17:0696(101)CA - Bureau of Prisons, Federal Correctional Institution (Danbury, CT) and AFGE, Council of Prison Locals C-33, Local 1661 -- 1985 FLRAdec CA



[ v17 p696 ]
17:0696(101)CA
The decision of the Authority follows:


 17 FLRA No. 101
 
 BUREAU OF PRISONS 
 FEDERAL CORRECTIONAL INSTITUTION 
 (DANBURY, CONNECTICUT) 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL OF PRISON 
 LOCALS C-33, LOCAL 1661, AFL-CIO 
 Charging Party
 
                                            Case No. 1-CA-20137
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Exceptions to the Judge's Decision were
 filed by the Respondent.  Both the General Counsel and the Charging
 Party filed oppositions to the Respondent's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed. The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order, as modified herein.
 
    The Judge found that the Respondent maintained a rule prohibiting its
 employees from releasing information to the press and requiring that all
 inquiries by members of the media be referred to the prison warden for
 response.  When an employee, acting in his capacity as a union
 representative, gave an interview to a newspaper reporter concerning the
 possibility of impending staff reductions, the Respondent admonished the
 employee for having done so and cautioned him concerning the release of
 similar information in the future.  The Judge concluded, and the
 Authority agrees, that the Respondent's conduct, to the extent that it
 interfered with the right of an employee, acting in a representative
 capacity, to state the views of a labor organization on matters
 affecting unit employees' terms and conditions of employment, interfered
 with the exercise of employee rights guaranteed by section 7102 of the
 Statute.  /1A/ In this regard, the legitimate conduct of an employee,
 who, acting in his representative capacity, seeks to publicize, through
 contacts with the media, issues having a direct bearing upon the working
 conditions of unit employees, enjoys the protections of the Statute.
 See Veterans Administration, Veterans Administration Medical Center,
 Shreveport, Louisiana, 5 FLRA 216 (1981).
 
    This is not to say that the right of an employee acting in the
 capacity of a union representative to communicate information to the
 press, the general public, or other interested parties, is an unfettered
 one.  See, e.g., United States Forces Korea/Eighth United States Army,
 11 FLRA 434, n. 3 (1983);  United States Forces Korea/Eighth United
 States Army, 17 FLRA No. 102 (1985).  Thus, in reaching our conclusion
 herein, we have considered the Respondent's mission as a penal
 institution and its contention that in certain circumstances the release
 of information to outside parties could prejudice the maintenance of
 security and order within such an institution.  The Authority notes in
 this regard that the information at issue in the instant case only
 served to confirm reports of anticipated temporary staff reductions
 which a newspaper reporter had already obtained from other sources.
 Moreover, there is no showing that the information was, on its face, so
 sensitive as to pose a threat to the continuing security or safety of
 the institution.
 
    Accordingly, and in the circumstances of this case, the conduct of
 Respondent's officials in applying a policy statement concerning
 employee press contacts so as to proscribe the right of a union official
 to act in his representative capacity infringed upon the exercise of
 rights guaranteed employees by section 7102 of the Statute and thus
 violated section 7116(a)(1) of the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Bureau of Prisons, Federal Correctional
 Institution, Danbury, Connecticut, shall:
 
    1.  Cease and desist from:
 
    (a) Admonishing or otherwise interfering with, restraining, or
 coercing Clifford S. Steenhoff, or any other employee, in the exercise
 of the right to assist American Federation of Government Employees,
 Council of Prison Locals C-33, Local 1661, AFL-CIO, the employees'
 exclusive representative, including the right to state to the press the
 views of the Union concerning terms or conditions of employment.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Rescind its memorandum to Mr. Clifford S. Steenhoff, dated
 November 25, 1981.
 
    (b) Post at its facilities in Danbury, Connecticut, copies of the
 attached Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Such forms shall be signed by the Warden, Federal
 Correctional Institution, Danbury, Connecticut, or his designee, and
 shall be posted and maintained for 60 consecutive days thereafter in
 conspicuous places, including all bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to insure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region I, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., April 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT admonish or otherwise interfere with, restrain, or coerce
 Clifford S. Steenhoff, or any other employee in the exercise of the
 right to assist American Federation of Government Employees, Council of
 Prison Locals C-33, Local 1661, AFL-CIO, the employees' exclusive
 representative, including the right to state to the press the views of
 the Union concerning terms or conditions of employment.  WE WILL NOT in
 any like or related manner interfere with, restrain, or coerce any
 employee in the exercise of any right under the Statute.  WE WILL
 rescind the memorandum to Mr. Clifford S. Steenhoff, dated November 25,
 1981.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title) This Notice must remain posted
 for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director for the Federal
 Labor Relations Authority, Region I, whose address is:  441 Stuart
 Street, 9th Floor, Boston, Massachusetts 02116, and whose telephone
 number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 1-CA-20137
 
    Ronald L. Brown, Esquire
    Ms. Martha Jordan
    For the Respondent
 
    Gerard M. Greene, Esquire
    On Brief:  Richard D. Zaiger, Esquire
    For the General Counsel
 
