# Petition for Writ of Certiorari — Nigro v. Federal Labor Relations Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1502%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 812 ## Text 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 . 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 National NTEU's position . The actions of the National Executive Vice President of NTEU and the National Negotiator of that issue caused the creation of a had agreement which does not meet the needs of the Chapter 65 constituents who were the largest group affected by that agreement. As well as it caused more severe problems between the local chapter , the labor relations, and the local management all from the demonstration of September 1, 1999 by the National Executive Vice President. APP.82 Pe a TT Since that September 1, 1999 incident other negative incidents to turn the chapter into a downward spiral have been on the rise. Such actions by the National union which constitute Interference and an unfair labor practice by the union is when the union causes or attempts to cause an employer to act against employees in order to influence union activity have occurred, included but are not limited to the National NTEU refusal to arbitrate religious discrimination case. The Agency further giving problems over the use and earning of religious time while being in the union, more instances where management is railroading employees with unreasonable penalties and without due srocess 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 National's duty to the employees. Jerry Feith Jerry Feith 2/29/00 Type or print name Your signature Date APP.83 UNITED STATES OF AMERICA FEDERAL LABOR RELATIONS AUTHORITY CHARGE AGAINST A LABOR ORGANIZATION Case No. WA-CO-00653 Date Filed: 8/2000 UNION Since on or about February 9, 2000, and continuing, the National Union by its agents and representatives committed and unfair labor practice violating 5 U.S.C. 7102, 7114, 7116 (b) 1, 2, 3,4, 7, 8 by colluding with and influencing the IRS Agency against this employee and union official for the exercise of her rights and duties under the statute, because of her political views, her questioning authority within the IRS and the National NTEU, because she has an independent mind and does not hesitate to mention when she finds something wrong, as well as for her opposition in running in the August 1999 National Elections against the current incumbent National Leaders Colleen Kelley and Frank Ferris. The National union breached its duty of fair representation by failing to aggressively address, process or investigate aggrieved situations this employee had against the IRS resulting in the Agency being able to more severely adversely affect this employees (E) standing with the Service. In and around February 9,2000 the National union counsel knew the agency would be adversely affecting this employee and the National Union failed to disclose such facts to the employee. Allowing the whole matter to manifest into additional harm to this individual and their standing with Service, because of political hostile motivation from the National NTEU. APP.84 In and around February 14,2000 Ms. Nigro was told of the conspiracy between the IRS and National NTEU, that had manifested her current situation. An IRS Officer who was party to the ill intentions of Commissioner Charles Rossotti and his requested order to adversely affect this employee, stated it was known that Ms. Nigro did about 92% of the work in Chapter 65 and that if something would achieve her demise that would adversely affect the Chapter, the current Chapter President Mr. Feith (whom National NTEU despised) and those it represented. (It is again stated for the record these union incumbents were politically disfavored by both the IRS National coe Cee Charles Rossotti and the National NTEU for their vocal and critical views where they felt Mr. Rossotti and/or the National NTEU was wrong. We support this claim by the running in the August 1999 National Election of Officers, this group challenging election decisions of the prior National President and the current National President, in such forums to include but which are not limited to FLRA, DOL, MSPB, etc. The IRS was laid out in detail to Ms. Nigro, and it included, the Agency was out to get at Mr. Feith, and Ms. Nigro as well as to cause conditions to put the Chapter into a vulnerable state where the National NTEU could come in and take over (i.e. receivership) control. This fit the exact comments made in anger by Frank Ferris on September 1,1999 to Mr. Feith and Mr. Laird, see WA-CO-00308. To ensure this plan would work the Commissioner wanted National NTEU to support him by ensuring they did not process Ms. Nigro's cases against the Agency. National NTEU agreed to do this because they did not want to damage their relationship with Charles Rossotti and that they were convinced supporting Charles Rossotti and not supporting Ms. Nigro they would benefit, because Charles Rossotti wanted Ms. Nigro gone. APP.85 Ms. Nigro was told they (the National Union) would stonewall