judicial involvement is open for

constitutional dimensions or gross violations of the statute". /3/

U.S. D.C. 55 and "Congress intends judicial protections when there

are actions contrary to specific mandates" Leedom.

The FLRA did not meet its statutory obligation (7/0/-7/35 and

reg at 2400) of investigation and fair proceedings and it is

pellucidly clear the errors of the FLRA are obstructing Ms. Nigro's

due process and property interests. Ms. Nigro is harmed by

absence of judicial review. A prosecutors discretion is "subject to

constitutional constraints", 442 US 1/4. We also add Ms. Nigro:as

co-FLRA complainants are also being harmed from no judicial

review as they lost due process rights. Further, the NTEU is

harmed by absence of judicial review as more members employees

are gathering to sue them. “When a legal challenge focuses on an

announcement of a substantive statutory interpretation, courts are

emphatically qualified to decide whether an agency has acted

outside in the course of a non-enforcement decision ".25/ U.S:

APP.239 Ms. Nigro met the constitutional components of standing

requiring that allege suffering of personal injury (see 4 petitions

and exhibits for these cases), the injury is traceable to the

defendant's challenged conduct (FLRA gross actions and errors at a

minimum), and injury is likely to be redressed by the relief sought,

20

251 U.S. App. 239 (due process, etc., as outlined in the 4 petitions,

exhibits and motions for these cases).

The Petitioner demonstrated her and others due process and

equal protection has been obstructed, circumvented by FLRA, (i¢.,

gross acts/ errors which FLRA said are present, and Petitioner

assert other ill factors by FLRA also). Since the Petitioner asserted

and demonstrated the above challengeable acts in her petitions, it

was found the following case cite shows that the this Court can get

involved. "Non-enforcement decisions usually do not involve the

exercise of coercive power over individuals, liberty or property

rights, and thus do not infringe upon areas that the courts are called

upon to correct. 25/ U.S. App D.C. 239. This case shows well that

the claims are well within the jurisdiction of this honorable court

because federal rights to due process, equal protection are being

interfered with from the actions and errors of the FLRA, and in

some cases like the Petitioner's, her liberty and property interests

are being impacted. Therefore, the Court does have jurisdiction as

they are called upon to correct such situations via the delegation of

the Constitution Article III at a minimum.

Statutory interpretations involved in non-enforcement decisions

are reviewable. They are reviewable when those interpretations

will be used. Dunlop (Since NTEU has been using the FLRA's

decisions in these ULP's to deny federal employees rights and

arbitration they have become decisions and are reviewable by this

honorable court).

Congress, however may make exceptions to the traditional

practice of non-reviewability. Since judicial review of

administrative action is a presumption, it can be overcome by

21

_

specific language, through legislative history, or any other reliable

indication of congressional intent. However, if any substantial

doubt about the congressional intent exists, the general

presumption fuvoring judicial review of administrative action is

controlling 735 supp 1069". The Civil Service Reform Act, (CSRA)

of 1978 states that it is Congress’ intent that the Courts assert

jurisdiction over these constitutional claims and challenges.

A court can assert jurisdiction and "can remand and challenge

whether the statutory interpretations were arbitrary, capricious or

otherwise contrary to law”, in these non-reviewabie decision, 251

U.S. App. D.C. 239, even further that Interpretations by the FLRA

in non-enforcement decisions are reviewable 251 U.S. D.C. 239

The Appeals Court had jurisdiction, As. Nigro has throughout

her cases raised constitutional claims (due process, property and

liberty interests, obstruction of due process, equal protection).

"Jurisdiction is present when constitutional claims are made and

when federal rights are being interfered with or denied”. Griffith,

Baher, Chicago V. NLRB

FURTHER SUPPORTING ARGUMENTS

The Supreme Court has recognized that the structure of the

exclusive representations system can cause wrongful deprivation

which gave them much concer, as early as Kalaharos. Also that

the Courts are recognizing that the FLRA's decisions have been off

base and unreasonable. Which supports Ms. Nigro's constitutional

claim that the actions/ errors of FLRA are obstructing due process

for federal employees and the Supreme Court should assert

jurisdiction..

22

This Court has jurisdiction over petition in relation to Due

Process and Equal Protection. Petitioner holds a property, liberty

and life interest in the old Product Assurance job that was taken

away from her without her being given due process and equal

protection. Along these lines Petitioner is being denied by IRS,

NTEU and FLRA information, hearings, investigation, witnesses,

etc.. Further, the union would not assist in any way Ms. Nigro in

getting due process and equal protection in the loss of that Product

Assurance Computer Specialist job. Then the FLRA would not

assist and did put up road blocks to the Petitioner getting due

process and equal protection to regain the old Computer Specialist

job. This included the FLRA and its stated matters about mere

common errors of law are unimportant, but Petitioner demonstrates

those gross actions and errors are important. All these issues are

important to Federal Employees, particularly in adverse actions

cases.

The Congress in 5 U.S.C..7/23 ...did not preclude review of

constitutional claims regarding the Authority. Ralpho v Bell 186

U.S.APP). D.C. 368 569 F. 2d 607 (D.C. Cir 1977)

The legislative history of the Civil Service Reform Act (CSRA)

supports our conclusion in why this honorable Court can assert

jurisdiction. Specifically, Congress in the House version of the bill

provided for review in federal courts of appeal of virtually all

FLRA decisions. HR. 11, 280, 95th Cong. 2nd Session 701(1978),

House version of ss 7123 authorizing review at behest of "any

person aggrieved by any final order of the Authority.

23

The Senate bill limited judicial review of the FLRA to unfair

labor practice decisions, decisions involving constitutional issues,

and decisions on exceptions to arbitrators' awards based on unfair

labor practice complaints. S. 2640, 93th Cong., 2d Sess. 5

701(1978) ( Senate's proposed s 7204 (making all decisions of the

Authority “final and conclusive" and stripping courts of

jurisdiction to review, but allowing for review of "questions arising

under the Constitution"). In conference, the House conferees

acceded to the Senate view.

The Senate Bili made reviewable in court decisions of

the Authority concerning unfair labor practices, including awards

of arbitrators relating to unfair labor practices. Otherwise, the

Senate provides for review for questions arising under the

Constitution.

Federal Civil Service employees do have property, liberty, and

life interests which are protected by the U.S. Constitution's

Amendments of Due Process and Equal Protection, in retaining

their jobs. The Courts have jurisdiction. We raise such question

and challenges of constitutional claim. The petitioners, petitions

focus on the deliberate adverse actions towards her over the

Product Assurance Computer Specialist position, throughout

ULPs, and consistently demonstrated she has been denied due

process and equal protection. This was especially problematic

because of the property interest petitioner has in the position after

, holding it so long before such actions were taken against her with

deliberate denial of due process.

Moreover, Congress did not intend to cut off Constitutional

Review claims, so the Court can decide whether federal civil

24

service employees have a "property, liberty and life interest, of the

sort protected by the U.S. Constitution's Amendments of Due

Process and Equal Protection, especially in adverse action. Nor in

matters where the FLRA makes deliberate gross errors in cases

which then interfere with such necessary due process and equal

protection for all Federal Employees. There is a constitutional

defect in the FLRA's actions in these errors.

The Court has jurisdiction over Petitioner's petitions/ appeals by

way of the gross actions/ errors of the FLRA. Petitioner correlated

between those cases she put forward in these proceedings that a

main question has been, but for, the gross actions errors of FLRA

petitioner and those associated would have received due process

and equal protection in arbitration cases, and NTEU would not

currently be, being sued. We believe the Court must address and

remedy for consistency of law the errors concerning duty of fair

representation, as again but for those errors by FLRA due process

would have been upheld and NTEU not sued. This is a global and

constitutional challenge issue, which affects all pee, current and”

future federal employees.

The decision conflicts and is problematic particularly in that the

Appeals Court's decision denies citizens of the United States

(federal Employees) the right to challenge the laws, errors, statutes,

and processes when they interfere and/or violate constitutionally

protected rights, like the Due Process and Equal Protection Clause

of the 14th Amendment of the Constitution. The Courts decision

effectively overrides the U.S. Supreme Court and the Congress of

the United States and it should not.

No

1077"

This Supreme Court has jurisdiction over Petitioner's petitions/

appeals by way of limiting harm to the parties. Via the

constitutional challenges the attack holds the promise of relief

from the burden/ obstruction deriving from the challenged actions

and statues. The Petitioner having alleged and demonstrated such a

personai stake for herself (past adverse actions issue) and those

associated through the challenges. Concrete adverseness exists in

this controversy, which sharpens the presentation of issues upon

which courts so largely depend for illumination of difficuit

constitutional questions. Baker.

Change in law and Congressional Intent

The Court has jurisdiction over Petitioner's petitions appeals

because of the ripeness for this decision and new law. The signing ©

of the Homeland Security Bill H.R. 5005 on November 25, 2002,

ushered in a new era for the way government operates. When these

petitions were initially filed, the legislation for the Department of

Homeland Security was not signed. It was in debate on the Senate

floor. We talked of this in our prior filings in these proceedings to

the 4th Circuit. We asserted the fact that the government and its

administrative process are in desperate need of reform. Senate

passed the-Homeland Security legislation and the President signed

it into law (11/25/02) ushering in a new era for the federal

government, one which says the way government does business

must change. The obstructive and non-functioning processes that

do not work for the government, the federal employees and the

taxpayers at large. It is not an unknown fact to this Supreme Court

that many have challenged this non-reviewability clause over these

many years asserting a change is very much in need. We believe

our Petition makes the case for that needed change.

ty

Or

We believe this issue is ripe for judicial change as the time for

government reform is now. It is Congress' intent and the President's

intent that the government shall be reformed in its administrative

process and procedures. This Supreme Court we ask to be

involved in the cutting edge of that change.

CONCLUSION

The rights of citizens’ federal employees to challenge the

constitutionality of that which affects their due process and equal

protection is fundamental to being an American and living in a free

society. This Supreme Court must rule it has Jurisdiction and

ability to give relief for federal employees, or to protect their

federal rights before losses occur to them. Because of the serious

nature of this removal of fundamental right, property, liberty and

interests and that it overturns the decisions of the United States

Supreme Court, other Courts (as mentioned above) and the

Congress’ intent, appellant requests certiorari be granted.

: tte

Petitioner respectfully prays that this Court issue its writ of

certiorari and accept jurisdiction over this case.

Respectfully submitted,

Vera Nigro

c/o 43 Courage Lane

7 Stafford VA 22445

Msg/Sve and Fax (703) 221-02!1

: APPENDIX

NOTICE OF ISSUANCE OF MANDATE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

February 5, 2003 Mandate

TO: Clerk, District Court/Agency

FROM: Deborah S. Daniel Deputy Clerk

RE: 02-2003 Nigro V. FLRA 01-0035-WA-CO

) 02-2004 Nigro V. FLRA 01-0631-WA-CO

' 02-2005 Nigro V. FLRA 00652-WA-CA

| 02-2006 Nigro V. FLRA 00653-WA-CO

HEREWITH IS THE MANDATE OF THIS COURT, ISSUED

THIS DAY, ON THE JUDGMENT ENTERED BY THE COURT

ON 11/25/02.

[x] Order and Certified Copy of Judgment

Opinion and Certified Copy of Judgment

Order on Costs

Order dismissing appeal R42(b) or Local Rule 45

Other: |

The record has been retained for use in case number

A copy of the judgment is enclosed to counsel/ pro se parties.

cc: Vera Nigro

David Michael Smith

William Reed Tobey

James Frederick Blandford

Sharon Quinn Harms

APP. 1

JUDGMENT FILED NOVEMBER 25, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 02-2003 01 - 0035-WA-CO

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUTHORITY

Respondent

NU. 02-2004 01-0631-WA-CO

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUThORITY

Respondent

APP.2

NO. 02-2005 00652-WA-CA

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUTHORITY

Respondent

NO. 02-2006 00653-WA-CO

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUThORITY

Respondent

In accordance with the Court's order of today, the above appeals

are dismissed.

/S/ Patricia S. Connor CLERK

APP.3

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED January 28, 2003

No. 02-2003 01-0035-WA-CO

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUTHORITY

Respondent

No. 02-2004 01-0631-WA-CO

VERA NIGRO, Petitioner

V.

FEDERAL LABOR RELATIONS AUTHORITY

_ Respondent

No. 02-2005 00652-WA-CA

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUTHORITY

Respondent

APP.4

No. 02-2006, 00653-WA-CO

VERA NIGRO

Petitioner

V.

FEDERAL LABOR RELATIONS AUThORITY

Respondent

***On Petition for Rehearing and Rehearing En Banc***

The appellant's petition for rehearing and rehearing en banc was

submitted to this Court. As no member of this Court or the panel

requested a poll on the petition for rehearing en banc, and

As the panel considered the petition for rehearing and is 0u the

opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and rehearing

en banc is denied.

For the Court.

/s/ Patricia S. Connor

CLERK

APP.5

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEWIS F. POWELL, JR.

UNITED STATES COURTHOUSE ANNEX

1100 EAST MAIN STREET, SUITE 501

RICHMOND, VIRGINIA 23219-3517

PATRICIA S. CONNOR

CLERK TELEPHONE

www.ca4.uscourts. gov (804)916-2700

January 28, 2003

Vera Nigro

c/o 43 Courage Lane

Stafford, VA 22554

David Michael Smith, Esq.

FEDERAL LABOR RELATIONS AUTHORITY

607 14th Street, N.W. Suite 330

Washington, DC 20424

William Reed Tobey, Esq.