    Mr. Clifford S. Steenhoff
    For the Charging Party
 
    Before:  WILLIAM B. DEVANEY, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
 et seq.  /1/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.1, et seq., was initiated by a charge filed on March 2, 1982
 (G.C. Exh. 1A), a First Amended Charge, filed on April 5, 1982 (G.C.
 Exh. 1C) and a Second Amended Charge, filed on May 24, 1982 (G.C. Exh.
 1E).  The Complaint and Notice of Hearing issued on July 26, 1982, for a
 hearing on a date, time and place to be determined (G.C. Exh. 1G).  On
 September 3, 1982, a Further Notice of Hearing issued setting the
 hearing for November 10, 1982, at 1:00 p.m. at a place to be determined
 in Hartford, Connecticut (G.C. Exh. 1I).  Subsequently, the time of
 hearing was changed to 9:00 a.m. and the National Guard Armory was
 designated as the place for the hearing, pursuant to which a hearing was
 duly held on November 10, 1982, in Hartford, Connecticut, before the
 undersigned.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues involved, and were afforded
 opportunity to present oral argument.  At the close of the hearing,
 December 10, 1982, was fixed as the date for mailing post-hearing
 briefs.  /2/ Each party has timely mailed a brief, received on or before
 December 14, 1982, which have been carefully considered.  Upon the basis
 of the entire record, I make the following findings and conclusions:
 
                                The Issues
 
    The basic issue is whether an employee has a protected right under
 the Statute to give an interview, as an officer of the Union, to a
 newspaper reporter concerning matters relating to terms and conditions
 of employment, specifically, a possible RIF as the result of the
 Presidential veto of the FY 1982 budget.  Secondarily, whether, if the
 right to give such an interview is generally protected conduct, the
 Regulation of the Federal Prison System, which provides, in essence,
 that only the Warden may issue Press Releases, precluded the interview
 in question?
 
                                 Findings
 
    1.  In November, 1981, Respondent was confronted with an all too
 familiar money crisis as the result of the President's veto of the FY
 1982 budget and the failure of Congress to override the veto and/or to
 pass an appropriations measure acceptable to the President.  Faced with
 a possible lapse of appropriations, Respondent undertook plans to meet
 such contingency, including plans for a RIF.  The Warden, and other
 officials of Respondent, met with the President of Local 1661, Mr.
 Clifford Steenhoff, met with the President of Local 1661, Mr. Clifford
 Steenhoff, with regard thereto at various times on November 23, 1981.
 
    2.  During the course of the day, Mr. Steenhoff, on November 23, ,
 1981, received a call, as President of Local 1661, from a reporter for
 the Danbury News Times who stated that he understood that the Prison was
 going to start laying people off and asked for confirmation.  Mr.
 Steenhoff responded that discussions were in progress in Washington /3/
 seeking a resolution by Congress of the budget question;  that if there
 were no resolution, there might be a RIF but that no decision had been
 made as to who might be affected.  /4/ Mr. Steenhoff testified that, in
 Mr. Scott Miller's office, he told Mr. Miller and the Warden that he had
 received a telephone call from a reporter and that he " . . . probably
 told them what the nature of the call was about, the layoffs" (Tr. 7)
 and they made no comment (Tr. 7).
 
    3.  The News Times in its November 23, 1981, issue carried an article
 about the possible layoff at the prison, including, with attribution,
 the telephone interview with Mr. Steenhoff (G.C. Exh. 2).
 
    4.  By memorandum dated November 25, 1981, the Warden, Mr. Robert A.
 Gunnell, advised Mr. Steenhoff that his conduct in giving an interview
 was "not appropriate and in fact was in violation of Federal Prison
 System (FPS) policy" and instructed Mr. Steenhoff to "refrain from
 giving similar press releases in the future and maintain compliance with
 Bureau policy." (G.C. Exh. 3).
 
    5.  Subsequently, in late January or early February, 1982, Warden
 Gunnell, in a meeting with Mr. Steenhoff, told Mr. Steenhoff that he
 could not make any press releases under current Bureau policy (Tr. 12,
 27).
 
    6.  The regulations are found in 5 C.F.R. 540.60, et seq.; however,
 the document relied upon by Respondent is a Program Statement, subject,
 "Contact with News Media", No. 1480.2, July 16, 1979, which provides, in
 part, as follows:
 
          "Program Statement
 
          "Effective Date:  August 1, 1979
 
          "1.  (Purpose and Scope Sec. 540.60.  The Bureau of Prisons
       recognizes the desirability of establishing a policy that affords
       the public information about its operations via the news media.
       Representatives of the news media (see Sec. 540.2) may visit
       institutions for the purpose of preparing reports about the
       institution, programs, and activities.  It is not the intent of
       this rule to provide publicity for an inmate or special privileges
       for the news media, but rather to insure a better informed public.
        The Bureau of Prisons also has a responsibility to protect the
       privacy and other rights of inmates and members of the staff.
       Therefore, an interview in an institution must be regulated to
       insure the orderly and safe operation of the institution.) /5/
 
          "8.  Release of Information Sec. 540.65.
 
          "((a) The Warden shall promptly make announcements stating the
       facts of unusual, newsworthy incidents to local news media.
       Examples are deaths, inside escapes, and institution emergencies.)
 
