18:0831(100)CA - Justice, Bureau of Prisons, Federal Correctional Institution, Butner, NC and AFGE Local 3696, Council of Prison Locals -- 1985 FLRAdec CA



[ v18 p831 ]
18:0831(100)CA
The decision of the Authority follows:


 18 FLRA No. 100
 
 DEPARTMENT OF JUSTICE 
 BUREAU OF PRISONS 
 FEDERAL CORRECTIONAL INSTITUTION 
 BUTNER, NORTH CAROLINA 
 Respondent 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 3696, 
 COUNCIL OF PRISON LOCALS 
 Charging Party
 
                                            Case No. 4-CA-1255
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued her Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 unfair labor practice alleged in the complaint and recommending that it
 be ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the Respondent filed exceptions to the Judge's
 Decision.
 
    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 in this case, the Authority
 hereby adopts the Judge's findings, /1/ conclusions and recommended
 Order.
 
    In agreement with the Judge, the Authority concludes that section
 7116(d) of the Statute /2/ does not bar this unfair labor practice
 proceeding, based on the finding by the Judge that the charge herein was
 filed by the aggrieved party prior to the filing of the grievance.  The
 Authority has held that the filing of an unfair labor practice charge by
 an aggrieved party constitutes a selection of the unfair labor practice
 procedure as the procedure within which to raise the issue.  See
 Headquarters, Space Division, Los Angeles Air Force Station, California,
 17 FLRA No. 131 (1985).  Moreover, in any event, the issue raised in the
 grievance procedure was not the same as the issue raised in this unfair
 labor practice proceeding.  See Department of Defense Dependents
 Schools, Pacific Region, 17 FLRA No. 135 (1985).  Thus, the grievance
 complains that the suspension of Officer Painter was "without just cause
 and for other than reasons to promote efficiency of service." The
 gravamen of the charge and complaint herein concerned the interference
 and restraint imposed on Officer Painter's exercise of his protected
 right under the Statute to investigate and secure information in the
 processing of the grievance, not the merits of the suspension.
 
    With respect to the merits of the complaint, the Authority adopts the
 Judge's finding that the Respondent violated section 7116(a)(1) of the
 Statute /3/ by threatening to discipline an employee for conduct in
 connection with the filing and processing of a grievance under the
 negotiated grievance procedure.  In so concluding, the Authority
 emphasizes that the employee was engaging in protected activity within
 the meaning of section 7102 of the Statute /4/ when, prior to his filing
 of a grievance, he conducted his own investigation on his own time in
 order to stave off the disciplinary action which led to his filing the
 grievance.  That is, an employee's right pursuant to section 7102 of the
 Statute to file and process a grievance under a negotiated grievance
 procedure also encompasses the right to gather evidence in support of
 that grievance or an investigation as to whether to file a grievance.
 Therefore, the Respondent by its memorandum of August 27, 1981, which in
 effect warned the employee that he would be subject to discipline if he
 had further contact with any witnesses involved in the investigation of
 his alleged misconduct until the official investigation had been
 completed, violated section 7116(a)(1) of the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Bureau of Prisons, Federal Correctional
 Institution, Butner, North Carolina, shall:
 
    1.  Cease and desist from:
 
    (a) Interfering with the right of employees to file and process a
 grievance under the negotiated grievance procedure, including their
 right to interview witnesses.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its 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 Statute:
 
    (a) Rescind the memorandum issued on August 27, 1981 to Jerry K.
 Painter, expunge and remove from its files all references to it, and
 notify Mr. Painter, in writing, of its actions.
 
    (b) Post at the Federal Correctional Institution, Butner, North
 Carolina, copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Such forms shall be signed by the
 Warden, or a 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 IV, 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., June 28, 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 interfere with the right of employees to file and process
 a grievance under the negotiated grievance procedure, including their
 right to interview witnesses.
 
    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.
 
    WE WILL rescind the memorandum issued on August 27, 1981 to Jerry K.
 Painter, expunge and remove from our files all references to it, and
 notify Mr. Painter, in writing, of our action.
                                       (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, Region IV, Federal Labor Relations Authority, whose address
 is:  Suite 501, North Wing, 1776 Peachtree Street, NW., Atlanta, Georgia
 30309 and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Robert M. Wilansky,
    Counsel for Respondent
 
    Regina Naomi Kane,
    Counsel for the General Counsel,
    Federal Labor Relations Authority
 
    Before:  ISABELLE R. CAPPELLO, Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
 V, 1981), commonly known as the Federal Service Labor-Management
 Relations Statute, and hereinafter referred to as the "Statute", and the
 rules and regulations issued thereunder and published at 5 CFR 2411 et
 seq.
 
    Pursuant to a charge filed on September 28, 1981, by the Charging
 Party, the Regional Director of Region IV of the Federal Labor Relations
 Authority (hereinafter, the "Authority") investigated and, on September
 8, 1982, issued the complaint initiating this proceeding.
 
    The complaint alleges that Respondent has violated 5 U.S.C.
 7116(a)(1) in that it has interfered with, restrained and coerced
 employees, in particular, one Jerry K. Painter, in the exercise of the
 right to file and process a grievance, under a negotiated grievance
 procedure.  /5/ Defendant denies this allegation and raises two
 defenses-- that "flagrant misconduct" on the part of Officer Painter
 removed him from the ambit of protected activity;  and that 5 U.S.C.
 7116(d) is a bar to this action.  /6/
 
    A hearing on the matter was held in Durham, North Carolina, on
 February 16, 1983.  The parties appeared, adduced evidence, and examined
 witnesses.  Briefs were filed by the General Counsel and Respondent on
 April 18, 1983.  Based upon the record made, my observation of the
 demeanor of the witnesses, and the briefs, I enter the following
 findings of fact, conclusions of law, and recommended order.
 
                           Findings of Fact /7/
 
    1.  It is admitted that, at all times material herein, Respondent has
 been an "agency," and the Charging Party (hereinafter also referred to
 as the "Union") has been a "labor organization," within the meaning of
 the Statute.
 
