17:1023(138)CA - Justice, Federal Prison System, Federal Correctional Institution, Milan, MI and AFGE Local 1741 -- 1985 FLRAdec CA



[ v17 p1023 ]
17:1023(138)CA
The decision of the Authority follows:


 17 FLRA No. 138
 
 U.S. DEPARTMENT OF JUSTICE 
 FEDERAL PRISON SYSTEM 
 FEDERAL CORRECTIONAL INSTITUTION 
 MILAN, MICHIGAN 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1741, AFL-CIO 
 Charging Party
 
                                            Case Nos. 5-CA-30090 
                                                      5-CA-30098
                                                      5-CA-30202 
                                                      5-CA-30205
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled consolidated 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.  The Judge further found that the Respondent
 had not engaged in certain other alleged unfair labor practices and
 recommended dismissal of the complaint with respect to them.
 Thereafter, the Charging Party filed exceptions to the Judge's Decision,
 /1/ and the Respondent filed an opposition to the Charging Party's
 exceptions and a motion to strike certain documents appended to the
 Charging Party's exceptions.  /2/
 
    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.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the U.S. Department of Justice, Federal Prison System, Federal
 Correctional Institution, Milan, Michigan shall:
 
    1.  Cease and desist from:
 
    (a) Removing documents from bulletin boards of the American
 Federation of Government Employees, Local 1741, AFL-CIO.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Post at the Milan facility, copies of the attached Notice on
 forms to be furnished by the Federal Labor Relations Authority.  Upon
 receipt of such forms, they shall be signed by an appropriate official
 and shall be posted and maintained for 60 consecutive days thereafter,
 in conspicuous places, including bulletin boards and all 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.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region V, 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.
 
    IT IS FURTHER ORDERED that the other allegations of the consolidated
 complaint be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., May 13, 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 remove documents from the bulletin boards of the American
 Federation of Government Employees, Local 1741, AFL-CIO.  WE WILL NOT,
 in any like or related manner, interfere with, restrain, or coerce our
 employees in the exercise of their rights assured by the Federal Service
 Labor-Management Relations Statute.
                                       (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 its provisions, they
 may communicate directly with the Regional Director, Region V, Federal
 Labor Relations Authority, whose address is:  Suite 1359-A, 175 Jackson
 Boulevard, Chicago, Illinois 60604, and whose telephone number is:
 (312) 353-6306.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Robert M. Wilansky
    For the Respondent
 
    Claire R. Morrison, Esq.
    For the General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding arising under the Federal Service
 Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S.
 Code, 5 U.S.C. 7101 et seq., 92 Stat. 1191 (hereinafter referred to as
 the Statute), and the Rules and Regulations of the Federal Labor
 Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410 et seq.
 
    On December 6, 1982 American Federation of Government Employees,
 Local 1741, AFL-CIO (hereinafter called AFGE Local 1741 and the Union)
 filed an unfair labor practice charge in Case No. 5-CA-30090 alleging
 that U.S. Department of Justice, Federal Prison System, Federal
 Correctional Institution, Milan, Michigan (hereinafter called FCI-Milan
 and Respondent) violated Sections 7116(a)(1), (2), (3), (4), (5) and (8)
 of the Statute when it took various actions against Union steward Carl
 Sanders.
 
    On December 13, 1982 the Union filed a charge in Case No. 5-CA-30098
 alleging that Respondent violated Sections 7116(a)(1), (2), (3), (4) and
 (8) of the Statute when it took certain actions against AFGE Local 1741
 President Hebert Betts.
 
    On February 2, 1983 the Union filed amended charges in Case Nos.
 5-CA-30090 and 5-CA-30098.  On February 4, 1983 General Counsel of the
 FLRA, by the Director of Region 5, issued an Order Consolidating Cases,
 Complaint and Notice of Hearing in Case Nos. 5-CA-30090 and 5-CA-30098
 alleging that Respondent violated Sections 7116(a)(1), (2), (4) and (8)
 of the Statute.
 
    On February 24, 1983 the Union filed a charge in Case No. 5-CA-30202
 alleging that Respondent violated Sections 7116(a)(1), (2), (3), (4) and
 (5) of the Statute by removing certain Union material from a bulletin
 board.
 