                                .  .  .  .
 
          "The Warden of each institution, or his designated
       representative, is solely responsible for contact with the press.
       Other staff members shall refer all press inquiries to the Warden
       or his designee.
 
          . . ." (G.C. Exh. 4)
 
                                Conclusions
 
    I am well aware that the Statute does not protect all rights nor
 remedy all wrongs.  To the contrary, the rights protected by the Statute
 are narrowly drawn.  Thus, Section 2 provides as follows:
 
          "Each 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
       right--
 
          (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
       conditions of employment through representatives chosen by
       employees under this chapter." (5 U.S.C. 7102).
 
 The only other provision of the Statute which treats "information" /6/
 is the "proviso" to 16(b)(7) which provides:
 
          "Nothing in paragraph (7) of this subsection shall result in
       any informational picketing which does not interfere with an
       agency's operations being considered as an unfair labor practice."
       (5 U.S.C. 16(b)).
 
 Section 19(b)(4) of Executive Order 11491 had been held to bar all
 picketing, including informational picketing which did not interfere
 with an agency's operation, Internal Revenue Service, A/SLMR No. 536, 5
 A/SLMR 475 (1975), aff'd, FLRC No. 75A-96, 4 FLRC 170 (1976).  However,
 the order of the Assistant Secretary was vacated by the United States
 District Court for the District of Columbia as overly broad and an
 intrusion upon the right of free expression in violation of the First
 Amendment, National Treasury Employees Union v. Fasser, 428 F.Supp. 295
 (D.C.D.C. 1976), see, in relation thereto, FLRC No. 76P-4, 5 FLRC 991
 (1977);  Complaint in Case No. 536 dismissed, A/SLMR No. 783, 7 A/SLMR
 58 (1977);  and, in direct recognition of the decision of the District
 Court, Congress inserted to above "proviso" to insure that informational
 picketing which does not interfere with an agency's operations is not
 banned, i.e., shall not be "considered as an unfair labor practice."
 
    The substance of Section 1(a) of Executive Order 11491 was unchanged
 from the language of Section 1(a) of Executive Order 10988.  In Meehan
 v. Macy, 392 F.2d 822 (D.C. Cir. 1968), the Court of Appeals stated, as
 to Section 1(a) of Executive Order 10988, as follows:
 
          "It suffices in the present case to point out that Executive
       Order 10988, by its clear language, has no application to
       appellant's activities.  /7/ The pertinent provisions, entitled
       'Employee-Management Cooperation in the Federal Service' reads as
       follows:
 
          "Section 1(a) Employees of the Federal Government shall have,
       and shall be protected in the exercise of, the right, freely and
       without fear of penalty or reprisal . . . to participat(e) in the
       management of the organization and acting for the organization in
       the capacity of an organization representative, including
       presentation of its views to officials of the executive branch,
       the Congress or other appropriate authority.
 
          The regulation by its terms provides for presentations within
       official channels, and establishes no special warrant for appeals
       to the public." (392 F.2d at 829).
 
 In Department of Transportation, Federal Aviation Administration, Las
 Vegas Control Tower, Las Vegas, Nevada, Case No. 72-5388 (CA) (7 A/SLMR
 151, 157 (1976)), I held, in part, as follows:
 
          " . . . As the Court stated in Meehan . . . the pertinent
       language of Section 1(a) of the Order provides for presentations
       within official channels and establishes no special warrant for
       appeal to the public. . . ."
 
 The Assistant Secretary adopted my findings, conclusions and
 recommendation, A/SLMR No. 796, 7 A/SLMR 150 (1977), but, in footnote 1,
 noted as follows:
 
          "1.  This is not to say . . . that all appeals to the public
       are not protected under Section 1(a) of the Order . . ." (7 A/SLMR
       at 151 (citing Fasser, supra, and FLRC No. 76P-4, supra).
 
    Section 1 of Executive Order 11491 was essentially like Sec. 2 of the
 Statute and the Supreme Court in considering the freedom of speech
 aspect of the content of a union publication under Section 1 of the
 Executive Order, in Old Dominion Branch No. 496, National Association of
 Letter Carriers, AFL-CIO, v. Austin, 418 U.S. 264 (1974), stated, in
 part, as follows:
 
          ". . . we see nothing in the Executive Order which indicates
       that it intended to restrict in any way the robust debate which
       has been protected under the NLRA.  Such evidence as is available,
       rather, demonstrates that the same tolerance for union speech
       which has long characterized our labor relations in the private
       sector has been carried over under the Executive Order . . . (418
       U.S.at 275)
 
          "The primary source of protection for union freedom of speech
       under the NLRA, however, particularly in an organizational
       context, is the guarantee in Sec. 7 of the Act of the employees'
       right 'to form, join, or assist labor organizations.' /8/
 
          'Basic to the right guaranteed to employees in Sec. 7 to form,
       join or assist labor organizations, is the right to engage in
       concerted activities to persuade other employees to join for their
       mutual aid and protection.  Indeed, even before the
       Norris-LaGuardia Act the Wagner Act, this Court recognized a right
       of unions to "use all lawful propaganda to enlarge their
       membership"' NLRB v. Drivers Local 639, 362 U.S. 274, 279 (1960)
       (citations omitted).
 