    2.  It is further admitted and established that Local 3696 of the
 Union is affiliated with the Council of Prison Locals which, at all
 times material herein, has been the exclusive representative of certain
 employees, including Jerry Painter, a Senior Correctional Officer at
 Respondent's Butner prison facility.
 
    3.  Officer Painter has been employed by the Bureau of Prisons for a
 little over five years.  He has been a Senior Correctional Officer at
 the Butner prison since May 27, 1981.  He has been a member of the Union
 for over five years, but has never held any official union position.
 
    4.  On August 16, 1981, /8/ Officer Painter escorted three inmates to
 an Alcoholic Anonymous ("AA") meeting in Chapel Hill, North Carolina.
 Officer Painter was off duty on this day and acted as an Escorting
 Officer on a voluntary basis, at the request of a staff member.  The AA
 meeting was over at approximately 4:30 p.m.
 
    5.  After the AA meeting, Officer Painter took the three inmates to
 the Godfather Pizza Parlor for dinner.  He allowed this because he was
 worried about getting back to the institution before the meal period
 ended.
 
    6.  The three inmates were named Crittenden, Fernandez and Wickline.
 A member of the AA group, Tom Kelly, joined them at the pizza parlor.
 The inmate group left the pizza parlor with Officer Painter at
 approximately 5:35 or 5:40 p.m. and arrived back at the prison shortly
 before 6:00 p.m.  At about 6:45 p.m., Mr. Kelly called the prison to
 report that the inmates had drunk beer on the outing.
 
    7.  August 18 was the next day upon which Officer Painter reported to
 work.  He was met in the front lobby by Capt. Hungerford, Chief
 Correctional Supervisor, and Lt. Wayne Pearson, a Correctional
 Supervisor.  They asked him to step into the Personnel Office, where
 they met the Personnel Officer, Alexander Howard.  For approximately a
 half-hour, a discussion took place about the AA group's outing on August
 16.  Capt. Hungerford asked where the group had gone and what it had
 done.  He informed Officer Painter that there had been "misconduct"
 allegations made against him and that an investigation was under way (TR
 27).  Officer Painter was told to have "no further contact with the
 inmates involved in this until further notice" (TR 27).  No mention was
 made of not having contact with anyone else.  The "misconduct" involved,
 inter alia, buying beer for the inmates while at the pizza parlor.
 
    8.  Approximately two days after this August 18 meeting, perhaps on
 August 20, Officer Painter entered the Personnel Office and made a
 request to review the investigative file pertaining to the August 16
 incident.  Officer Painter wanted to see his file, as he was "preparing
 a defense for (him)self" (TR 29).  He was at first refused, and then
 granted permission to see the file.  In it, he found statements taken
 from Tom Kelly and Tamara Abashian, a waitress at the Godfather Pizza
 Parlor.  A statement of Lt. Pearson, the Investigating Officer, was also
 in the file.  After reviewing his file, Officer Painter went to see Lt.
 Pearson, and requested to see any additional information.  Lt. Pearson
 told him there was none, but that the investigation was "still under
 way" (TR 31).
 
    9.  On August 21, Officer Painter obtained copies of the statements
 in the investigation file from the secretary in the Personnel Office.
 He then drew the key to the unit where he was working.  Thereupon, he
 was instructed to stop by Capt. Hungerford's office, where he was met by
 Capt. Hungerford and Mr. Howard.  Capt. Hungerford showed him a letter
 proposing a 14-day suspension for alleged incidents, which had occurred
 during the August 16 outing with the AA group of inmates.  Officer
 Painter was told that the proposal was going to be sent to the Warden
 for approval.
 
    10.  By August 23, Officer Painter was in the process of getting the
 paper work ready for filing an unfair labor practice charge and
 grievance over the proposed 14-day suspension.
 
    11.  On Sunday, August 23, Officer Painter went to the Godfather
 Pizza Parlor in hopes of finding the same people who had been working
 there the previous Sunday, August 16.  Upon entering, he observed the
 same waitress, Sue Cooper, who had waited on them.  Ms. Cooper was
 working behind the counter.  Officer Painter asked if he could speak to
 her about the incident on the 16th, and if she would give him a
 statement pertaining to it.  She agreed to do so, but asked him to
 return the following day to get the statement because she was working at
 that time.  He spoke to her for about five minutes.  The restaurant was
 not busy.
 
    12.  On August 24, Officer Painter returned to the restaurant to meet
 Ms. Cooper.  They met in the parking lot at approximately 11:00 a.m.
 She agreed to go across the street, to a bank, where she wrote out a
 statement and had it notarized.  In it, she stated that she had waited
 on Officer Painter and had served him a pizza and a pitcher of Mr. Pibb,
 a soda drink.  The meeting with Ms. Cooper lasted a half-hour, or maybe
 a little longer.  Ms. Cooper then went to work.  Her shift had not
 started at the time she met with Officer Painter.
 
    13.  Before meeting with Ms. Cooper, Officer Painter spoke with the
 manager of the restaurant and identified himself as an "employee" of the
 prison at Butner (TR 81).  Officer Painter then asked the manager if Ms.
 Abashian was there.  It was her day off.  Officer Pearson then asked for
 her telephone number and spoke to her over the phone.  Ms. Abashian
 agreed to meet Officer Painter at the restaurant, that afternoon, at
 1:00 p.m.
 
    14.  At 1:00 p.m. on August 24, Officer Painter met Ms. Abashian at
 the front of the restaurant.  They sat at an empty table in the rear of
 the restaurant.  Officer Painter recalled spending "(m)aybe an hour with
 her and asking her (m)aybe 20 questions" (TR 38).  He asked her about
 the statement she gave to Lt. Pearson.  They stepped out to his car
 then, where he showed her the statement earlier given to him by Ms.
 Cooper.  They sat in the car for "(m)aybe five minutes" (TR 40).  Ms.
 Abashian agreed to give a statement also.  The two of them went to a
 supermarket, in the same shopping center as the restaurant, to purchase
 a pen and some paper.  They then went across the street to the bank
 where Ms. Abashian gave him a statement and had it notarized.
 
