53:1500(137)CA - - Federal Bureau of Prisons, Office of Internal Affairs, Washington, DC and Federal Bureau of Prisons, Federal Correctional Institution, Englewood, Littleton, CO and AFGE Local 709 - - 1998 FLRAdec CA - - v53 p1500



[ v53 p1500 ]
53:1500(137)CA
The decision of the Authority follows:


53 FLRA No. 137

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL BUREAU OF PRISONS

OFFICE OF INTERNAL AFFAIRS

WASHINGTON, D.C.

AND

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION ENGLEWOOD

LITTLETON, COLORADO

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 709

(Charging Party/Union)

DE-CA-40870

DE-CA-40937

_____

DECISION

February 27, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on the General Counsel's exceptions to the Administrative Law Judge's conclusions that: (1) Respondent Federal Bureau of Prisons, Office of Internal Affairs (hereinafter "Respondent Internal Affairs") did not violate section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by initiating and conducting an investigation into activities at a Union meeting; and (2) Respondent Bureau of Prisons, Federal Correctional Institution (hereinafter "Respondent Prison") did not violate section 7116(a)(1) and (2) of the Statute by suspending the Union President for activities allegedly protected under the Statute. The Department of Justice filed an opposition to the General Counsel's exceptions on behalf of Respondent Internal Affairs and Respondent Prison.

For the reasons that follow, we conclude, in agreement with the Judge, that Respondent Internal Affairs did not violate the Statute by its investigation of the Union meeting. We also conclude, contrary to the Judge, that Respondent Prison violated the Statute by suspending the Union President. To remedy the violation, we direct the Respondent to rescind the suspension and make the Union President whole.

II. Background and Judge's Decision

The facts are fully set forth in the Judge's decision and are only briefly summarized here. This case is a consolidation of two unfair labor practice complaints that address intertwining issues involving the Union, Respondent Internal Affairs, and Respondent Prison. The issues concern two relatively contemporaneous incidents involving the Union President. One of the complaints resulted from Respondent Internal Affairs' investigation of an alleged assault by the Union President after the adjournment of a Union meeting. The other complaint pertains to a dispute between the Union President and the Associate Warden concerning the assignment of overtime. A series of events followed from this dispute and eventually led to a decision by Respondent Prison to suspend the Union President.

A. General Background

The Union President was informed that Respondent Prison's Associate Warden had ordered mandatory overtime. When the Union President sought to discuss the matter with the Associate Warden, the Associate Warden refused and "an altercation resulted." Judge's Decision at 3. The altercation (hereinafter "the overtime incident") ended with the Union President using profanity aimed at the Associate Warden. After the Associate Warden and the Warden discussed the overtime incident, the Warden instructed the Associate Warden to prepare and deliver to the Union President a letter of counseling regarding the incident.

Approximately 3 weeks later, a Union meeting was held on the premises of Respondent Prison. Among other things, "the asbestos problem" was scheduled to be discussed.(1) Id. The wife of the Associate Warden, a unit employee who claimed to be represented by the Union,(2) attended the meeting. The Union President advised the Associate Warden's wife that she would be required to leave the meeting when the asbestos issue was discussed. When the Associate Warden's wife refused to leave, the Union President adjourned the meeting. The Union President and the Associate Warden's wife then argued (hereinafter "the Union meeting incident"), and the Union President "declaimed a vigorous set of epithets to describe" the Associate Warden. Id. at 4. The Associate Warden's wife reported the Union meeting incident to the Associate Warden the same day; the Associate Warden's wife claimed that the Union President not only used obscene language, but also threatened, and attempted to harm, her.

The following day, the Associate Warden summoned the Union President to his office. The Union President brought the Union Chief Steward to the meeting with her. The Associate Warden told the Union President that the purpose of the meeting (hereinafter "the counseling meeting") was to issue a formal letter of counseling regarding the overtime incident, and the following occurred:

[The Associate Warden] began to read the letter, which related to the . . . [overtime] incident. [The Union President] stood up and told [the Chief Steward], "Let's go." After telling [the Associate Warden] that he was retaliating against her . . . , she left the meeting.

Id. at 5.

The letter of counseling regarding the overtime incident subsequently was withdrawn.(3) However, the Union President's supervisor proposed a 2-day suspension for her alleged disrespectful conduct during the counseling meeting, specifically "leaving a counseling session prior to its conclusion[.]" G.C. Exh. 13 at 1. The Warden found the charge of disrespectful conduct supported, but reduced the suspension to 1 day. The Union filed an unfair labor practice charge and the General Counsel issued a complaint (DE-CA-40937 -- hereinafter "the suspension complaint") alleging that the suspension violated section 7116(a)(1) and (2) of the Statute.

In addition, the Associate Warden's wife made a formal request for investigation of the Union meeting incident. The matter was referred to Respondent Internal Affairs, following which an agent of Respondent Internal Affairs interviewed, and prepared an affidavit for, the Associate Warden's wife. In that affidavit, the Associate Warden's wife described the following alleged acts of the Union President at the Union meeting:

She made an aggressive move toward me with her right fist clenched and her right arm "cocked" back as though to punch me. . . . Two women quickly grabbed [the Union President] on each arm. . . . While still being restrained [the Union President] said to me, "I would like to take everything I feel about your husband and take it out on you!"

Judge's Decision at 5.

Following the taking of the affidavit, Respondent Internal Affairs referred the matter to the Office of Inspector General, which referred it back to Respondent Internal Affairs. The Respondent then assigned two Special Agents to conduct an investigation of the Union meeting incident. As part of the investigation, the Special Agents interviewed the Union President and other employee Union members who attended the Union meeting, and prepared either an affidavit or a memorandum regarding each interview. During the interview of the Union President, the Special Agent in charge of the investigation (hereinafter "the Special Agent") stated that he and his colleagues "were not interested in the specific union business, that is, with 'what was being said in the actual meeting,' but that they 'were very interested in . . . the alleged assault . . . .'" Id. at 6. The Union filed an unfair labor practice charge and the General Counsel issued a complaint (DE-CA-40870 -- hereinafter "the investigation complaint") alleging that Respondent Internal Affairs violated section 7116(a)(1) of the Statute "by beginning an investigation into, and by questioning employees about" the Union meeting incident. Id. at 2.

B. Judge's Findings and Decision Regarding the Investigation Complaint

The Judge stated that the standard for resolving the investigation complaint was whether Respondent Internal Affairs' conduct "may reasonably tend to coerce or intimidate employees with regard to the exercise of their statutory rights." Judge's Decision at 8. According to the Judge, the standard is objective "and is not based either on the subjective perceptions of the employee or on the intent of the employer." Id. (citing Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891, 895-96 (1990) (OALC); Veterans Administration, Washington, D.C. and Veterans Administration Medical Center and Regional Office, Sioux Falls, South Dakota, 23 FLRA 122, 124 (1986) (VA)). Also according to the Judge, in the context of allegedly unlawful employee interviews, it is necessary to determine "'whether the circumstances in which interviews occur are coercive[.]'" Judge's Decision at 8 (quoting Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 31 FLRA 541, 549 (1988) (F.E. Warren)).

With respect to the latter point, the Judge cited decisions holding that "an employee has a right to maintain the confidentiality of conversations with his union representative, and that any interference with that right violates the Statute unless the right ha[s] been waived 'or some overriding need for the information was established.'" Judge's Decision at 9 (citing Long Beach Naval Shipyard, Long Beach, California, 44 FLRA 1021, 1038-39 (1992) (Long Beach)). However, the Judge rejected the General Counsel's argument that, consistent with Long Beach, Respondent Internal Affairs was required to justify the questions it asked interviewees. According to the Judge:

before requiring an agency to justify the questions it asks employees, it must be determined that the questions were coercive in a particular way. That is, it is insufficient to show that the questions were coercive in the sense that the employees were required to answer them. The coercive tendency must have been with respect to the exercise of statutory rights.

Judge's Decision at 9 (emphasis in original).

The Judge recommended dismissal of the investigation complaint. In this regard, the Judge found nothing inappropriate in Respondent Internal Affairs' decision to conduct the investigation. The Judge acknowledged testimony from the Special Agent that Respondent Internal Affairs had concerns about the accuracy of the allegations made by the Associate Warden's wife. However, according to the Judge, it "would have been irresponsible for [the Special Agent in charge of the investigation] . . . to have aborted the investigation and dismissed the allegations based on a hunch about [the Associate Warden's wife's] credibility." Id. at 10.

In addition, the Judge found that the Special Agent testified credibly that Respondent Internal Affairs intended only to gather facts regarding the alleged misconduct, and not to "get into the specific union business regarding what was actually said during the union meeting." Id. at 6. The Judge also found that the interviewees had "no reasonable basis for disbelieving" the Special Agent's statements that the investigation was aimed at misconduct and not at the Union meeting in general.(4) Id. at 12. According to the Judge, the evidence showed that the Special Agent's questions:

[were] directed at the events leading up to and surrounding [the Union President's] alleged misconduct, and that any questions about how the Union meeting itself was conducted were incidental to the focus of the inquiry . . . .