 Vigorous exercise of this right 'to persuade other employees to join'
 must not be stifled by the threat of liability for the overenthusiastic
 use of rhetoric or the innocent mistake of fact.  Thus, the Board has
 concluded that statements of fact or opinion relevant to a union
 organizing campaign are protected by Sec. 7, even if they are defamatory
 and prove to be erroneous, unless made with knowledge of their falsity .
 . .  These considerations are equally applicable under the Executive
 Order.  Section 1 of the Order guarantees federal employees these same
 rights.  /9/
 
                                .  .  .  .
 
          "As noted, one of the primary reasons for the law's protection
       of union speech is to insure that union organizers are free to try
       peacefully to persuade other employees to join the union without
       inhibition or restraint. . . .  We see no reason to limit this
       protection to statements made during representation election
       campaigns.  The protection of Sec. 7 and Sec. 1 is much broader.
       Indeed Linn itself (Linn v. United Plant Guard Workers of America,
       Local 114, 383 U.S. 53 (1966)) involved union organizing activity
       outside the election campaign context.  We similarly reject any
       distinction between union organizing efforts leading to
       recognition and post-recognition organizing activity.  Unions have
       a legitimate and substantial interest in continuing organizational
       efforts after recognition.  Whether the goal is merely to
       strengthen or preserve the union's majority, or to achieve 100%
       employee membership-- a particularly substantial union concern
       where union security agreements are not permitted . . . these
       organizing efforts are equally entitled to the protection of Sec.
       7 and Sec. 1." (418 U.S.at 277-279).
 
 Decisions under the National Labor Relations Act concerning, inter alia,
 statements to media, Community Hospital of Roanoke Valley, 220 NLRB 217,
 90 LRRM 1440 (1975), enf'd 538 F.2d 607, 92 LRRM 3158 (4th Cir. 1976),
 cf., Bowling Green Manufacturing Company v. NLRB, 416 F.2d 371, 72 LRRM
 2301 (enf't denied, 6th Cir. 1969);  newspaper articles, etc., United
 Parcel Service, Inc., 234 NLRB 223, 97 LRRM 1212 (1978);  Springfield
 Library and Museum Association, 238 NLRB 1672, 99 LRRM 1289 (1979), cf.,
 Jefferson Standard Broadcasting Company, 94 NLRB 1507, 28 LRRM 1215
 (1951), aff'd sub nom., NLRB v. Local 1229, International Brotherhood of
 Electrical Workers, 346 U.S. 464 (1953), Kaiser Engineers v. NLRB, 538
 F.2d 1379, 92 LRRM 3153 (9th Cir. 1976);  American Arbitration
 Association, Inc., 233 NLRB 71, 96 LRRM 1431 (1977), are bottomed on
 "concerted activities" of Sec. 7 of the NLRA, which, as noted above, is
 not a right accorded federal employees under Sec. 2 of the Statute and,
 accordingly, such decisions are not directly in point except to the
 extent like rights are accorded by the provisions of Sec. 2, " . . . to
 form, join, or assist any labor organization. . . .
 
    The phrase "or other appropriate authorities", with respect to
 presenting the "views of the labor organization" first appeared in E.L.
 10988, January 17, 1962 (2 U.S.Code Cong.& Adm.News 4269, 87th Cong.
 Second Sess. 1962);  was carried over into E.O. 11491, October 29, 1969,
 which revoked E.O. 10988;  was retained without change or comment in the
 various amendments to E.O. 11491;  /10/ and now appears in Sec. 2 of the
 Statute.  Nothing in the legislative history of the Statute sheds any
 light on the meaning of the phrase, "or other appropriate authorities".
 In Veterans Administration, North Chicago Veterans Hospital, North
 Chicago, Illinois, Case Nos. 50-15408(CA) and 50-15412(CA), I held that
 the right of employees to appear, on their own time, at a meeting of the
 City Council on behalf of the union, to announce the impending removal
 of the hospital director and to encourage expression of support for the
 director by the public, was protected under Section 1(a) of the Order (8
 A/SLMR 434, 440-441).  The Assistant Secretary adopted my findings and
 conclusions without further discussion of Section 1(a) of the Order,
 Veterans Administration, North Chicago Veterans Hospital, North Chicago,
 Illinois, A/SLMR No. 1024, 8 A/SLMR 430 (1978).  Local 3254, American
 Federation of Government Employees, AFL-CIO and Department of the Air
 Force, Grissom Air Force Base, Peru, Indiana, A/SLMR No. 852, 7 A/SLMR
 486 (1977), set aside, FLRC No. 77A-77, 6 FLRC 406 (1978), complaint
 dismissed, A/SLMR No. 1057, 8 A/SLMR 640 (1978), is not directly in
 point as the sole basis for the violation found by the Assistant
 Secretary, which was set aside by the Council, was that Section 19(a)(3)
 of the Order prohibited agency management from providing assistance to a
 labor organization not in equivalent status by permitting publication of
 an advertisement in a newspaper controlled by the agency;  however, it
 was recognized that, absent the "equivalent status" strictures,
 publication of the same advertisement would have been protected and as
 to the "equivalent status" strictures, the Council held that, " . . . a
 finding of a 19(a)(3) violation based merely on the failure to prevent
 the publication of the subject advertisement . . . is inconsistent with
 the purposes of the Order." (6 FLRC at 412-413).
 