    The statement reads:
 
          On Tuesday, 18 August, 1981 I was interviewed by an individual
       from the Dept. of Justice.  I gave a statement to him concerning
       an incident that occurred on 16 August 1981.  He explained how
       this statement should be written and words to be used.  This
       occurred at approximately 5:45 p.m. (GC 3)
 
    Officer Painter perceived Ms. Abashian as having become "excited,"
 during his discussion with her, and stating to him that "the
 investigator (Lt. Pearson) had showed her picture, four pictures, that
 she had noted the names and the numbers underneath the pictures, that
 was the first time that she had seen 'mug shots'," and that "'it was
 like a George Raft movie'" (TR 100).
 
    15.  Officer Painter then returned home to call the AA Chapter at
 Chapel Hill in an effort to locate Tom Kelly.  He was unsuccessful.
 Then he recalled going to the prison Personnel Office, showing the two
 statements he had just received to Mr. Howard, and asking him for the
 address or telephone number of Mr. Kelly.  Mr. Howard gave him the
 address of Mr. Kelly.  Officer Painter recalls Mr. Howard laughing about
 the fact that one statement was in conflict with one given to the
 institution.  Officer Painter explained that he showed the statements to
 Mr. Howard in the hope that a possible error might be perceived and the
 investigation and charges dropped.
 
    16.  On August 26, Officer Painter obtained a statement from Mr.
 Kelly, after leaving a note for Mr. Kelly, at his residence, in which he
 asked Mr. Kelly to contact him as soon as possible.  Mr. Kelly and
 Officer Painter met in the parking lot of a bank for 30 to 45 minutes.
 Mr. Kelly gave Officer Painter the following notarized statement:
 
          On the 16th of August 1981 I went to the pizza parlor
       (Godfather's Pizza).  I thought I observed a pitcher of beer being
       consumed today (August 26).  I cannot be sure that in fact it was
       a pitcher of beer or a pitcher of soda.  This statement is of my
       own free choice, I have not been coerced to change my statement in
       any way.  (GC 4).
 
    17.  Before meeting with Officer Painter on August 26, Mr. Kelly
 called Lt. Pearson and told him that he was "concerned" about keeping
 the appointment with Officer Painter (TR 135(a)).  At the time Lt.
 Pearson took the statement from Mr. Kelly, on August 19th, Mr. Kelly had
 expressed a "concern about receiving physical harm (from Officer
 Painter) for making a statement" (TR 135(b)).  Mr. Kelly did not
 "verbalize" why he had this concern (TR 135(b)), and no action by
 Officer Painter was shown to justify it. Mr. Kelly's concern may have
 been the "very normal, ordinary reaction" of any person caught up in an
 investigation (TR 182).
 
    18 a.  After meeting with Officer Painter, Mr. Kelly called Lt.
 Pearson and requested a meeting.  They met at 7 p.m. on August 26.  The
 following is what Lt. Pearson testified to Mr. Kelly telling him.  Mr.
 Kelly stated that he had been served a pitcher of Mr. Pibb mixed with a
 lighter cola that "looked too much like beer," and he was no longer sure
 that the inmates had drunk beer on the August 16 outing.  Mr. Kelly made
 this statement to Officer Painter.  Officer Painter told him that:
 "this thing is going to court, that he (Mr. Kelly, apparently) was going
 to have to testify, that the inmates were in seclusion, that they were
 going to lose their parole, and that Mr. Painter himself was going to
 get a suspension" (TR 140).  Lt. Pearson asked Mr. Kelly how he could
 have been so sure, on his first statement to him, that it was beer
 served to the inmates, and was "now not . . . able to be sure" (TR 140).
  Mr. Kelly responded "that after Mr. Painter showed him this picture
 (pitcher?) that it left doubts in his mind" (TR 141).
 
    18 b.  Lt. Pearson perceived Mr. Kelly as having been "coerced" by
 Officer Painter, on August 26, by Mr. Kelly's "mannerisms," namely
 looking "subdued, humbled" and not looking at him (TR 187).  I find that
 Mr. Kelly's mannerisms may have simply reflected his embarrassment over
 having instigated this whole investigation on doubtful evidence.
 
    19.  On August 26 Lt. Pearson had two contacts with restaurant
 personnel.  First, he received a telephone call from Martha Cox.  Ms.
 Cox identified herself as the roommate of Ms. Abashian, and then told
 him that Ms. Abashian had had a long discussion with Officer Painter and
 was "upset and wanted to know what was going on out there" (TR 118).
 Lt. Pearson offered to meet Ms. Abashian.  Ms. Cox told him he could
 meet her at 6:00 p.m. at the restaurant, which he did.  When he arrived,
 Ms. Abashian was behind a counter.  They say down at a table and talked
 for approximately 20 to 30 minutes.  The following is what Ms. Abashian
 told Lt. Pearson, according to Lt. Pearson.  Officer Painter called her
 at home, on August 24, and requested her "permission" to come and talk
 to her (TR 120).  She "agreed" to meet him at the restaurant (TR 120).
 Officer Painter did not "threaten(ed)" her (TR 173).  Officer Painter
 kept asking her the same question, over and over;  and this is the only
 reason she specified as causing her to feel "intimidated" by Officer
 Painter's "questions and attitude." See TR 122, 128, 130, 171, 174, and
 175.  Officer Painter "tried to have her say that (Lt. Pearson) had
 influenced her statement, that (Lt. Pearson) had told her what to put in
 her statement, and also to try to confuse her by saying that she
 couldn't remember what had happened three days before" (TR 121).  Ms.
 Abashian stood by her statement and that this made Officer Painter
 "mad," "angry" (TR 122, 128, and 175).  Lt. Pearson conceded that
 Officer Painter may have been "angry" at the situation he was in, and
 not at Ms. Abashian.  Officer Painter told Ms. Abashian that one inmate,
 Crittenden, was not an inmate, when she said that she had served him a
 beer at the counter.  Officer Painter told her that she would have to go
 to court, that he was getting a suspension, and that the inmates were
 locked up and were going to lose their parole.
 