and consistently make up excuses not to process her case. To date this is exactly what has occurred. On February 15, 2000 the National NTEU President knew of Ms. Nigro's adverse conditions and did nothing to help resolve her issues. (It was well known and documented in their own National News Publication "the Bulletin" that Ms. Kelley flew (literally) to support other chapter president's). Ms. Kelley did not present such concern for Ms. Nigro. Two months later when Ms. Nigro met with Ms. Kelley approximately April 18,2000, Ms. Kelley informed Ms. Nigro she knew she had a critical situation, but Ms. Kelley stated "I really haven't taken time to even look at your case". Ms. Nigro knew from these comments that the nonsupport plan she was told about was truly happening as described. Ms. Nigro informed Ms. Kelley she was keeping a good humor about the whole situation. Ms. Nigro informed Ms. Kelley of her hearing that it was Mr. Rossotti's plan to deliberately come after her. Ms. Kelley did not comment looked nervous, and took a few notes. After this conversation with Ms. Kelley, Ms. Nigro informed one of her attorney's about the meeting and how Ms. Kelley's reaction showed exactly how she did not care and was not going to support Ms. Nigro. It was one week after this that Ms. Nigro had a meeting regarding her's and other cases with Kim Moseley and John Mc Eleney. They were hostile, tried to intimidate and threaten Ms. Nigro. Attacking her case and deliberately trying to find ways to protect the Agency against the intensity of the issues raised by Ms. Nigro's cases. Mr. McEleney and Ms. Moseley were unreasonably hostile giving Ms. Nigro no true hope that she would obtain a fair hearing, the two National Staff personnel consistently wanted to fail to see obvious relevance of the violated contract provisions. APP.86 : 5 ' i] i - : 3 ; ; a ; : : } | It was clear to see the Agency's non-support plan with the National NTEU in tow, and their helping management against this employee as described to Ms. Nigro back in February was continuing to manifest itself even more by the National union's actions and comments of this late April meeting. Ms. Nigro ensured ail conversation were archived and presented to other attorney's. April-May-June, July August, 2000 It is shall be an unfair labor practice and a breach of duty for the union for Ms. Kelley to put a less qualified and hostile individual in charge of the case after it was originally being handled by an experienced attomey who with Ms. Nigro created the strategy for the cases. This new individual Mr. McEleney, was out to derail solid strategy and not process the cases, he consistently commented he would not process her cases and he would not adhere to the strategy best able to support a win for her issues. He declared this intention in a late May meeting with Ms. Nigro and another Chapter 65 staff person. Ms. Nigro informed Mr. McEleney she felt he was not an advocate for her or the members she represented and sent him correspondences not to close out her Chapter's arbitration cases. Ms. Nigro wrote letters to both Mr. McEleney and Ms. Kelley describing the situations and conditions that were going on and her dissatisfaction with the actions of the National Union. Other Chapter 65 members also wrote Ms. Kelley and basically felt they were blown off, because the members were never given true answers to their inquiries or concerns from Ms. Kelley. Ms. Nigro informed Mr. McEleney that he was not an advocate and did not understand the appropriate issues to process the cases. APP.87 Mr. McEleney began derailing other Chapter 65 cases, of those who politically supported Ms. Nigro, in prior local elections. Ms. Nigro has also been met with other harassing actrons at the hand and from the influence of this individual and his demeanor, including but not limited to, his influencing current Chapter 65 Board members against Ms. Nigro to disrupt Chapter meetings, and his having members. It shall be an unfair labor practice for a National Union to fail to process a grievance due to _ personal hostilities/animosity. The National union is obligated to represent all employees fairly and equitably in accord with the duty of fair representation clause. Since there is evidence that the National Union Officers and staff have been personally hostile and have acted in other than good faith an unfair labor practice has occurred. Failure to represent/refusing to process employee's grievances, due to National Union's collusion with the IRS Agency, which caused more severe adverse actions against this employee, because of a deal they cut with Charles Rossotti, Commissioner Internal Revenue from his request that the National NTEU not support this employee in her cases against the Agency, is acting in other than good faith and constitutes an unfair labor practice. Vera Nigro Vera Nigro 8/2000 Type or print name - Your signature Date APP.88 sue ne UNITED STATES OF AMERICA FEDERAL LABOR RELATIONS AUTHORITY - CHARGE AGAINST A LABOR ORGANIZATION Case No. WA-CO-00-0035 Date rev Filed: 12/14/00 Since on or about September 