United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Florence, Colorado (Respondent) and American Federation of Government Employees, Local 1300, AFL-CIO (Charging Party)

[ v59 p165 ]

59 FLRA No. 32

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
FLORENCE, COLORADO
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1300, AFL-CIO
(Charging Party)

DE-CA-00043

_____

DECISION AND ORDER

September 24, 2003

_____

Before the Authority: Dale Cabaniss, Chairman; and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

      The initial complaint alleged that the Respondent violated § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by telling a Union representative to stop distributing a flyer advising employees to obtain union representation when talking with a particular Employee Assistance Program (EAP) Counselor. The complaint was amended to allege that the Respondent violated § 7116(a)(1) and (2) of the Statute by initiating an investigation into the protected activity of the Union representative, first by the Office of Internal Affairs (OIA), and then by the Special Investigative Service (SIS); issuing the Union representative a proposed 1-day suspension for engaging in protected activity; and by communicating to OIA that the allegation underlying the proposed 1-day suspension against the Union representative was sustained. The amended complaint also alleged that the Respondent independently violated § 7116(a)(1) by the three actions listed above.

      As a result of comments by the Judge at the hearing, which are discussed more fully below, the complaint was further amended at the hearing to include an allegation that the Respondent's actions violated § 7116(a)(4) of the Statute.

      The Judge concluded that the Respondent violated § 7116(a)(1), (2) and (4) of the Statute, as alleged.

      Upon consideration of the Judge's decision and the entire record, and to the extent consistent with this decision, we adopt the Judge's findings and conclusions that the Respondent violated § 7116(a)(1) and (2) of the Statute. We modify the Judge's recommended Order with respect to these violations. For the reasons set forth below, we dismiss the § 7116(a)(4) allegation that was added at the hearing.

II.     Background and Judge's Decision

A.     Background

      The facts are fully set forth in the Judge's decision and are only briefly summarized here.

      A Union representative represented an employee at a meeting with the Warden where the Warden told the employee that, due to concerns about his psychological stability, he was being placed on administrative leave until he had a fitness for duty evaluation. After the meeting, the employee told the Union representative that "it was because of a casual conversation" with an EAP Counselor, who is also a psychologist at the facility, "that he was in his current situation." Judge's Decision at 6. Based on this conversation, the Union representative decided to notify employees that they could also be placed on administrative leave and required to take a fitness for duty physical if they spoke with the EAP counselor.

      The following day, the Union representative created a flyer which referred to the EAP Counselor by name, and read: "IF YOU TALK WITH [HER] YOU BETTER HAVE A UNION REPRESENTATIVE." Id. The Union representative posted the flyer on the general bulletin board in the staff lounge off the main compound of the facility and on the general bulletin board in the Norwood Unit where he worked. He also hand-delivered the flyer to several employees in an area where the Judge found inmates are not routinely left unattended.

      The Union representative's supervisor saw the flyer posted on the general bulletin board in the Norwood Unit. She removed the flyer and instructed the staff in the area not to post such flyers. When the Warden and the Associate Wardens became aware of the flyer, they agreed that the distribution of the flyer should stop and the flyers should be removed from the facility.

      The Associate Wardens met with the Union representative, who explained that he had distributed the flyer [ v59 p166 ] in connection with his representation of the employee on the previous day. An Associate Warden ordered him to stop distributing the flyer. The Union representative agreed and thought the matter was resolved.

      The Warden referred the distribution of the flyer to the OIA. He submitted an incident report to the OIA alleging that the Union representative had engaged in "unprofessional conduct/retaliation or discrimination against an employee reporting a violation of standards of conduct." Id. at 10. The Warden's summary of the incident noted that the flyer was in plain view of staff and inmates and that the flyer was found to be inappropriate, highly offensive and unprofessional.