FEDERAL LABOR RELATIONS AUTHORITY

607 14th Street, N.W. Suite 330

Washington, DC 20424

James Frederick Blandford, Esq.

FEDERAL LABOR RELATIONS AUTHORITY

607 14th Street, N.W. Suite 330

Washington, DC 20424

Sharon Quinn Harmis, Esq.

U.S. DEPARTMENT OF JUSTICE

Civil Division, Federal Programs Branch

901 East Street, N.W.

Washington, DC 20530

Re: 02-2003 Nigro v. FLRA......01-0035-WA-CO

Dear Counsel:

Enclosed is a copy of an order filed today in this case.

Yours truly,

PATRICIA S. CONNOR

Clerk

By:

/s/ Deborah S. Daniel

Enclosure( s)

Deputy Clerk

APP.7

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

November 25, 2002

No. 02-2003 01 - 0035-WA-CO

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUTHORITY —

Respondent

No. 02-2004...01-0631-WA-CO

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUTHORITY

Respondent

No _02-2005...00652-WA-CA

VERA NIGRO

Petitioner

V

APP.8

FEDERAL LABOR RELATIONS AUTHORITY

Respondent

petition for rehearing is timely filed, the time runs from the denial

of that petition. Content, fees, and number of copies of a petition

for writ of certiorari are governed by the Rules of the United States

Supreme Court.

PATRICIA S. CONNOR

CLERK

No. 02-2006 00653-WA-CO

VERA NIGRO

Petitioner

V

FEDERAL LABOR RELATIONS AUTHORITY

Respondent

ORDER

Respondent has filed a motion to dismiss and Petitioner has filed a

response and replies were filed by both parties. ,

The Court grants the motion.

Entered at the direction of Judge Motz with the concurrence of

Judge Williams and Judge Traxler.

For the Court,

/S/ Patricia S. Connor CLERK

APP.9

Crisco 07/10/2000

FEDERAL LABOR RELATIONS AUTHORITY

CHARGE AGAINST A LABOR ORGANIZATION

Item 6: Tell exactly WHAT the labor organization did. Start with

the DATE and LOCATION, state WHO was involved, including

titles.

The National Treasury Employees Union (NTEV),

National Office (National) in Washington DC, by its agents and

representatives, have committed an unfair labor practice as they

have wrongfully influenced the agency (IRS) against me, derailed

settlement negotiations, and acted arbitrarily and in bad faith.

NTEU National has violated 5 U.S.C. °71 16(b)(1), (2), (5) and (8).

I believe that NTEU National has influenced the agency (IRS)

against me and interfered with settlement negotiations being

conducted by NTEU Chapter 65. I believe that NTEU National's

actions were motivated, at least in part, by its political disputes

with NTEU Chapter 65 and its officers. NTEU National has

treated me (and other NTEU Chapter 65 members) differently than

other bargaining unit employees that NTEU National represents.

Furthermore, I contend that NIEU National's actions, with respect

to my grievance (and others), were motivated by retaliation against

NTEU Chapter 65, were intentional and unjustifiable.

Mr. John McEleney, Director, Field Operations and

Organizing, NTEU National and Ms. Kimberly Moseley, Field

Representative, NTEU National have interfered with the grievance

negotiations being conducted by Ms. Vera Nigro, President, NTEU

Chapter 65 with IRS Labor Relations. On April 26, 2000, Ms.

Nigro informed me that Ms. Moseley stated to her that my

attorney was robbing me, that she was going to put a stop to the

settlement, and then drop my case in arbitration.

APP. 10

On May 23,2000, Mr. McEleney, sent a letter to my

cttorney, Ms. Terese Connerton, Attorney, Connerton & Ray, as

‘vell as to Mr. Neil Worden, Chief, General Legal Services: Mr.

sarry Pelner, Acting Chief, Headquarters Operations; Ms. Joan

McGuiver, Acting Chief, Headquarters Labor Relations, and Ms.

Vera Nigro, Chapter President, NTEU Chapter 65. See Exhibit 1:

Letter to Terese Connerton from John McEleney, dated May

23,2000. In this letter, Mr. McEleney accuses the agency (IRS) of

illegally dealing with my attorney, Ms. Connerton. Mr. McEleney

sent this letter without discussing the issues with Ms. Connerton,

Ms. Nigro or me before its issuance. The letter was timed to ensure

that the agency (IRS) would not pay me damages in the amount of

my attorneys fees. On May 25, 2000, Ms. Vera Nigro received a

Third-Step Respoise from Mr. Len Baptiste, Director, Office of

Security and Privacy Oversight. See Exhibit 2: Memorandum for

Vera Nigro from Len Baptiste, dated May 25, 2000. This came as

quite a surprise as this was different than how negotiations were

progressing ard also did not include the last offer from Ms. Pamela

Vinson, Representative, Labor Relations. On May 30, 2000, my

attorney, Ms. Connerton, responded to Mr. McEleney's May

23,2000 letter. See Exhibit 3: Letter to John McEleney from Terese

M. Connerton, dated May 30, 2000. On June 9, 2000, I spoke with

Mr. McEleney and I inquired as to what he would be doing now

that his May 23, 2000 letter derailed my settlement. Mr. McEleney

advised me that he would do "nothing" and that he "didn't know

anything about my case." Then later that day, Mr. McEleney

informed me that he would be contacting Mr. Baptiste to

encourage him to sign off on the May 25,2000 letter, and also

relieve him of any concern to the exposure of an outside attorney. I

don't know whether Mr. McEleney contacted Mr. Baptiste, but I

did receive another third step response from Mr. Baptiste that he

was withdrawing his offer to pay me damages.

APP.11

Refer to Exhibit 5: Memorandum for Vera Nigro from |

Len Baptiste, dated June 6, 2000. - |

Background:

On or about March 12, 1999,1 received a Notice of Proposed

Disciplinary Suspension from Ms. Donna Laiti, Section Chief,

Certification Program Office. On March 25, 1999, NTEU Chapter

65 filed a grievance on my behalf, and thereafter requested that |

be allowed an oral reply. A mutually convenient date could not be

scheduled, so I filed a Response and Rebuttal to the Notice on or

about October 26,1999.

On November 30, 1999, I received a Letter of Admonishment from

Mr. William Hadesty, Director, Security and Privacy Oversight IS:

SPO: S. On December 16, 1999, NTEU Chapter 65 filed a

grievance at the Second Step. On February 1, 2000, a Step 2

Grievance Meeting was held with Mr. William Hadesty, Director

Security, Standards and Evaluations; Mr. Brian Worthen, Staff

Assistant to the Director of Security Evaluation and Oversight; Ms.

Pamela Vinson, Representative, Labor Relations; Ms. Terese

Connerton, Attorney,. Connerton & Ray; Mr. Jerry Feith,

President, NTEU Chapter 65; Ms. Vera Nigro, Vice President,

NTEU Chapter’ 65 and myself. On February 11, 2000, Mr. Hadesty

issued a response upholding his determination of the issuance of a

Letter of Admonishment. On March 23,2000, A Step 3 grievance

meeting was held with Mr. Len Baptiste, Director, Office of

Security and Privacy Oversight IS:SPO, Mr. Worthen, Ms. Vinson,

Ms. Connerton, Ms. Nigro, and myself.

On or about December, 1999, I was advised by my attorney,

Ms. Terese Connerton, that Ms. Kimberly Moseley made several

disparaging remarks about my case. At that time, my attorney

informed Ms. Moseley that she was assisting NTEU Chapter 65 in

developing a response to the Letter of Admonishment.

On or about April 14, 2000, Ms. Vera Nigro received a

settlement offer from Ms. Pamela Vinson which included the

rescinding of the Letter of Admonishment and the payment of my

attorneys’ fees. On or about April 24, 2000, Ms. Nigro sent a

response indicating that I would settle for the rescinding of the

Letter of Admonishment, issuance of a closed without action letter,

full payment of attorneys’ fees, and promotion to a GS 13 position.

On or about April 26, 2000, Ms. Nigro informed me that Ms.

Kimberly Moseley stated to her that my attorney was robbing me,

that she would put a stop to the settlement, and then drop my case

in arbitration. On or about April 27, 2000, Ms. Nigro was contacted

by Ms. Pamela Vinson; negotiations were preceding positively. At

that time, Ms. Nigro informed me that Ms. Vinson asked to contact

my attorney, Ms. Terese Connerton, directly because they needed

an itemized statement of my attorneys fees and expenses. As

requested, on April 28,2000 an itemized statement was sent to Ms.

Pamela Vinson. See Exhibit 4: Memorandum to Pamela Vinson

from Terese Connerton, dated April 28,2000. Also, during this

time frame, Ms. Vinson also wanted to discuss the details of my

promotion to a GS-13 position because that would be looked at,

indicating that there wasn't a problem. However, this discussion

never took place.

APP. 13

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etiam amma aati

On May 23, 2000, Mr. John McEleney, Director, Field

Operations and Organizing, NTEU sent a letter to my attorney, Ms.

Terese Connerton, and the agency (IRS) indicating that her

involvement was inappropriate and that she had no authontty in the

IRS/NTEU negotiated grievance procedure. This is not an accurate

depiction of my attorney's involvement. I requested from NTEU

Chapter 65 that my attorney, Ms. Connerton, be present at the

grievance meetings. NIEU Chapter 65 (Mr. Jerry Feith and Ms.

Vera Nigro) indicated that they agreed that my attorney, Ms.

Connerton, be present at the grievance meetings to assist them in

arguing the case.

NTEU Chapter 65 was present at both Step 2 and Step 3

grievance meetings, was at all times in charge of negotiations, and

at no time did the agency indicate that Ms. Connertons presence

was a problem. On May 25,2000, Ms. Vera Nigro received a

Third-Step Response from Mr. Len Baptiste, Director, Office of

Security and Privacy Oversight. Refer to Exhibit 2: Memorandum

for Vera Nigro from Len Baptiste, dated May 25, 2000. This came

as quite a surprise as this was different than how negotiations were

progressing and also did not include the last offer from Ms. Pamela

Vinson, Representative, Labor Relations. On June 6, 2000, I

received a memorandum from Mr. Baptiste informing me that he is

withdrawing the portions of the third step response and settlement

offer which expresses a willingness to pay my attorney's fees, due

to concerns raised in Mr. McEleney's letter. See Exhibit 5:

Memorandum for Vera Nigro from Len Baptiste, dated June 6,

2000. On June 7, 2000, Ms. Nigro responded to the agency's June

6, 2000 memorandum. See Exhibit 6: Memorandum to Len

Baptiste from Vera Nigro, dated June 7, 2000.

APP.14

On June 9, 2000, I briefly spoke with Mr. John McEleney. I

inquired as to what he would be doing now that his May 23, 2000

letter derailed my settlement. Mr. McEleney advised me that he

would do "nothing" and that he "didn't know anything about my

case." Then later that day, Mr. McEleney informed me that he

would be contacting Mr. Len Baptiste to encourage him to sign off

on the May 25, 2000 letter, and also relieve him of any concern to

the exposure of an outside attorney. I don't know if Mr. McEleney

ever did this.

On June 14, 2000, Ms. Vera Nigro, received a

memorandum from Mr. Stuart Fields, Acting Chief, Labor

Relations Section, A!HQ:HR:MP:L stating that Mr. Baptiste's

decision in the June 6, 2000 memorandum will not change, no

further relief would be granted, and the processing of my grievance

had been completed.

See Exhibit 7: Memorandum to Vera Nigro from Stuart H. Fields,

dated June 12, 2000. On June 15, 2000, Ms. Colleen Kelley,

National President, NTEU invoked arbitration on my case and*~ *

assigned it to Ms. Kimberly Moseley. See Exhibit 8 Memorandum

to Barry Pelner from Colleen M. Kelley, dated June 15, 2000. Ms.

Moseley has made hostile statements against me to my attorney,

Ms. Terese Connerton, and Ms. Vera Nigro, and stated that she was

going to drop my case in arbitration. Ms. Moseley is not the current

field representative assigned to NTEU Chapter 65 arbitrations, and

I believe that NTEU National assigned Ms. Moseley my case in

retaliation for my complaining to Mr. John McEleney concerning

his actions.

APP.15

From June 15, 2000 to date, I have been attempting to

schedule a meeting with Mr. John McEleney to discuss his May

23, 2000 letter and what his plan of action was going to be to settle

my case. Mr. McEleney has been reluctant to meet with me. See

Exhibit 9: Letter to John McEleney from Denise Crisco, dated July

6, 2000.

I believe that NTEU National and the agency (IRS) are

working to drop my case from arbitration because the Letter of

Admonishment was rescinded. See Exhibit 10: Letter to Denise

Crisco from Len Baptiste, dated June 30, 2000. ;

APP. 16

ee ey om ih a Salli hit

LAW OFFICES

CONNERTON & RAY

1401 NEW YORK AVE.. N.W.

TENTH FLOOR

WASHINGTON. DC 20005-2102

(202) 737-1900

FAX: (202) 659-3458

May 30,2000

VIA FACSIMILE (202) 783-4085

John McEleney

Director, Field Operations and Organizing

The National Treasury Employees Union —

901 B Street, N.W., Suite 600

Washington, DC 20004

Re: Involvement of Private Counsel In IRS/NTEU Negotiated

Grievance and Negotiated Arbitration Procedures

Dear Mr. McEleney:

I am well aware of NTEU's exclusive representation rights

with respect to IRS employees. I, in no way, interfered with those

rights and never intended to have NTEU waive its rights under

°7114. As soon as Ms. Kimberly Mosely informed me of the

exclusive representation provisions of the NORD, I assured her and

Ms. Vera Nigro that I would work with and attempt to assist them.