    Veterans Administration, Veterans Administration Medical Center,
 Shreveport, Louisiana, 5 FLRA No. 27 (1981), did, directly, involve a
 union steward's interview by a TV reporter.  With respect thereto, I had
 held,
 
          "The term 'other appropriate authorities' is not defined in the
       Act, but I have no doubt that such term includes reporters,
       whatever the medium.  Otherwise, employees acting in the capacity
       of a representative of a labor organization would be denied
       protection under the Statute when presenting the views of the
       labor organization to the press, a result clearly not contemplated
       by Congress. . .  Accordingly, I conclude that Respondent's act of
       disciplining Ms. Lucas in retaliation for her activity, as a
       representative of the Union, in contacting a television reporter
       and giving a television interview violated Sec. 16(a)(1).
       Further, the discriminatory and disparate treatment of the Union's
       Chief Steward, Ms. Lucas, constituted action . . . in violation of
       Sec. 16(a)(2) of the Statute." (6-CA-261 at pp. 7-8).
 
 The Authority affirmed the finding of violation but stated,
 
          "In reaching its determination herein the Authority adopts the
       Administrative Law Judge's conclusion that Respondent's reprimand
       of Lucas was in retaliation for her activity as a representative
       of the Union and that the expressed reason for such discipline was
       pretextual.  Under such circumstances the Authority finds it is
       unnecessary to pass upon, and specifically does not adopt, the
       Administrative Law Judge's conclusion at p. 7 of his Decision that
       the language 'other appropriate authorities' in section 7102(1) of
       the Statute applies to reporters.  Accordingly, the Authority
       concludes that the Respondent's reprimand of Lucas interfered
       with, restrained and coerced her in violation of section
       7116(a)(1) of the Statute and such discipline constitutes
       discrimination in connection with her conditions of employment in
       violation of section 7116(a)(2) of the Statute." (5 FLRA No. 27).
 
    It is entirely possible that the Authority, by its refusal to decide
 whether "other appropriate authorities" in Sec. 2(1) of the Statute
 applies to reporters, implicatively rejected inclusion of reporters in
 the language "other appropriate authorities".  Certainly, the issue was
 directly raised in the Medical Center case, supra, but the Authority
 declined to decide the issue and quite specifically did not adopt my
 conclusion that the language "other appropriate authorities" in Sec.
 2(1) applies to reporters.  On the other hand, while the Authority did
 not decide the issue in the Medical Center case, supra, it stated that
 it did not do so because, ". . . the Authority finds it is unnecessary
 to pass upon . . . the Administrative Law Judge's conclusion . . . that
 the language 'other appropriate authorities' in section 7102(2) of the
 Statute applies to reporters." In avoiding decision of an unnecessary
 issue, the Authority not only demonstrated judicious discretion but
 followed an honored judicial tenet, see, for example, United States v.
 O'Brien, 391 U.S. 367, 386 (1968).
 
    Here, the issue of an employee-union officer's statement to the press
 is the controlling issue.  I have carefully reviewed all of the
 foregoing decisions, including the decision of the Court of Appeals for
 the District of Columbia Circuit in Meehan v. Macy, supra, my decision
 based thereon, in Department of Transportation, Federal Aviation
 Administration, Las Vegas Control Tower, supra, the Assistant
 Secretary's qualifying footnote, thereto, supra, and the decision in
 Veterans Administration, Veterans Administration Medical Center,
 Shreveport, Louisiana, supra, and conclude that I was in error, in the
 Medical Center case, supra, in holding that, "The term 'other
 appropriate authorities' . . . includes reporters, whatever the medium.
 . . ." (6-CA-261).  Accordingly, I conclude, as I held in Department of
 Transportation, Federal Aviation Administration, Las Vegas Control
 Tower, supra, and as the Court of Appeals had held in Meehan v. Macy,
 supra, with respect to the identical language of E.O. 11491 and E.O.
 10988, that the language of Sec. 2 of the Statute, as had Section 1 of
 E.O. 10988 and of E.O. 11491, provides for presentations within official
 channels and establishes no special warrant for appeal to the public.
 This is not to suggest that all appeals to the public are unprotected by
 the Statute.  To the contrary, as the Supreme Court stated, in Old
 Dominion Branch No. 496, National Association of Letter Carriers,
 AFL-CIO v. Austin, supra, with respect to E.O. 11491, which language was
 carried over to Section 2 of the Statute without change,
 
          "'Basic to the right guaranteed to employees in Sec. 7 (of the
       NLRA) to form, join or assist labor organizations, is the right to
       engage in concerted activities to persuade other employees to join
       for their mutual aid and protection. . .' (418 U.S.at 477)
 
          These considerations are equally applicable under the Executive
       Order.  Section 1 of the Order guarantees federal employees these
       same rights.  /11/ (418 U.S.at 478)
 