    20.  Ms. Abashian subsequently was called to testify at an
 arbitration hearing involving the August 16 incident.  The arbitrator
 summarized her testimony, in his opinion filed in the matter.  See R
 1.15-18.  According to the arbitrator, Ms. Abashian testified that Lt.
 Pearson had "not tried to change her recollection, had not led her," but
 "had helped her as she had told him what had happened and she had asked
 him how he had wanted her to say it," that "he had helped her get
 sentenced together," that he "had helped her with a word when she had
 gotten stuck," and that when writing the statement "if she got stuck,
 she would ask him what he would want" (R 1.16).  According to the
 arbitrator, Ms. Abashian testified that Officer Painter "had not been
 threatening," but seemed "frustrated" and "kept pressuring her as to
 whether she had been sure that she had served him the beer" (R 1.18).
 
    21.  Based upon the above accounts of Officer Painter, Lt. Pearson,
 and the arbitrator, I find that Ms. Abashian was not threatened by
 Officer Painter, in any physical sense.  She may have been "upset" and
 "excited" in the manner of any person caught up in an investigation
 involving prison inmates, and curious as to what was going on.  Her
 "intimidation" may have simply grown out of her awareness that her
 statements were being questioned by Officer Painter and by his pressing
 her to be sure of the accuracy of her statements, as they were being
 used against him and the inmates, who would suffer as a result.
 
    22 a.  During their discussion on August 26, Ms. Abashian told Lt.
 Pearson that her boss, Mr. Percival wanted to talk to him.  Lt. Pearson
 then spoke with Mr. Percival, at approximately 6:30 p.m.  The following
 is what Mr. Percival told Lt. Pearson, according to Lt. Pearson.  Mr.
 Percival stated "that he and his employees did not mind cooperating in
 this investigation but that it was becoming time-consuming" (TR 132).
 (By this, the manager could have referred to Lt. Pearson's
 investigation, but Lt. Pearson perceived that the remark referred to the
 activities of Officer Painter.  See TR 178 and 212.) Officer Painter
 told Mr. Percival that he "had been sent down to insure that Lieutenant
 Pearson was conducting a proper investigation" and that "he thought that
 (Lt. Pearson) was conducting a biased investigation" (TR 133).  Mr.
 Percival would not have given Officer Painter the telephone number of
 Ms. Abashian if he had known that Officer Painter was "the object of the
 investigation" (TR 135).  Mr. Percival then asked if "we could do
 anything to keep Mr. Painter from coming in to Godfather's restaurant,
 that he had been there several times in the last few days and it was
 upsetting some of his staff" (TR 135(a)).
 
    22 b.  Lt. Pearson, in initially interviewing Ms. Abashian, had spent
 an hour with her, and she may have been on duty at the time.  See TR
 163-165.  He asked her between 20 and 30 questions, possibly more.  He
 was in uniform and told her that he was conducting an investigation
 concerning possible misconduct of one (the prison's) officers" (TR 165)
 and was a Correctional Supervisor at the prison (TR 165).  She was
 "hesitant . . . slightly" to give him a statement and only did so after
 he told her "it would help in (his) investigation" (TR 208).
 
    22 c.  I find that the restaurant manager was probably annoyed at the
 total time being spent on the investigation, including the time of Lt.
 Pearson, and that the "upset" of the employees may have been over being
 caught up in an investigation involving prison inmates, and might have
 been caused as much by Lt. Pearson's investigation, as by that of
 Officer Painter.
 
    23.  At the conclusion of his discussions with Ms. Abashian, Mr.
 Kelly, and Mr. Percival, Lt. Pearson gave a "synopsis" of their accounts
 to Capt. Hungerford, in a 10 to 15 minute call to his home (TR 190-191).
 
    24 a.  On August 27, Lt. Pearson and Capt. Hungerford discussed
 again, for about an hour, the August 26 meeting of Lt. Pearson with Mr.
 Kelly, Ms. Abashian, and the restaurant manager.  Capt. Hungerford told
 Lt. Pearson that he would have to tell the Warden about the matter.
 
    24 b.  Lt. Pearson then told the Warden that Ms. Abashian had been
 "intimidated" by Officer Painter, but did not tell him that the
 "intimidation" consisted solely of being asked the same question over
 and over again.  Lt. Pearson recalls telling the Warden that Officer
 Painter and Ms. Abashian met for about two hours and that Officer
 Painter had attempted to get her to retract her statement.  Lt. Pearson
 also told the Warden that Ms. Abashian had given a statement to Officer
 Painter, but had not retracted her prior statement to him, Officer
 Pearson.  Lt. Pearson recalls telling the Warden that Mr. Kelly had seen
 a pitcher of Mr. Pibb mixed with soda and could no longer be sure that
 he had seen the inmates drinking beer.  Officer Painter further recalls
 telling the Warden that Mr. Kelly and Ms. Abashian were told by Officer
 Painter that they would have to appear in court, that he (Officer
 Painter) was going to receive a suspension, and that the inmates were in
 seclusion and were going to lose their parole.  Lt. Pearson also told
 the Warden that Mr. Kelly seemed "coerced and cowed" by Officer Painter,
 but did not give any reason (TR 197-198).
 
    24 c.  The Warden asked no questions, but spoke in an "angry" tone.
 He called Mr. Howard and asked him to come to his office "to listen to
 something" (TR 144).  The Warden told Mr. Howard "some of the witnesses
 had called the institute and had complained about (Officer Painter)
 contacting them" (TR 219).  Then the Warden said something to the effect
 that "it appears that there ought to be something that we can do to keep
 (Officer Painter) from harassing the witnesses" (TR 216 and see also TR
 220 and 230).  The Warden may have used the word "intimidate" or
 "bothering the witnesses," rather than "harass" (TR 216 and 220).  The
 Warden was not called as a witness.
 