      The Union filed an unfair labor practice charge in October 1999 alleging that the Respondent violated § 7116(a)(1) by referring "a Union communication" to the OIA for investigation. GC Exhibit 1(a). Subsequently, the OIA referred the matter back to the Respondent for "administrative resolution" after determining that the matter lacked "prosecutorial merit." Judge's Decision at 10. The Respondent then initiated an investigation by SIS. On February 28, 2000, the SIS submitted a report to the Warden sustaining the allegations of unprofessional conduct against the Union representative. [n2] 

      On April 10, the Union representative's supervisor issued him a notice of a proposed 1-day suspension for unprofessional conduct. Subsequently, the Union representative received a letter from the Warden which stated in part that as a result of the flyer's distribution, the EAP Counselor's "credibility could have been diminished . . . ." Id. at 13. The letter further stated that no disciplinary action would be taken on the notice of proposed suspension.

      On May 25, the Warden wrote a memorandum to OIA that stated in part:

I agree with the findings, the allegation of Unprofessional Conduct has been sustained against [the Union representative]. I have decided to take no disciplinary action. No further action is required and I am considering the matter closed.

Id. at 13. This memorandum is maintained as part of the OIA's records.

      The Union filed an amended charge on January 31, 2001, alleging that the Respondent's actions violated § 7116(a)(1) and (2) of the Statute.

      Subsequently, the GC issued a complaint alleging that the Respondent violated § 7116(a)(1) of the Statute by telling the Union representative to stop distributing the flyer. The complaint was amended to allege that the Respondent violated § 7116(a)(1) and (2) of the Statute by initiating investigations by OIA and SIS into the protected activity of the Union representative; issuing the Union representative a proposed 1-day suspension for engaging in protected activity; and by communicating to OIA that the allegation underlying the proposed 1-day suspension against the Union representative was sustained. The amended complaint also alleged that the Respondent independently violated § 7116(a)(1) by these three actions.

      At the hearing before the Judge, the Judge raised, on his own, § 7116(a)(4) of the Statute. [n3] In this regard, the transcript reflects the following exchange, generated by the Judge:

[JUDGE]: But the charge was filed in October [1999]. Is that correct? I'm just curious as to why an (a)(4) wasn't filed in this complaint with respect to the potential discipline and the investigations. If a charge is filed and there had been no disciplinary action based on something that occurred in October, and then suddenly there are investigations, it appears to me that those might be in retaliation for what was alleged to be not only protected activity, but for taking part in Authority processes. Had your office given any consideration to the (a)(4) charge?
[GC'S COUNSEL]: Not that I'm aware of. Your Honor, can we amend the complaint to [add] an (a)(4) in at this time?
[RESPONDENT'S COUNSEL]: I would object at this point. I mean --
[JUDGE]: They're going to get the same remedy, but, I mean, it is -- it would be the same remedy, but I was just curious about that. I mean, this complaint itself cries out for that amendment. Do you want to file another charge? I'm going to allow the amendment at this juncture.
[RESPONDENT'S COUNSEL]: I need some explanation of the time lines here. I'm totally lost as to why we're now going with an (a)(4) charge. [ v59 p167 ]

Transcript at 77-78. As a result of this exchange, the complaint was amended to include an allegation of a § 7116(a)(4) violation.

B.     Judge's Decision

      The Judge found that the posting and hand-distribution of the flyer by the Union representative was protected activity within the meaning of the Statute. The Judge concluded that when the supervisor removed the flyer from the Norwood Unit bulletin board and when the Associate Wardens ordered the Union representative to stop distributing the flyer, the Respondent violated § 7116(a)(1) of the Statute. Judge's Decision at 21.

      In this regard, the Judge found that the Union representative "was acting in his capacity as a Union representative at the time he distributed the flyer in this case, and that the flyer was union literature." Id. at 16. The Judge also found that the record showed that since at least 1992, a practice had developed of employees using general bulletin boards at the facility and that there were no facility policies regulating the use of these boards. He also found that the Respondent was aware that this practice existed and took no action to restrict the use of the boards prior to the incident with the Union representative. From this, the Judge concluded that the Union had a right to post its flyer on the general bulletin boards.