    On February 25, 1983 the Union filed a charge in Case No. 5-CA-30205
 against Respondent alleging that it violated Sections 7116(a)(1), (2)
 and (4) of the Statute in connection with additional actions taken
 against Sanders.
 
    On March 28, 1983 the General Counsel of the FLRA, by the Director of
 Region 5, issued a Complaint and Notice of Hearing in Case No.
 5-CA-30202 alleging that Respondent had violated Section 7116(a)(1) of
 the Statute.  On March 28, 1983 the Director of Region 5 of the FLRA
 issued an Order Further Consolidating Cases in Case Nos. 5-CA-30090,
 5-CA-30098 and 5-CA-30202.
 
    On March 30, 1983 the General Counsel of the FLRA, by the Director of
 Region 5, issued a Complaint and Notice of Hearing in Case No.
 5-CA-30205 alleging that Respondent violated Sections 7116(a)(1), (2)
 and (4) of the Statute.  On March 30, 1983 an Order Further
 Consolidating Cases was issued with respect to Case Nos. 5-CA-30090,
 5-CA-30098, 5-CA-30202 and 5-CA-30205.
 
    Respondent filed timely Answers denying that it had violated the
 Statute as set forth in the above described Complaints.
 
    A hearing was conducted before the undersigned in Detroit, Michigan.
 All parties were given an opportunity to be represented and Respondent
 and General Counsel of the FLRA were represented and afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence and to argue orally.  Post hearing briefs have been
 filed and have been fully considered.
 
    Based upon the entire record in this matter, my observation of
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                              Finding of Fact
 
    At all times material herein American Federation of Government
 Employees (AFGE), Council of Prison Locals was the collective bargaining
 representative for a nationwide unit of employees of the Federal Prison
 System.  AFGE and Respondent were parties to a collective bargaining
 agreement.  AFGE Local 1741 was the collective bargaining representative
 for those unit employees located at the Milan Correctional Institution.
 Case No. 5-CA-30202
 
    During March 1982 AFGE Local 1741 and FCI-Milan agreed, as permitted
 in the collective bargaining agreement, that the Union would be
 permitted to share the bulletin board located in the Milan Institution's
 front lobby (hereinafter called the lobby bulletin board).  Within a few
 days the Union began to use the left side of this lobby bulletin board
 posting notices which encouraged Union-membership, and notified
 employees of Union meetings and other Union-related activities.
 
    Prior to February 4, 1983 Union material had not been removed from
 the Union's portion of the lobby bulletin board except by AFGE Local
 1741 officials.  During July 1982 Warden J.R. Johnson and AFGE Local
 1741 President Betts agreed that the Union would sign all material it
 posted on the lobby bulletin board.  This was agreed to because
 Respondent wished to insure that the employees would be able to
 distinguish between material posted by the Union and that posted by
 FCI-Milan.
 
    During the morning of February 4, 1983 Warden Johnson instructed his
 secretary, Arlene Spears, to remove any outdated material from the lobby
 bulletin board.  The lobby bulletin board was not neat, some papers had
 fallen down, and it had outdated material on it.  Warden Johnson did not
 specifically instruct Spears to remove Union material.  Spears removed
 notices from all portions of the lobby bulletin board.  Spears removed
 not only memoranda posted by Respondent but items posted by the Union,
 including a brightly lettered bumper sticker that stated "Join AFGE," a
 notice of available discounts for Union members at Disney World, and a
 golf tournament announcement.  /3/ None of these documents were
 specifically signed by the Union officials.  Spears was unaware of the
 arrangement permitting the Union to use one half of the lobby bulletin
 board.
 
    On February 4, 1984 Betts was advised that the Union's material had
 been removed from the lobby bulletin board.  Betts then observed that
 the lobby bulletin board no longer had any Union material posted.
 
    Betts went to see Spears and asked her who took the Union material
 down from the lobby bulletin board.  Spears replied that she had done it
 because she had been asked by the Warden to clean up the bulletin board
 and to remove outdated material.  Spears further indicated the Union
 material had been thrown in the waste paper basket.  /4/ Betts indicated
 he might file a grievance.  Case Nos. 5-CA-30090, 5-CA-30205
 
    In March, 1982, Warden Johnson, was informed by memorandum of the
 names of Union's officers, stewards and committee members.  Betts was
 listed as the Union's President and Carlan Sanders was listed as a
 steward for the wage grade bargaining unit employees.
 