    25.  On August 27 or 28, Capt. Hungerford and Mr. Howard, after
 consulting the Regional Attorney, presented a memorandum to Officer
 Painter which was signed by the Warden.  The memorandum, dated August
 27, reads:
 
          It has been reported that you have been in contact with several
       witnesses in an investigation of alleged misconduct on your part.
       Your contact with these witnesses is interfering with an official
       investigation.  If you persist in your contacts with the witnesses
       you may subject yourself to disciplinary action.
 
          You are hereby directed to have no further contact with any
       witnesses involved in this investigation of alleged misconduct
       until the official investigation has been completed.  (GC 2)
 
    26.  Officer Painter did not again contact any of the witnesses to
 the August 16 incident, because he felt that any further contact might
 result in disciplinary action being taken against him.  He would have
 liked to reinterview Ms. Abashian and to have spoken to another witness
 to the incident.  It bothered him "greatly" that he could not (TR 92).
 
    27.  Officer Painter was never informed of the finish of the
 "official investigation" alluded to in the August 27 memorandum (GC 2
 and see TR 54-55).  Officer Painter did inquire of Mr. Howard as to when
 the official investigation would be over and was told "when (he) got
 whatever award (he) was going to receive" (TR 93).  Mr. Howard so
 advised him on approximately August 29 or 30.  Mr. Howard is on the same
 level in the prison hierachy as Capt. Hungerford.  The investigation did
 end around August 30 or September 1.
 
    28.  On September 23, an attorney for the Union signed an unfair
 labor practice charge against Respondent.  The charge was filed on
 September 28 and alleges, as its basis, that:
 
          The Charging Party is the exclusive representative for the
       employees at FCI, Butner, NC.  On August 27, 1981, Warden Ingram
       warned bargaining unit employee Jerry Painter (Correctional
       Officer) of future disciplinary action if he persisted in
       investigating a proposed disciplinary action against him by
       contacting witnesses with information that might be used in his
       own defense.  By warning Correctional Officer Painter of
       disciplinary action if he persisted in gathering information to
       support his own defense, Warden Ingram changed conditions of
       employment at FCI Butner.  Prior practice had been to allow
       employees and union representatives to gather information in
       support of any actions that might be taken against them.  Further,
       the action of Warden Ingram interfered with Mr. Painter's ability
       to secure information that he could provide to the exclusive
       representative to assist him in the defense of the actions taken
       against him.  Accordingly, the Bureau unilaterally changed
       conditions of employment without an offer of prior negotiations,
       and further interfered with the ability of the exclusive
       representative to assist employees against whom disciplinary
       actions are proposed.
 
    29.  At some date before October 6, Officer Painter was suspended for
 14 days without pay in connection with the August 16 incident.
 
    30.  On October 6, Officer Painter signed a Grievance Report, on the
 Union's letterhead.  The nature of the grievance was stated to be:
 "Suspension without just cause and for other than reasons to promote
 efficiency of service" (Jt 6).  The relief requested was:  "Cancellation
 of action, back pay, removal of all related material from Official
 Personnel File, counsel fees and costs allowed by law under 5 U.S.C.
 5596" (Jt 6).  Jerry E. Clem signed the Grievance Report in the space
 provided on the form for the signature of a "Steward." Mr. Clem is
 president of Local 3696.  Officer Painter signed in the space provided
 on the form for "Signature of employee".
 
    31.  In making the above findings, I have had to resolve some
 credibility questions and rely upon some hearsay testimony.  For
 example, the persons who were allegedly intimidated by Officer Painter
 or knew of the alleged intimidation (Tamara Abashian, Tom Kelly, and
 Martha Cox) were not called as witnesses.  The first two could not be
 located by Respondent in order to have them appear as witnesses in this
 proceeding.  Also not located was the restaurant manager, Mr. Percival,
 who allegedly complained to Lt. Pearson about the investigation.  Lt.
 Pearson testified to what these persons told him about the matter,
 including their conversations with Officer Painter.  Officer Painter did
 not take the stand to rebut the account given by Lt. Pearson as to what
 occurred during his meeting with Ms. Abashian, Mr. Kelly, and Mr.
 Percival, and Lt. Pearson appeared to be an honest witness.  However,
 his testimony and actions in this matter may have been colored somewhat
 by the fact that he had some interest in the matter to which he was
 testifying, namely protection of the integrity of his own investigation.
  Accordingly, I have basically credited his testimony about what Ms.
 Abashian, Mr. Kelly, and Mr. Percival told him about the events here at
 issue.  See findings 18a, 19 and 22a, supra.  His testimony as to what
 he perceived from their demeanor and statements has been accorded little
 weight, however, because of his self-interest in the matter.  See
 finding 18 b, supra and 22 a, supra.
 
    Officer Painter also appeared to be an honest witness.  There is some
 conflict between his testimony and that of others concerning certain
 events, such as his showing favorable statements he was obtaining to Mr.
 Howard, Capt. Hungerford and Lt. Pearson.  He testified that he showed
 the statements to them.  They could not recall this.  In these instances
 I have credited the testimony of Officer Painter, for two reasons.  His
 recollection of events generally seemed to be firmer than theirs, which
 would be natural since they were of vital concern to him.  Also, it
 makes sense that he would show exculpatory statements to his superiors,
 as he received them, in the hope of staving off the proposed
 disciplinary action.
 
    Respondent notes some discrepancies between the sworn statements of
 Officer Painter made at this hearing and earlier statements given to an
 arbitrator and to an investigator of the Authority.  See RBr 23.  The
 discrepancies, involving matters of whether there were "normal" meal
 hours at the prison and whether the restaurant manager or Officer
 Painter called Ms. Abashian, could have been genuine memory lapses over
 minor points.  They do not reflect serious doubt on the credibility of
 Officer Painter.
 
    Officer Painter also has a self-interest in this proceeding, and that
 has been considered.  I have accordingly given little weight to any
 perceptions he may have been formed from the statements and actions of
 others.  See finding 14, supra.
 