14, 2000, National Treasury Employees Union (NTEU), by its agents and representatives, specifically Calvin Pollard and the Fare Card Team, and continuing, committed unfair labor practices in violation of sections 71 16(b)(1), (2), (3) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by: 1) On or about September 14, 2000, National Treasury Employees Union, through its agent Calvin Pollard, violated the Statute by posting election material which disclosed personal and private information about Ms. Vera Nigro throughout the main IRS building and the New Carrollton Federal Building. This action violates NTEU's duty of fair representation to its members, and sends a chilling message to other employees, by creating an intimidating and coercive environment where employees looking to run for union official positions or participate in the union will have their private lives adversely affected if they exercise their nghts under the Statute. This violates sections 711 6(b)(1) [independently] and (8) of the Statute. 2) On or about October 2, 2000, NTEU, through its agent Calvin Pollard, caused the agency to discriminate against Vera Nigro by cutting off Ms. Nigro's voice mail access. To date this access has not been restored. APP.89 This action is a violation of section 71 16(b)(3). It is also a violation of section 7116 (b)(8) as NTEU violated its duty of fair representation to Ms. Nigro, under section 7114 of the Statute, by treating Ms. Nigro differently from other members of the bargaining unit. 3) On or about October 3,2000 NTEU violated section 71 16(b)(3) of the Statute when it caused the Agency to discriminate against Ms. Nigro and Mr. Laird by changing the locks on the union office. 4) On or about October 10, 2000, NTEU, through its agent Calvin Pollard, violated the Statute by stating to Ms. Nigro that she was fired as Chief Steward, Director of Negotiations and union steward, because she filed an election appeal. This statement is an independent violation of section 711 6(b)(1) of the Statute. This action also violated the NTEU's duty of fair representation to Ms. Nigro. 5) In general, NTEU, through its nattonal representatives and agents such as Calvin Pollard, has breached its duty of fair representation to its members by wrongfully creating an atmosphere of hostility in which bargaining unit employees can not fairly adjudicate their cases or participate in the union without fear of reprisal. NTEU has colluded and conspired with the Agency to work against Ms. Nigro, Mr. Laird and other members of the Lion Administration in violation of the Statute. Sree ewe alge a Original WA-CO-00-0035 Since on or about October 3, 2000, NTEU Chapter 65 by its agents and representatives, specifically Calvin Pollard, and continuing, committed and unfair labor practice violating 5 U.S.C. 7116 (b) 1, 2, 3,4, and 8, 7114, 7117 by: Taking retaliatory and disparate actions against John Laird, Vera Nigro and Roberta Bondzie due to political hostility and for them exercising rights under the statute including but not limited to the filing of unfair labor practices against the National NTEU and Chapter 65 and election appeals under the Union Constitutional and Bylaws and the Labor Management and Disclosure Act such actions include, but are not limited to. On October 5,2000 the NTEU Chapter 65 took unwarranted and discriminatory and hostile actions against Mr. John Laird by violating his privacy, by breaking into his desk and taking personal items of Mr. Laird's as well as violating his time records, credit cards and bank account privacy and security. Mr. Laird had tned for a couple of days to schedule a time directly with Mr. Pollard starting on October 4, 2000 at 7.30 am to clean out his desk. Each time Mr. Laird called he was promised by M:. Pollard that someone if not Mr. Pollard himself would be available so that Mr. Laird could collect his personal belongings. However nobody from the new Chapter 65 administration would make themselves available, keep an appointment or call Mr. Laird back so he could collect his items. APP.91 a — Pollard and his administration consistently made themselves unavailable, then changed the locks on the union office door making it impossible for Mr. Laird to clean his desk out. [It took Mr. Laird and his witness calling Security and the Federal Protection Service to open the union office in order for Mr. Laird to get his belongings. It was October 5,2000 when Mr. Laird entered the NCFB office with his witness, the Security officers and the Federal Police that Mr. Laird found that the current union officers (Jim Carr who said he was the only one who had the keys to the office), George Bergmann, Calvin Pollard, Betty King, Joe Durballa, Dave Cash, Julie Devaughn, Tom Garrett, broke into every cabinet and every desk drawer of Mr. Lairds' violating his privacy. During this week of October 1,2000 - October 6,2000, Ms. Nigro left Mr. Pollard several messages for him to call her it was only on October 5,2000 that Mr. Pollard finally had Mr. Carr call to leave a message on the number she had consistently requested he respond