The NORD does not preclude my participation in gnevance

meetings. As I read it, Chapter 65 has the right to select a

representative other than the Chief Steward or the Chapter

President to assist in presenting a member's grievance.

Ms. Vera Nigro, then Chapter's 65 Chief Steward, brought

Ms. Denise Crisco, Ms. Ada Hatch and Ms. Leslie White to my

office. I was asked to assist them in the development of their cases

so that they could be presented either to the management officials

through the negotiated grievance procedure or to Ms. Mosely for

purposes of arbitration. And this is all I did. Ms. Nigro was

intimately involved in numerous strategy and fact discussions

regarding grievances that had been filed by the Chapter on behalf

of each member. I did not go to any grievance proceeding without

Mr. Gerry Feith, Chapter 65's President, and/or Ms. Vera Nigro.

Chapter 65 presented the grievance to management and I provided

additional comments as I thought appropriate. I gave each and

every submission to Ms. Vera Nigro and Mr. Gerry Feith prior to it

being submitted to management. Indeed, changes and additions to

the written submissions were made at their request. When the

settlement was presented, it was sent to Ms. Vera Nigro, not me. I

was only asked to send over documentation supporting the

members’ request for attorneys’ fees. So at no time was Chapter 65

not part and parcel of the proposed settlement of Ms. Crisco's and

Ms. Hatch's grievances. »

Moreover, when I met with Ms. Mosely, I simply provided her

with source documents to he used in arbitration and my client and

I developed records relating damages. At no time did I tell Ms.

Mosely that I wanted to arbitrate Ms. White's case.

APP.18

SRE Ser ht Orn Or ae ee

=

Your letter to me was sent to Labor Relations. This could

not have come at a worst time. Once again, NTEU has not been

protective of the members' interests. You could have called me, or

had a meeting with me, Chapter 65 and the members. Your

“Institutional” interests could have been protected through

discussions with me. You did not need to publish our disagreement

throughout the agency. We now look like "laughing stocks", all to

the members' detriment

Circulating the letter has seriously impeded the settlement

of Ms. Crisco's and Ms. Hatch's grievances. Management now

\nows that there is a serious rift between the Chapter 65 and

National regarding my presence. The agency's Third Step Response

to the Grievances issued May 25,2000 clearly indicates that they

will not give anything more than what they have already committed

in writing. And the agency believes that NTEU will not pursue

these grievances to arbitration. So the members" counter Proposal

is dead in the water. Significant damage has been done to the

members.

With respect to Leslie White, essentially Ms. White was

told by Ms. Mosely that she was lucky not to get fired. She is very

upset by Ms. Mosely's comments to her at their first meeting. She

has requested another representative.

I have worked representing unions and union members all

of my life. I never once criticized NTEU or any other union to my

clients and when these members were upset with NTEU's handling

of their cases or the rude and insensitive comments of Ms. Mosely,

I assured them that the union would work in their best interests.

However, my assurances now ring hollow.

APP. 19

0 A =k ns

I am very concerned that our differences have jeopardized

the members' cases. It serves nobody's interests to fight amongst

ourselves. A victory for them is a victory for NTEU. So where do

we go from here? I would hope that National NTEU will not

further impede Ms. Nigro's negotiations to try to settle this matter

and would actually push for the settlement that the members have

requested. And I would hope that Ms. White gets assigned another

representative to whom I can give records relating to her damages.

Please give me a Call to discuss this matter at vour earliest

convenience.

Very truly yours,

Ferese M Connerton

cc: Denise Crisco

Ada Hatch

Leslie White

Vera Nigro, President Chapter 65

APP.20

é

NTEU

IRS NATIONAL OFFICE CHAPTER 65

SERVING NATIONAL OFFICE SINCE 1952

Date: June 7, 2000

To: Len Baptiste

Director, Office of security and Privacy Oversight

From: Vera Nigro

President, NTEU Chapter 65

f

si nh as Rt Hed ant:

Subject: Response to your June 6, 2000 memorandum Crisco and

Hatch grievances

This memorandum is in response to your memorandum dated June

6, 2000. First and foremost, as far as the settlement proposal, you

can not revoke it. You made an offer and in speaking with both Ms.

Hatch and Ms. Crisco this morning, they have agreed to accept the

settlement as proposed in your May 25, 2000 letter, with a no

action letter from you. My clients, I'm sure will be going after

National NTEU for the rest.

Concerning the other issues you raised which caused your "about

face" on the original agreement. I have received a copy of Mr. Mc

Eleney's letter which caused these negative circumstances for my

members. His letter is very incorrect, as the NORD V does not and

: would not preclude Ms. Connerton's participation in the grievance

meetings. Ms. Connerton assisted our members in an outstanding

fashion, at no cost to the chapter.

a aaa

Jerry Feith and/or I were involved in the development of the

grievances and kept Ms. Connerton in contact with Ms. Moseley,

who was our Field Representative, and I and/or Jerry were in every

meeting with management. Ms. Connerton was NOT acting

independently. NTEU's exclusive representation nghts were NOT

violated.

Unfortunately, Ms. Crisco's and Ms. Hatch's grievances are

caught in the middle of a dispute, and consequently_by law the

National NTEU should not be influencing the Agency in

orievance procedure outcomes against out members.

Again, payment of the money to Ms. Hatch and Ms. Crisco

will not violate the agency's obligation to NTEU. The agency and

you have committed in writing to pay money to the grievant's and

they have now accepted. I urge you to reconsider your withdrawal

of your settlement offer and right the wrongs that have been done

- inthis case to the members.

Oe: Colleen Kelley

John Mc Eleney

Terry Connerton

Ada Hatch

Denise Crisco

RL BRIE ARATE

‘

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C. 20224

JUN 12 2000

MEMORANDUM TO’ VERA NIGRO, PRESIDENT

NTEU CHAPTER 65

FROM: Stuart H Fields

Acting Chief, Labor Relations Section A:HQ:HR:MP:L

SUBJECT: Third Step Response to Grievance Filed on Behalf

of Denise Crisco and NTEU Chapter 65

This is in response to your June 7,2000 memorandum to Mr. Len

Baptiste, Director Office of Security and Privacy Oversight

regarding the above captioned matter. Mr. Baptiste's decision in

his June 6,2000 memorandum will not change and no further relief

will be granted regarding this issue. As a result, the processing of

Denise Crisco's grievance as outlined in NORD V, Article 41,°6,

has been completed. In reference to Ada Hatch's grievance, NTEU

Chapter 65 invoked arbitration on September 29,1999.

If you have any questions concerning this matter, or would like to

discuss it further, please call Pamela Vinson, Labor Relations

Specialist, on (202) 622-6452.

APP.23

June 15, 2000

Barry Pelner

Acting Chief, Headquarters Operations

Internal Revenue Service

M:IIQ Room 1131

111 Constitution Ave.. N.W.

Washington, DC 20224

Re: Arbitration Invocation Chapter 65, Denise Crisco

(Letter of Admonishment - Final Decision May 25, 2000)

Dear Mr. Pelner:

Pursuant to Article 41 and 43 of the NORD V, the National ©

Agreement between the Interna! Revenue Service and the National

Tieasury Employees Union (NTEU), NTEU hereby invokes

arbitration over the referenced grievant. Please be advised that

NTEU considers interviews of bargaining unit employees in

preparation for arbitration hearings to be formal discussions under

the Federal Service-Labor Management Relations Statute

Accordingly, it is your Agency's obligation to provide NTEU

advance notice and opportunity to attend such interviews.

Any further communication regarding this matter should be

directed to Ms :Kimberly Moseley, National Field Representative

in the NTEU D.C. Field Office. Ms Moseley can be contacted at.

901 E Street, N.W., Washington, D.C. 20004 or by telephone at

(202)638-7760. |

Sincerely,

Colleen M. Kelley,National President

cc: Vera Nigro, NTEU Chapter 65 President

APP.24

July 6, 2000

VIA FACSIMILE (202) 508-3778

Mr. John McEleney

Director, Field Operations and Organizing

The National Treasury Employees Union

901 E Street, N.W., Suite 600

Washington, DC 20004-2037

Dear Mr. McEleney,

This letter is a follow-up to the conversation we had on

Thursday, June 29, 2000 regarding the scheduling of a meeting to

discuss your May 23, 2000 letier. You informed me that your

calendar was booked, that you would be taking some leave the

week of July 3, 2000, and that you would back to me once you

checked both your and Ms. Kimberley Moseley's calendar.

You also inquired about my statements to you regarding the

clearing of my name as you didn't understand. As I have stated to

you on several occasions, the agency's third-step response of May

25,2000 does not clear my name, and has found that the letter of

admonishment was justified. The third-step response is an insult to

1’ integrity and upholds managements conduct. I believe that the -

evidence I submitted clearly demonstrates that the reasons and

specifications were not supported by substantial evidence as

required by IRM 0752.43(12)(4). In the amended grievance and in

my written response to the letter of admonishment to Mr. William

Hadesty for the secord-step grievance meeting held on February 1,

2000, I have reanestea that the letter of admonishment be

rescinded and a closed without action letter be issued. This

combined action, I believe, appropriately clears my name as it

addresses the evidence relied upon.

APP.25

i

To assist you in this matter, I have asked Ms. Vera Nigro,

President NTEU Chapter 65 to provide you with a copy of my case

file for your review.

On June 9, 2000, when I first spoke to you, I asked you

what you would be doing now that your May 23, 2000 letter has

derailed my settlement. You advised me that you would do

"nothing" and that you "didn't know anything about my case." Then

later that day, you informed me that you would be contacting Mr.

Len Baptiste to encourage him to sign off on the May 25, 2000

letter, and you would also relieve him o: any concern to the

exposure of an outside atiorney. In a June 6, 2000 letter, the

agency withdraws the May 25, 2000 offer based upon your May

23, 2000 letter; and in a June 12, 2000 letter, the agency

considered the processing of my grievance completed.

Since your May 23, 2000 letter has derailed the settlement

of my case, and as I have expressed to you already, I would like to

krow what your plan of-action is to rectify this situation. I want to

obiain a favorable settlement that must include the letter of

admonishment be rescinded, the issuance of a closed without

action letter, full payment of my attorneys' fees, and placement

into a GS 334-13 Computer Specialist position. During

negotiations, it was made clear to me that full payment of

attorneys’ fees and my placement into a GS 334-13 position was

not a problem.

Since you have been reluctant to meet with me to discuss

this situation, please let me know your plan of action to settle my

case by Tuesday, July 18, 2000.

APP.26

If you have any questions, please feel free to contact me at

work on (202) 283-6611 or at home on (703)799-0058.

Sincerely,

Denise M. Crisco

CC: Vera Nigro, President, NTEU Chapter 65

Terry Connerton, Attorney, Connerton & Ray

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C. 20224

Jun 30 2000

Ms. Denise Crisco

Internal Revenue Service

5000 Ellin Road

Lanham, Maryland 20705

Dear Ms. Crisco:

In my third step response dated May 25, 2000, I informed Vera

Nigro, President NTEU Chapter 65 that I would rescind the

admonishment letter that was issued to you on November 30,

1999. This is to inform you that as of June 26, 2000, the letter has

been removed from your Drop File.

If you have any questions, please contact Pamela Vinson, Labor

Relations specialist on 202-622-6452.

Sincerely,

Len Baptiste Director,

Office of Security and Privacy Oversight

cc: Vera Nigro, President, NTEU Chapter 65

APP.28

SNE RG SN a

07/24/2000

Denise Crisco

1ST Amend Charge

FEDERAL LABOR RELATIONS AUTHORITY

CHARGE AGAINST A LABOR ORGANIZATION

Item 6: Tell exactly WHAT the labor organization did. Start with

the DATE 2nd LOCATION, state WHO was involved, including

titles.

The National Treasury Employees Union (NTEU), National

Office (National) in Washington DC, by its agents and

representatives have committed an unfair labor pvactice as they

have wrongfully influenced the agency (IRS) against me, derailed

settlement negotiations, acted arbitrarily and in bad faith. NTEU

National has violated Section 711 6(b)( 1); (2), (5) and (8). NTEU

National has influenced the agency (IRS) against me and interfered

with settlement negotiations being conducted by NTEU Chapter

>. NTEU National's actions were motivated, at least in part, by its

clitical disputes with NTEU Chapter 65 and its officers. NTEU

.vational has treated me (and other NTEU Chapter 65 members)

differently than other bargaining unit employees that NTEU

National represents. Furthermore, I contend that NTEU National's

actions, with respect to my grievance (and others), were motivated

by retaliation against NIEU Chapter 65, were intentional and

unjustifiable.

Beginning on or about April 26, 2000, Mr. John McEleney,

Director, Field Operations and Organizing, NTEU National and

Ms. Kimberly Moseley, Field Representative, NTEU National

interfered with the grievance negotiations being conducted by

APP.29

a BEST AVAILABLE COPY

Ms. Vera Nigro, President, NTEU Chapter 65 with IRS Labor

Relations, influenced the agency against me and have derailed the

settlement of my case.

Listed below is the chronological history of what NTEU National

did.

On or about December, 1999, was advised by my attorney,

Ms. Terese Connerton, Connerton & Ray, that Ms. Kimberly

Moseley, made several disparaging remarks about my case. At that

time, my attorney informed Ms. Moseley that she was assisting

NTEU Chapter 65 in developing a response to the Letter of

Admonishment.