Id. at 12-13.

The Judge specifically did not credit the Union President's testimony that the Special Agent asked open-ended questions about what was said at the Union meeting. The Judge stated that the Union President's testimony was not corroborated by that of the Union's Chief Steward, and was inconsistent with credited testimony from the Special Agent in charge. Id. at 7. The Judge also stated that, with the exception of the Union President, none of the witnesses testifying at the ULP hearing asserted a belief that the investigation had an illegitimate purpose. As for the Union President, the Judge found that her belief that the Special Agent's questions were coercive was "not dispositive" because it did not represent the objective reaction of a reasonable employee. Id.

Based on the foregoing, the Judge recommended dismissal of the investigation complaint.

C. Judge's Findings and Decision Regarding the Suspension Complaint

The Judge also recommended dismissal of the suspension complaint.

The Judge found that the General Counsel had not established a prima facie case that the 1-day suspension of the Union President for the counseling meeting violated section 7116(a)(2) and, derivatively, section 7116(a)(1) of the Statute.(5) In particular, the Judge found that: (1) the Union President was not acting as a Union representative during the counseling meeting and, therefore, was not engaged in protected activity during the meeting; and (2) even if the Union President was engaged in protected activity during the counseling meeting, the suspension was not motivated by consideration of that protected activity.

With respect to the first finding, the Judge stated that it was "hardly debatable that [the Union President] was acting in her capacity as Union President]" during the overtime incident. Judge's Decision at 16. However, according to the Judge, the Union President was not acting in that capacity during the counseling meeting. The Judge relied on findings that: (1) the Union President's presence at the counseling meeting "was required because she was an employee"; and (2) during the "oral response" to the proposed suspension, the Union President did not state that she had been "acting in pursuit of a Union objective" during the counseling meeting. Id.

With respect to the second finding, the Judge stated that a prima facie case of discrimination under section 7116(a)(2) could be established "only if the Respondent[] [was] motivated by that aspect of the conduct rather than the manner in which she, as an employee, interacted with a supervisor." Id. at 17. The Judge found that "nothing" about the Warden's "decision to suspend [the Union President] for one day indicates that it was made for any reasons other than the conduct that it purports to address." Id. at 18. The Judge found the transcript of the oral response meeting "especially probative" in this regard. Id. Accordingly, although the Judge found that "the timing" of the issuance of the counseling letter was "unfortunate," he found "no substantial basis on which to find that its purpose was to produce an incriminating reaction" on the part of the Union President. Id.

Based on the foregoing, the Judge recommended dismissal of the suspension complaint.

IV. The Investigation Complaint

A. Positions of the Parties

1. The General Counsel's Exceptions

The General Counsel makes two arguments in support of its exception to the Judge's recommended dismissal of the investigation complaint.

First, the General Counsel asserts that the Judge erred in failing to "consider the totality of the facts and circumstances" in recommending dismissal of the investigation complaint. Exceptions at 3. The General Counsel emphasizes that Respondent Internal Affairs is not charged with "a per se violation of the Statute by investigating the Union meeting[.]" Id. at 4. However, the General Counsel contends that "the fact that the alleged violative conduct involved a Union meeting, cannot merely be ignored." Id. (emphasis in original). According to the General Counsel, the Judge also erred by "narrowing the scope of section 7116" to require the General Counsel to establish that disputed conduct is "coercive in a particular way." Id. at 4. The General Counsel also asserts, relying on U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 1300, 1309 (1991) (Customs Service), that the Judge should have determined that the investigation violated the Statute because Respondent Internal Affairs "had no 'extraordinary need' to conduct the investigation." Exceptions at 6.

Second, the General Counsel asserts that the Special Agent's questions during the interviews interfered with protected rights under section 7102. The General Counsel contends, in this regard, that the testimony from the Special Agent "reveals that he did nothing to quell the so-called voluntary declarations from the unit employees . . . ." Id. at 9. The General Counsel also contends that the affidavits drafted by the Special Agent demonstrate that Respondent Internal Affairs violated the Statute by: (1) asking about aspects of the Union meeting that preceded the disputed incident; (2) asking open-ended, leading, questions that elicited more than post-adjournment responses; (3) failing to stop interviewees from discussing the content of the Union meeting; (4) "writing everything down"; and (5) ignoring the Associate Warden's wife's "tainted motivation" in attending the Union meeting. Id. at 8. The General Counsel also relies on the alleged "coercive context" of the interviews, specifically, that the interviewees "were ordered to appear at a certain time and a certain place to provide information . . . ." Id. at 9.

2. Respondent's Opposition

Respondent Internal Affairs contends that, despite the General Counsel's assertion to the contrary, the General Counsel is "attempting to argue a 'general rule' . . . that any investigation into matters occurring at a union membership meeting is improper[.]" Opposition at 6 (emphasis in original). The Respondent asserts that the effect of such a rule would be to preclude agencies from "investigating alleged misconduct and imposing discipline as warranted, even [if] . . . that offense is committed on agency property[.]" Id.

B. Analysis and Conclusions

The standard for determining whether the initiation and/or conduct of the investigation into the Union meeting incident violated section 7116(a)(1) of the Statute is whether, viewed objectively, Respondent Internal Affairs' actions would tend to interfere with, restrain, or coerce employees in the exercise of rights protected under the Statute. See Hill AFB, 35 FLRA at 895. This is the standard initially stated by the Judge and, insofar as the Judge intended his subsequent reference to coercion "in a particular way" to modify that standard, there is no support for such modification.(6)

1. The Judge did not err in concluding that Respondent Internal Affairs did not violate the Statute by initiating an investigation into a Union meeting.

The General Counsel emphasizes that the complaint does not assert a "per se" violation based on the fact that a Union meeting was the venue of the activity being investigated and, instead, is asking only that this fact be considered relevant. See Exceptions at 4. The General Counsel claims, however, that the initiation of the investigation violated section 7116(a)(1) of the Statute because Respondent Internal Affairs "had no 'extraordinary need' to conduct the investigation." Id. at 6.

As the Judge noted, the Authority previously has held that a union representative cannot be compelled to divulge confidential information given to the representative by a unit employee unless an agency establishes an "extraordinary need" for the information. In Customs Service, 38 FLRA at 1308, the Authority stated that, absent extraordinary need, an employee's right to confidentiality of statements made to a union representative in preparation for a disciplinary hearing is necessary in order for the employee to be free to make frank disclosures to the union representative. Similarly, in Long Beach, 44 FLRA at 1038, the Authority held that, absent extraordinary need, an agency does not have a right to information that an employee relates to his union representative in the course of an action before the Merit Systems Protection Board. As in Customs Service, the Authority stated in Long Beach that an employee must be free to make frank disclosures to the union representative in order for the employee to receive adequate representation. Id. at 1037 (citing Customs Service).

The context in which this case arises is different from that in Customs Service and Long Beach. In particular, it is neither argued nor apparent that: (1) Respondent Internal Affairs was seeking to require disclosure of confidential information that otherwise would be protected; or (2) any of the unit members interviewed by the Respondent was representing another unit member in a disciplinary proceeding or other proceeding such that a need for confidentiality is apparent. In addition, no cases other than Customs Service and Long Beach have been cited where an agency was required to establish the "extraordinary need" referenced in those cases. Accordingly, we are not persuaded that, applying Authority precedent, the Respondent was required to establish an extraordinary need to conduct the disputed investigation.

However, even if the Respondent were required to establish "extraordinary need," we find that the facts and circumstances in this case constituted such need.(7) The investigation was undertaken following the receipt of a sworn affidavit from an employee alleging that physical violence had been threatened by one employee against another on the premises of a Federal correctional institution. We agree with the Judge that, even considering the concerns expressed by the Special Agent about the veracity of the affidavit, "it would have been irresponsible" not to investigate the charges contained in the affidavit. Judge's Decision at 10.

Our conclusion that the initiation of the investigation did not violate the Statute is supported by the Authority's decision in Defense Property Disposal Region, Ogden, Utah and Defense Property Disposal Office (DPDO), Camp Pendleton, Oceanside, California, 24 FLRA 653, 657 (1986) (DPDO), cited by the Judge. In DPDO, the Authority found that a union steward, who took pictures of unit members' activity at a military site, was engaged in protected activity because the steward intended to use the pictures in filing a grievance. The Authority also found, however, that military guards did not interfere with the union steward's rights under the statute by observing the steward while he took the pictures because, according to the Authority, the guards needed to be concerned about security breaches and the military installation needed to be subject to certain rules in order to be protected from sabotage and espionage. The instant case, which concerns possible physical violence at a Federal prison, presents similar security concerns.

Based on the foregoing, we deny the General Counsel's exception to the Judge's conclusion that the initiation of the investigation into the Union meeting incident did not violate the Statute.