    As Union President, Betts engaged in activities on behalf of the
 Union, including representing bargaining unit employees in such matters
 as job changes, hours being changed without notice, grievances and
 disciplinary actions.  Betts represented employees in various matters
 before Warden Johnson on two or three occasions.  He also represented
 employees, including Carlan Sanders, in mid-November, 1982 before J.T.
 Wahl, the Institution's Food Service Administrator.
 
    After Sanders became a steward, he represented employees within Milan
 Institution's Food Service.  Some of this activity brought him into
 contact with Wahl and Cline, Assistant Food Service Administrator.  On
 one occasion, at Sanders' request, Wahl began xeroxing and distributing
 work assignments, instead of placing them on a bulletin board.
 
    On or about September 1, 1982, Carlan Sanders, in his capacity as
 steward, represented a Food Service bargaining unit employee, Peterson,
 before Wahl concerning two memoranda which Peterson had allegedly
 written. Sanders was relatively quiet during this meeting.
 
    Prior to September, 1982 Sanders had not received any counseling
 memoranda regarding his performance.  In addition, in March 1982, he had
 received an "outstanding" annual performance appraisal from Cline and
 Wahl which recommended that Sanders be considered for a management
 position within the Institution.
 
    Prior to September 2, 1982, Sanders had never been counseled with
 regard to sick leave.  He had not been put on any kind of sick leave
 restriction. Cline requested a sick leave note from Sanders during
 September 1982.  Cline requested the doctor's note because he believed
 Sanders had too many sick leave days taken in conjunction with Sanders'
 regular days off.  Sanders told Cline that a request for a doctor's slip
 must first be made in writing, according to the provisions of the master
 agreement.  /5/ After checking the master agreement, Cline concluded
 Sanders was correct and withdrew his request for a sick leave note.
 
    On September 13, 1982, Sanders received three memoranda from Cline.
 One of the memoranda concerned Mr. Sanders' use of sick leave, but did
 not impose any restrictions.  The other two memoranda concerned
 unsatisfactory performance.  Sanders on his own brought the doctor's
 slip in to Wahl and Cline explaining sick leave absences.
 
    On September 22, 1982, Sanders received from Warden Johnson, through
 Mr. Wahl, a memorandum which required that Sanders under go a fitness
 for duty examination because Sanders had been taking a great deal of
 sick leave.  Subsequently, Sanders underwent such an examination and,
 after continual requests, Sanders on December 21, 1982 provided a
 statement from his personal physician who had done the examination.  One
 of the other memoranda that Sanders received on September 13, 1982
 concerned Sanders' unsatisfactorily cleaning up a sugar spill in the
 kitchen after Sanders had been specifically instructed to clean up the
 spill.  The final memorandum concerned Sanders' failure to follow
 security procedures with respect to his accountability for inmates under
 Sanders' control.  Sanders submitted responses to these three memoranda
 in which he tried to explain and justify his conduct.
 
    On October 27, 1982, Sanders received from Mr. Wahl a letter dated
 October 26, 1982 which proposed that he be suspended for five days in
 connection with an inmate allegedly having been released from his work
 location without a pass.  Mr. Sanders replied to this proposed
 suspension on November 1, 1982.  Wahl proposed the action because, from
 his warehouse vantage point, Wahl saw Sanders release an inmate from the
 dining room.  The inmate was released by Sanders without a pass and the
 inmate created a disturbance in a dormitory.  When Wahl confronted
 Sanders about the inmate's location, Sanders told Wahl that the inmate
 must have "snuck out" the back door.  Wahl counseled Sanders concerning
 the release of the inmate from the dining room without a pass.  Sanders'
 response to the counseling was that the inmate had snuck out the back
 door.  The proposal was written because Sanders had lost the
 accountability of the inmate for a second time in thirty days.  Cook
 foremen are supposed to know at all times the whereabouts of the inmates
 under their supervision.
 