      The Judge also found that the record showed that employees were permitted to distribute material in the workplace during duty hours; that it was common for employees to distribute materials in this way; and that the Respondent both received and distributed materials in this same manner. Accordingly, the Judge concluded that the Union was permitted to hand-distribute its flyer to employees consistent with established past practice. Id. at 17.

      Recognizing that the right to distribute union literature is not absolute, the Judge stated that in order for this right to lose its protected status, the content of the distributed literature must constitute "flagrant misconduct." Id. at 18. The Judge rejected the Respondent's argument that the flyer did not constitute protected activity because it did not inform employees of their Weingarten right. [n4] Id. The Judge determined that the case did not concern Weingarten, but instead involved "the right of a union representative to engage in protected activity by keeping bargaining unit members informed by posting messages on appropriate bulletin boards." Id. The Judge also noted that the Respondent failed to allege that the flyer constituted "flagrant misconduct" which would have removed the flyer from the ambit of protected activity.

      The Judge concluded that the record supported a conclusion that the content of the flyer was protected activity and that the Respondent did not have a legitimate justification for initiating the OIA investigation based on the posting of the flyer.

      The Judge next addressed and rejected the Respondent's reliance on two provisions of the parties' collective bargaining agreement as part of its defense. The Respondent first pointed to Article 7 (Rights of the Union), Section (n), which provides:

The parties agree that they and their representatives will not make statements or post notices in inmate access areas which would endanger staff or the security of the institution.

Id. at 19. Next, the Respondent relied on Article 12 (Use of Official Property), Section (c) of the contract, which provides in pertinent part:

The use of employer bulletin boards, office space, and office equipment is negotiable at the local level. It is understood that such use of these items is expected to promote efficient labor management relations. . . .

Id. at 20. The Respondent contended that the flyer violated these provisions because it did not "promote efficient labor-management relations" and "could have been a threat to the bargaining unit employees." Id. at 19.

      The Judge found that the plain language of Article 12, Section (c) refers to the use of agency property that is negotiated at the local level. As a result, he found the provision inapplicable to the present case because the right of all employees to hand-distribute flyers and use general bulletin boards had been created through past practice, and had not been negotiated at the local level. The Judge went on to state that even if this section were applicable, the Respondent had never sought to enforce this provision of the agreement through the grievance process.

      Similarly, the Judge found that Article 7, Section (n) was inapplicable because there was no evidence that the flyer endangered the staff or the security of the facility. The Judge found, instead, that the general bulletin boards used to post the notices were located in highly restricted areas where inmates have only limited access. Furthermore, the Judge found that the Respondent did not present any evidence of how the staff would be endangered. [ v59 p168 ]

      The Judge further found that, having acknowledged that violations of the agreement are not sent to OIA for investigation, the Respondent nonetheless pursued action against the Union representative for doing something that had never before been found improper. Accordingly, the Judge concluded that the Respondent's reliance on the provisions of the agreement "only supports a conclusion that its asserted reasons for its actions herein are pretextual." Id. at 20.

      In deciding whether the Union representative engaged in flagrant misconduct, the Judge balanced the leeway permitted for impulsive behavior against the employer's right to maintain order and respect for its supervisory staff in the workplace, using the factors outlined in Dep't of the Air Force, Grissom AFB, Ind., 51 FLRA 7, 11-12 (1995) (citations omitted) (Grissom). [n5] 

      First, the Judge found that there was no evidence that the EAP program or the EAP Counselor's ability to perform her duties was affected by the posting of the flyer. Next, the Judge found that the Union representative's actions were not planned or otherwise designed. Third, the Judge found that the Union representative's conduct was provoked by the Respondent. Finally, the Judge found that the Union representative's conduct "did not exceed the broad scope of intemperate behavior that remains within the ambit of protected activity." Judge's Decision at 24. The Judge found that, while the contents of the flyer may have been offensive to some, the Respondent's right to maintain order and respect for its supervisory staff was not affected, particularly in light of the fact that the Union representative desisted from the activity once he was ordered to do so by the Associate Wardens.