2. The Judge did not err in concluding that the conduct of the investigation did not violate the Statute.

The General Counsel also excepts to the Judge's decision on the ground that "the questions asked" during the interviews interfered with rights protected under the Statute. Exceptions at 6. In support of this exception, the General Counsel relies on: (1) the testimony of the Special Agent; (2) the affidavits prepared for employees who were interviewed; and (3) the allegedly "coercive context" of the interviews, specifically the fact that employees were ordered to appear for the interviews "at a certain time and a certain place to provide information about their protected activity." Exceptions at 9.

With respect to the testimony, our review of the transcript as a whole leads us to conclude that it supports the Judge's factual finding that the Special Agent took pains not to trespass on Union business, and that he avoided the substance of the Union meeting (the asbestos issue). The General Counsel does not dispute the Judge's conclusion that the Special Agent's testimony regarding his approach to the investigation was "credibl[e]."(8) Judge's Decision at 5. In this regard, the Special Agent testified specifically that he took precautions to avoid questioning employees about Union business. Transcript at 392, 395, 411, 425-26, 431, 440-42. The Agent also testified that he was not interested in Union business, that he did not ask questions about the content of the Union meeting in general, and that he did not ask questions about asbestos specifically. Id. at 395-96.

We have considered the testimony of the Special Agent concerning a quotation in one of the affidavits about the Union President's use of profanity. The Special Agent acknowledged that he inserted the quotation into one of the affidavits, even though the interviewee had stated in the interview that she could not remember the exact profanity used by the Union President.(9) Transcript at 419-20. The Special Agent also admitted that he allowed interviewees to identify other employees who attended the Union meeting. Id. at 445. The Agent testified further that he did not stop unit employees from supplying information about events that occurred before adjournment of the meeting because, according to the Agent, it seemed that the unit member considered these events relevant. Examined in isolation, this testimony provides some support for the General Counsel's position. However, understood in the context of the case, and given the credited testimony above, we find that the testimony does not indicate a methodology that trespassed on protected rights.

With respect to the affidavits, contrary to the General Counsel's assertion, this evidence does not establish that the interviewed employees were subjected to coercive questioning. The affidavits do not recite the content of the questions posed by the Special Agent and his colleague who conducted the interviews; the affiants' statements present only their answers in response to those questions. Therefore, they do not provide direct insight into the content of the questioning. Although the affidavits mention note-taking and voting in general terms, they give no indication of the content of either the notes or the voting. All one can glean from the affidavits is that the Associate Warden's wife attended the meeting, and that the Union President opposed her presence and her note-taking. Thus, contrary to the General Counsel's assertion, it is impossible to ascertain from reading the affidavits whether the interviewed Union member was "beleaguered," or whether the special agents "[wrote] everything down." Exceptions at 8. Moreover, even assuming that the agents did write everything down, the General Counsel has not indicated why that would constitute a violation of the Statute, rather than an effort to record the interview accurately.

The General Counsel also asserts that the questioning was coercive because the interviewees were directed "to appear at a certain time and a certain place to provide information about their protected activity." Id. at 9. However, the fact that the interviews were set in advance does not make them coercive. An equally plausible explanation is that the Special Agent and his colleagues arranged in advance for a time and place when they could meet with the employees. There is nothing necessarily coercive about scheduling an appointment.

In these circumstances, we find that the evidence does not establish that the investigation interfered with, restrained, or coerced employees in the exercise of protected rights. Accordingly, we deny the General Counsel's exceptions to the Judge's recommended dismissal of the investigation complaint.

V. The Suspension Complaint

A. Positions of the Parties

1. General Counsel's Exception

The General Counsel asserts that, as the counseling meeting concerned the Union President's protected activities in connection with the overtime incident, the Judge erred as a matter of law in concluding that the Union President attended the counseling meeting only in her capacity as an employee. According to the General Counsel, the Union President's conduct at the counseling meeting "was not that of a subordinate employee's interaction with a supervisor, but that of the Union president." Id. at 12.

The General Counsel maintains that, because the Union President's actions at the counseling incident constituted protected activity, the Union President was subject to discipline only if the actions constituted "flagrant misconduct." Id. at 15. The General Counsel claims that the Union President's actions in walking out of the counseling meeting did not constitute flagrant misconduct and, as such, the 1-day suspension violated the Statute.

2. Respondent Prison's Opposition

According to Respondent Prison, the Judge correctly found that the Union President attended the counseling meeting as an employee and not as a Union representative. In support of this assertion, the Respondent relies on the fact that the Union President "brought with her a union representative . . . to represent her . . . interests." Opposition at 9. The Respondent claims, in this regard, that:

It cannot be otherwise: agencies don't impose discipline on union officials qua union officials -- discipline is imposed on employees.

Id. at 10.

Respondent Prison also asserts that "anarchy" would result if employees were permitted to disregard their superior's orders and that the concern for work place stability is even more critical where, as here, a Federal correctional facility is involved. Id. at 12. Accordingly, in the Respondent's view, even if the Union President had been engaged in protected activity during the counseling meeting, "she still would be subject to discipline for her conduct in violation of the legitimate order to meet with the Associate Warden . . . for the purpose of receiving the letter of counseling." Id. at 12.

B. Analysis and Conclusions

1. The doctrine to be applied in resolving the complaint

In Letterkenny Army Depot and International Brotherhood of Police Officers, Local 358, 35 FLRA 113, 118 (1990), the Authority set forth the standard that the General Counsel must meet in order to establish a prima facie case of discrimination against an employee for union activity. The General Counsel must prove that the employee against whom the discriminatory action was taken was engaged in protected activity, and that the protected activity was the motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. Even if the General Counsel makes the required prima facie showing, an agency will not be found to have violated section 7116(a)(2) if the agency can demonstrate, by a preponderance of the evidence that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity. Id. at 118.

When the alleged discrimination concerns discipline for conduct occurring when the employee was acting in his/her capacity as a union representative, however, a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct.(10) See, e.g., Defense Mapping Agency,

17 FLRA at 80; United States Forces Korea/Eighth United States Army and National Federation of Federal Employees, Local 1363, 17 FLRA 718 (1985). See also Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington and Bremerton Metal Trades Council, AFL-CIO, 2 FLRA 54 (1979)(interpreting Executive Order 11491). That is, when it is established that a respondent's alleged unlawful discrimination was motivated by the content of protected activity itself, establishing flagrant misconduct is a necessary element of any defense.

If flagrant misconduct is established, then the conduct loses its protection under the Statute. See, e.g., Defense Mapping Agency. This is consistent with precedent arising in similar cases under the National Labor Relations Act. See, e.g., Spartan Plastics, Inc., 269 NLRB 546, 551 (1984) (National Labor Relations Board held that an employer's proof of flagrant misconduct "'remove[s] [the employee's] activities from any protection they might otherwise have enjoyed.'") (quoting, Fibracan Corp., 259 NLRB 161 (1981)). Cf. Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 283 (1974) ("federal law gives a union a license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point."). In effect, in such a case, it is not legitimate for an agency to discipline for conduct occurring during the course of protected activity that is not flagrant misconduct.(11)

2. The Judge erred in concluding that Respondent Prison did not violate the Statute by suspending the Union President for 1 day.

a. The conduct for which the Union President was suspended occurred during the course of Union activity.

In determining whether to apply the flagrant misconduct doctrine, the Authority examines, as relevant here, whether the employee was acting in his or her official union capacity at the time of the allegedly protected activities. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Detroit Teleservice Center, Detroit, Michigan, 42 FLRA 22, 23-24 (1991); Department of the Treasury, Internal Revenue Service, Andover Service Center, Andover, Massachusetts, 13 FLRA 481, 489-90 (1983). In essence, if the Union President was acting in her capacity as a Union representative during the counseling meeting, then her conduct during that meeting constituted Union activity. For the following reasons, we conclude that the Union President was acting in her capacity as a Union representative during the meeting.

First, the counseling meeting was called for the express purpose of addressing the Union President's speech and conduct during the overtime incident. There is no dispute that, as found by the Judge, the employee was acting as a Union President during the overtime incident. Judge's Decision at 16. As a result, the counseling meeting was called and occurred solely as a result of the Union president's actions as Union President, and the Union President was called to the meeting solely because of her position in the Union.

Second, none of the reasons given by the Judge, or the bases asserted by the Respondent, persuade us that the Union President was not entitled, or had surrendered rights, to protection under the Statute. Despite the Judge's finding that the employee was acting as a Union President during the overtime incident, he concluded that the employee was not acting as a Union representative during the counseling meeting because: (1) her actions during the counseling meeting were disrespectful; and (2) during the oral response meeting, she did not specifically assert that her presence was required at the counseling meeting because of her activities as a Union representative.

While the employee's actions are relevant to determining whether, as Union President, she engaged in flagrant misconduct, her conduct does not transform the nature of the meeting itself. If the Union President was acting as a Union representative during the meeting, her conduct does not change her role. In this regard, "the nature of the intemperate language and conduct" is a factor in determining flagrant misconduct. Grissom, 51 FLRA at 12. It is not a factor in determining whether the employee was acting in her capacity as a Union representative when she engaged in the conduct.