to her on. From October 2,2000 Ms. Nigro kept letting Mr. Pollard know they (Mr. Pollard and crew) interfered in her representational duties when they cut her access to the voice mail she was using for her representation of employees. That she _needed to use this alternate box because the agency wrongfully cut her negotiations voice mail for the chapter leaving her with only one voice box the main IR box for use for representation. Although she told these gentlemen she needed access to the system to continue grievance meetings and negotiations and that the box was not just used for collection of voice messages like the-one at NCFB had APP.92 ei ick sta p been used for, they intentionally denied her access to interfere with and restrain her representational activities due to their political nostility, and the political hostility that is being fostered by the National NTEU against her because of her support of bargaining unit employees and filing of unfair labor practices on several cases against the National NTEU, the IRS agency and the Chapter 65, and her running for National Executive Vice President of NTEU. Ms. Nigro's issues are important because they send a clear message of what these people do to those they dislike because of political differences. Mr. Pollard continued to interfere with Ms. Nigro's representation of the bargaining unit employees by closing down her access, changing the locks on the union doors, failing to notify her, then trumping up lies in which to fire her. Culminating on October 10, 2000 when the first words out of his mouth was that he fired her because "you filed an election appeal". He then stuttered and tried to backtrack with phony excuses. October 2, 2000-though Mr. Pollard was not even certified as President of the Chapter yet the agency assisted him in cutting off Ms. Nigro's voice mail access. Ms. Nigro left messages for the return of the voice mail access to continue serving the bargaining unit employees especially because she had meetings scheduled all week. The voice mail was not returned. October 3,2000 - The union office locks were changed, and Ms. Nigro was still locked out from access to voice mail. It was this day the fraudulent certification of the election went in. Ms. Nigro again requested they release the voice message system for representation duties she was performing. APP.93 October 4, 2000 - Ms. Nigro received no calls from Mr. Pollard to address her issues or any date in which he wanted to meet with her. Even though she additionally left an address that they could write to her at. October 5, 2000 - John Laird's privacy was violated by these new union officers deliberately breaking into his dusk and almost his computer. This was witnessed and an FPS report was also taken on their wrongful actions against Mr. Laird and his property. Mr. Laird had Mr. Pollardshis people sign for keys for both himself and Ms. Nigro as well as Mr. Laird delivered Ms. Nigro's Status report for that week for Mr. Pollard. Mr. Carr called Mr. Laird's number late this day to ask Ms. Nigro to call Mr. Pollard. Today again, Ms. Nigro left Mr. Pollard a message that she was out sick today and then she ran over the issues outlined in her update for that week and asked he contact her. October 6, 2000 - No messages were received from Mr. Pollard for Ms. Nigro. But ina 1 P.M. grievance meeting behind Ms. Nigro’s back Mr. Pollard was having Ms. Nigro's access revoked without his telling her. Declared his non-support of Roberta Bondzie to serve in the union, even though her position was restructure appropriate by Ms. Nigro to accommodate Ms. Bondzie's new issues. WEEKEND.. .NON-WORKDAYS. October 7, 2000 - Saturday October 6, 2000 - Sunday October 9, 2000 - Holiday APP.94 October 10, 2000 - the first work day after the Holiday Ms. Nigro finds Mr. Pollard's location and calls him at her own . expense. The first words out of Mr. Pollard's mouth is he tells Ms. | i Nigro she is fired because we filed an election appeal against him. What Calvin Pollard and the National NTEU are doing is a disgrace and sends a bad message to any one who really wants to assist a union. They are sending very detrimental and coercive messages that if they don't like you, or you don't share their : opinion's and follow what they want you can't participate. This goes against everything the statute stands for. Everything they | have done to me, Ms. Nigro and Ms. Bondzie has sent messages that they will interfere with, restrain, coerce employees if they excise their rights, that you will be coerced, disciplined, receive reprisal and punishment for the exercise of nights, that you will be discriminated against based on service status, handicapping condition and political affiliation and more. Vera Nigro Vera Nigro revised 12/14/00. Type or printname Your signature Date APP.95 Federal Service Labor-Management Relations Statute - FLRA Statute § 7102. Employees’ nghts Bach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the nght-- (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and (2) to engage in collective bargaining with respect to