    32.  On March 18, 1982 an arbitration hearing was held on the
 grievance and, on April 16, 1982, an opinion was rendered by the
 arbitrator.  See R 1.  According to the opinion, six witnesses testified
 for Respondent and two witnesses, plus Officer Painter, testified for
 the grievant.  The Union was represented by its attorney.
 
    32 a.  Respondent adduced documentary evidence which included its
 August 27 memorandum to Officer Painter, directing him to have no
 further contact with any witnesses involved in the investigation of the
 conduct which led to the suspension.  See R 1.2 and finding 25, supra.
 
    32 b.  The Union adduced documentary evidence which included the
 statements by Sue Cooper, notarized on August 24.  See R 1.2 and finding
 12, supra.
 
    32 c.  Of the witnesses whom Officer Painter had contacted in August,
 only Ms. Abashian and Ms. Cooper testified at the arbitration hearing.
 See R 1.15.  The opinion does not indicate who called them as witnesses.
 
    32 d.  Mr. Howard's testimony is summarized in the opinion, which
 states that Mr. Howard testified that he proposed the memorandum to
 Officer Painter advising him not to contact witnesses, that the Warden
 had checked with the Regional Office first, "as to whether or not it
 would constitute a violation," and that the reason for the memorandum
 was that a waitress of Godfather's and the Manager had called and
 complained" (R 1.30).
 
    32 e.  The opinion lists the contentions of the parties.  The 7th
 contention of the Union concerned officials of Respondent "persecuting
 the Grievant" (R 1.39).  One support of this contention was that:
 
          Management had even interfered with the Grievant's abilities to
       investigate the case, despite the fact that the Civil Service
       Reform Act has plainly provided that a person was to have the
       right and opportunity to go around and collect evidence on that
       person's behalf when the person was faced with anything up to a 14
       day suspension.  The Grievant had attempted to go out and get
       affidavits, and the Warden had told him that he couldn't do that;
       and that if he did, the Warden would take further disciplinary
       action against the Grievant.  They had wanted to put a stop to the
       man defending himself by threatening him with action.  They had
       already given him a two weeks suspension, so they would have fired
       him.  They could have argued that that was progressive discipline,
       which had been absent with respect to the 14 day suspension.
 
 See R 1.39.  The Union also, contended that counsel fees were justified,
 under the Back Pay Act, because, inter alia, Respondent "had interfered
 with the ability of the employee to obtain evidence in his own behalf"
 (R 1.40).
 
    32 f.  In his discussion of the case, the arbitrator found that the
 Respondent failed to prove certain allegations, but did find that the
 Respondent proved one charge, concerning the beer served to the inmates
 on August 16.  The arbitrator noted that the evidence was "in conflict",
 however, and that there was "no direct evidence that any of the inmates
 consumed any beer (R 1.43).  He made such an "inference," however, after
 determining the "credibility" of the three witnesses who testified about
 the ordering of the beer (R 1.44).  He credited the testimony of Ms.
 Abashian, that she served beer to the inmates and found support for her
 testimony in the testimony concerning Officer Painter securing a
 statement from her.  The arbitrator commented that:  "Certainly, the
 Grievant had a right to conduct an investigation, to interview
 witnesses, and to secure statements" (R 1.47).  He drew no conclusions
 as to whether Respondent's memorandum to Officer Painter, advising him
 to cease his investigatory efforts, was coercive or interfered with a
 statutory right.
 
    32 g.  In connection with the Union's request for attorney's fees,
 the arbitrator considered, inter alia, the Union's contention that "the
 Agency interfered with the Grievant in the preparation of his defense
 when Ingram wrote to him on August 27, 1981, and directed the Grievant
 to have no further contact with any witnesses involved in the
 investigation or alleged misconduct until the official investigation had
 been completed" (R 1.56).  As to this contention, the arbitrator relied
 upon standards which included whether an agency has "harass(ed)" an
 employee, or has committed a "gross procedural error" which "prolonged
 the proceeding" or "severely prejudiced" the employee (R 1.56).  The
 arbitrator ruled, inter alia, that:
 
          The memorandum to the Grievant from Ingram did not deny him the
       right to contact witnesses.  Its purpose was to prevent the
       Grievant's interference until the official investigation had been
       completed, and the Grievant was not burdened with any restriction
       thereafter.  The Agency had secured the advice of Counsel before
       issuing the letter.  Even if the memorandum had been improper,
       there has been no evidence that the Grievant suffered any injury
       therefrom.  (R 1.56)
 
                        Discussion and Conclusions
 
    Respondent acknowledges that "under ordinary circumstances,"
 bargaining-unit employees have a statutory right "to gather evidence and
 present and process a grievance in his/her own behalf" (RBr 14).  As
 already stated, Respondent raises two defenses to its action in denying
 Officer Painter that right, in this case.  One is that his "flagrant
 conduct," in gathering evidence, namely his "harassment and intimidation
 of the witnesses he encountered" (RBr 15), removed him from the ambit of
 protected activity.  The other is that this unfair labor practice
 proceeding is barred by 5 U.S.C. 7116(d).
 
    1.  The application of 5 U.S.C. 7116(d) to this action will be
 resolved first.  This statutory provision provides, in relevant part, as
 follows:
 
          . . . issues which can be raised under a grievance procedure
       may, in the discretion of the aggrieved party, be raised under the
       grievance procedure or as an unfair labor practice under this
       section, but not under both procedures.
 
    Two facts are relevant and undisputed as to this issue-- (1) the
 filing of the unfair labor practice charge preceded the filing of the
 grievance, and (2) the arbitrator in the later-filed grievance procedure
 did "address" the matter of Respondent's limiting the ability of Officer
 Painter to secure evidence, and this limitation is the crux of the
 unfair labor practice.  Because I conclude that the prior filing of the
 unfair labor practice charge is controlling, discussion will be limited
 to that aspect of the 5 U.S.C. 7116(d) issues raised by the parties.
 