On or about April 14, 2000, Ms. Vera Nigro, President,

NTEU Chapter 65, received a settlement offer from Ms. Pamela

Vinson, Representative, Labor Relations which included the

rescinding of the Letter of Admonishment and the payment of my

attorneys’ fees. On or about April 18, 2000, Ms. Nigro informed

me that my case was discussed with Ms. Colleen Kelley, President,

NTEU National. On or about April 24, 2000, Ms. Nigro sent a

response indicating that 1 would settle for the rescinding of the

Letter of Admonishment, issuance of a closed without action letter,

full payment of attorneys’ fees, and promotion to a GS 13 position.

On or about April 26,2000, Ms. Nigro informed me that Ms.

Kimberly Moseley stated to her that my attorney was robbing me,

that she would put a stop to the settlement, and then drop my case

in arbitration. On or about April 27, 2000, Ms. Nigro was

contacted by Ms. Pamela Vinson, and negotiations were

proceeding positively.

APP.30

ee

At that time, Ms. Nigro informed me that Ms. Vinson asked to

contact my attorney, Ms. Terese Connerton, directly because they

needed an itemized statement of my attorneys fees and expenses.

As requested, on April 28,2000 an itemized statement was sent to _

Ms. Pamela Vinson. Also, during this time frame, Ms. Vinson also

wanted to discuss the details of my promotion to a 05-13 position

because that would be looked at, indicating that there wasn't a

problem. However, this discussion never took place.

On May 23, 2000, Mr. John McEleney, sent a letter to my

: attorney, Ms. Terese Connerton, and the agency (IRS) indicating

that her involvement was inappropriate and that she had no

authority in the IRS/NTEU negotiated grievance procedure. Prior

to the grievance meetings, I requested from NTEU Chapter 65 that

my attorney, Ms. Connerton, be present at the grievance meetings.

NTEU Chapter 65 (Mr. Jerry Feith and Ms. Vera Nigro) indicated

that it was permissible to them that my attorney, Ms. Connerton, be

present at the grievance meetings. NTEU Chapter 65 was present at

both Step 2 and Step 3 grievance meetings and at no time did the

agency indicate that Ms. Connerton's presence was a problem. On

May 25,2000, Ms. Vera Nigro received a Third-Step Response

from Mr. Len Baptiste, Director, Office of Security and Privacy

Oversight. On June 6, 2000,1 received a memorandum from Mr.

Baptiste informing me that he is withdrawing the portions of the

third step response and settlement offer which expresses a

willingness to pay my attorney's fees, due to concerns raised in Mr.

McEleney's letter. On June 7,2000, Ms. Nigro responded to the

agency's June 6, 2000 memorandum, urging the agency to

reconsider the withdrawal of the settlement offer, Mr. McEleney

letter of May 23, 2000 was incorrect as the NORD V does not

preclude Ms. Connerton participation, and NTEU's exclusive

representation rights were not violated.

APP.31

On June 9, 2000, I briefly spoke with Mr. John McEleney. I

inquired as to what he would be doing now that his May 23, 2000

letter derailed my settlement. Mr. McEleney advised me that he

would do "nothing" and that he "didn't know anything about my

case." Then later that day, Mr. McEleney informed me that he

would he contacting Mr. Len Baptiste to encourage him to sign off

on the May 25, 2000 letter, and also relieve him of any concern to

the exposure of an outside attorney. I don't know if Mr. McEleney

ever did this.

On June 14,2000, Ms. Vera Nigro, received a

memorandum from Mr. Stuart Fields, Acting Chief, Labor

Relations Section, A:LIQ:HR:MP.L stating that Mr. Baptiste's

decision in the June 6, 2000 memorandum will not change, no

further relief would be granted, and the processing of my grievance

had been completed. On June 15, 2000, Ms. Colleen Kelley,

invoked arbitration on my case and assigned it to Ms. Kimberly

Moseley. Ms. Moseley is not the current field representative

assigned to NTEU Chapter 65 arbitrations. NTEU National

assigned Ms. Moseley to my case in retaliation for my complaining

to Mr. John McEleney concerning his actions.

From June 15, 2000 to date, I have been attempting to

schedule a meeting with Mr. John McEleney to discuss his May

23, 2000 letter and what his plan of action was going to be to settle

my case. ML McEleney has been unwilling to meet with me.

NTEU National and the agency (IRS) are working to drop my case

from arbitration because the Letter df Admonishment was

rescinded by Mr. Baptiste in a letter dated June 30, 2000. NTEU

National and the agency (IR S) are aware that I want damages in

the amount of my attorneys fees, closed without action letter, and

promotion to G513.

APP.32

June 15, 2001

VIA OVERNIGHT DELIVERY

Federal Labor Relations Authority

Uffice of the General Counsel

607 14th Street, N.W. Suite 210

Washington, DC 20424-0001

Re: _—_ National Treasury Employees Union and Denise

Crisco (Individual). Case No. WA-CO-00593

Dear General Counsel,

This letter is a request for reconsideration of the Generai.

Counsel's decision of June 5,2001 which denied my appeal of the

Washington Regional Director's dismissal of the unfair labor

practice charge that I filed against the National Treasury

Employees Union in the above referenced case.

I believe extraordinary circumstances do exist because the

General Counsel's decision to deny my appeal abdicates their

statutory responsibility by upholding a decision which 'trampled"

my rights. The findings which demonstrate the General Counsel's

error and abdication are as follows.

(1) The General Counsel's ruling goes against and is

inconsistent with Authority precedent. In cases, 10 FLRA No.91,

National Treasury Employees Union and U.S. Customs Service

Nuclear Regulatory Commission 10:519(91)CO: 15 FLRA No. 105,

Overseas Education Association and Joseph Cardone.

15°488(105)CO:

23 FLRA 686,691, National Federation of Federal Employees.

Local 1453 and Kenneth A. Crawford (Individual). 23:686(92)CO:

14 FLRA No.85, American Federation of Government Emplovees

Local 2000 AFL-CIO and William R. Massengale. 14:617(85)CA:

and NLRB Case No. 15-CB-4361, Communication Workers of

America Local Union No.3410 (Bell South Telecommunications.

Inc) and Kellena L. Steverson. 328 NLRB No.135 , the Authority

set specific standards mirroring NLRB which set the standards for

the issuance of ULPs. I assert that the circumstances in my case far

exceeds the normal threshold requirements for the issuance of an

unfair labor practice. Here, NTEU interfered with the normal local

chapter processes and deliberately took action against me under

pretextual reasons. Despite the overwhelming evidence in my case

which demonstrated that an unfair labor practice did occur, the

Regional Director failed to issue a compliant which is inconsistent

with Authority precedent. It also goes against public interest and

what congress intended in 5 U.S.C. 71.

(2) The General Counsel's decisions fails to uphold their own

regulations to give me appropriate due process under the law

(equal protection) by neglecting to give me a full, fair and

impartial investigation, to collect the best evidence possible, and

consider all the evidence and circumstances relevant to my case.

The General Counsel failed to adhere to its own policies by not

fully considering the scope of the circumstances in my case.

The Regional Director did not consider the relationship and past

history of NTEU and Chapter 65. See General Counsel Chapter 3,

Scope of the Investigation.

(3) | The General Counsel further abdicated their statutory

responsibility by ignoring my rights as a union member.

APP.34

The General Counsel is taking the position that the rights of

the NTEU's as the exclusive representation is more important than

my rights as a member. The decision to pay attorney's fees in my

Case in no way adversely affected NTEU's interests nor did it

interfere with the rights of all NTEU members.

(4) Finally, the Regional Director's and the General

Counsel's decisions abandons all union members who want to

represent themselves in grievances or when local chapters seek

co-counsel in complicated cases. It fosters a hostile work

environment by creating the image that when inept union

representation occurs, union members find that they have no

redress within the system.

In conclusion, based on the reasons herein and all facts

conveyed in my appeal which I reiterate for your consideration, I

request that the General Counsel reconsider my case. [ request that

the General Counsel reverse the Regional Director's dismissal of

my charge and the case be assigned to another Field Attorney who

would conduct a thorough and impartial investigation into my

charges.

Very truly yours,

Denise M. Crisco

APP.35

VIA OVERNIGHT DELIVERY April 25, 2001

Federal Labor Relations Authority

Office of the General Counsel

607 14th Street, N. W.

Suite 210, Attention: Appeals

Washington, DC 20424-0001

Re: National Treasury Employees Union and Denise

Crisco (Individual)

Case No. WA-CO-00593

Dear General Counsel:

This letter is an appeal of the Regional Director's dismissal

of a charge that I filed against the National Treasury Employees

Union in the above referenced case. First and foremost, I do not

believe that there was a full and impartial investigation of the facts

in my complaint. I also believe that the written statement of the

reasons for not issuing a complaint is based on erroneous findings

of material facts and other material facts were ignored. See 5

C.F.R. °2423.11(e)(1),(2) and (5).

FACTUAL BACKGROUND

1. I have been an employee of the IRS since July 1987.

Currently, I am Computer Specialist with the IRS and work in the

Office of Cyber Security.

pa National Treasury Employees Union ("NTEU") is the

exclusive representative of all bargaining unit employees at the

IRS National Office. NTEU Chapter 65 was NTEU's duly

authorized agent to represent employees at the IRS National

Office.

APP.36

3. On July 10, 2000, I filed an unfair labor practice charge

against NTEU, charging a breach of its duty to fairly represent me

under 5 U.S.C. °71 14(a)(1). After filing this charge, I received a

phone call from Ms. Beth Landes, the Field Attorney assigned to

my case, who told me in a derogatory and denigrating manner, that

"the charge as is, is just not acceptable." When I asked in what way

the charge was defective, I was directed to look at the instructions

and to amend the charges in conformance thereto. See Crisco

Affidavit #2 (attached hereto), !1.

4. I reread the instructions and believed that my first charge

conformed to them. Nevertheless, in an effort to fully cooperate, |

drafted my first amended charge, which was filed J uly 24, 2000.

This amended charge too was deemed unacceptable by Ms. Landes.

On August 1, 2000, Ms. Landes called and left me a voice mail

message. She very angrily said, "as we spoke the first time, Ms.

Crisco, in order to amend the charge properly, you need to have a

clear and concise statement of exactly what it is that you are

alleging. Again, what you have submitted is a 2-page, not clear or

concise statement." Ms. Landes indicated that she needed a quick

explanation of exactly what I was alleging as soon as possible. See

Crisco Affidavit #2, '2 and 3.

3 I was very upset because I had followed the instructions and

did not understand why Ms. Landes could not glean from my initial

and first amended charges what it was that I was alleging. I asked

Ms. Landes to provide me with an example of what she considered

a proper format for the charge. However, she refused to do so. In

total frustration, I retained Michael Barrett, Esq., a labor attorney,

to assist me in getting my charge investigated by the FLRA. See

Crisco Affidavit #2, ''4, 5 and 6.

APP.37

6. On August 22, 2000, Michael Barrett, Esq. and I met with

Ms. Landes. For the first part of the meeting, Ms. Landes

disparaged my charge and tried to convince me not to pursue it. I

provided Ms. Landis with my affidavit and also a list of potential

witnesses. I asked that she speak to Mr. Len Baptiste and Ms.

Pamela Vinson, IRS Labor Relations Representative, but Ms.

Landes said that she would let me know if that was necessary.

Additionally, I asked her to speak with Terese M. Connerton and it

was Clear in her reactions to my bringing this matter up several

times that she was not interested in speaking with Ms. Connerton.

After Mr. Barrett and I left the meeting, we both firmly believed

that Ms. Landes had no real intention of conducting a fair

investigation into the charges. See Crisco Affidavit #2, ;7; Barrett

Affidavit (attached hereto, '5.

7. I do not know if Ms. Landes obtained a statement from Ms.

Vera Nigro, NTEU Chapter 65 President. Ms. Nigro did provide an

affidavit to Tracy Levine, Field Attorney, assigned to another case

and Ms. Levine had represented that she would share the affidavit

with Ms. Landes. See Nigro Affidavit (attached hereto). Further, I

believe that Ms. Landes secured a statement(s) from

representatives of National NTEU. However, I do not believe that

Ms. Landes spoke with anyone from the agency and she made it

clear to me that she did not want to speak with Ms. Connerton.

8. I called Ms. Landes on January 24, 2001 and asked if she

would interview Ms. Connerton because she had conversations

with NTEU representatives -- Ms. Kimberly Moseley and Mr. John

McEleney -- which I believed were relevant. Ms. Landes replied

that she would do so, only if she felt it was necessary after

reviewing certain memoranda. See Crisco Affidavit #2, |10.

APP.38

Wi edited i ica 3 14 Beith AWN

9. On January 30, 2001, Ms. Landes informed me that the

Regional Director was going to dismiss my charge. She told me

that: (1) in order to prove a breach of the duty of fair representation,

[ would have to show that NTEU acted deliberately and bad faith:

and (ii) there was no intent on the part of NTEU to undo the

settlement. I again asked Ms. Landes if she had interviewed Ms.

Connerton and she said she did not need to. I asked if she would

accept Ms. Connerton's affidavit so that it could at least be in my

case file. Ms. Landes responded that she would not accept Ms.

Connerton' s affidavit since it was not necessary. Then Ms. Landes

stated condescendingly that "since you're so familiar with our

website, refer to FLRA's policy on the scope of the investigation."

Ms. Landes told me to take the matter of Connerton's affidavit up

on appeal. I was shocked by Ms. Landes' attitude and

condescending manner. I wrote a letter to Ms. Landes on January

31, 2001, reflecting our conversations. See Letter from Denise

Crisco to Beth Ilana Landes, dated January 32, 2001; Crisco

Affidavit #2, '1 1 and 12. : mean

10. After receipt of this letter, Ms. Landes reconsidered her

position and indicated that she would speak to and accept Ms.