    By letter dated November 16, 1982 Warden Johnson reduced the proposed
 five-day suspension to a three-day suspension.  The three day suspension
 was for purposes of rehabilitation.  Even if Sanders had been telling
 the truth when he denied that the inmate was intentionally released,
 Sanders was still held responsible because the accountability of inmates
 is one of the most critical responsibilities for any correctional
 worker.  Sanders served the suspension between November 27 and 30, 1982.
 
    On November 7, 1982, a Sunday, Sanders was on duty as cook foreman,
 which meant he had responsibility, among other things, to serve brunch
 from a preplanned menu.  The menu provided that the brunch was to
 include eggs fried to order, hash brown potatoes and toast.  Cline was
 on duty because it was his regular workday.  Associate Warden Laird
 complained to Cline that at brunch, hashed boiled potatoes were being
 served instead of hash brown potatoes, and that the inmate cooks were
 cooking eggs to order for their friends, while other eggs had been
 pre-cooked and were served cold.  Sanders advised Cline at 11:40 a.m.,
 /6/ that the bread slicer was broken and Sanders didn't know if there
 would be sufficient toast. Almost immediately Sanders ran out of toast.
 Cline ordered steps to be taken to repair the slicing machine and to
 hand slice bread to make toast.
 
    On November 9, 1982, Wahl wrote a request to the personnel office for
 assistance in presenting a disciplinary action proposal against Sanders
 concerning the performance of his duties at the November 7, 1982 brunch.
 
    On November 23, 1982, Mr. Betts, in his capacity as Union President,
 served a copy of a charge in what later became Case No. 5-CA-30090, upon
 Warden Johnson, Mr. Wahl, and Mr. Cline.  A key figure discussed in the
 basis of the charge was Carlan Sanders.  This charge was subsequently
 filed with Region 5 of the Federal Labor Relations Authority.
 
    On December 4, 1982, Mr. Sanders received a proposed seven-day
 suspension.  This proposed suspension letter, dated November 29, 1982,
 concerned the above described brunch served on November 7, 1982.
 Sanders filed a response to the proposed suspension with Warden Johnson.
 
    On November 30, 1982, Sanders received from Warden Johnson, through
 Wahl, a memo which required Mr. Sanders to pay for long distance
 personal calls he had made from the institution to his home.  Sanders'
 reply to this memo indicated he had not made any of the calls for which
 he was being charged.  This matter was pursued no further.
 
    Warden Johnson, by letter dated December 22, 1982, advised Sanders
 that in agreement with the December 4, 1982 recommendation, Sanders was
 being suspended for seven days because of Sanders failure to properly
 perform his duties in preparing the Sunday brunch meal.  Sanders served
 this suspension from December 28 to January 6, 1983.
 
    On December 19, 1982, Cline needed a cook foreman to work overtime
 because Larry Sanders had left the institution without permission.  Cook
 foreman Peterson was sick, cook foreman Sims was on vacation and cook
 foreman Rucker was scheduled to work a later shift.  Cline asked cook
 foreman Fortonour to work overtime, but Fortonour stated that he had
 worked overtime the week previously.  Cline then asked Carlan Sanders,
 who, stated he could not work overtime because of his health.  Sanders
 told Cline of a doctor's slip in the medical file.  Cline spoke to
 Correctional Supervisor Litz and Duty Officer Gatchel about the
 situation.  Gatchel called the physician assistant to check on Sanders'
 claim.  No such doctor's slip was found in the medical record.  Cline
 told Sanders that he (Sanders) could go home and get his medicine, but
 Sanders refused to drive twenty miles to get his medicine.  Correctional
 Supervisor Litz told Sanders he could get the medicine from the
 institution hospital, but Sanders went to work without trying to obtain
 the medication.
 