    ". . . We see no reason to limit this protection to statements made
 during representation election campaigns.  The protection of Sec. 7 and
 Sec. 1 is much broader . . . Whether the goal is merely to strengthen or
 preserve the union's majority, or to achieve 100% employee membership--
 a particularly substantial union concern where union security agreements
 are not permitted . . . these organizing efforts are equally entitled to
 the protection of Sec. 7 and Sec. 1." (418 U.S.at 479).  I am well aware
 that the Supreme Court, in Austin, supra, limited its comments to
 organizing efforts of a union.  Certainly, it could be argued that the
 protection of union speech under Section 1 of the Executive Order, and
 now under Sec. 2 of the Statute, flowing from the right, "to form, join,
 or assist any labor organization" extends only to union membership
 activities, which was not present in this case;  however, I do not
 believe that the right of union speech is limited, merely, to membership
 activities.  Thus, in Veterans Administration Regional Office, Denver,
 Colorado, 2 FLRA No. 106, 2 FLRA 854 (1980), the Authority adopted the
 conclusions of Judge Chaitovitz, in part, that:
 
          ". . . Section 1 of the Order grants each employee the right to
       join and assist a labor organization.  If the employees are to
       have the right to join and assist a labor organization and to be
       effectively represented by such a labor organization, the
       employees must be free from interference to manage the labor
       organization and to engage in all conduct which is permissible for
       the labor organization. . . ." (2 FLRA at 863).
 
 In addition, the "proviso" to Sec. 16(b)(7) of the Statute expressly
 permits informational picketing "which does not interfere with an
 agency's operations";  and Sec. 16(e) of the Statute, under stated
 conditions, protects "The expression of any personal view, argument,
 opinion or the making of any statement . . . if the expression contains
 no threat of reprisal or force or promise of benefit or was not made
 under coercive conditions. . . ." See, Oklahoma City Air Logistics
 Center (AFLC), Tinker Air Force Base, Oklahoma, supra;  American
 Federation of Government Employees, Local 2000, AFL-CIO v. William R.
 Massengale, Case Nos. 6-CO-37 and 6-CO-38, OALJ-82-52 (February 24,
 1982).
 
    Moreover, as the right, set forth in Sec. 2 of the Statute, ". . . to
 form, join, or assist any labor organization. . . ." protects employee
 speech, as the Supreme Court stated in Austin, supra, and as the
 Authority necessarily recognized in Veterans Administration, Veterans
 Administration Medical Center, Shreveport, Louisiana, supra, i.e., ". .
 . Respondent's reprimand of Lucas was in retaliation for her activity as
 a representative of the Union. . . .", Mr. Steenhoff's statement to the
 press, as President of the Union, was protected activity as a
 representative of the Union unless specifically proscribed by applicable
 regulations, notwithstanding that the language in Sec. 2(1) of the
 Statute, ". . . other appropriate authorities" does not include
 "reporters", i.e., the enumeration of rights set forth in Sec. 2(1) is
 not coextensive with the right of "Each employee . . . to form, join, or
 assist any labor organization. . . ." but is merely illustrative of
 rights included therein.
 
    While an employee has a protected right under Sec. 2 of the Statute
 to communicate the views of the labor organization concerning terms and
 conditions of employment of the bargaining unit, such right is not
 without limitation.  As Judge Chaitovitz further noted, in Veterans
 Administration Regional Office, Denver, Colorado, supra,
 
          ". . . this does not give employees license, because they may
       also be union officials, to engage in any conduct they wish, and
       be insulated from discipline.  Rather . . . that the employees are
       protected when engaging in reasonable conduct as union
       representatives because they were engaging in union conduct which
       was protected by the Order. . . ." (2 FLRA at 863).
 
 And as the Supreme Court noted in Austin, supra, with regard to Section
 1 of Executive Order 11491,
 
          " . . . the lack of protection for concerted activities might
       be thought to indicate an intention in the Executive Order to
       regulate the location or form of employee speech to a somewhat
       greater extent than under the NLRA. . . ." (418 U.S.at 278).
 
 In this case, the General Counsel concedes the validity of Respondent's
 Program Statement (Tr. 22, 24) but, challenges ". . . the application of
 the regulation. . . ." (Tr. 24) and as stated in his Brief, ". . . it is
 perfectly clear that Warden Gunnell's broad proscription to Steenhoff
 precluding him from issuing any information to the press under any
 circumstances constituted interference with a basic right under the
 Statute. . . ." (G.C. Brief, p. 4) (Emphasis in original).
 
    5 C.F.R. 540.65, which is included in the Program Statement provided,
 in part, that:
 
          "(a) The Warden shall promptly make announcements stating the
       facts of unusual, newsworthy incidents to local news media.
       Examples are deaths, inside escapes, and institution emergencies.
 
          "(b) The Warden shall provide information about an inmate that
       is a matter of public record . . .
 
          "(c) Information in paragraphs (b)(1) through (8) . . . may not
       be released if confidential for protection cases.
 
          "(d) A request for additional information concerning an inmate
       . . . is referred to the Public Information Officer, Central
       Office, Washington, D.C.
 