      The Judge found that while the flyer did mention the EAP Counselor by name, "it contained no derogatory or defamatory statements" about her or the position she held. Id. at 25. The Judge also found no evidence of a disruption to agency operations as a result of the flyer. Similarly, the Judge found no evidence that the flyer was seen by any inmates and noted that it was posted in areas where inmates have limited access. Id. The Judge also found that the Respondent failed to show that either the EAP Counselor's ability to perform her duties as a psychologist to inmates, or the EAP program, was harmed by the flyer. Furthermore, the Judge noted that the EAP Counselor did not testify at the hearing and, therefore, there is no way to know the impact of the flyer on her personally other that the "unsupported speculation offered by Respondent." Id.

      Accordingly, applying the framework in Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny) for resolving complaints of alleged discrimination in violation of § 7116(a)(2) of the Statute, the Judge found that the GC satisfied the first element, namely, that the Union representative was engaged in protected activity.

      As for the second element of Letterkenny, that the protected activity must have been a motivating factor in the agency's treatment of the employee, the Judge found that "but for" the Union representative's posting of the flyer, he would not have been the subject of the OIA and SIS investigations; he would not have received the proposed 1-day suspension; and he would not have had the allegation underlying the proposed suspension sustained. Judge's Decision at 27. The Judge found that "[t]he evidence is abundantly clear that no policies or guidelines regulating either the use of bulletin boards or the hand-distribution of material existed at the Facility." Id. at 26-27. In addition, the Judge found that there was an established past practice of employees posting and hand distributing a variety of materials. The Judge also found that it was undisputed that no employee had ever been questioned, investigated or disciplined for posting material on the general bulletin boards prior to this incident with the Union representative.

      Accordingly, the Judge found a prima facie violation of the Statute and found no merit in the Respondent's claim of a legitimate justification for its actions against the Union representative.

      The Judge concluded that maintaining a record of suspension in the Union representative's file constituted discriminatory action, which constituted a violation of § 7116(a)(2) of the Statute. In reaching this result, the Judge found that the Warden notified the OIA that the allegation of unprofessional conduct by the Union representative had been sustained, even though the Warden previously informed the Union representative that no further action was being taken on the proposed suspension.

      Next, the Judge found that the Respondent violated § 7116(a)(4) of the Statute when it initiated an SIS investigation into the Union representative's conduct; issued the Union representative the proposed 1-day suspension for engaging in protected activity; and communicated to the OIA that the allegation underlying the proposed 1-day suspension was sustained. Id. at 31-32.

      The Judge concluded that "[t]he timing of the initiation of the [SIS] investigation and the filing of the unfair labor practice charge warrants an inference that the filing of the charge was a motivating factor in the decision to initiate the SIS investigation." Id. at 33. The [ v59 p169 ] Judge further found that the Respondent failed to rebut the GC's prima facie showing of discrimination.

      Finally, the Judge found that the Respondent independently violated § 7116(a)(1) of the Statute by its actions. The Judge found that the Respondent failed to establish a legitimate basis for the investigations. Furthermore, the Judge found that the Respondent "launched a course of conduct aimed at chilling protected activity." Id. at 36.

      In sum, the Judge concluded that the Respondent violated § 7116(a)(1), (2) and (4) of the Statute, as alleged. The Judge ordered the Respondent to cease and desist from the unlawful conduct, expunge any record of the alleged unprofessional conduct from its files, including OIA records, and post a notice at its facilities, "including the television monitors and electronic mail system normally used to disseminate information to employees[.]" Id. at 38-39.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent argues that the Judge abused his discretion by improperly amending the complaint at the hearing to include a violation of § 7116(a)(4). The Respondent argues that the Judge raised the matter sua sponte and that the Respondent did not have sufficient notice of the issue being included in the complaint. The Respondent asserts that the Judge abused his discretion because a motion to amend the complaint was never before him and, further, that the Judge "prejudiced the Respondent such that it was not prepared to defend an (a)(4) charge at the hearing." Exceptions at 11.

