[ 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 individual cases where
certification may be required for sick leave of any length in
accordance with regulations.
In questionable cases such as repetitive taking of sick leave
immediately before or after holidays, vacation and/or days off,
the Employer may require medical certification for sick leave of
any length. However, the employee must first be informed orally
of his/her questionable sick leave record. If this advice does
not bring improvement in the employee's sick leave record he/she
will be notified, in writing, that all future absences because of
sickness must be substantiated by medical certificate. This
requirement shall be reviewed every six months to determine the
necessity for continuing this requirement.
/6/ Brunch had started at 11:15 a.m.
/7/ Although the Union agreed to sign all notices, the record
establishes that the removed notices all indicated that they were Union
notices and hence were in substantial compliance with this requirement.