          "(e) The Public Information Officer . . . shall release all
       announcements related to:
 
          (1) Bureau of Prisons policy;
 
          (2) Changes in an institutional mission;
 
          (3) Type of inmate population;  or
 
          (4) Changes in executive personnel."
 
          (5 C.F.R. 540.65, effective August 1, 1979).
 
    5 C.F.R. 540.60, set forth in full hereinabove, contained the
 sentence,
 
          ". . . The Bureau of Prisons also has a responsibility to
       protect the privacy and other rights of inmates and members of the
       staff.  Therefore, an interview in an institution must be
       regulated to insure the orderly and safe operation of the
       institution." /12/ (5 C.F.R. 540.60, effective August 1, 1979).
 
 The Program Statement contains the following, which does not appear in
 the Regulation:
 
          "The Warden of each institution, or his designated
       representative, is solely responsible for contact with the press.
       Other staff members shall refer all press inquiries to the Warden
       or his designee." (Program Statement 1480.2, G.C. Exh. 4).
 
    Obviously, the stated purpose and scope of the Program Statement,
 inter alia,". . . to protect the privacy and other rights of . . .
 members of the staff" does not purport to extend to statements of the
 views of the Union concerning terms or conditions of employment in
 general, which involve no question of privacy;  nor does the statement
 that, ". . . an interview in an institution must be regulated to insure
 the orderly and safe operation of the institution", have any application
 to such general statements by the Union.  Literally, the provisions of
 the Program Statement that, "The Warden . . . is solely responsible for
 contact with the press.  Other staff members shall refer all press
 inquiries to the Warden. . . .", would preclude any employee from any
 contact with the press, but, even literally applied, would have no
 application to a non-employee Union representative.  As Judge Chaitovitz
 stated in Veterans Administration Regional Office, Denver, Colorado,
 supra,
 
          ". . . It would seem strange, in effect, to require that for
       labor organizations to engage in protected activities it must use
       non-employees.  Such a result would totally frustrate the
       employees' right to effective representation which they themselves
       could control. . .
 
                                .  .  .  .
 
          "Having concluded that employee-union officials, when acting in
       their union representative capacity, must be free to engage in any
       activity the union is privileged to engage in . . . it is
       concluded . . . that the employees are protected when engaging in
       reasonable conduct as union representatives because they were
       engaging in union conduct which was protected. . . ." (2 FLRA at
       863) (Emphasis in original).
 
    Respondent, in its Brief, asserts, inter alia, that ". . . the
 Federal Prison System is not bound by or forced to accede to another
 agency's interpretation of its own regulation" (Res. Brief, p. 4).
 Nevertheless, when an agency's interpretation and application of its own
 regulations interferes with a right protected by the Statute, the
 Authority can, and must, in order to insure that rights accorded by the
 Statute are protected, declare that such regulations may not be enforced
 in a manner which interferes with rights protected by Sec. 2 of the
 Statute.  Here, Respondent's Program Statement, literally, precludes
 employees from any contact with the press, but does not purport to limit
 in any manner contact by the Union, through non-staff members
 (employees), to the press.  I fully agree with the conclusion of Judge
 Chaitovitz in Veterans Administration Regional Office, Denver, Colorado,
 supra, and, therefore, conclude that Mr. Steenhoff, acting in his
 capacity as Union president, was protected when engaging in reasonable
 conduct as Union representative because he was engaging in union conduct
 which was protected by the Statute and which was not precluded by the
 Program Statement.  Accordingly, Respondent's interpretation of the
 Program Statement is overly broad and its admonition of Mr. Steenhoff
 for engaging in protected Union conduct violated Sec. 16(a)(1) of the
 Statute.  Under the circumstances, I neither reach nor decide the effect
 of an agency regulation which purports to limit, or proscribe, protected
 Union activity.
 
    Having found that Respondent violates Sec. 16(a)(1) of the Statute, I
 recommend that the Authority adopt the following:
 
                                   ORDER
 
    Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
 Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that
 the Bureau of Prisons, Federal Correctional Institution, Danbury,
 Connecticut, shall:
 
    1.  Cease and desist from:
 
          (a) Admonishing or otherwise interfering with, restraining, or
       coercing Clifford S. Steenhoff, or any other employee, when acting
       in the capacity of an officer of American Federation of Government
       Employees, Council of Prison Locals C-33, Local 1661, AFL-CIO, the
       exclusive representative, to engage in protected union conduct,
       including the right to state to the press the views of the Union
       concerning terms or conditions of employment in general of the
       bargaining unit.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of rights
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Rescind its memorandum to Mr. Clifford S. Steenhoff, dated
       November 25, 1981.
 
          (b) Post at its facilities in Danbury, Connecticut, copies of
       the attached notice on forms to be furnished by the Authority.
       Upon receipt of such forms they shall be signed by the Warden and
       shall be posted and maintained for 60 consecutive days thereafter
       in conspicuous places, including all bulletin boards and other
       places where notices to employees are customarily posted.
       Reasonable steps shall be taken to insure that said notices are
       not altered, defaced, or covered by any other material.
 