      Next, the Respondent contends that the posting of the unsigned flyer was not protected activity under the Statute because: (1) it was prohibited by the parties' agreement; and (2) the content of the message itself removed it from statutory protection. The Respondent states that the Authority has held that it is not a violation of the Statute for an employer to remove materials which violate a management policy or the parties' agreement. The Respondent argues that Article 7, Section (n) of the parties' agreement prohibits the posting of notices "in inmate access areas which would endanger staff or the security of the institution." Id. at 12. The Respondent contends that the Judge's finding that the notice in question did not violate the agreement relies on a flawed analysis which requires the Respondent to prove that "actual harm" occurred in order for the Respondent to remove the sign and still be protected by Section (n). Id. at 12. The Respondent argues that the flyer was posted where it was visible to inmates and that if inmates become aware of conflicts between members of the staff they can use such information to attempt to manipulate the staff and compromise the security of the institution. The Respondent further states that the Judge failed to give the Respondent the substantial deference afforded prison administrators on matters of internal security. Id. at 13 nn.5-6.

      The Respondent further argues that regardless of the parties' agreement, the communication itself is not protected by the Statute. The Respondent contends that an agency has the right to discipline an employee who is engaged in otherwise protected activity for remarks or actions that "exceed the boundaries of protected activity such as flagrant misconduct." Id. at 15 (quoting Grissom, 51 FLRA at 11 (citations omitted)). Citing Grissom and Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002) (315th Airlift Wing), the Respondent argues that flagrant misconduct is not the only reason activity loses its statutory protection. The Respondent maintains that the Judge erred by only applying the flagrant misconduct analysis without looking to other reasons the flyer could have been outside the realm of protected activity. The Respondent argues that given the personal and defamatory nature of the flyer, the Union representative's conduct was outside the broad range of protected activity.

      The Respondent next argues that it had legitimate, nondiscriminatory reasons for referring the case to OIA for investigation, for conducting an SIS investigation, and for subsequently proposing discipline. In support of its argument, the Respondent claims that the flyer was defamatory in nature and unprofessional, that it undermined the credibility of the EAP Program, and that it violated employee standards of conduct as well as the parties' agreement. The Respondent states that based on the seriousness of the allegations, the Warden, who believed the flyer to be a personal attack on one of his staff members, referred the case to OIA the day after the incident and acted irrespective of who had created the flyer.

      Finally, the Respondent argues that the portion of the Judge's remedy ordering the Respondent to post notices on its television monitors and over its electronic e-mail system is a nontraditional remedy which is extraordinary and unwarranted. The Respondent states that under Authority precedent, absent the recurrence of unlawful conduct, extraordinary remedies are not generally warranted. The Respondent further states that while there have been extraordinary cases where the Authority found that a more directed posting was reasonable, for example, where it was not plausible to reach all of the employees through a direct posting, the GC has not shown that there would be any difficulty in reaching all the employees in the bargaining unit through traditional means.

B.     GC's Opposition

      The GC disputes the Respondent's contention that the Judge abused his discretion by allowing the GC to [ v59 p170 ] amend the complaint at the hearing to include a violation of § 7116(a)(4). The GC contends that the Authority's Regulations permit the amendment of the complaint at any time prior to the case being transmitted to the Authority, including at the hearing. The GC argues that the Respondent was not deprived of sufficient notice to defend against the new charge, noting that the motion to amend was made prior to the presentation of the Respondent's case and the amendment involved the same discriminatory actions that were the basis of the § 7116(a)(2) violation.

      The GC asserts that the Respondent was given a full and fair opportunity to litigate the issues pertaining to both allegations. The GC further argues that the Respondent has failed to show how the addition of a § 7116(a)(4) violation to the complaint prejudiced the Respondent's defense, and has failed to articulate what additional evidence, if any, it would have introduced to defend against the alleged § 7116(a)(4) violation.