    On December 22, 1982, Wahl assigned Sanders to the dish room.  This
 assignment to the dish room began on December 23, 1982 and continued
 again on January 3 to January 11, 1983.  The dish room was very hot.
 The temperature of the dish machine's rinse water was 210 degrees.
 Sanders stood in the open doorway during his shift.  The dish room
 windows were closed but the doors were open.  Several factors led to
 Sanders' assignment to the dish room.  One factor was Sanders' job
 performance and Sanders' frequent use of sick leave.  Wahl was unable to
 determine whether or not, on a daily basis, Sanders would be at the
 institution.  Further, the inmates had caused a recent food strike and
 full time coverage was necessary to help with the situation in case of
 another food strike.  A full-time correctional officer was assigned to
 supervise the inmates and the cleaning of the dining room.  Sanders was
 assigned to the dish room to supervise only those particular inmates.
 If Sanders did not report to work, the correctional officer could take
 over the dish room duties as well.  Sanders could sit down in the dish
 room if necessary and it was a smaller area to supervise.
 
    When Sanders returned to work on January 7, after having served his
 suspension Cline gave him a letter in which it was proposed that Sanders
 be suspended for a period of ten days.  The proposed suspension
 concerned Mr. Sanders' allegedly having lied to his supervisor.
 
    On December 23, 1982, Sanders had told Wahl that Dr. Barth, a doctor
 at the institution, stated that his (Sanders') blood pressure was
 extremely high and that Sanders should go home immediately.  Based on
 Sanders' representations, Wahl released Sanders on sick leave.  Wahl
 told Sanders to report to the Correctional Supervisor's office where he
 (Sanders) repeated before other employees what Dr. Barth had supposedly
 told him.  Following this conversation with Sanders, Wahl spoke to Dr.
 Barth who informed Wahl that he did not give Sanders instructions to
 leave.  Dr. Barth's instructions were that Sanders' blood pressure was
 moderately elevated and that the condition should not cause Sanders
 immediate concern and that Sanders had to decide if he felt too ill to
 work and, if he did, he should take sick leave.
 
    Wahl testified that he gave Cline the authority to sign the
 suspension proposal on Wahl's behalf because he was not present to issue
 it.  Wahl proposed the ten day suspension against Sanders because
 Sanders had lied concerning Dr. Barth's statement.  Sanders had lied not
 only to Wahl but also to several others.  Wahl recommended the
 suspension because the Food Service Department could not fulfill its
 mission if the supervisors cannot depend on the staff to tell the truth.
  The ten day penalty was proposed because this was Sanders' second
 offense of lying to Wahl, and Sanders' third offense.
 
    On January 12, 1983, Sanders replied to the proposed suspension. On
 January 13, 1983, Sanders gave an affidavit in Case No. 5-CA-30090 to an
 FLRA investigator.  An extended interview took place in the Warden's
 Conference Room.  Sanders' interview was interrupted once when Warden
 Johnson came into the room and twice by James Austin, the Personnel
 Chief.  These interruptions occurred because Warden Johnson and Austin
 were unaware the room was still in use and on one occasion they wished
 to tell the FLRA agent to lock up the room when finished.
 
    On January 20, 1983, Sanders received a letter, dated January 17,
 1983 from Warden Johnson with regard to the proposed ten day suspension.
  Sanders was suspended for the full ten days.  Sanders served the
 suspension between January 25 and February 3, 1983.
 
    The Warden upheld the ten day penalty against Sanders because Sanders
 had previously been charged with the same offense, and the desired
 corrective action of the former penalty did not accomplish its goal.
 Sanders' Union activities had nothing to do with the decision.  Case No.
 5-CA-30098
 
    On December 1, 1982, Betts was ordered out of the rear gate house,
 his work assignment, while Warden Johnson inspected it.  Warden Johnson
 found a radio playing and a magazine in the gate house.  On December 2,
 1982, Mr. Betts received a telephone call from the Institution's Chief
 Correctional Supervisor, Harold Killyon.  Mr. Killyon questioned Mr.
 Betts about plastic jugs going out the rear gate where Mr. Betts worked.
  Mr. Killyon also asked Mr. Betts if he had seen any meat go out of the
 rear gate.  Mr. Killyon specifically inquired as to whether Mr. Betts
 had seen anything go out of the rear gate from the boiler room.
 
    Warden Johnson was notified on December 1, 1982 that Betts had large
 plastic detergent jugs in his car and had removed jugs from the
 institution's grounds.  On December 1, 1982 Warden Johnson learned that
 "wet-type" garbage including meat had been improperly disposed of in the
 dumpster.
 