          (c) Pursuant to Sec. 2423.30 of the Regulations, notify the
       Regional Director of the Federal Labor Relations Authority, Region
       1, whose address is:  441 Stuart Street, 9th Floor, Boston,
       Massachusetts, 02116, in writing, within 30 days from the date of
       this Order, as to what steps have been taken to comply therewith.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
 Date:  January 5, 1983
        Washington, D.C.
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT admonish or otherwise interfere with, restrain, or coerce
 Clifford S. Steenhoff, or any other employee, when acting in the
 capacity of an officer of American Federation of Government Employees,
 Council of Prison Locals C-33, Local 1661, AFL-CIO, the exclusive
 representative, to engage in protected union conduct, including the
 right to state to the press the views of the Union concerning terms or
 conditions of employment in general of the bargaining unit.  WE WILL NOT
 in any like or related manner interfere with, restrain, or coerce any
 employee in the exercise of any right under the Statute.  WE WILL
 rescind the memorandum to Mr. Clifford S. Steenhoff, dated November 25,
 1981.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting and must not be altered,
 defaced or covered by any other material.  If employees have any
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director of
 the Federal Labor Relations Authority, Region 1, whose address is:  441
 Stuart Street, 9th Floor, Boston, Massachusetts, 02116, and whose
 telephone number is:  (617) 223-0920.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1A/ Section 7102 of the Statute provides:
 
          Sec. 7102.  Employees' rights
 
          Each 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 right--
 
          (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
       conditions of employment through representatives chosen by
       employees under this chapter.
 
 
    /1/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Section 7116(a)(1) will be referred to simply
 as "16(a)(1)".
 
 
    /2/ General Counsel's motion for extension of time to file briefs was
 not timely filed and was denied on December 6, 1982.
 
 
    /3/ Mr. Steenhoff had contacted the offices of various Senators and
 Congressmen and an official of the Council of Prison Locals.  This
 conduct is not in question.
 
 
    /4/ Mr. Steenhoff's response was wholly circumspect and there is no
 assertion that he divulged any privileged information.
 
 
    /5/ Bracketed material in the Program Statement is the language of
 the Regulation as of June 29, 1979.  The present language of Sec. 540.60
 is substantially different;  however, other sections including Sec.
 540.65 have remained unchanged.  No effort has been made to note changes
 in the Regulations since only the Program Statement is relied upon.
 
 
    /6/ I am, also aware of the provisions of Sec. 16(e) concerning the
 "expression of any personal view, opinion of the making of any
 statement".  See, Oklahoma City Air Logistics Center (AFLC) Tinker Air
 Force Base, Oklahoma, 6 FLRA No. 32, 6 FLRA 159 (1981).
 
 
    /7/ Appellant Meehan had been, when the matter arose, President of
 the Canal Zone Police Lodge 1798, American Federation of Government
 Employees.
 
          /8/ In other contexts, other provisions of the NLRA may be
       sources of protection for union freedom of speech.  For example,
       one such source would be the system of representation elections by
       secret ballot established by Sec. 9 of the Act.  Wide latitude for
       what is written and said in election campaigns is necessary to
       insure the free exchange of information and opinions, and thus to
       promote the informed choice by employees needed to make the system
       work fairly and effectively.  The same policy is applicable under
       the Executive Order, which establishes in Sec. 10 a similar system
       of representative elections for public employees.
 
          /9/ Section 1 of the Executive Order does not grant federal
       employees the right, guaranteed by Sec. 7 of the NLRA for
       employees in the private sector, 'to engage in other concerted
       activities for the purpose of collective bargaining or other
       mutual aid or protection.' (Nor, of course, does Sec. 2 of the
       Statute which is essentially like Section 1 of the Order).  The
       right to attempt to persuade others to join the union, however, is
       derived from the rights to form, join, and assist a union, as well
       as from the right to engage in concerted activities.  The absence
       of mention of a right to engage in concerted activities is
       obviously no more than a reflection of the fact that the Order
       does not permit federal employee unions to engage in strikes or
       picketing.  The prohibition of picketing and the lack of
       protection for concerted activities might be thought to indicate
       an intention in the Executive Order to regulate the location or
       form of employee speech to a somewhat greater extent than under
       the NLRA, but we do not perceive any intention to curtail in any
       way the content of union speech." (418 U.S.at 278)
 
 
    /10/ Section 1(a) of E.O. 11491 provided, in relevant part:
 
          " . . . Except as otherwise expressly provided in this Order,
       the right to assist a labor organization extends to . . .
       presentation of its views to officials of the executive branch,
       the Congress, or other appropriate authorities. . . . "
 
          /11/ "13.  . . . The right to attempt to persuade others to
       join the union, however, is derived from the right to form, join,
       and assist a union, as well as from the right to engage in
       concerted activities.  The absence of mention of a right to engage
       in concerted activities is obviously no more than a reflection of
       the fact that the Order does not permit federal employee unions to
       engage in strikes or picketing.  The prohibition of picketing and
       the lack of protection for concerted activities might be thought
       to indicate an intention in the Executive Order to regulate the
       location or form of employee speech to a somewhat greater extent
       than under the NLRA, but we do not perceive in any way any intent
       to curtail in any way the content of union speech." (418 U.S.at
       478, n. 13).
 
 
    /12/ Sec. 540.60 now consists,