      Next, the GC argues that the Judge did not err in finding that the distribution and posting of the flyer constituted protected activity under the Statute. The GC argues that the Respondent does not except to the analytical framework applied by the Judge, but rather excepts to the Judge's interpretation of Article 7, Section (n) of the parties' agreement. The GC notes that the Judge found that the plain language of that provision does not prohibit using names in a notice and that there was no evidence that the flyer endangered the staff or the security of the facility because it was posted on general bulletin boards in highly restricted areas where inmates have limited access. The GC contends that the Respondent is arguing, for the first time on exceptions, that the flyer could have endangered the staff or security of the facility. The GC argues that this is an attempt to introduce facts which are not part of the record and which cannot be considered by the Authority under § 2429.5 of the Authority's Regulations.

      The GC asserts that the Judge did not err by failing to consider whether the Union representative's conduct was outside the broad range of protected activity for the reasons asserted by the Respondent. The GC noted that while the Respondent relies on 315th Airlift Wing, 294 F.3d 192, which identified "flagrant misconduct" as only illustrative of the conduct exceeding the boundaries of protected activity, the court did not determine what actions, other than flagrant misconduct, result in the loss of privilege under federal labor laws. The GC claims that the Respondent's assertion that the Union representative's conduct exceeded the boundaries of protected activity as contemplated by 315th Airlift Wing relies on facts that are contrary to the Judge's findings.

      The GC further contends that the Judge correctly found that the Respondent did not have legitimate, nondiscriminatory reasons for referring the Union representative's conduct to the OIA for investigation and for subsequently proposing discipline. The GC argues that the Respondent does not except to the analytical framework applied by the Judge, and that the Respondent's exception constitutes disagreement with the Judge's analysis, which is fully supported by the record.

      Finally, the GC asserts that the Judge's remedy is not extraordinary and is warranted in this case. The GC argues that requiring the Respondent to post notices through its electronic mail system and television monitors is consistent with the Authority's traditional remedy of requiring notices to be posted where notices are customarily posted. In this connection, the GC asserts that the record establishes that distribution by electronic mail and over the television monitors is consistent with the manner in which the employer communicates with its employees. The GC further asserts, however, that if this remedy is viewed as a nontraditional remedy, it satisfies the standard in F.E. Warren AFB, Cheyenne, Wyo., 52 FLRA 149, 160 (1996) (F.E. Warren).

IV.      Analysis and Conclusions

A.     The Judge erred in amending the complaint and finding a
         violation of § 7116(a)(4) of the Statute.

      In determining whether a motion to amend is proper, the Authority assesses whether the respondent had sufficient notice regarding the issue sought to be included in the complaint by the amendment. See, e.g., Dep't of Transp., FAA, Ft. Worth, Tex., 55 FLRA 951, 954 (1999) (FAA) and cases cited therein. The Authority will reverse a judge's ruling on a motion to amend a complaint only where the judge abused his or her discretion. Id. In our view, the Judge erred in allowing the complaint to be amended and in finding a violation of § 7116(a)(4) of the Statute because the Respondent did not have notice of, or a fair opportunity to present a defense to, this allegation, and because the Judge abused his discretion by suggesting at the hearing that the complaint be amended to include this violation.

      Section 7116(a)(4) of the Statute provides that it is an unfair labor practice "to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter[.]" Neither the complaint nor the amended complaint included an allegation that § 7116(a)(4) had been violated. Moreover, this allegation was not fully and fairly litigated. See Bureau of Prisons, Office of Internal Affairs, Wash., D.C. & Phoenix, Ariz. & Fed. Corr. Inst., El Reno, Okla., 52 FLRA 421, 429 (1996) (BOP); United States Dep't of Labor, Wash., D.C., 51 FLRA 462, 467 (1995).