In addition, with respect to the Union President's failure to subsequently explain at the oral response meeting her presence as Union President at the counseling meeting, this too is not relevant to determining whether she was acting as Union President during the counseling meeting. It is not asserted or apparent that her statements at the oral response meeting constitute an admission or a waiver of her position as Union President. Indeed, as the Judge recognized, the Union President asserted repeatedly during the oral response meeting that the counseling meeting constituted unlawful retaliation. See G.C. Exh. 16 at unnumbered pages 2, 6, 7, 8, 9, 12. The Warden himself acknowledged a connection between the Union President's speech and conduct during the overtime incident and her actions during the counseling meeting when he stated that "[t]he issue is that the whole thing began" with the overtime incident. Id. at 6. Moreover, the reason the Union President believed the counseling meeting was "illegal" was because it was retaliatory. Id. Although it is unclear whether the retaliation alleged by the Union President was related to the overtime incident or the Union meeting incident, each of these are activities in which the employee was involved as the Union President.

Respondent Prison asserts two additional reasons for finding that the employee was not acting in her capacity as Union President during the counseling meeting: (1) the Union President brought a Union representative with her to the counseling meeting; and (2) the Union President must have attended the meeting "in her status as an employee" because:

It cannot be otherwise: agencies don't impose discipline on union officials qua union officials -- discipline is imposed on employees.

Opposition at 10 (emphasis in original).

Neither of these arguments supports a conclusion that the employee did not attend the counseling meeting as a Union President. With regard to the first, there is no authority cited or apparent for concluding that a union representative loses the protection of the Statute in a meeting if he or she is represented by another union official. In addition, we note that the Union President asserted during the oral response session that the Union representative attended the counseling meeting as a "witness," not a representative. G.C. Exh. 16 at 9. Respondent Prison's second assertion is too circular to be persuasive. In essence, Respondent Prison asserts that the Union President attended the counseling meeting solely as an employee because, if she attended as a Union President, the discipline is unlawful. This argument would, in turn, render invalid the flagrant misconduct doctrine (and perhaps Letterkenny itself) in all situations where the union representative disciplined is also an employee. As it is not apparent how an agency could discipline a non-employee, and as it appears that many union representatives are employees, the effect of accepting Respondent's argument would be to immunize agencies from violations of section 7116(a)(2) in discipline situations involving union representatives. We do not believe that this would further the purposes and policies of the Statute.

In sum, we conclude that the Union President attended the counseling meeting in her capacity as Union president. As such, her actions during that meeting are protected unless they constitute flagrant misconduct.

b. The conduct for which the union president was suspended did not constitute flagrant misconduct.

Applying the four factors set forth in Grissom, 51 FLRA at 11-12, quoted and restated above, we conclude that the Union President's action in walking out of the counseling meeting, although disrespectful did not constitute flagrant misconduct.

First, the Union President's conduct during the counseling meeting occurred in the Associate Warden's Complex, not in a public area, and the subject matter of the meeting was Union activity (the overtime incident). Judge's Decision at 3. Second, the conduct was clearly an impulsive, not a designed, reaction to the Associate Warden's decision to issue a counseling letter to the Union President for her activity as Union President. Id. Third, the conduct was directly provoked by the Associate Warden's refusal to recognize the protected nature of the Union President's activity. Id. Fourth, although the decision to leave the meeting was imprudent, the Authority grants union representatives leeway when they are acting as union representatives. See Department of the Air Force, Grissom Air Force Base, Indiana and American Federation of Government Employees, AFL-CIO, 51 FLRA 7, 20-21 (1995) (union official did not commit flagrant misconduct when he used profanity to his supervisor); American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, El Paso Border Patrol Sector, 44 FLRA 1395 (1992) (union official did not commit flagrant misconduct in using profanity); U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 385 (1990)(union official did not commit flagrant misconduct when he refused to comply with a security police order to leave a work area); Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979) (union official was improperly suspended for using profanity to his supervisor).

Respondent Prison's exaggerated assertion that anarchy will result from applying the flagrant misconduct doctrine to allow an employee, such as the Union President, to leave a meeting that the employee deems illegal is totally unsupported. The context in which the flagrant misconduct doctrine applies is inherently narrow -- the doctrine applies only in situations where a union official is acting as a union official. Given these very limited circumstances, there is no basis for the consequences Respondent Prison asserts will flow from a ruling that the Union President's actions are protected under the Statute.

Because the record establishes that the Union President was engaged in protected activity, and that the content of the protected activity was the basis for her suspension, the General Counsel has established a prima facie case of discrimination. Respondent Prison has not established that the Union President's conduct at the counseling session constituted flagrant misconduct and, thus, has not shown a legitimate justification for suspending the Union President. Accordingly, Respondent Prison has not rebutted the General Counsel's prima facie case. We conclude that the General Counsel has shown by a preponderance of the evidence that Respondent Prison discriminated against the Union President for her protected activity.

VII. Order

Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Bureau of Prisons, Federal Correctional Institution, Englewood, Littleton, Colorado, shall:

1. Cease and desist from:

(a) Suspending Erica Shields or any other bargaining unit employee for engaging in activities protected under the Statute.

(b) In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of rights assured by the Statute.

2. Take the following action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the 1-day suspension of Erica Shields on October 15, 1994, expunge any reference to such disciplinary suspension from her personnel records, reimburse her for the loss of pay she suffered by reason of the suspension, and restore to her any right or privilege she may have lost by such disciplinary action.

(b) Post at its facility in Englewood, Littleton, Colorado 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 the Warden at the Federal Correctional Institution, Englewood, Littleton, Colorado, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notice to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by other material.

(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Federal Bureau of Prisons, Federal Correctional Institution, Englewood, Littleton, Colorado, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT suspend Erica Shields or any other bargaining unit employee for walking out of a meeting with management or otherwise engaging in protected activity on behalf of the American Federation of Government Employees, Local 709, or any other labor organization as defined in section 7103(a)(4) of the Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of rights assured them by the Statute.

WE WILL RESCIND the 1-day suspension of Erica Shields on October 15, 1994, expunge any reference to such disciplinary suspension from her personnel records, reimburse her for the loss of pay she suffered by reason of the suspension, and restore to her any right or privilege she may have lost by such disciplinary suspension.

_________________________
(Respondent)

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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Denver Regional Office, whose address is Denver Region, Federal Labor Relations Authority, 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is (303) 844-5224.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

FEDERAL BUREAU OF PRISONS

OFFICE OF INTERNAL AFFAIRS

WASHINGTON, D.C.

AND

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

ENGLEWOOD, LITTLETON, COLORADO

Respondents

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 709

Charging Party

Case Nos. DE-CA-40870

DE-CA-40937

Hazel E. Hanley, Esquire
Nicholas J. LoBurgio, Esquire
For the General Counsel

Steven R. Simon, Esquire
For the Respondents

Erica Shields, Local Union President
For the Charging Party

Before: JESSE ETELSON
Administrative Law Judge

DECISION

These two consolidated cases are related with respect to many of the background facts and the course of events that resulted in the respective unfair labor practice charges but the consolidated complaint alleges different statutory violations by each of the two activities(1) named as Respondents. In Case No. DE-CA-40870, Respondent Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. (OIA) is alleged to have failed to comply with section 7102 and to have violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by beginning an investigation into, and by questioning employees about, events that occurred at a union meeting. In Case No. DE-CA-40937, Respondent Federal Bureau of Prisons, Federal Correctional Institution, Englewood, Littleton, Colorado (FCI) is alleged to have violated sections 7116(a)(1) and (2) of the Statute by suspending for one day an employee who was the president of the Charging Party (the Union or Local 709) because she was engaged in protected activity under the Statute.(2)

A hearing was held in Denver, Colorado. Counsel for the General Counsel and for the Respondents filed post-hearing briefs and provided computer diskettes containing their briefs. Counsel for the General Counsel filed a motion to correct the transcript of the proceedings. This unopposed motion is granted.

Preliminary Findings of Fact:

General Background and Overview of Events

The Local 709 is the agent for the American Federation of Government Employees, the exclusive representative of a nationwide consolidated unit of employees appropriate for collective bargaining, for representing approximately 230 to 240 unit employees at FCI. W. A. Perrill is the Warden and Daniel J. Fitzgerald was the Associate Warden at FCI. Claire Fitzgerald is the wife of Daniel Fitzgerald and a unit employee employed at the Management Specialty Training Center (MSTC), Aurora, Colorado.

Erica Shields, a Senior Officer Specialist employed by FCI, has been the president of Local 709 since November 1993. Both before and after her election as Union president, Shields was involved, on behalf of the Union, with an inquiry into a suspected exposure of inmates and employees to asbestos in connection with a remodeling project. In the course of her involvement, Shields had dealings with Warden Perrill and other management official and participated in an investigation by the Occupational Safety & Health Administration (OSHA) that was apparently connected to an inquiry by Congresswoman Pat Schroeder. Shields also contacted Schroeder's office and provided it with certain information. The investigation, and the resulting citations issued by OSHA against FCI on February 1, 1994, for "Willful Violations" and "Serious Violations" and required to be posted in front of FCI's main facility, became the subject of newspaper articles. After their publication, Warden Perrill told Shields that he would appreciate some notification if she went to Pat Schroeder's office or the newspaper--that he "didn't appreciate being blindsided by [the Union's] tactics[.]" He made a similar comment to her on the occasion of a subsequent newspaper article containing comments attributed to Shields about employee concerns over asbestos-related health risks.