Connerton's affidavit, but that she did not believe that it would

affect the outcome. She spoke with Ms. Connerton and sent her a

memorandum, dated February 7, 2001, which in accurately

portrayed their conversation. Ms. Connerton wrote a memorandum

back to Ms. Landes correcting the inaccuracies and submitted her

sworn affidavit for the case file. See Letter from Beth Landes to

Terese M. Connerton, dated February 7, 2001; Memorandum from

Terese M. Connerton to Beth Landes, dated February 9, 2001;

Crisco Affidavit #2 !12.

- APP.39

11. On February 13, 2001, Ms. Landes informed me that the

Regional Director did not change his mind. See Crisco Affidavit

#2 ‘13. On February 22, 2001, a formal denial letter was issued by

the Regional Director. In the denial letter, numerous facts were

recited and, based upon those facts, the Regional Director

concluded that:

Pursuant to Section 71 14(a)(5) of the Statute, NTEU is the

exclusive representative for bargaining unit employees in the

negotiated grievance procedure. Connerton knew at least as early

as December 1999 that a national levet representative of NTEU,

the exclusive representative, had an objection to her involvement

in your grievance. Although Connerton contends that Chapter 65

had the authority to designate her as its representative in the

processing of your grievance and that its conduct indicated that it

had so designated her, NTEU asserts that the Chapter, its agent,

had no such authority. McEleney's May 23, 2000 letter was merely

a statement of facts and the law that NTEU had not designated

Connerton to participate in the grievance procedure on your

behalf. Although the Agency's decision to revoke its offer to pay

your attorney fees was based on McEleney’s letter, the record

evidence does not support your claim that the intent of his letter

was to derail your grievance settlement. Rather, the letter was

consistent with the Union's legitimate interest in defending its right

to designate its representatives in the negotiated grievance

procedure, and to ensure that the Union's representatives are

primarily responsible to the interests of union and are not the

personal representatives of the grievants. There is no evidence that

NTEU's refusal to so designate Connerton in this case was

arbitrary, discriminatory or in bad faith.

12. The terms of the collective bargaining agreement did not

preclude me from representing myself, as long as the union was

present, as well as having Chapter 65 allow Ms. Connerton to draft

responses and assist me and Chapter 65 in presenting my case.

The pertinent provisions of NORD V (the collective

bargaining agreement between IRS and NTEU) are:

(a) Art. 41 governs the Employee Grievance Procedure.

Section 13B. provides that "[w]here an Employee ... does not elect

to be represented by the Union, the Union will have the right to be

present at all informal and formal discussions between the

employee and the Employer concerning the grievance."

(b) Art. 41, Section 4A. provides that "[g]rieving

employees will have the right to be accompanied. represented and

advised by the Union steward or chief steward or chapter president

responsible for representing them at whatever step of the procedure

a grievance is being heard." -

(c) Art. 41, Section 6 provides the following Uniform

Grievance Procedure:

Step 1. An informal meeting will be conducted between the

employee. the manager and the employer's union steward. If

reduced to writing, a meeting will be conducted between the

employee. the manager. the employee's union steward. and any

other employer and union representative that the parties

respectively deem necessary

APP.41

Step 2. If a meeting is requested, it will be between the

division chief or designee. the employee. the employee's union

steward. and the chief steward and/or chapter president. and any

other Employer or Union representatives that the parties deem

necessary.

Step 3. If a meeting is requested, it will be between the

head of the office or designee. the employee. the employee's union

steward, the chief steward, the chapter president and/or joint

council chairperson and/or a National Union representative and

any other Employer or Union representatives that the parties

respectively deem necessary.

13 Ms. Vera Nigro, then Chief Steward of Chapter 65,

recommended to me that I consuit with Ms. Connerton. The prior

Chapter 65 Chief Steward had totally mishandled my grievance.

Action had to be taken quickly. Ms. Nigro agreed that she did not

have the time or expertise to prepare my whistle blower case for

the grievance procedure. Ms. Connerton and Ms. Nigro agreed to

work together to present the grievance. See Connerton's Affidavit

13, 4 and 5; Nigro Affidavit.

14. Ms. Nigro knew about Ms. Connerton's firm because

another attorney in the firm, Michael Barrett, Esq., had represented

her and other newly-elected officers of Chapter 65 in a contentious

and lengthy dispute with National NTEU that was still ongoing at

the time of the facts herein. Ms. Mosely was intimately involved in

representing NTEU' 5 interests against the officers of Chapter 65.

See Connerton Affidavit '2.

APP.42 -

15 In her first conversation with Ms. Kimberly Mosely in early

December 1999, Ms. Mosely started off by telling Ms. Connerton

that she was "robbing" her clients. She assured Ms. Mosely that she

was just trying to make sure that their members’ interest were not

lost in the political fights between Chapter 65 and NTEU. Ms.

Connerton also told Ms. Mosely she would not represent Ms.

Crisco independently, but rather was going to assist NTEU Chapter

65 in developing and presenting her grievance. Ms. Mosely never

told Ms. Connerton that it was illegal for her to assist NTEU

Chapter 65. See Connerton Affidavit '6. Moreover, Ms. Mosely

never communicated to me that I could not retain Ms. Connerton to

assist in developing and presenting my grievance. NTEU also never

offered to assist me in the development and presentation of my

case. The fact is that no one from the Union had assisted me in the

processing of my grievance. If I had not retained an attorney to

work with and to assist Chapter 65, I probably would have lost my

job by now.

16. Ms. Connerton spoke with Ms. Nigro about the exclusive

representation issue raised by Ms. Mosely. Ms. Nigro, the Chief

Steward, indicated to her that nothing in the collective bargaining

agreement prevented Ms. Connerton from assisting Ms. Crisco in

drafting the responses and presenting the grievances and Ms. Nigro

assured Ms. Connerton that NTEU had no written or otherwise

articulated policies preventing NTEU members or Chapters from

being advised or assisted by outside counsel. See Connerton

Affidavit !7.

APP.43

17. At no time did Ms. Connerton represent me independently.

At all times, Chapter 65 representatives participated in strategy

meetings, reviewed all documents drafted by Ms. Connerton

before they were submitted to the agency and requested that

certain changes and additions be made. At no time did Ms.

Connerton go to the grievance meetings without the full consent

and presence of Chapter 65 representatives. Chapter 65

representatives, Mr. Gerry Feith and Ms. Vera Nigro, formally

presented the grievances before management and conducted all

settlement discussions. See Connerton Affidavit 98.

18. Prior to Ms. Connerton being involved with my gnevance,

Ms. Mosely told Ms. Connerton that I was not telling her the truth

and that I was "forum shopping”.

Additionally, she advised Ms. Connerton that NTEU would

probably not take my case to arbitration because it only involved a

letter of admonishment. See Connerton Affidavit 96.

19. Immediately prior to April 27, 2000, NTEU had removed

Chapter 65's President Gerry Feith. Further, Ms. Nigro had several

personal arbitration cases pending on which NTEU was refusing to

go forward. Ms. Nigro had also told NTEU's General President Ms.

Colleen Kelley that Chapter 65's members were upset with Ms.

Mosely's hostility towards them and their circumstances and,

because of this, many of Chapter 65 members with grievances had

sought private counsel to assist in representing them before the

union and in the handling of their grievances. Ms. Nigro told Ms.

Kelley that she was on the verge of a final negotiated settlement

with the IRS of my grievance which was going to result in a

monetary payment to me. See Nigro Affidavit.

APP.44

Nt NSH

20. On or about April 27, 2000, Ms. Kimberly Mosely and Mr.

John McEleney, representatives of NTEU, met with Ms. Vera

Nigro, then Chapter 65 President. The purported purpose of the

meeting was to talk about pending arbitration cases that had been

filed on behalf of Chapter 65 members. At this meeting, Ms.

Mosely and Mr. McEleney first informed Ms. Nigro that they were

upset with Ms. Connerton's involvement in my case and again

accusing her of "robbing" the clients. They also told her that they

thought it was illegal and I was not entitled to any money. Ms.

Nigro disagreed and said that other union members had sought and

received advice and assistance from outside counsel and nothing

was wrong with this. Both Ms. Mosely and Mr. McEleney

threatened Ms. Nigro, telling her that she had better settle the case

quickly because NTEU was going to drop the cases and not

proceed to arbitration.

Ms. Nigro was so concerned after that conversation that she

sought and received written commitment from IRS regarding the

settlement. See Nigro Affidavit.

21. Ms. Nigro was the "negotiator" of the settlement, not Ms.

Connerton. Ms. Nigro had received a verbal commitment from the

agency to look into obtaining a promotion for me. Ms. Connerton

only sent an itemized bill of attorneys' fees to Ms. Vinson, IRS

Labor Relations Representative, upon request, after Ms. Nigro

authorized the agency to request the same from Ms. Connerton.

Ms. Connerton's communications on settlement were solely with

me and Ms. Nigro, not the agency. See Connerton Affidavit 911;

Nigro Affidavit.

APP.45

+44 Both Ms. Mosely and Mr. McEleney knew on April 27,

2000, that there was settlement involving payment of attorneys

fees. They also knew that, when the letter was sent on May 23,

2000, the settlement had not been finalized. Despite self-interested

statements to the contrary, given the content of John McEleney's

May 23, 2000 letter, there can not be any reasonable doubt that its

receipt by the higher level agency officials would adversely impact

on the finalization of the settlement. To say otherwise Is

disingenuous. There was no need to send the letter to the Agency.

If NTEU believed it could legitimately prevent Chapter 65 and its

members from seeking assistance from an outside attorney, it

could have done so internally without jeopardizing my settlement.

23. | NTEU's position in the May 23, 2000 letter is incorrect.

Ms. Connerton knew about NTEU's exclusive representation of

IRS employees and worked with the confines of that duty with

Chapter 65 to assure that there was no mistake on management's

part that she was not acting independently. Ms. Connerton did

nothing that could be interpreted otherwise. The IRS did not fatl to

recognize NTEU as the exclusive representative in the grievance

procedure. Furthermore, the agency never provided Ms. Connerton

with information about the grievance. Nor did they discuss any

matters about the grievance or settlement with Ms. Connerton. Any

"discussions" were presentations made by Ms. Connerton, Ms.

Nigro and myself to the Agency. The Agency's responses were in

writing to myself and Ms. Nigro.

24. Indeed, the agency found Mr. McEleney's letter

"surprising" since Ms. Connerton's bill for attorney's fees and

expenses, including charges for discussion and meetings with

Chapter 65 representatives. See Letter from Len Baptiste to Vera

Nigro, dated June 6,2000.

APP.46

25. After the letter was sent, Mr. McEleney refused to have any

discussions with me until June 29, 2000, when he indicated he

would schedule a future meeting. That meeting never occurred. Mr.

McEleney also told me that he would call Mr. Baptiste and urge

him to sign off on the settlement (including payment of attorneys’

fees). See Letter from Denise M. Crisco to John McEleney, dated

July 6, 2000. To my knowledge, Mr. McEleney never contacted

Mr. Baptiste.

26. | When Mr. McEleney did speak to Ms. Connerton in June

2000, he was very adamant that no attorneys’ fees would be paid to

her and that the agency had no authority to pay any money to me. If

his intent was not to upset the settlement (i.e. payment of monies to

me), then why would he bring this matter up to both Ms. Nigro and

Ms. Connerton. See Connerton Affidavit |18; Nigro Affidavit.

APPLICABLE LAW

1 | The FLRA set forth the standard of fair representation where

union membership is not a factor in National Federation of Federal

Employees. Local 1453, 23 FLRA 686, 691(1986) \"NFFE") as

follows:

Where union membership is not a factor, the standard for

determining whether an exclusive representative has breached its

duty of fair representation under section 711 4(a){ 1) is whether the

union deliberately and unjustifiably treated one or more bargaining

unit employees differently from other employees in the unit. That

is, the union's actions must amount to more than mere negligence

Or ineptitude, the union must have acted arbitrarily or in bad faith,

and the action must have resulted in disparate or discriminatory

treatment of a bargaining unit employee.

APP.47

/<=o==eeeeseepnhraaeetspesnniesessteeecesseshtentsouneusiioeitntanimtnestimscimsnnneesionmemnimenny soi,

a

r & Even in the absence of any hostile motive, a union may still

pursue a course of action or inaction that is so unreasonable and

arbitrary as to violate the duty of fair representation. See Griffen v.

United Automobile. Aerospace and Agricultural Implement

Workers of America. UAW, 469 F.2d 181, 183 (4th Cir. 1972).

3. In ALPA v. O'Neill, 499 U.S. 1127, 1130 (1991), the

Supreme Court rejected ALPA's argument that a union cannot

breach its duty of fair representation without intentional

misconduct. The court held that the duty encompasses three

district components. A union breaches the duty if its conduct is

either “arbitrary, discriminatory, or irfbad faith." With respect to

the arbitrariness prong, the Supreme Court stated: We think a

decision to be non-arbitrary must be: (1) based upon relevant,

permissible factors which excludes the possibility of it being based

upon motivations such as personal animosity or political

favoritism; (2) a rational result of the consideration of these

factors; and (3) inclusive of a fair and impartial considerations of

the interests of all employees.

See also Vaca v. Sipes, 386 U.S. 171, 188 (1967) (“[T)he

exclusive agent's statutory authority to represent all members of a

designated unit includes a statutory obligation to avoid arbitrary

conduct.").

APP.48

LEGAL ARGUMENT

A. The Manner in Which the Region Conducted the

Investigation Has Resulted in Prejudicial Error.