      The record testimony set forth above demonstrates that the § 7116(a)(4) allegation was generated entirely by the Judge. The Judge's amendment of the complaint 171 to include the § 7116(a)(4) allegation was based on the filing of the unfair labor practice charge by the Union representative. The other allegations of the complaint were based solely on the posting and distribution of the flyer. As such, the Respondent did not "kn[o]w what conduct was at issue" and did not have "a fair opportunity to present a defense." BOP, 52 FLRA at 429. Consequently, the Judge erred in finding that the Respondent violated § 7116(a)(4) of the Statute.

      Moreover, we also find that the Judge abused his discretion by suggesting, sua sponte, that the complaint be amended to include this new allegation. It is the responsibility of the General Counsel, not an administrative law judge, to determine whether to amend an unfair labor practice complaint.

      Based on the foregoing, we will dismiss the § 7116(a)(4) allegation of the complaint that was added by the Judge at the hearing.

B.     The Judge did not err in finding that the flyer distributed
         and posted by the Union representative constituted
         protected activity under the Statute.

      The Respondent acknowledged in its exceptions that, although it was prejudiced by the Judge's action in adding the § 7116(a)(4) allegation, it was nonetheless "prepared to defend" the § 7116(a)(1) and (2) allegations at the hearing. Exceptions at 8. In addition, the Respondent makes no claim that the Judge's action regarding the § 7116(a)(4) allegation affected his impartiality in deciding the § 7116(a)(1) and (2) allegations. Rather, the Respondent's arguments in its exceptions with respect to the § 7116(a)(1) and (2) allegations address the merits of the Judge's analysis, not his impartiality.

      In these circumstances, we conclude that the Respondent's claim of prejudice is limited to the § 7116(a)(4) allegation, and that there is no such claim as to the § 7116(a)(1) and (2) allegations. Accordingly, we will proceed to analyze the Judge's findings as to the § 7116(a)(1) and (2) allegations on their merits, and, in the absence of any such request from the Respondent, we decline to consider whether the Judge's action regarding the § 7116(a)(4) allegation affected his impartiality in deciding the § 7116(a)(1) and (2) allegations.

      We recently clarified the application of the Letterkenny framework to cases of alleged discrimination in violation of § 7116(a)(1) and (2). See United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan AFB, Tucson, Ariz., 58 FLRA 636 (2003) (Davis Monthan AFB). Under that framework, the GC establishes a prima facie case of discrimination by demonstrating that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee. Once the GC makes the required prima facie showing, an agency may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of the protected activity. Id.

      In light of the court's decision in 315th Airlift Wing, 294 F.3d 192 (D.C. Cir. 2002), we further clarified that when the alleged discrimination concerns discipline for conduct occurring during protected activity, "a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity." Davis Monthan AFB, 58 FLRA at 636. In this regard, the court stated that "[f]lagrant misconduct is a sufficient, but not necessary, condition for a loss of privilege under § 7102 [of the Statute]." 294 F.3d at 201. As the court noted in discussing earlier Authority precedent, "`flagrant misconduct' [i]s only illustrative of exceeding the boundaries of protected activities." Id. at 202 (emphasis in original).

      If conduct that exceeds the boundaries of protected activities is established, the conduct loses its protection under the Statute and can be the basis for discipline. If the conduct retains its protection, it cannot be the basis for discipline. "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" does not exceed the boundaries of protected activities. Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 53 FLRA 1500, 1516 (1998) (OIA). Under the Letterkenny framework, the agency has the burden of establishing its affirmative defense by a preponderance of the evidence, and the GC has the overall burden of establishing the violation by a preponderance of the evidence on the record as a whole.

      The Respondent argues on exceptions that the posting and distribution of the flyer did not constitute protected activity under the Statute because: (1) it was prohibited by Article 7, Section (n) of the parties' agreement; and (2) the content of the message itself removed it from statutory protection.

1.     The Judge correctly determined that the posting and distribution of the flyer
        were not prohibited by Article 7, Section (n) of the parties' agreement.