Concurrently, OIA was conducting an investigation of the causes and results of the alleged asbestos problems. Shields represented two unit employees, who were among the targets of the investigation, at their OIA interviews.

On March 24, 1994, a Union steward consulted Shields about a problem in dealing with Associate Warden Fitzgerald concerning mandatory overtime. Shields went to Fitzgerald's suite of offices, the "Associate Warden's Complex." Fitzgerald refused to discuss the matter with her, at least not at that time, and an altercation resulted. Voices were raised and hostile gestures were exchanged. The encounter ended with Shields telling Fitzgerald, in the presence of others, "Blow it out your ass."

Shields informed Warden Perrill of this incident. They discussed the matter and reached at least a general understanding that the question of the participants' conduct could be resolved "informally" (Tr. 79-80, 545). Later the same day, Perrill spoke with Fitzgerald about the incident and the options for responding to Shields' part in it. Perrill told Fitzgerald that Shields had reported her own behavior to him. Perrill's credited testimony suggests that he guided the discussion in the direction of handling it "on an informal basis, in terms of a performance issue" (Tr. 545-46). Perrill indicated that a letter of counseling would be appropriate and asked Fitzgerald to prepare one and issue it to Shields when it was completed.(3)

A Union meeting was scheduled for April 12. An agenda was prepared and notices of the meeting, containing information about the agenda, were posted. A staff telephone information line was also used to "advertise" the meeting. One of the items on the agenda was the asbestos problem. On April 11, Claire Fitzgerald signed a Form 1187 Request for Payroll Deductions, authorizing deduction of Union dues. Around the same time, Associate Warden Fitzgerald made inquiries to employees about the next Union meeting, letting it be known that his wife was a new member and wanted to attend. Associate Warden Fitzgerald been involved as a possible responsible official in the asbestos investigations and also served as one of FCI's representatives at an April 5 negotiating meeting with Shields and other Union representatives concerning asbestos-related issues.

Claire Fitzgerald attended the April 12, 1994 Union meeting. Shields called the meeting to order and "recognized" Fitzgerald, whose presence had been pointed out to her. Shields advised Fitzgerald that she would have to leave when the membership voted on issues involving the asbestos problem because it involved her husband. Fitzgerald objected to this, stating that she was a dues-paying member. Shields disputed this, asserting that the employees located at the Aurora MSTC facility, as Fitzgerald was, had formed their own local union and had split off or were splitting off from Local 709. An argument between the two followed as to the status of the new local and whether Fitzgerald was a member of Local 709. Fitzgerald asked to see the Union's bylaws. Shields refused. She explained at the hearing that she did not want Fitzgerald's husband to have access to the bylaws.

Fitzgerald began to take notes, which further incensed Shields. Shields demanded that Fitzgerald stop taking notes. When Fitzgerald refused, Shields instructed the sergeant at arms to remove Fitzgerald. Then, instead of letting that action take its course, Shields requested a motion from the floor to adjourn the meeting. The motion was made and passed.

Fitzgerald remained and continued her writing. Shields approached her to see what she was writing. They argued further, with other employees still present or waiting on a deck outside the meeting room. At a certain point, Shields declaimed a vigorous set of epithets to describe Fitzgerald's husband, including one of the more extreme (if no longer uncommon) expletives. According to Claire Fitzgerald, Shields not only used "abusive and obscene language about a member of my family," but also "threatened and attempted to inflict bodily harm upon me." Fitzgerald told her husband about the incident the same day. Her accusation became the subject of the OIA investigation that gave rise to Case No. DE-CA-40870.(4)

The day after that Union meeting Associate Warden Fitzgerald summoned Shields to the Warden's office. Perrill was absent and Fitzgerald was the Acting Warden that day. Shields, believing that she would need a Union representative for this encounter, brought Chief Steward Michele Allport with her. Fitzgerald said that the purpose of the meeting was to issue a formal letter of counseling. He began to read the letter, which related to the March 24 "blow it out your ass" incident. Shields stood up and told Allport, "Let's go." After telling Fitzgerald that he was retaliating against her in Perrill's absence, she left the meeting. The discipline administered to Shields in connection with this meeting is the basis for Case No. DE-CA-40937.

CASE NO. DE-CA-40870

Additional Findings of Fact

Following the April 12 Union meeting, Claire Fitzgerald made several attempts to report her accusations about Shields' conduct toward her. Eventually, on August 19, she made a formal "Request for Local Investigation of Employee Misconduct" to the Director of MSTC, her employer. The matter then was brought to the attention of OIA, and Special Agent Elizabeth B. Strack was assigned to interview Claire Fitzgerald. She did so on April 24 and prepared an affidavit based on the interview, which Fitzgerald signed. In that affidavit, Fitzgerald described the following acts of Shields:

She made an aggressive move toward me with her right fist clenched and her right arm "cocked" back as though to punch me. . . . Two women quickly grabbed Shields on each arm. . . . While still being restrained, Shields said to me, "I would like to take everything I feel about your husband and take it out on you!

On April 25, OIA referred the matter to the Office of the Inspector General of the Department of Justice, which, after a few days, referred it back to OIA on a standard form on which the sender had checked a box next to the printed option: "This office concurs that BOP [Bureau of Prisons] should dispose of this complaint commensurate with BOP policy and regulations."

OIA assigned Supervisory Special Agent Brian E. Hertel to the case. Hertel testified credibly that, because of the connection between the incident and the Union meeting, the agreed-upon approach to the investigation was:

that we would focus specifically on the incident or the individual that we needed to, in fact, talk to in order to determine what, in fact, occurred during this alleged attempted assault and not to get into the specific union business regarding what was actually said during the union meeting.(5)

Hertel, accompanied by Special Agent Susan Beasley, took the next step of the investigation by interviewing Shields. As was the case with each of the employees whose interviews produced an affidavit, Shields was required to acknowledge that she had a duty to reply to questions, and that "disciplinary action, including dismissal, may be undertaken if I refuse to answer or fail to respond fully and truthfully to each question."

Chief Steward Michele Allport accompanied Shields as her Union representative at the interview. Shields had already prepared the unfair labor practice charge that was later filed in this case, alleging, in pertinent part, that the investi-gation was "seen as a blatant attempt at management [sic] to control internal union business since the person making the accusation is the AW's wife."(6) Shields handed a copy of the charge to the OIA agents. Hertel gave credible testimony characterizing his response to the concern, expressed in the charge, that the investigation involved itself in internal union business: He told Shields and Allport that the agents were not interested in the specific union business, that is, with "what was being said in the actual meeting," but that they "were very interested in . . . the alleged assault, the unprofessional conduct which we believed management had a right to investigate as an unprofessional violation of standards of employee conduct."

Nevertheless, the agents asked about who was at the meeting. Extended discussions followed these questions. Shields explained that she was bound by the constitution of the American Federation of Government Employees not to divulge the names of members attending the meeting and that she was concerned about possible agency retaliation against employees so identified. The agents' response, as characterized by Shields, was that "they needed to know who was there in order to go and interview them, that they needed to find out because the allegation was an attempt assault or an assault during the union meeting". Shields told them that she understood why they needed to know, but that she could not tell them who was there, "that they would have to get it from somebody else, not the president of the local."

After that subject was exhausted, Hertel asked, as Shields recalled it, "what was the chain of events and what was said by myself or other union employees during the meeting." Allport did not corroborate Shields with respect to the implied open-endedness of Hertel's questions about what was said at the Union meeting. Allport did testify about questioning with regard to Shields' calling the meeting to order and adjourning it, which questions Shields refused to answer. Hertel also testified that he asked Shields and other employees about whether certain events occurred before or after the meeting was adjourned. He also testified that he asked about conversations between Shields and Claire Fitzgerald. I credit this narrower characterization of the questioning.

The Shields interview went on for several hours, including interruptions to permit Shields to compose herself. Hertel testified that Shields "very much tried to be respon-sive" but did not agree with the legitimacy of the investiga-tion and was "very visibly upset" with the process and with her own representative. Apparently most of the interview time was taken up in discussions of the appropriateness of the questions, as the interview yielded an affidavit of only three (typewritten, single-space) pages.

When Shields had signed the affidavit documenting her interview, Hertel informed her that she was required to remain for another interview concerning an incident that had occurred two or three days earlier. The gist of that incident was a comment Shields had made that she should be referred to the Employee Assistance Program because she felt like shooting Associate Warden Fitzgerald. This remark had been reported to Warden Perrill, who referred it to OIA for investigation. Interviewees concerning this matter considered Shields' remark to be a joke. The subsequent history of that investigation is scattered in the record. I do not find it to be of any assistance in the resolution of this case.