    The issue here must turn on the meaning of the term "raised", and any
 congressional intent which can be perceived in using it.  A dictionary
 definition of "raise" is "to activate or set in motion".  See The Random
 House College Dictionary, page 1091.  Thus, an employee can be said to
 "raise" the issue at the time he or she files either the unfair labor
 practice charge or the grievance.  To so hold would be consonant with
 the clear language of Congress placing the election of forum squarely
 "in the discretion of the aggrieved party", a discretion which would be
 frustrated if the choice of a forum turned on the happenstance of
 whether the grievance or the unfair labor practice charge is heard first
 in time.  While Congress obviously did not intend to give an employee
 "two bites at the apple," as Respondent argues at page 14 of its brief,
 this can be prevented by an employer raising the Section 7116(d) bar as
 a defense, if the issue happens to surface first in the later filed
 proceeding.
 
    This seems to be the common sense approach;  and I have found nothing
 in the legislative history of the Statute or case precedent of the
 Authority to signal any other.  Respondent cites no legislative history.
  The only point of interest I could find was that, at one point in the
 progress of this legislation through Congress, a House bill contained a
 provision requiring the Authority "to issue regulations prescribing the
 procedure and time frame for the election (grievance procedure or unfair
 labor practice procedure)." See Section 7116(d) of H.R. 11280, 95th
 Cong., 2d Sess., reported with amendments July 31, 1978 and reproduced
 at pages 408-409 of the Legislative History of the Federal Service
 Labor-Management Relations Statute, Title VII of the Civil Service
 Reform Act of 1978, Subcommittee on Postal Personnel and Modernization
 of the Committee on Post Office and Civil Service, House of
 Representatives, 96th Cong., 1st Sess. (hereinafter, referred to as
 "LH").  This requirement was subsequently dropped, and with no
 clarification to be found in the reported legislative history.  The
 Authority has issued no such regulations.
 
    Case precedent cited by the parties does not really deal with the
 problem here at issue, but rather with situations where the grievance
 procedure was initiated before the unfair labor practice one, and/or the
 problem was addressed as being whether the same basic issues were raised
 in both procedures.  See Internal Revenue Service, Chicago, Illinois, 3
 FLRA No. 75, 3 FLRA 479 (1980), cited at pages 9, 10, and 11 of
 Respondent's brief and at page 19 of the General Counsel's brief;
 Boston District Office, Internal Revenue Service, 6 A/SLMR No. 727, 6
 A/SLMR 535 (1976) cited at page 10 of Respondent's brief;  Federal
 Aviation Administration, Muskogee Air Traffic Control Tower, 5 A/SLMR
 No. 534, 5 A/SLMR 458 (1975), cited at page 10 of Respondent's brief;
 and Norfolk Naval Shipyard, Portsmouth, Virginia, 2 FLRA No. 104, 2 FLRA
 817 (1980), cited at page 10 of Respondent's brief.  /9/
 
    The only consideration which raises doubt in my mind is that
 elsewhere in this Statute Congress gave employees an option of
 proceeding in various forums, or under the negotiated grievance
 procedure, and explicitly made the filing date the exercise of the
 option.  See 5 U.S.C. 7121(d) and (e)(1).  The significance to attach to
 congressional silence on this point, in Section 7116(d), is a problem.
 But, as already discussed, the only way to assure a true option for
 employees, when dealing with various forums, is to make the filing date
 the determinative factor.  Congress gave explicit recognition to this,
 in Sections 7121(d) and (e)(1).  It makes no sense to ignore it, in
 Section 7116(d).
 
    I note that on June 13, 1983, in Department of the Air Force,
 Griffiss Air Force Base, Rome, New York, 12 FLRA No. 50, the Authority
 upheld a dismissal of a case on the basis of Section 7116(d).  In that
 case a grievance had been filed three days before the unfair labor
 practice charges, and the gravamen of both appeared to be the same.  The
 grievance, however, had subsequently been withdrawn.  From this, it
 seems that the Authority is going to fix on the filing date as the
 operative factor in deciding Section 7116(d) bars, and not upon
 subsequent events unfolding over the course of the proceedings.
 
    Accordingly, I conclude that Section 7116(d) does not constitute a
 bar to this action, because the charge initiating it was filed prior to
 the filing of the grievance.
 
    2.  Officer Painter's conduct in interviewing witnesses was not so
 "flagrant" as to remove him from the ambit of protected activity.
 
    The worse that can be said of Officer Painter's conduct is that he
 did put some pressure on the witnesses, by repeatedly questioning them,
 by trying to persuade them to change their testimony, and by telling
 them of the fix in which their statements had put him and the inmates,
 and that he made a couple of misrepresentations to them.  The
 misrepresentations, that he was sent to investigate Lt. Pearson's
 investigation and that one inmate served by a waitress was not an
 inmate, are not condoned.  But neither do they amount to "flagrant"
 misconduct, under the circumstances of this case.
 
    There is no credible evidence that Officer Painter consciously
 threatened, harassed, or intimidated any of the witnesses he interviewed
 so as to justify the label of "flagrant misconduct," which this
 Authority has held may remove an employee from the "ambit of protected
 activity." See Department of the Navy, Puget Sound Naval Shipyard,
 Bremerton, Washington, 2 FLRA No. 7, 2 FLRA 54, at 55 (1979).  Officer
 Painter was apparently polite to the witnesses.  While he did press the
 witnesses as to the accuracy of their statements in a matter of vital
 concern to him-- his job, any concerns they may have felt could have as
 easily arisen from the situation-- an investigation into the conduct of
 a prison guard and inmates-- as from the conduct of Officer Painter.
 
    The anger of the Warden over the conduct of Officer Painter was based
 upon the account given him by Lt. Pearson, who was sparing on details as
 to just why the witnesses felt "harassed," "intimidated," or "bothered"
 by Officer Painter (see finding 24, supra), and who had a self-interest
 in keeping Officer Painter from further eroding the results of his own
 investigation.
 