The charge against a Union of a breach of its duty of ‘air

representation is no doubt very difficult to prove. "Motive", "bad

faith", "arbitrariness", etc. are determined by a consideration of all

the facts and circumstances. When an aggrieved member brin gs

forth a charge to the FLRA, an unbiased and impartial investi gation

should be conducted. If after a thorough and impartial investigation

of all the facts and circumstances, the Regional Director concludes

that dismissal of the charge is warranted, at least the member will

have confidence that the "system worked".

Lt

Here, the Field Attorney Beth Landes gave me a difficult

time from the very beginning. See Statement of Facts 13 4, 5. She

refused to provide me with an.example of what she considered a

proper format.

See Statement of Facts '5. I was forced to retain an attorney

to represent my interests before Ms. Landes. See Statement of Facts

‘6. Ms. Landes, at the meeting with me and Michael Barrett,

expressed disdain for the charge and impatience with us. She was

very reluctant to take my statement or to write down the names and

telephone numbers of the proffered witnesses who I thought had

relevant information. It was apparent to me and my attorney that

Ms. Landes had prejudged my claim. See Affidavit of Michael

Barrett; Statement of Facts '6.

Even after my initial meeting with Ms. Landes, Ms. Landes’

investigation appears to have been one-sided. To my knowledge, I

do not believe that she contacted anyone from the Agency despite

my request that she contact Len Baptiste and Pam Vinson to

ascertain what, in fact, the National Union had known about the

settlement prior to Mr. McEleney sending the May 23, 2000 letter.

I also do not believe that she spoke directly to or received a

statement from Ms. Nigro. And she definitely did not want to take

a statement from Ms. Connerton, but begrudgedly did so because

she knew it would be an issue in this appeal. See Statement of

Facts |6, 7, 8, 9 and 10. In Ms. Landes’ judgment, as long 5 NTEU

articulated a reason for its actions, that was enough for her. She

did not want to know whether the articulated reason was a fact or

not.

I believe that, if an unbiased and thorough investigation

was completed evidence would be obtained demonstrating that the

articulated reason given by NTEU for its actions were pretextual

and that NTEU representatives deliberately sent the May 23, 2000

letter to Ms. Connerton and the Agency for the purpose of

preventing the agency from paying monies to me for my attorneys'

fees.

B. The Regional Director's Decision Is Based on

Erroneous Finding of Material Facts and Did Not Consider

Matertal Facts That Would Have Resulted in Issuance of a

Complaint.

Unfortunately, I could not obtain the file which the

Regional Director developed during its investigation. Therefore, I

do not know what evidence was relied upon. However, there were

a number of material facts which were relevant to the motivation

of NTEU in sending out its May 23, 206 letter which’! did not see

were considered in deciding to dismiss my charge.

APP.50

The NORD V provides, in the Employee Grievance

Procedure, Art. 41 that Chapter 65 is responsible for the handling

of the gnevances in the Step I through Step III stages and the

Steward or Chapter President are permitted to designate other

Union representatives to attend meetings. The fact that NTEU says

that the Steward or Chapter President does not have that authority

does not make it so. No written evidence has been provided that

requires duly-elected officers of Chapter 65 to seek the permission

of NTEU to designate Ms. Connerton as a Union representative in

the grievance meetings. The evidence I presented show that

Chapter 65 asked for and consented to the assistance of Ms.

Connerton in the development and presentation of my grievances.

Although NTEU is the exclusive representative of the IRS

employees, I had the right under Art. 41, Section 3B. to elect not to

be represented by the Union in filing and processing my own

grievance. No where does it state that I needed NTEU's approval to

do this.

Other Chapter 65 members have obtained the assistance of

outside counsel in preparation of their grievances and they were

not treated in the same fashion as I was. See Statement of Facts !20.

The serious political rifts between Chapter 65 officers and

NTEU adversely affected my ability to obtain adequate

representation through NTEU and Chapter 65. See Nigro Affidavit.

Ms. Connerton told Ms. Mosely early on that her sole objective

was to see that my case got heard and was not caught up in the

election disputes. See Statement of Facts '15. Ms. Mosely's

response was not an offer of assistance by NTEU, but rather a

shallow allegation that I was lying to Ms. Connerton and was

merely "forum shopping".

APP.51

See Connerton Affidavit ‘6. She was, I believe, trying to convince

Ms. Connerton not to assist me.

If Ms. Mosely was concerned about a violation of NTEU's

exclusive representation of duty after Ms. Connerton explained to

her in December 1999 what she intended to do, Ms. Mosely or

NTEU should have written a letter then to Ms. Nigro, to Ms.

Connerton and/or to me explaining their position.

Ms. Mosely made very derogatory and defamatory

statements about Ms. Connerton. See Connerton Affidavit |'6 and

11; Nigro Affidavit. Further, Mr. McEleney suggested to Ms.

Connerton that Ms. Nigro had sent me to her for other than

legitimate reasons. See Connerton Affidavit |18. I believe he was

alluding to the fact that the Connerton firm had represented the

Chapter 65 officers in their election disputes with NTEU. There_is

no doubt that Ms. Mosely an~ Mr. McEleney showed extreme

animosity towards Ms. Connerton. This fact impinges on their

motivation in sending the May 23, 2000 letter.

The fact that Ms. Nigro had a meeting with NTEU General

President Ms. Kelley immediately before the letter was sent out

was relevant to motive.

Ms. Nigro accused NTEU representatives (1.e., Ms.

Mosely) of not properly representing members, dropping their

arbitrations for no good reason and generally being hostile to

Chapter 65 members and their circumstances, causing the

members to seek outside counsel. Ms. Mosely and Mr. McEleney

were very angry at Ms. Nigro in the meeting a few days later and,

at that time, threatened Ms. Nigro and told her she had better settle

my grievance quickly.

APP.52

EES ' RE

Ms. Nigro was convinced, based on their veiled threats, that they

Were going to do something to jeopardize my settlement. See

Nigro Affidavit. They may not have said exactly what they were

going to do, but at this meeting they did express their opinion that

‘they did not think I was entitled to any damages. See Nigro

Affidavit.

Ms. Nigro had informed Ms. Kelley, Ms. Mosely and Mr.

McEleney, that the settlement of my grievance was ongoing and

that the agency had offered to pay me damages in the amount of

my attorneys’ fees. See Nigro Affidavit. When the letter on May 23,

2000 was sent out by Mr. McEleney to Ms. Connerton and Agency

officials, he knew that it would prevent the Agency from paying me

damages. Mr. McEleney' 5 statement that it was not his intent to

undo the settlement but just provide a statement of facts and the

law belies common sense. There is no doubt, given the content of

the letter, that it would adversely impact on my settlement. See

Statement of Facts '22~If in fact, Mr. McEleney had not thought

about what effect it would have on the settlement, then he acted

with reckless disregard of obvious consequences.

Even after the May 23, 2000 letter, Mr. McEleney could

have contacted Mr. Baptiste and the Agency and authorized the

agency to pay me the amount they had agreed in writing. Indeed, he

promised he would do so. See Statement of Facts |25. However, he

never did.

The fact is that Ms. Connerton's representation of myself

and Chapter 65 in no way adversely affected the union's interest;

however, NTEU has made sure that my interests have been

adversely affected. ;

If these facts had been properly considered, I believe that I

presented substantial evidence of NTEU's purposeful

discriminatory and arbitrary actions against me which constituted a

violation of its duty to fairly represent me.

CONCLUSION:

In conclusion, I request that the Regional Director's dismissal of

my charge should be reversed for the reasons stated herein and that

the case be assigned to another Field Attorney who would conduct

a thorough and impartial investigatton into my charges.

Very truly yours,

Denise Crisco

APP.54

AFFIDAVIT NO.2 OF DENISE CRISCO

FOR APPEAL OF WASHINGTON REGIONAL DIRECTOR'S

DECISION

CASE NO. WA-CO-00593

I, Denise M. Crisco, declare the statements made in this affidavit

concerning discussions with and voice mail messages from Ms.

Beth Landes, attorney FLRA, are true and correct to the best of my

knowledge and recollection.

(1) On July 19, 2000, I spoke tu Ms. Landes and she indicated

that my charge was not acceptable because it was not clear or

concise and it needed to be amended. Ms. Landes, in a derogatory

and denigrating tone, referred to my charge as "as a form, an

attachment and 4 pages and stated that the "charge as is, is just not

acceptable." Ms. Landes then proceeded to tell that I needed to

amend charge by looking at the instructions and she provided no

further assistance. I explained to Landes that I would review the

instructions again and amend the charge as she requested.

(2) On July 24, 2000, I filed :he 1St Amend Charge with FLRA.

(3) On August 1, 2000, Ms. Landes left me a voice mail

message on which she sounded very angry and agitated. Ms.

Landes indicated that she received a copy of the ~ charge and we

needed to discuss it. Ms. Landes went onto say that "as we spoke

the first time Ms. Crisco, in order to amend the charge properly,

you need to have a ciear and concise statement of exactly what it is

that you are alleging. Again, what you have submitted is a 2 page,

not clear or concise statement. I need a quick explanation of

exactly what it is that you are alleging. You need to have an

amended charge as soon as possible."

APP.55

After listening to Ms. Landes’ voice mail message, I was

disturbed by her tone of voice and I could not understand why my

original charge or the amended charge were not acceptable.

(4) On August 3, 2000, I left a voice mail message for Ms.

Landes and requested assistance from Ms. Landes. I asked for an

example of a charge which she was referring to.

(5) On August 4, 2000, I tried to contact Ms. Landes to

discuss how I was to amend my charge. I wished to discuss with

Ms. Landes the outline I prepared for the second amended charge.

I left a voice mail message for Ms. Landes which I conveyed my

second amended charge. I asked Ms. Landes to return my call

because I wanted to be clear in my charge and wanted to go over it

prior to tiling the charge to ensure that it was acceptable to Ms.

Landes. |

(6) On August 8, 2000, I decided to designate a

representative so that the issue with my charge could be resolved. I

felt that Ms. Landes was not providing me with assistance and was

pejorative towards me and my charge. I left a voice mail message

for Ms. Landes to advise her that I would be designating a

representative and again requested an example of what she

considered a proper format of a charge so that I could amend the

charge as she finds acceptable. I did not hear from Ms. Landes

again.

(7) On August 22, 2000, Mr.-Michael Barrett, my

representative, and I met with Ms. Larides. Ms. Landes for the first

part of the meeting was condescending about my charge and tried

to discourage me from continuing with my charge.

APP.56

Ms. Landes explained what the regional director could and could

not do with remedies in my case and, even if my charge was

upheld, he would probably put it on hold until the outcome of the

arbitration. Ms. Landes went onto say this could take years.

Mr. Barrett made several inquiries regarding the FLRA's

powers in remedies. Ms. Landes appeared uncomfortable about the

inquiries Mr. Barrett was making, and then she changed the

subject. I then gave my affidavit.

During the affidavit, I provided Ms. Landes with my

witnesses and their phone numbers. I attempted to have Ms.

Pamela Vinson added as a witness but Ms. Landes told me that she

would let me know if it was needed. I informed Ms. Landes that

Ms. Connerton was to also be interviewed. She said she would do

so if necessary. At the close of the meeting, Ms. Landes explained

What the next steps she was going to take, and several times she

omitted Ms. Connerton's name from the list of persons she would

be interviewing. I got the impression that Ms. Landes was not

interested in speaking with Ms. Connerton.

(8) On January 10, 2001, I called Ms. Landes to inquired

about the status of my case. Ms. Landes informed me that she was

meeting with NTEU National next week to get their side.

(9) On January 18, 2001, I spoke with Ms. Landes. She

was inquiring about a letter dated April 25 to Mr. Baptiste from _

Ms. Connerton, which the May 25 letter from Mr. Baptiste

referenced. I explained to Ms. Landes that I would check through

my documents but Ms. Nigro was always in charge of negotiations

so Ms. Connerton would not have responded to Mr. Baptiste.

APP.57

[ further explained that all memoranda from Mr. Baptiste were

to/from Ms. Nigro as she was handling all negotiations. Ms.

Landes indicated that she would have to provide me with an

updated affidavit with these facts, and would be faxing it to me for

signature. I told Ms. Landes that I did not have any problem doing

that.

I asked Ms. Landes if she had interviewed Ms. Connerton

yet. Ms. Landes stated that "she did not feel it was necessary to

speak with Terry about my case because once a violation occurs

then she makes a recommendation to the Regional Director and

there is no further investigation."

(10) On January 24, 2001, I called Ms. Landes to convey

to her that she really should interview Ms. Connerton because she

had conversations with Ms. Kimberly Moseley and Mr. John

McEleney that would provide insight as to their motivations. Ms.

Landes informed me that if she felt it was necessary after

reviewing the memoranda that day that she would then contact Ms.

Connerton.

(11) On January 30, 2001, Ms. Landes informed me that

the Regional Director made a decision on my case and he was

going to dismiss the charge. She asked me if I wanted to dismiss

my charge. Ms. Landes told me that the case law for DFR requires

me to prove that the union acted in bad faith-and deliberately. She

told me that the union did not show bad faith because there was no

intent to undo the settlement. Ms. Landes said that there was no

violation of the law in Mr. McEleney sending the letter to Mr.

Baptiste. I conveyed to Ms. Landes that I would get back to her

with my decision.

APP.58

ee ee ee ee RR EP ete hee er ey

I called Ms. Landes and explained to her that I felt it was

important for her to interview Ms. Connerton, and inquired if she

would accept Ms. Connerton's affidavit so that it could at least be

included in my case file. I expressed to Ms. Landes that I was ;

concemed abut Ms. Connerton's affidavit not being in the case file

because of my intent to appeal the decision. Ms. Landes responded

that she would not accept Ms. Connerton's statement as it was not

necessary. Ms. Landes stated condescendingly that since "you're so

familiar with our website, refer to FLRA's policy on the scope of

the investigation."