Other employee interviews concerning the Union meeting reflected a focus by the interviewers similar to that of the Shields interview. Some of the interviews were documented in affidavits and some in memoranda composed by the interviewers. The reason for this dichotomy was not explained. However, none of the documents reflected questioning about union business, nor did any employee witness testify that such questioning occurred. References in the affidavit of Debra Walker and the memorandum of the interview of Union Steward Lisa Tabor, regarding the fact that the asbestos issue was discussed at the meeting, were made in the context of the employees' attempts to explain why they thought Claire Fitzgerald was at the meeting. Tabor testified that she could not recall Special Agent Hertel pursuing any questions about the discussion of the Union membership. Union Sergeant at Arms Victor Jaynes testified that his interviewer "may have asked me questions on the issue dealing with asbestos," but his affidavit reflects no such subject and I find his equivocal testimony on this point to be an inadequate basis for an affirmative finding.

Discussion and Conclusions: Case No. DE-CA-40870

A. General Principles

The violation alleged in this case is interference with, restraint, and coercion of employees in the exercise of their rights under the Statute. Specifically, the employee right involved here is the right to participate in the meetings of a labor organization and to do so, as stated in section 7102 of the Statute, "freely and without fear of penalty or reprisal."

The Authority's standard for determining whether conduct by management constitutes interference, restraint, or coercion within the meaning of section 7116(a)(1) of the Statute is whether, under the circumstances, the conduct may reasonably tend to coerce or intimidate employees with regard to the exercise of their statutory rights. The standard is an objective one, and is not based either on the subjective perceptions of the employee or on the intent of the employer. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891, 895-96 (1990)(OALC); Veterans Administration, Washington, D.C. and Veterans Administration Medical Center and Regional Office, Sioux Falls, South Dakota, 23 FLRA 122, 124 (1986) (VA). VA was itself a case in which a management official's questioning of an employee about his union activities was held to have had that proscribed tendency. Moreover, the Authority has given its general framework for section 7116(a)(1) analysis specific application to employee interviews, holding that it would determine in each case "whether the circumstances in which interviews occur are coercive[.]" Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 31 FLRA 541, 549 (1988) (F.E. Warren).

Questioning may, of course, be coercive in various ways. The coercive tendency that is proscribed by the Statute is that which relates to protected activity. Thus, the Authority has determined that requiring an employee who was a union representative, under threat of disciplinary action, to disclose statements another employee made to him in the course of the representation of that employee in a disciplinary proceeding violated section 7116(a)(1). The conversations between the employee and his union representative, the Authority held, constituted protected activity, and their disclosure would interfere with the employee's right to representation, which right "demand[s] that the employee be free to make full and frank disclosure to his or her representative . . . ." U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 1300, 1308 (1991)(Customs Service). Stated another way, the Authority has held that an employee has a right to maintain the confidentiality of conversations with his union representa-tive, and that any interference with that right violates the Statute unless the right had been waived "or some overriding need for the information was established." Long Beach Naval Shipyard, Long Beach, California, 44 FLRA 1021, 1038-39 (1992).(7)

B. Application to this Case

Counsel for the General Counsel seeks to derive from these confidential conversation cases a general rule, or at least one that applies here, regarding what an agency must show in order to justify the investigation of an incident that has a connection with protected activities. I believe that to be too expansive a use of these cases. They should, rather, be read in the context of the general principles about management conduct and employee interviews. Thus, before requiring an agency to justify the questions it asks employees, it must be determined that the questions were coercive in a particular way. That is, it is insufficient to show that the questions were coercive in the sense that the employees were required to answer them. The coercive tendency must have been with respect to the exercise of statutory rights.

There are three prongs to the General Counsel's theory of this case. The first (based on paragraphs 17 and 25 of the complaint) is that the very undertaking of the investigation violated employee rights. The second and third (based on paragraphs 18, 19, and 26 of the complaint) are that the involuntary nature of the employee interviews and the questions asked made them coercive.

To establish the first prong of the case, Counsel for the General Counsel argues that OIA lacked any good faith basis for initiating the investigation, let alone an overriding or extraordinary need. In support of this argument, counsel presents a number of circumstances suggesting that Claire Fitzgerald's accusations lacked credibility and were improperly motivated. I find this line of attack unpersuasive. While Special Agent Hertel acknowledged a concern about the accuracy of the accusations, neither that concern nor the circumstances cited by counsel made it inappropriate to conduct the investigation. Rather, it is at least arguable that it would have been irresponsible for Hertel or any other OIA official to have aborted the investigation and dismissed the allegations based on a hunch about Claire Fitzgerald's credibility.(8) The course Hertel took, which I find to have been appropriate, was to approach the investigation with a certain sensitivity to the fact that the incident as alleged occurred at a union meeting.(9)

Counsel for the General Counsel also attempts to show that the investigation was tainted by the fact that OIA had added an investigation into the "shoot Fitzgerald" incident. Counsel argues that this addition supports the proposition that the investigations were instituted in retaliation for Shields' protected activity, in order to build a case against her. However, there is no allegation in the complaint either about the second investigation or that the original investigation had a discriminatory motivation. In any event, I see nothing about the circumstances surrounding the second investigation that warrants a finding that OIA (the only Respondent in Case No. 40870) acted inappropriately when it initiated an investigation of the "shoot Fitzgerald" incident. The matter having been referred to OIA, OIA may or may not have had any discretion on whether to proceed. Assuming that it had such discretion, its decision to investigate appears reasonable.

With respect to the manner in which the investigation of the April 12 incident was actually conducted, Counsel for the General Counsel, stressing the involuntary nature of the interviews, argues that OIA should have provided the employees with the safeguards set forth in Internal Revenue Service and Brookhaven Service Center, 9 FLRA 930 (1982)(Brookhaven). However, consistent with the above discussion of the kind of coercion section 7116(a)(1) contemplates, the Brookhaven safeguards apply only to interviews in preparation for third-party proceedings and where "a nexus is established between [the] interview . . . and the employee's section 7102 rights." General Services Administration, 50 FLRA 401, 406-07 (1995)(GSA).

I am uncertain whether this means that Brookhaven safeguards, or something that fulfills the same purpose (see F.E. Warren), are required only at interviews in preparation for third-party proceedings or whether they are required at any interview having a "nexus" with employee rights. But GSA does make clear that one can determine the necessity for Brookhaven safeguards only after exploring the connection between the interviews and the section 7102 rights. I also conclude that the GSA "nexus" test is based on the recognition that the purpose of the Brookhaven safeguards is to protect employees "from coercive questioning concerning matters involving employees' protected rights" (F.E. Warren at 548-49) and therefore that they are necessary only where there is at least some danger that coercion in the section 7116(a)(1) sense would otherwise occur.

I am not persuaded that the interviews of Shields and other employees were coercive. Although the questioning concerned an incident that occurred at a Union meeting, and although the formal adjournment of the meeting did not, in the circumstances, negate the protected character of the activities of the employees who remained, the questioning did not focus on either the union business that was discussed or the participation of any employees in that business. While Shields, at least, was asked about who was present, there is no objective indication that this information was being sought in order to pass the names along to management officials so that employees so identified could be subject to retaliation.

Shields' belief that the questions she was asked were coercive in the section 7116(a)(1) sense is not dispositive. But it must be acknowledged that notwithstanding the Authority's description of its standard for coercion as "objective," the process of deciding whether the standard has been met involves a subjective determination. Thus, the decision-maker must, in effect, conjure up a "reasonable employee" whose reaction to the kind of employer conduct that is alleged to be coercive must be imagined. The requisite "showing" of coercion is found if the decision-maker believes that there is some degree of probability that such artificial employee (a legal fiction existing only in the mind of the decision-maker) would have been coerced. Nor is the requisite degree of probability of such presumed coercion evident. These considerations, to name only those that are most obvious, make the judging process a perilous enterprise and one in which the decision-maker can easily stumble by being insufficiently sensitive to one considerations or another.(10)

Nevertheless, I do not believe that Shields' reaction to her questioning, as exhausting and painful as it may have been for her, represents the reaction of the "reasonable employee." Shields evidently believed that the whole investigation was calculated to retaliate against her for her protected activities in general and, in particular, the resulting animus between her and Claire Fitzgerald's husband. That belief cannot but have colored her reaction to her interview and to the questions she was asked. And in a certain sense that coloration was not unreasonable. But, as an employee, and it may be relevant to note her experience with how OIA investiga-tions work, I do not believe it was reasonable for Shields to ignore OIA's legitimate role in investigating allegations of employee misconduct irrespective of the source of the accusations.(11)

Absent any preconceptions about the motivation of the investigation, I conclude that the employees who were interviewed had no reasonable basis for disbelieving the announced purpose of their interviews and of the question they were asked. Nor was there shown the kind of general animosity to union activity that could reasonably be expected to have caused employees to harbor such preconceptions, except in the case of Shields, whose special concerns I have found not to have met the Authority's "objective" standard. The evidence indicates that the questioning was directed at the events leading up to and surrounding Shields' alleged misconduct, and that any questions about how the Union meeting itself was conducted were incidental to the focus of the inquiry but peripheral to considerations such as what the Union or its members were "up to."(12)

The affidavits and memoranda of employee interviews corroborate Hertel's testimony describing such a focus. Thus, although neither the employee testimony, much of which reflected hazy recollections, nor the affidavits and memoranda, purported to recreate the interviews comprehen-sively, the contents of the affidavits most of the employees signed at the end of their interviews reflect misconduct-directed questions. Employees reading the affidavits prepared for their signatures would have had additional basis for believing that their interviews had a legitimate purpose. Such a belief, of course, at least tends against a coercive interpretation.