    The "complaints" received by Respondent from witnesses about the
 investigation (RBr 15) cannot be so characterized with surety.  In the
 case of Ms. Abashian, she did not herself call Respondent and the
 inquiry of her roommate may have been motivated by curiosity, as much as
 anything.  In the case of Mr. Kelly, he may well have contacted Lt.
 Pearson, out of courtesy, to tell him that he could no longer be sure of
 facts he had previously given to him.  In the case of the restaurant
 manager, his expressions of concern could have been motivated as much by
 the time Lt. Pearson was spending with his waitresses, while they were
 on duty, as by Officer Painter's interviews of them, which were
 conducted during their off-duty hours.
 
    Respondent argues that its August 27 memorandum to Officer Painter
 did not prevent him from processing his grievance, in that it only
 prevented him, but not his representative from further witness contact.
 See RBr 26.  A lawyer might have detected this distinction in the
 memorandum.  See finding 25, supra.  But a prison guard, threatened with
 discipline over any future contacts with witnesses, cannot be charged
 with the ability to detect this legal nicety.
 
    Respondent further argues that Officer Painter should have queried
 some official of Respondent as to the duration of the official
 investigation, after which he was free to continue his own
 investigation, according to the August 27 memorandum.  See RBr 36.
 There are two problems with this argument.  One is that Officer Painter
 needed to interview the witnesses while their recollections were fresh.
 Two of the most important witnesses were pizza parlor waitresses whose
 recollections would fade fast as to which customers were served beer by
 them on any particular date.  By Respondent's placing Officer Painter on
 an indefinite hold, until "the official investigation ha(d) been
 completed" (see finding 25, supra), Respondent dealt a significant blow
 to the conceded right of Officer Painter to conduct his own
 investigation, in an effective way.
 
    Secondly, I have found that Officer Painter did inquire of the
 Personnel Officer as to when the official investigation would be
 completed, and was told "when (he) got whatever award (he) was going to
 receive." See finding 27, supra.
 
    Finally, Respondent justifies the "unusual and stern" measure taken
 in this case on the ground that Officer Painter's conduct pertained to
 "non-employees, the general public." See the last page of Respondent's
 brief, which is unnumbered.  Insofar as Officer Painter's statutory
 rights are concerned, this is a distinction without a difference.
 
    The burden of proving "flagrant misconduct" was on Respondent.  It
 did not meet this burden.
 
                                  Remedy
 
    The General Counsel seeks, as a remedy, that Respondent be ordered
 to:  cease and desist from interfering with, restraining, or coercing
 its employees by threatening discipline for conduct in connection with
 the filing and processing of a grievance under the negotiated grievance
 procedure;  rescind the memorandum issued to Officer Painter and remove
 or expunge from its files any reference to this memorandum or its
 contents;  acknowledge the removal to Officer Painter in writing;  and
 post a notice to all employees, on all official bulletin boards of its
 Butner facility, for a period of sixty days.  See GCBr 23.  This remedy
 is deemed appropriate, based upon the record made in this case.
 
                  Ultimate Findings and Recommended Order
 
    The General Counsel has established, by a preponderance of the
 evidence, that the alleged violations of 5 U.S.C. 7116(a)(1) have been
 and are occurring.
 
    Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C. 7118, the
 Authority hereby orders that the Respondent shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with the right of employees to file and process
       a grievance under the negotiated grievance procedure, including
       their right to interview witnesses.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing its 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 Statute:
 
          (a) Rescind the memorandum issued, on August 27, 1981, to Jerry
       K. Painter, expunge and remove from its files all references to
       it, and notify Mr. Painter, in writing, of its actions.
 
          (b) Post at its facilities at Butner, North Carolina, copies of
       the Notice to All Employees, attached hereto as Appendix, on forms
       to be furnished by the Regional Director, Region IV, Federal Labor
       Relations Authority.  Upon receipt of such forms they shall be
       signed by the Warden, and shall be posted and maintained for sixty
       (60) consecutive days thereafter, in conspicuous places, including
       all bulletin boards and other places where notices to employees
       are customarily posted.  The Warden shall take all reasonable
       steps 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 IV, 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.
 
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  July 12, 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 rescind the memorandum issued on August 27, 1981, to Jerry K.
 Painter, expunge and remove from our files any reference to it, and
 notify Mr. Painter, in writing, of our action.
 
    WE WILL NOT interfere with the right of employees to file and process
 a grievance under the negotiated grievance procedure, including their
 right to interview witnesses.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights guaranteed 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 any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region IV,
 whose address is:  1776 Peachtree Street, NW, Suite 501, North Wing,
 Atlanta, Georgia 30309, and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent 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 the 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/ Section 7116(d) of the Statute provides, in relevant part:
 
          (I)ssues which can be raised under a grievance procedure may,
       in the discretion of the aggrieved party, be raised under the
       grievance procedure or as an unfair labor practice under this
       section, but not under both procedures.
 
 
    /3/ Section 7116(a)(1) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter(.)
 
 
    /4/ It is well established that section 7102 of the Statute
 encompasses an employee's right to file and process a grievance under a
 negotiated grievance procedure and that any interference by management
 with that right is violative of section 7116(a)(1) of the Statute.  See,
 e.g., Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA 766, 777
 (1982).  See also Consumer Product Safety Commission, New York, 10 FLRA
 422, 424 (1982).
 
 
    /5/ 5 U.S.C. 7116(a) provides, inter alia, that it "shall be an
 unfair labor practice for an agency-- (1) to interfere with, restrain,
 or coerce any employee in the exercise by the employee of any right
 under this chapter." One such right is the right to file a grievance
 under a negotiated grievance procedure.  See 5 U.S.C. 7121.
 
 
    /6/ 5 U.S.C. 7116(d) provides, inter alia, that "issues which can be
 raised under a grievance procedure may, in the discretion of the
 aggrieved party, be raised under the grievance procedure or as an unfair
 labor practice under this section, but not under both procedures."
 
 
    /7/ The following abbreviations will be used herein.  "GC" refers to
 the exhibits of the General Counsel, "R" to those of Respondent, and
 "Jt" to the joint