Ms. Landes told me that I could address the issue of

Connerton's statement in my appeal.

(12) On January 31, 2001, I sent Ms. Landes a

memorandum which conveyed my repeated attempts to have Ms.

Connerton's affidavit taken and the importance of Ms. Ccnnerton's

affidavit. See attached letter.

Ms. Landes called me and advised me that she received my

memorandum and now wanted to take Ms. Connerton's statement

but she didn't think it would change the outcome.

(13) On February 13, 2001, Ms. Landes informed me that

the Regional Director did not change his mind even after

reconsidering the new-information as she had told me before. Ms.

Landes sounded annoyed.

4/26/01. Denise M. Crisco

Date Signature

APP.59

DECLARATION OF

MICHAEL BARRETT

Michael Barrett, under penalty of perjury, declares as follows.

1. Iam an attorney admitted to practice in the District of

Columbia. I have been engaged in the practice of law representing

workers and unions exclusively for the past 16 years. I have

extensive experience in litigating duty of fair representation claims

before the federal courts and federal-agencies including the

National Labor Relations Board and the Federal Labor Relations

Authority, in this area and across the country.

2. Following the events described elsewhere by my law

partner, Terese Connerton, I agreed to assist Denise Crisco in

presenting her unfair labor practice charge against the National

Treasury Employees' Union to the FLRA. Ms. Crisco had

described to me her attempts to pursue her charge with the

Authority, and her belief that she was being dismissed by the

Authority's agent without fair consideration.

3. My initial reaction was that Ms. Crisco was overstating

the problem, and that any issue likely stemmed from lack of

communication. My assessment was that she had a strong prima

facie case of arbitrary and discriminatory treatment by the National

Union, based primarily on the Union's statements to Ms. :

Connerton. I agreed to accompany Ms. Crisco to her next

interview with the FLRA agent handling her case.

4. Ms. Crisco and I met with Authority attorney Beth

Landes in August, 2000, ostensibly for Mrs. Landes to take down

Ms. Crisco's statement and to otherwise investigate the charge.

APP.60

Fr —-- sens cape a

From the outset, Ms. Landes displayed disdain for the charge and

impatience with Ms. Crisco and me. She made it evident that my

| presence was not welcome. Before hearing Ms. Crisco's detailed

statement and our summary of the evidence that could be offered

| by Ms. Connerton and others, Ms. Landes launched into an

elaborate explanation of the difficulties in pursuing the charge. She

pointed out that it was difficult to show that a union's conduct

breached the duty of fair representation, that the union was

required only to show that its conduct had some reasonable basis,

and that the union was entitled to deference. When we persisted in

wanting to pursue the charge, she explained that no effective

remedy would result, that the Authority would have to await the

outcome of the National Union's handling of her grievance, and

that the National Union's handling of her grievance and that the ~

National Union could, and likely would, sit on the grievance for

years. I expressed my disagreement with Ms. Landes on the limited

ability of the Authority to act until the National Union had

4 _ finished. My comments plainly annoyed Ms. Landes. Only when

| we again insisted, did Ms. Landes proceed to take Ms. Crisco's

statement, which she did in a professional and competent manner.

5. However, despite our repeated explanations that the

best evidence of the National Union's motives for undermining Ms.

Crisco's grievance settlement were the statements made by Union

representatives to Ms. Connerton, Ms. Landes repeatedly indicated

that she did not believe Ms. Connerton' 5 testimony was necessary.

At several points, Ms. Landes summed up her plans for further

investigating the charge, each time failing to mention an interview

of Ms. Connerton. It was only on my repeated insistence that Ms.

Landes was willing to agree to interview Ms. Connerton or even to

take down her contact information.

APP.61

1

—

By the end of the interview, there was no longer any question that

Ms. Landes' attitude towards Ms. Crisco and her case were not the

result of a failure to communicate our case or lack of

understanding on her part. Both Ms. Crisco and I left the interview

with the distinct impression that Ms. Landes had no intention of

pursuing the charge with an open mind, and I advised Ms. Crisco

that she should expect the investigation to go nowhere.

6. Ino longer represent Ms. Crisco and I do not make

these statements lightly or eagerly. I have had many positive

experiences with FLRA agents, both in the Washington Regional

Office and elsewhere. Regardless of the outcome of the particular

case, I always believed I had received a fair hearing. My :

experience with Ms. Landes in this case left me with the firm

impression that she was not approaching the case on the merits,

but from a desire to dispose of the case prematurely in favor of the

National Union. Never in my experience has a representative of a

regulatory agency treated a charge or complainant with such

inexplicable and unwarranted disdain. I have no doubt that Ms.

Landes' evident prejudgement undermined the fairness of her

investigation and her recommendation to the Regional Director in

this case.

I declare under penalty of perjury that the foregoing is true

and correct.

Dated: April 26, 2001

Michael Barrett

APP.62

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON REGIONAL OFFICE

TECH WORLD PLAZA NORTH

800K Street, N.W.. Suite 910

Washington, DC 20001-8000

: (202)482-6700 FAX. (202) 482~6724

February 7, 2001

Ms. Therese Connerton

ViA FAX (202)342-3434

Re: National Treasury Employees Union and Denise M. Crisco

(md.) Washington, DC Case No. WA-CA-00593

Dear Ms. Connerton:

This letter confirms our telephone conversation of February

7, 2001.

You stated that you are not in the position to know of

evidence of whether NTEU has authorized outside counsel in cases

cargaining unit employees grievances other then Ms. Hatch and

Ms. Crisco. You further stated that Ms. Nigro, President of Chapter

65 told you that she was authorized to retain you to work with her

within the grievance procedure. This is the only evidence that you

know of of outside counsel being retained by NTEU for purposes

of the grievance procedure

|

As per our conversation, please sign and date the affidavit

you prepared and faxed me earlier. Please then fax back to me as

well as mailing the signed original.

In addition, If anything in this !etter is inaccurate or does

not accurately reflect what we discussed, please contact me in

writing by the close of business February 5, 2001 If the

- information in this letter is correct, please sign the bottom of this

letter, indicating that the contents are accurate, and fax back to me

at (202)482-6724. You may contact me at (202)482-6702, ext. 20.

You may e-mail me at blandes@flra. gov.

Sincerely

Beth Ilana Landes

Field Attorney

APP.64

MEMORANDUM

To: | Beth Landes, Esq.

Field Attorney, FLRA

From: Terese M. Connerton

——

Subject: NTEU and Denise M. Crisco (IND.), Washington. D.C.

Case No. WA-CA-00593

Date: February 9, 2001

The information in your February 7, 20001 letter to me is

not correct. My understanding is that several grievants retained

their own attorneys to assist them and the union in the presentation

of their cases. Indeed, Chapter 65 has worked with other attorneys,

not just myself. NTEU Nationals not the entity that processes

grievances; it is the NTEU Chapters that do. Chapter 65 authorized

me to assist in the clients’ grievances. NTEU National was not in a

position to tell the members they couldn't retain outside counsel to

advise them or that their outside counsel could not consult with and

offer advice to the Chapters presenting the grievances. If NTEU

National took this position, they should have informed Ms. Crisco,

Ms. Hatch, and myself which they failed to do prior to sending Mr.

McEleney's letter to me and the agency. Also, as a clarification,

Chapter 65 did not "retain" me (i.e., attorney-client relationship and

payment of fees); Ms. Crisco and Ms. Hatch retained me. However,

I was representing both their interests. Please call Vera Nigro at

(202) 283-6179 to confirm this.

APP.65 7

| also informed you yesterday that I was fully aware that

NTEU was the exclusive representative of the IRS employees. I

kept strictly within those bounds. Not only have I practiced labor

law tor 20 years, but I worked as a union steward that processed

grievances and arbitrations. I knew what I could and could not do.

On a final note, in the 20 years of my practice working with

unions and union members, I have never once encountered such

hostility from union representatives towards the members and

myself as I did with Ms. Mosely. I have also never seen a union so

recklessly ignore their members' merest. NTEU was not legally or

otherwise justified in knowingly and purposefully interfering with

Ms. Crisco's or Ms. Hatch's settlement. The reasons NTEU

National have proffered are contradicted by the face of the facts

and are legally deficient. Even if true, NTEU's interests could not

have been protected without adversely affecting the grievants’

rights under the collective bargaining agreement.

APP.66

‘ at sad lh ani a

City of Washington _ )

) ss:

District of Columbia_)

AFFIDAVIT OF TERESE M. CONNERTON

I, Terese M. Connerton, being duly sworn, do hereby say:

(1) I am attorney associated with the law firm of

Schmeltzer, Aptaker and Shepard in Washington, D.C. Prior to

October 1, 2000, I was a partner in the firm of Connerton & Ray in

Washington, D.C. Connerton & Ray was a union-side labor and

employment law firm.

(2) Prior to my representation of Ms. Denise Crisco and

Ms. Ada Hatch, another attorney in the Connerton & Ray firm, Mr.

‘Michael Barrett, had represented the newly-elected officers of

NTEU Chapter 65 in a contentious and lengthy dispute with

National NTEU. The other slate of candidates for office had

challenged the election of Mr. Barrett's clients as officers of NTEU

Chapter 65 on a variety of grounds. Mr. Barrett filed a response to

the election protest with National NTEU. Ms. Kimberly Mosely, on

behalf of National NTEU, conducted an investigation of the protest

and recommended a rerun of the election. Ms. Kimberly Mosely

also was in charge of overseeing the new election. After the rerun,

several of Mr. Barrett's clients, but not all, won the second election.

During the conduct of the second election, there were several

heated arguments between Mr. Barrett and his clients (Ms. Vera

Nigro and Mr. Jerry Feith) and Ms. Mosely. Thereafter, challenges

were filed with the Department of Labor by Mr. Barrett's clients

regarding the propriety of the decision to rerun the election.

APP.67

Eventually, the Department of Labor resolved the dispute against

Mr. Barrett's clients in the summer of 2000.

—

(3) On or about September 1999, Ms. Vera Nigro, the

Chief Steward of NTEU Chapter 65, brought Ms. Denise Cnsco to

my office. Ms. Crisco had stated to me that, on or about March

12,1999, she had received a notice of proposed disciplinary

suspension from her prior supervisor, Ms. Donna Laiti. Another

NTEU Steward Roberta Bondzie had apparently attempted to

schedule an oral reply, but had failed to do so. Ms. Bondzie then

informed Ms. Crisco in August 1999 that management was willing

to retract the suspension if Ms. Crisco was willing to accept a

letter of admonishment to be placed in her file. When Ms. Crisco

rejected the offer, she was told that she would have to provide an

oral reply.

(4) Ms. Nigro and Ms. Crisco had informed me that the

case involved a whistleblower claim and that both the NTEU

Chapter 65 and Ms. Crisco believed that they needed assistance in

preparing the case to go through the grievance procedure. They

also indicated that Ms. Ada Hatch likewise had an identical issue,

but that the agency had already issued her a formal written

admonishment. Ms. Crisco described to me how she had been

retaliated on her job by the issuance.of official reprimands by her

supervisors, by her work being taken away from her and by the

constant harassment of her supervisors. Ms. Crisco believed that

. these actions were taken against her because she refused to do

things which she believed were illegal.

APP.68

Abpastiatts vas

(5) [reviewed the voluminous documentation provided to

me by Ms. Crisco and, based thereof, I concluded that she had a

viable whistleblower claim. I agreed to assist Ms. Crisco and

NTEU Chapter 65 in preparing a written response because I did not

believe, given the detailed charges made against Ms. Crisco and

the amount of documentation, that an oral reply would have been

feasible or efficacious. Ms. Vera Nigro requested that she be able

to review the response and make any changes she deemed

appropriate.

I told her that I had no problem with that since I believed

that the union should be a "part and parcel" of the entire process

and would be formally presenting the grievance.

(6) In December 1999, I had a conversation with Ms.

Kimberly Mosely regarding Ms. Denise Crisco's and Ms. Ada

Hatch's case. Ms. Mosely first accused me of "robbing the clients"

and said that there was no reason for my involvement in their cases

since NTEU was the exclusive bargaining representative of IRS_~

employees. I explained to Ms. Mosely that Ms. Crisco, Ms. Hatch

and Chapter 65 believed the cases were very complicated and they

needed assistance in presenting the grievances. Also, given the

political fights between National NTEU and NTEU Chapter 65,

Ms. Crisco and Ms. Hatch did not believe that the NTEU Chapter

65 representatives or the National NTEU had the commitment to

present their grievances in a satisfactory manner. Further, I assured

Ms. Mosely that I was not going to represent Ms. Crisco or Ms.

Hatch independently, but rather would assist NTEU Chapter 65 in

developing and presenting their grievances. -

APP.69_

Ms. Mosely then proceeded to tell me that I did not know

the true facts about what had gone on with Ms. Crisco's and Ms.

Hatch's cases. She said Ms. Crisco and Ms. Hatch had not provided

me with the full story of why they were written up: She said that

my clients were "forum shopping" because they had tried to pursue

their complaints through other avenues. I told Ms. Mosely that I

didn't know what she was talking about and that my impression of

both clients was that they were credible. They were both

outstanding employees before these incidents. I had objectively

looked at the documentation provided by Ms. Crisco and Ms.

Hatch and that it was obvious to me that they had been

"railroaded" and false charges were "trumped up" against them.