Union Steward Lisa Tabor, the only interviewed employee presented as a witness who had not been given an affidavit to sign, testified that she did not recall the interviewer pursuing any questions about the discussion of the Union membership. Her testimony in general supported Hertel's explanation of how he conducted his interviews. Chief Steward Allport, who served as the Union representative for some of the interviewed employees, including Lisa Tabor, testified to nothing to the contrary.

Ultimately, therefore, I conclude that neither the initiation of the investigation of the April 12 incident nor the conduct and questioning that occurred at the employee interviews violated any employee rights protected by the Statute. While the interviews were coercive in the sense that they were involuntary, they lacked the coercive tendency that would result in a violation of section 7116(a)(1).

CASE NO. DE-CA-40937

Additional Findings of Fact

Associate Warden Fitzgerald reported the April 13 incident, in which Shields walked out of his office, to Shields' supervisor and to Warden Perrill, who informed OIA. OIA referred the matter to the Office of the Inspector General, which determined that the complaint had no prosecutorial merit and "deferred" it to OIA for administrative resolution. Meanwhile, Shields complained about Fitzgerald's issuance of a "formal" letter of counseling as being contrary to an agreement with the Union that such letters would be considered informal and not be issued until cleared by the human resources department. The April 13 letter was subsequently withdrawn and a similar letter was issued, omitting the word "formal." Later the substituted letter was withdrawn.

After an investigation of the April 13 incident by OIA, Shields' supervisor, Captain James A. Graham, issued a notice to Shields of a proposed 2-day suspension for Disrespectful Conduct Toward a Supervisor. The notice informed Shields that the Warden would make the final decision on the proposed discipline, that Shields could respond orally or in writing within ten days, and that the Warden would make no final decision until after a timely response was made.

Shields arranged for a presentation of an oral response to Warden Perrill. This session was transcribed, and I rely on the transcription for the pertinent excerpts of that meeting to which I refer in the "Discussion and Conclusions" below. Warden Perrill ultimately found the charge of Disrespectful Conduct Toward a Supervisor to have been fully supported by the evidence in the disciplinary action file, considering also Shields' oral response. He issued a suspension of one calendar day, deciding that, in light of such factors as her 16 years of service and her acknowledgment of the seriousness of her behavior, that such a suspension "should have the necessary corrective effect."

Discussion and Conclusions: Case No. DE-CA-40937

Section 7102 of the Statute provides, in pertinent part, that "[e]ach employee shall have the right to form, join, or assist any labor organization . . . freely and without fear

of penalty or reprisal, and each employee shall be protected in the exercise of such right." Section 7102 further delineates "such right," in general ("[e]xcept as otherwise provided . . ."), as including the right:

(1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government . . . , and

(2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.

The employee activities protected under section 7102 are thus somewhat circumscribed in comparison to those protected by section 7 of the National Labor Relations Act (NLRA), which include, in addition to union activities, "other concerted activities for the purpose of collective bargaining or other mutual aid or protection." As the Authority has recognized, "the Statute does not expressly cover concerted activities," and not all concerted activities that are protected under the NLRA are protected under the Statute. U.S. Department of Labor, Employment and Training Administration, San Francisco, California, 43 FLRA 1036, 1038, 1039 (1992) (ETA). Thus, in ETA, the Authority engaged in an analysis of the alleged protected activity to determine whether it fit within the narrower scope of section 7102. See also U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701 (1990), enforcement denied, Case Nos. 91-70078 and 91-70162 (9th Cir. June 22, 1992).

Given this narrower scope, the Authority has focused on whether the record indicates that an employee who was alleged to have engaged in protected activities was acting on behalf of a union or acting in any other manner to invoke the assistance of a union. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Detroit Teleservice Center, Detroit Michigan, 42 FLRA 22, 23-24 (1991); Department of the Treasury, Internal Revenue Service, Andover Service Center, Andover, Massachusetts, 13 FLRA 481, 489-90 (1983) (IRS Andover).(13) Even if the employee in question serves in an official capacity or otherwise as a representative of a labor organization, the Authority inquires into whether that employee was acting in such a capacity when engaging in the allegedly protected activity. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, El Paso Border Patrol Sector, 44 FLRA 1395, 1401-02 (1992). See also Department of Treasury, Internal Revenue Service, Memphis Service Center, 16 FLRA 687, 696 (1984) (Judge's decision). If, therefore, the employee was acting either solely as an individual or as a personal, rather than as a union representative, that particular activity is not protected under section 7102. General Services Administration, Central Office, Region IV Interagency Motor Pool, Kennedy Space Center, 17 FLRA 341 (1985); IRS Andover at 484, 489-90.

While it is hardly debatable that Shields was acting in her capacity as Union president when she attempted to engage Associate Warden Fitzgerald in a discussion on March 24, the same can not be said about her capacity when summoned to the meeting with Fitzgerald on April 13. Fitzgerald summoned Shields to that meeting to issue her a letter of counseling with respect to her March 24 conduct. Shields appeared with a Union representative to assist her in protecting her rights as an employee. Whether or not Shields' March 24 conduct justified the letter of counseling, or was, in itself, protected activity, is irrelevant to the capacity in which Shields attended the April 13 meeting. Nor can Shields' capacity at that meeting be transformed by Counsel for the General Counsel's characterizations of the letter and the meeting as a "nullity," or a "fraud."

Irrespective of how Shields may have wished to view her capacity during the April 13 meeting, her presence at that meeting was required because she was an employee. Thus, it is difficult to quarrel with a point Warden Perrill made to Shields, during their September 2 "oral response" session. Shields, responding to the charge that her conduct indicated a lack of respect for the positions of FCI's supervisors, had asked how there could be respect "when I believe it's retaliation." Warden Perrill replied: "Even if you believed it was retaliation[,] does that give you an excuse to walk out of a meeting that the Warden of that facility has called[?]" Shields chose not to respond to that directly, but asked the warden to "go back" to another incident. (GC Exh. 16, 2d page--unnumbered.)

When Warden Perrill asked her specifically why she had walked out, Shields' still gave him no indication that she considered herself to have been acting in pursuit of a Union objective. The reason she gave in answer to Perrill's question was that she had walked out "[t]o diffuse a situation where I had no knowledge of what [Fitzgerald] was going to do" (GC Exh. 16, 4th page). Perrill was entitled to treat that answer as an assertion that Shields had assumed the prerogative of deciding when it was appropriate to end the April 13 meeting.

At another point in the September 2 "oral response" meeting, Perrill told Shields that what he was trying to decide was "whether it was unprofessional conduct, insubordination, or disrespectful conduct, whatever, in terms of your departing the room." Shortly after that, Perrill told Shields that "the issue is that you left a meeting that was called for a particular purpose, without allowing a supervisor to finish. And [you're] saying you did that because you thought he had no right to have the meeting." Shields' response -- "I still believe that it was in retaliation" -- still gave no indication that she purported to have been acting in a representative capacity at that meeting. (GC Exh. 16, 6th-7th pp.)(14) Later in the September 2 meeting, Shields answered affirmatively when Perrill asked whether she had decided to walk out of the April 13 meeting "simply because you thought it was an illegal meeting[.]"

On this evidence, I conclude that Shields was not acting in any Union-related capacity when she walked out of the April 13 meeting and therefore was not engaged in protected activity, as ordinarily conceived, within the purview of section 7102. A situation as complex as this, of course, lends itself to more than one interpretation. For example, Shields' conduct could be viewed as aimed at assisting the Union by protesting the treatment suffered by the Union president--herself. However, even if there was a "protected" aspect to Shields' conduct, I conclude that a prima facie case of unlawful discrimination would be established only if the Respondents were motivated by that aspect of the conduct rather than the manner in which she, as an employee, interacted with a supervisor.

A prima facie case requires not only a showing of protected activity and a motivation that is somehow connected to that activity, but also a showing that "consideration of such activity was a motivating factor" in the alleged discriminatory action. U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Service Center, Ogden, Utah, 41 FLRA 1212, 1213 (1991). Consideration of the protected activity means a conscious interplay between (1) the agency's decision to take certain action and (2) what it was about the employee conduct that made it protected activity.(15) Thus, I believe that an agency's motivation may be found to be unlawful only to the extent that its representative has actually focused on the protected aspect of an employee's conduct.(16)

However, Shields' suspension may also be found unlawful if it was motivated by other of Shields' activities that fall within the protection of section 7102. United States Air Force Academy, Colorado Springs, Colorado, 50 FLRA 498, 502 (1995). Counsel for the General Counsel attempts to make such a case by weaving all of the background events into a plan by FCI to chill Shields' exercise of her section 7102 rights and to retaliate against the whole gamut of her protected activities.