    On December 2, 1982, Warden Johnson entered the rear gate area.
 Warden Johnson entered Betts' office, and then, with Betts, went to
 Betts' personal vehicle which was parked by the gate.  Warden Johnson
 looked in Betts' car and asked Betts about presence of a plastic jug in
 the vehicle.  After Betts had explained about the empty plastic jug,
 Warden Johnson questioned Betts about a brown paper bag which was on the
 back seat of his car.  Betts refused to respond to the question asked.
 Warden Johnson ordered Betts to tell him (Warden Johnson) what was in
 the package.  Betts refused.  Warden Johnson ordered Betts to take
 Betts' car to the front of the institution and report to the personnel
 office.  Correctional Supervisor Clendening repeated the instructions to
 Betts.  Betts refused to follow these instructions and began walking and
 following the Warden towards the front of the institution.  As Betts
 walked through the compound, he loudly made remarks that he was "being
 fired for a couple of barrels" and other remarks about being fired.
 Warden Johnson ordered Betts again, three separate times, while in the
 "A" corridor of the institution to move his car around to the front of
 the institution.  Betts refused all three times.
 
    Austin discussed with Warden Johnson sending Betts home on
 administrative leave because Betts was a threat and an embarrassment.
 Betts was relieved and placed on administrative leave while the matter
 which had transpired was investigated.  Betts was told that he was being
 placed on administrative leave by Austin and Killyon and was told to
 leave the institution.  Austin, Killyon and Betts returned to Betts car
 and they inspected the brown package, which contained personal
 belongings of Betts.
 
    After Betts' car was searched by Austin and Killyon, Betts was
 ordered by Austin to stay at home between 7:30 a.m.-4:00 p.m.  On the
 administrative leave, an employee is on-duty, but at home.  Credibility
 Resolutions
 
    In setting forth the foregoing statement of facts, I discredited the
 testimony of Betts and Sanders.  Their testimony was confusing and
 inconsistent with prior statements, documents and records.  I found
 other witnesses more credible than Betts and Sanders.  The testimony of
 the other witnesses was more precise and more consistent with the
 surrounding circumstances and the written records made counterproposals
 with the events in question than was the testimony of Betts and Sanders.
  Specifically I discredit Betts' contention that on December 2, 1982 he
 requested Union representation and Sanders' contention that Wahl made
 statements to Sanders concerning Wahl "playing games" and punishing
 Sanders because of Sanders' Union activity.
 
                     Discussion and Conclusions of Law
 
 Case No. 5-CA-30202
 
    In determining whether Respondent violated Section 7116(a)(1) of the
 Statute by removing the Union documents from the bulletin board, it must
 be determined whether the conduct would foreseeably have the tendency to
 discourage Union activity and support.  See, U.S. Department of
 Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois, 3
 FLRA 724 (1980).
 
    In the subject case Respondent had agreed to permit the Union to
 utilize one half of the lobby bulletin board for Union notices.  There
 is no evidence that Respondent reserved the right to remove any Union
 notices from the bulletin board.  /7/ Further, the facts that the person
 who removed the notices was unaware of the agreement permitting the
 Union to use the bulletin board and that she did not intend to interfere
 with Union activity, are irrelevant.
 
    Respondent's unilateral action in removing the Union's notices from
 the lobby bulletin board, after Respondent had agreed to permit the
 Union to use the bulletin board, was a raw display of power which, it is
 concluded, would foreseeably have the effect of interfering with
 employees' desiring to exercise their rights to engage in activity on
 behalf of the Union.  Thus, it is concluded, Respondent violated Section
 7116(a)(1) of the Statute.  Case Nos. 5-CA-30090, 5-CA-30098 and
 5-CA-30205
 
    The facts in these cases fail to establish that either Sanders or
 Betts were treated discriminatorily or in any way punished because of
 their activities on behalf of the Union or because they engage in filing
 charges with or giving statements to the FLRA.  The record fails to
 establish any anti-union animus on the part of Respondent.  Thus,
 although Betts and Sanders were active on behalf of the Union and did
 file unfair labor practice charges with and gave statements to the FLRA,
 they were suspended and otherwise treated the way they were, because
 Respondent perceived them as performing their work assignments poorly
 and because they did not obey orders.
 