Ms. Mosely said that NTEU would probably not take their

cases to arbitration because they only involved a letter of

admonishment which would be out of their records by the time the

arbitrations were completed. In Ms. Mosely's view, it would not be

worth NTEU's efforts to pursue the arbitrations of Ms. Crisco and

Ms. Hatch. I responded that, in my opinion, the union had an

interest in assuring that its members are not retaliated against for

their legitimate actions. At no time did Ms. Mosely tell me that if I

proceeded to assist NTEU Chapter 65, Ms. Crisco and Ms. Hatch

in the manner I explained, NTEU National would prevent me from

doing so:

(7) After my conversation with Ms. Mosely, I reviewed

the collective bargaining agreement and I spoke with Ms. Vera

Nigro. Ms. Nigro and I agreed that NTEU Chapter 65 would be the

representative of Ms. Crisco'and Ms. Hatch and I would assist

NTEU Chapter 65 and the grievants in drafting the responses and

presenting the grievances.

APP.70

eal

Further, Ms. Nigro stated that nothing in the collective bargaining -

agreement precluded this and she assured me that NTEU had no

policies preventing NTEU members or Chapters from being

advised by outside counsel.

(8) I drafted a Response and Rebuttal which was reviewed

by Ms. Vera Nigro and Mr. Jerry Feith, then President of NTEU

Chapter 65. Ms. Nigro made several changes before she submitted

it to the agency. The agency issued a Letter of Admonishment and,

on February I, 2000, I attended a Step 2 grievance meeting with the

agency with the consent of Chapter 65. The meeting was attended

by. Ms. Denise Crisco, Ms. Vera Nigro, Mr. Jerry Feith and myself.

Ms. Vera Nigro took the lead in defending Ms. Crisco. When I

spoke, I indicated that I was representing both NTEU Chapter 65's

and Ms. Crisco's interests.

(9) The agency upheld its decision to issue a Letter of

Admonishment; therefore, a Step 3 grievance meeting was held

with the agency on March 23, 2000. Ms. Denise Crisco, Ms. Vera

Nigro and myself attended. Again, Ms. Vera Nigro took the lead

in defending Ms. Crisco. When I spoke, I again reiterated that I was

representing both Chapter 65's and Ms. Crisco's interests. The

agency, at that time, agreed to review Ms. Crisco's and Ms. Hatch's

grievances together since Ms. Nigro had argued that the cases were

interrelated.

(10) In response, the agency agreed to settle Ms. Crisco's

and Ms. Hatch's grievance by rescinding the letter of

admonishment and the payment of a certain amount of attorneys

fees to each client.

APP.71

(11) Ms. Vera Nigro called me sometime in April 2000

and told me that Ms. Kimberly Mosely had vehemently argued

with her regarding my participation in the grievance proceedings.

Ms. Mosely thought that Ms. Nigro should not have allowed me to

go to the meetings with the agency. Ms. Mosely called me a

"robber and thief." Ms. Nigro believed that Ms. Mosely would

attempt tc keep the settlement from going through. I urged Ms.

Nigro to get the agency's settlement offer in writing which she did.

[ told Ms. Nigro that I didn't want Ms. Mosely's animosity towards

me to derail the settlement.

(12) On April 14, 2000, Ms. Nigro received a wntten

settlement offer which included settling both Ms. Crisco's and Ms,.

Hatch's grievances by rescinding the letter of admonishment and

the payment of a certain amount of attorney's fees.

(13) At the end of April 2000, I received a call from Ms.

Nigro. She was very upset and said that Ms. Mosely and Mr.

McEleney had a meeting with her and "blasted her" for allowing

me to represent Ms. Crisco and Ms. Hatch: She said that they had

threatened to stop the agency from paying me attorneys fees. Ms.

Nigro told them that she had a right as an officer of the Chapter to

have me present. I again urged Ms. Nigro to get a written response

to the counter proposal from the agency as soon as possible.

(14) On May 25, 2000, Mr. Baptiste agreed in writing to

resolve both Ms. Crisco's and Ms. Hatch's grievances by rescinding

the admonishment letters and paying to each of them $8,592.

APP.72

at a; mde wen

an Or Tee ee

(15) At the end of May 2000, I received a letter from Mr.

John McEleney wherein he stated that NTEU, as the exclusive

representative, had the sole right to present and process grievances

and that the agency's dealings with me in any way constituted an

unfair labor practice. This letter was sent to the agency.

(16) Atno time prior to receipt of Mr. McEleney's letter

did Ms. Mosely or Mr. McEleney call me to tell me to cease and

desist, even though they were fully aware from the very beginning

of my presence during the grievance procedure and I had called

Ms. Mosely several times. Indeed, at no time prior to the

negotiation of the settlement did NTEU National tell Ms. Nigro to

cease and desist from using me to assist in the development of

responses to the grievances or the negotiations. At no time prior to

the mailing of Mr. McEleney’s letter did they inform Ms. Crisco

and Ms. Hatch that they could not retain me to assist in the

development of their case.

(17) On or about June 6, 2000, because of Mr. McEleney's

letter, the agency reneged on its offer to pay Ms. Crisco and Ms.

Hatch money for attorneys fees.

(18) I spoke to Mr. John McEleney in June 2000. He

informed me that the agency had no right or authority to pay me

attorneys’ fees. I informed him that my clients had paid me and that

the only persons who were injured by his actions were NTEU's own

members. He was not aware of this fact. I questioned why the

NTEU National would be contesting the agency's authority to

reimburse NTEU's members for damages they incurred. He had no

answer. I also asked Mr. McEleney why he and Ms. Mosely didn't

just call me, as opposed to writing a letter that would ensure that

the agency would not settle the case.

APP.73

He had no answer. [ asked him why the Chapter could not

designate someone to represent the grievant’ 5 and its interest as

permitted in the collective bargaining agreement. He had no

answer. I questioned him about what he was going to do row that

the settlement was revoked. He had no answer. I asked him why

NTEU National was involved in the grievance procedure when

normally NTEU National would not be involved until the

invocation of arbitration. He had no answer. He did tell me during

this conversation that he thought there were "other reasons" why

NTEU Chapter 65 brought these clients to Connerton & Ray, given

the firm's prior representation of the Chapter officers. I asked him

what he was talking about. He had no answer. I told him that my

only motives in handling these cases was to assist NTEU'S

members in being adequately represented at the grievance level:

and that his actions which were motivated by animous against my

firm and NTEU Chapter 65 officers made sure that their settlement

was lost.

(19) Ialso advised and assisted Ms. Leslie White in the

development of her grievance involving a disability discrimination

case. I attended a meeting with Ms. Mosely and Ms. White in the

fall or winter of 1999. Ms. Mosely did not inform me or Ms. White

that I could not advise or represent Ms. White.

(20) I spoke with Ms. Vera Nigro today and she advised

me that: (a) she has worked with several outside counsel in

the development of grievances; (b) NTEU members have a night to

consult counsel and have counsel advocate on their behalf before

the union and in the development of their cases; (c) NTEU

National had no legal right to interfere with the settlement of

Chapter 65 members’ grievances; and

APP.74

(d) National NTEU did not even provide her prior notice of Mr.

McEleney’s intention to send his letter to the agency.

Further affiant sayeth naught,

Terese M. Connerton

Subscribed and sworn to before me

this 8th day of February, 2001.

' Susan H. Thompson

Signature - Notary Public Printed Name -

Notary Public

My Commission expires on 4-30-04

APP.75 a

January 31, 2001

VIA FACSIMILE (202) 482-6724

Ms. Beth Ilana Landes

Field Attorney

Federal Labor Relations Authority

Washington Regional Office

800 K Street, N. W., Suite 910

Washington, DC 20001

Dear Ms. Landes,

This letter is a follow-up to the conversations we had on

January 18, 2001, January 24, 2001, and on January 30, 2001

regarding your statements concerning the affidavit of my attorney,

Ms. Terese’ Connerton.

During the investigative process, I have requested several

times that you interview Ms. Connerton as she had conversations

with Ms. Kimberly Moseley and Mr. John McEleney of NTEU,

and those conversations would provide you with insight into their

actions. On January 18,2001, you advised me that you did not feel

it was necessary to interview Ms. Connerton as once a violation

was found, you would then issue your recommendation to the

Regional Director. On January 24, 2001, I again stressed to you

that you should speak with Ms. Connerton. You advised me that if

you felt it was necessary after reviewing the memorandums that I

had faxed to you that you would contact Ms. Connerton.

APP.76

On January, 30, 2001, after you advised me that the

Regional Director has made his decision, I again conveyed to you

that I felt it was important to interview Ms. Connerton, and

inquired if you would accept Ms. Connerton's affidavit so that it

could at least be included in my case file; I also advised you that I

was concerned about Ms. Connerton's affidavit not being included

in the case file because of my intent to appeal the Regional

Director's decision. You advised me that you would not accept Ms.

Connerton’s affidavit as it was not necessary. You referred me to

FLRA's policy on the scope of the investigation, and also advised

me that I could include this issue in my appeal.

If you have any questions, please feel free to contact me at

work on (202) 283-6611 or at home on (703) 799-0058.

Sincerely,

Denise M. Crisco

= APP.77

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON REGIONAL OFFICE

TECH WORLD PLAZA NORTH

800 K Street, N.W., Suite 910

Washington, DC 20001-8000

(202) 482-6700 FAX: (202) 482-6724

June 30, 2000

Mr. John Laird

43 Courage Lane

Stafford, VA 22554

Dear Mr. Laird:

This is in reference to your letter of May 25, 2000

concerning the conduct of our agent, Tom Bianco during

investigation of your charge, WA-CO-00308.

I have conducted an internal investigation and I have

concluded that your description of Mr. Bianco's behavior is

partially substantiated. Please be assured that I do not condone the

manner in which Mr. Bianco conducted himself in this case. Your

actions did not warrant shouting and nothing that you did

jeopardized the office security as to require that security guards be

called. On behalf of the Region I offer my apologies.

Mr. Bianco's behavior notwithstanding, I have decided to

let stand the dismissal of your charge. The record does reflect that

you had been advised prior to your meeting with Mr. Bianco that

Mr., Jerry Feith could not represent you in your charge and that

you could not represent Mr. Feith in his charge.

APP.78

At the meeting you were again advised that your statements

would be taken separately and after receiving those instructions,

you refused to provide a statement without the assistance of Mr.

Feith.

The limitations imposed by Mr. Bianco were reasonable

and within his authority. Refusal to comply with an agent's

conditions for an investigation constitutes a refusal to cooperate,

which was the basis for the dismissal of your charge.

Sincerely your

Michael W. Doheny,

Regional Director

eo ee *

ie a oct eee

APP.79

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

CHARGE AGAINST A LABOR ORGANIZATION

Case No. WA-CO-00308 Date Filed: 2-29-00

Since on or about September 1,1999 the National NTEU by

its agents and representatives have committed acts which

constitute an unfair labor practice against John Laird. Such

incidents and events include, but are not limited to the National

Executive Vice President declaring that he and his compatriot

were out to get nd of the current FEITH administration by any

means, of which Mr. Laird is a part,as well as force the chapter

into receivership. Since this declaration on September 1, 1999

and including that day where the National Executive Vice.

President (Frank Ferris) threw the NTEU Chapter 65 President

(Jerry Feith) and barred the NTEU Chapter 65 negotiation team

member out of the bargaining session concerning the local 65

AWARDS.

National NTEU agents then signed an awards agreement on

September 30, 1999 without further discussion or consultation

with the local 65 chapter. The September 1, 1999 incident where

the National Executive Vice President was angered was because

Chapter 65 disagreed with the National NTEU's position . The

actions of the National Executive Vice President of NITEU and the

National Negotiator of that issue caused the creation of a bad

agreement which does not meet the needs of the Chapter 65

constituents who were the largest group affected by that

agreement. As well as problems between the local and the labor

relations office from the demonstration of September 1, 1999.

APP.80

a Daler abe SH

Since that September 1,1999 incident other negative actions

by the National union which constitute interference and an unfair

labor practice by the union against Mr. Laird, (when the union

causes or attempts to cause an, employer to act against employees

in order to influence union activity) have occurred, included, but

not limited to the National NTEU refusal to arbitrate Mr. Lairds'

religious discrimination case. And the Agency further giving Mr.

Laird problems over the use and earning of religious time while

being in the union.

Where the National Union shows a disregard for

Constitutional Issues, such as religious time in the workplace,

misuse of inspection, due process violations, privacy violations,

compounded problems will persist and rise in other areas that

affected many other employees throughout that unit which breach

their duty.

John W Laird John W Laird 2-29-00

Type or printname Your signature Date

APP. 8]

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

CHARGE AGAINST A LABOR ORGANIZATION

Case No. WA-CO-00310 Date Filed: 2-29-00

Since on or about September 1, 1999 the National NTEU ©

by its agents and representatives have committed acts which

Constitute an unfair labor practice against Jerry Feith and NTEU

Chapter 65. Such incidents and events include, but are not limited

to the National Executive Vice President (Frank Ferris) declaring

that he and his compatriot were out to get rid of the current FEITH

administration by any means, as well as force the chapter into

receivership. Since this declaration on September 1, 1999 and

including that day where the National Executive Vice President

(Frank Ferris) threw the NTEU Chapter 65 President (Jerry Feith)

and barred the NTEU Chapter 65 negotiation team member out of

the bargaining session concerning the local 65 AWARDS.

National NTEU agents then signed an awards agreement an

September 30, 1999 without further discussion or consultation

with the local 65 chapter. The September 1, 1999 incident where

the National Executive Vice President was angered was because

Chapter 65 disagreed with the

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