I do not find that a prima facie case has been made. FCI took specific actions in connection with various accusations against Shields. Nothing about Warden Perrill's decision to suspend Shields for one day indicates that it was made for any reasons other than the conduct that it purports to address. I find Perrill's asserted motivation to be supported by his recorded statements and questions at his September 2 "oral response" session with Shields, which I find to be especially probative in attempting to reconstruct Perrill's decision-making process. In addition, the 1-day suspension was hardly disproportionate to what, as I find, Perrill reasonably believed to have been seriously disrespectful conduct. Although not formally labeled "insubordination" in either the notice of proposed discipline or in Perrill's decision letter, it was, on the facts Shields admitted to Perrill at the "oral response" session, substantially equivalent to that. That was also the way OIA Special Agent Strack characterized it in her Investigative Report. Cf. Bigelow v. Department of Health & Human Services, 750 F.2d 962 (Fed. Cir. 1984)(discharge of employees, who were union officials, for insubordination when they refused to undergo ordered retraining, upheld despite their claim that they believed the order violated their contractual right to 100 percent official time).

Nor do I find persuasive the speculative suggestion by Counsel for the General Counsel that Fitzgerald acted as he did in arranging the April 13 counseling-letter meeting in order to provoke Shields into a reaction that would lead to her discipline. Even if he harbored ill will toward Shields for other reasons, which there is reason to believe, and even though he failed to prepare the letter of counseling concerning the March 24 incident until after the April 12 incident involving his wife, there is little reason to doubt that Fitzgerald believed that a letter of counseling was appropriate. Indeed, Warden Perrill testified credibly that he and Fitzgerald discussed the March 24 incident shortly after it occurred and that Perrill asked him to prepare such a letter. Thus, while the timing of its issuance was unfortunate, there is no substantial basis on which to find that its purpose was to produce an incriminating reaction on Shields' part.

In sum, therefore, I conclude that it has not been established that Perrill's 1-day suspension of Shields constituted discrimination within the meaning of section 7116(a)(2) of the Statute or otherwise constituted interference, restraint, or coercion within the meaning of section 7116(a)(1).

Recommendation

I recommend that the Authority issue the following order:

ORDER

The consolidated complaint is dismissed.

Issued, Washington, D.C., May 10, 1996

______________________________

JESSE ETELSON

Administrative Law Judge




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 


Authority's Footnotes Follow:

1. The Union had previously been involved in an investigation concerning whether unit employees were improperly exposed to asbestos. The Associate Warden had been involved as a possible responsible official in the investigation. Among other things, the Union had provided information to a Member of Congress and to the Occupational Safety and Health Administration (OSHA). OSHA ultimately issued citations against Respondent Prison, which resulted in newspaper coverage. The Warden told the Union President that "he would appreciate some notification if she went to [the Member of Congress's] office or the newspaper -- that he 'didn't appreciate being blindsided by [the Union's tactics[.]'" Judge's Decision at 3.

2. As discussed in more detail in the Judge's decision, the Union President disputed whether the Associate Warden's wife was a Member of the Union or whether, in fact, a separate local had formed at the Associate Warden's wife's work facility. It is not asserted or apparent that this dispute is relevant to the complaints now before the Authority.

3. Although the record on this point is not complete, it appears that the counseling letter was withdrawn as part of a settlement of a separate ULP charge filed over the matter. See General Counsel's Exceptions at 11.

4. The Judge rejected the General Counsel's argument that, because the interviews conducted by the Special Agents were involuntary, Respondent Internal Affairs violated the Statute by failing to provide interviewees with the safeguards set forth in Internal Revenue Service and Brookhaven Service Center, 9 FLRA 930 (1982) (Brookhaven). As no exceptions were filed to the Judge's determination, the Authority adopts this finding without precedential significance. See, for example, U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA 991 (1993).

5. There is no assertion or other indication in the record that the alleged violation of section 7116(a)(1) was intended to be independent of the (a)(2) violation.

6. It is not clear that the Judge's statement regarding coercion "in a particular way" reflects anything other than the wording of the Statute itself: section 7116(a)(1) does not prohibit coercion in general -- it prohibits coercion "in the exercise . . . of any right under [the Statute]."

7. Our conclusion that "extraordinary need" exists is based on the specific context in which the investigation into the alleged threat of violence occurred, including that no confidential employee-union communication was implicated.

8. The Judge also specifically credited the Special Agent's testimony over the testimony of the Union President. Judge's Decision at 7.

9. The Special Agent testified that he inserted the quotation to measure the truthfulness of the witness. Transcript at 419-20. The Union steward who attended this interview testified that she pointed out the discrepancy in the affidavit to the interviewee, who nevertheless chose to sign the affidavit with the specific quotation of the profanity. Id. at 305.

10. In Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA 7, 11-12 (1995) (Grissom), the Authority stated the following, in relevant part, regarding the test for determining whether activities constitute flagrant misconduct:

In determining whether an employee has engaged in flagrant misconduct, the Authority balances the employee's right to engage in protected activity, which 'permits leeway for impulsive behavior, . . . against the employer's right to maintain order and respect for its supervisory staff on the jobsite.' Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 80 (1985) (Defense Mapping Agency)(quoting Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54, 55 (1979)(Puget Sound). Relevant factors in striking this balance include: (1) the place and subject matter of the discussion; (2) whether the employee's outburst was impulsive or designed; (3) whether the outburst was in any way provoked by the employer's conduct; and (4) the nature of the intemperate language and conduct. . . . However, the foregoing factors need not be cited or applied in any particular way in determining whether an action constitutes flagrant misconduct. . . .

In nearly all cases, the employee involved in a case where flagrant misconduct is examined is a union representative. However, in Department of Defense, Defense Mapping Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 80 (1985) (Defense Mapping Agency), an employee attending a grievance meeting as a grievant -- not a union representative -- was disciplined for speech occurring in the meeting, and the Authority held that the discipline was violative of the Statute because the employee had not engaged in flagrant misconduct.

11. Because we find below that the Union President's conduct did not constitute flagrant misconduct, we do not reach the second prong under Letterkenny.


ALJ's Footnotes Follow:

1. See 5 CFR § 2421.4.

2. Neither Respondent is alleged to be responsible for the unfair labor practice(s) the complaint attributes to the other.

3. This was evidently not what Shields expected after her discussion with Perrill about resolving the matter "informally."

4. As I advised the parties at the hearing, I do not find the question of the truth of Claire Fitzgerald's allegations to be relevant to this case.

5. Hertel's intentions are not, of course conclusive as to how the investigation was actually conducted. However, they are relevant to the limited extent that they may cast light on the otherwise incomplete record of the individual interviews.

6. The charge alleges further that the investigation "is also perceived as direct retaliation for protected union activities." However, the complaint contains no such allegation.

7. In Customs Service, the Authority also referred to the absence, in that case, of any showing of an "extraordinary" need. Id. at 1309 n. 2. I express no opinion as to whether, as Counsel for the General Counsel argues, the Authority intended to equate "overriding" with "extraordinary" for this purpose. But see and compare Defense Property Disposal Region, Ogden, Utah and Defense Property Disposal Office (DPDO), Camp Pendleton, Oceanside, California, 24 FLRA 653, 657 (1986) (surveillance of protected activity not unlawful when "based on security considerations").

8. I am not persuaded by anything in the record as to whether or not Hertel, or OIA, had the authority to exercise discre-tion as to conducting or aborting the investigation. In light of other dispositive considerations I need not decide which party had the burden of presenting evidence on this point, and, therefore, whether discretion should be presumed or not.

9. Counsel for the General Counsel does not contend that what Claire Fitzgerald described as Shields' conduct would have been protected activity.

10. Perhaps the foremost difficulty confronting the neutral decision-maker in using this intellectual construct is that an artificial employee cannot actually feel coerced, while a real employee can.

11. Perhaps it is unavoidable for me to believe that the "reasonable employee" would view the OIA's role in initiating the investigation as I do. By the same token, Counsel for the General Counsel undoubtedly equates her view of the investiga-tion with that of a reasonable employee. But it is of at least some significance that the complaint does not allege a discriminatory motivation in the initiation of the investigation.

12. References to discussion of the asbestos issue at the meeting were made in connection with the interviewees' explanations for Claire Fitzgerald presence, since the asbestos issue involved her husband.

13. But cf. Letter Carriers v. Austin, 418 U.S. 264, 278 n. 13 (1974) ("The absence of mention of a right to engage in concerted activities [in section 1 of Executive Order 11491, the predecessor of section 7102 of the Statute] is obviously no more than a reflection of the fact that the Order does not permit federal employee unions to engage in strikes or picketing").

14. On the other hand, Shields did make the point to Perrill that she had been acting as a Union representative during the March 24 encounter (GC Exh. 16, 18th page).