    The credible evidence in this case fails to establish any nexus
 between Betts' and Sanders' Union activity or other protected activity
 and their treatment by Respondent.  The mere fact that an employee
 engages in Union and other protected activity does not insulate that
 employee from discipline for poor job performance or other misconduct.
 There must be a causal relationship between the protected activity and
 the disciplinary action.  See, Community Services Administration, 6 FLRA
 616 (1981) and Department of Transportation, Federal Aviation
 Administration, 11 FLRA 67 (1983).
 
    The credible evidence in these cases fails to establish that Sanders
 and Betts were disciplined or otherwise treated discriminatorily because
 they had engaged in Union or other protected activity.  Accordingly, I
 conclude that Respondent did not violate Sections 7116(a)(1), (2), (4)
 and (8) of the Statute with respect to Case Nos. 5-CA-30090, 5-CA-30098
 and 5-CA-30205.
 
    Having concluded that Respondent violated Section 7116(a)(1) of the
 Statute with respect to the removal of the material from the bulletin
 board, but did not violate Sections 7116(a)(1), (2), (4) and (8) of the
 Statute with respect to the treatment of Betts and Sanders, it is
 recommended that the Authority adopt the following order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the U.S. Department of Justice, Federal Prison Systems, Federal
 Correctional Institution, Milan shall:
 
    1.  Cease and desist from:
 
          (a) Removing documents from bulletin boards of American
       Federation of Government Employees, Local 1741, AFL-CIO.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of the rights
       assured by the Statute.
 
    2.  Take the following affirmative action to effectuate the purposes
 and policies of the Statute:
 
          (a) Post at the Milan facility copies of the attached notice on
       forms to be furnished by the Federal Labor Relations Authority.
       Upon receipt of such forms they shall be signed by a responsible
       official of the Milan facility and shall be posted and maintained
       for 60 consecutive days thereafter, in conspicuous places,
       including bulletin boards and other places where notices to
       employees are customarily posted.  Reasonable steps shall be taken
       by the Federal Prison System to insure that such notices are not
       altered, defaced, or covered by any other material.
 
          (b) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region 5, Federal Labor
       Relations Authority, in writing, within 30 days of the date of
       this Order, as to what steps have been taken to comply with the
       Order.
 
    It is further Ordered that the Complaint in Case Nos. 5-CA-30090,
 5-CA-30098 and 5-CA-30205 be and the same hereby are, dismissed.
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
 Dated:  May 8, 1984
         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 remove documents from the bulletin boards of American
 Federation of Government Employees, Local 1741, AFL-CIO.  WE WILL NOT in
 any like or related manner interfere with, restrain, or coerce our
 employees in the exercise of their rights assured by the Statute.
                                       (Agency or Activity)
 
 Date:  . . .  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 its provisions,
 they may communicate directly with the Regional Director, Region 5,
 Federal Labor Relations Authority, whose address is:  175 West Jackson
 Boulevard, Suite A-1359, Chicago, Illinois 60604, and whose telephone
 number is:  (312) 886-3468.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Charging Party excepted to certain credibility findings made
 by the Judge.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge has had the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution was incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
 findings.
 
 
    /2/ Certain of these documents were contained in the record while
 others were not.  In reaching its decision in the instant case, the
 Authority has only considered facts contained in the record, and
 therefore the motion to strike is denied.  See Department of Health and
 Human Services, Social Security Administration, Bureau of Field
 Operations, San Francisco, California, 10 FLRA 115 (1982).
 
 
    /3/ Although some of the items might have been outdated, neither the
 Disneyland Announcement nor the AFGE bumper sticker were outdated.
 
 
    /4/ Betts testified that Spears had stated that she had destroyed the
 Union material.  Spears testified that she had stated that the Union
 material had been thrown in the waste paper basket.  In this regard, I
 credit Spears' version because she was generally a more credible witness
 whose testimony was, in many respects corroborated by other witnesses.
 Further, her statement, could easily have been understood as meaning the
 Union material had been destroyed.
 
 
    /5/ Article 20, Section b provides:
 
          Section b.  Employees will normally not be required to furnish
       a medical slip to substantiate sick leave for three (3)
       consecutive working days or less, except in ind