      When a defense to an unfair labor practice complaint is governed by the interpretation and application of specific terms of the parties' collective bargaining agreement, the Authority must ascertain the meaning of the provision. When a judge's interpretation of a collective bargaining agreement is challenged on exceptions, the Authority must decide whether the judge's determination is supported by the record and by the standards and principles of interpreting collective bargaining 172 agreements applied by arbitrators and the federal courts. See, e.g., United States Dep't of Veterans Affairs, 57 FLRA 515, 519 (2001); United States Dep't of Justice, INS, Wash., D.C., 52 FLRA 256, 261 (1996); IRS, Wash., D.C., 47 FLRA 1091, 1111 (1993). Therefore, the issue to be resolved in this case is whether the Judge's interpretation of the cited provision of the parties' agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts.

      As previously noted, Article 7, Section (n) of the parties' agreement provides:

The parties agree that they and their representatives will not make statements or post notices in inmate access areas which would endanger staff or the security of the institution.

Agency's Exhibit 2 at 18.

      The Judge found that "[t]he plain language of section (n) prohibits notices which would endanger staff or the security of the Facility." Judge's Decision at 20. The Judge specifically found that there was no evidence that the flyer endangered staff or the security of the facility. He found, instead, that the flyer was posted in highly restricted areas where inmates have only limited access. He further found that there was no evidence by the Respondent showing how its staff would be endangered. The Judge noted that only two employees complained about the flyer and neither asserted that the flyers were a threat to them or the facility.

      We find that the Judge's interpretation of Article 7, Section (n) is supported by his factual findings and the record as a whole. See Air Force Material Command, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 53 FLRA 1092, 1093 (1998) (Authority looks to whether judge's factual findings and record as a whole support judge's conclusion).

      In reaching this result, we reject the Respondent's contention that the Judge's analysis requires the agency to prove that actual harm occurred before the Respondent can remove a posting and still be protected by Article 7, Section (n). The Judge's interpretation of this provision does not require a showing of actual harm; it does, however, require a showing of how the staff or security of the facility would be endangered. As stated above, the Judge specifically found that the Respondent failed to show how the staff or security of the facility would be endangered. Id. This finding is fully supported by the record.

      The Respondent's argument -- that since "the flyer was posted where it was visible to inmates," inmates could have become aware of conflicts between the staff and used this information to manipulate the staff and compromise the security of the institution -- relies on facts which are contrary to the Judge's factual findings and the record. Exceptions at 13. [n6] At the hearing, the Associate Warden, the Supervisor who removed the flyer and the Assistant Human Resources Manager acknowledged that they had no knowledge of any inmates who actually saw the flyer. Judge's Decision at 14; Transcript at 94, 105, 112. Consistent with this testimony, the Judge found no evidence that showed that any inmates actually saw the flyer. Judge's Decision at 25.

      We further reject the Respondent's argument that the Judge's interpretation of the agreement failed to give the Respondent the proper deference on the issue of security. The Judge carefully considered where the flyers were posted and distributed, as well as the access of inmates to these areas. The Respondent had a full and fair opportunity to present evidence on this issue to the Judge and failed to persuade the Judge that the posting would endanger the facility or its staff.

      In sum, we find that the Judge's interpretation and application of Article 7, Section (n) of the parties' agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. Accordingly, we deny the Respondent's exception.

2.     The distribution and posting of the flyer did not exceed the boundaries of
        protected activity.

      As noted above, when the alleged discrimination concerns discipline for conduct occurring during protected activity, a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity. Davis Monthan AFB, 58 FLRA 636 (2003).

      We disagree with the Respondent's assertion that given the personal and defamatory nature of the flyer, the Union representative's conduct was "outside the broad range of protected activit[y]." Exceptions at 16. The Respondent relies on facts that are contrary to the Judge's factual findings, which are supported by the record. The Judge found that while the flyer did mention the EAP Counselor by name, "it contained no derogatory or defamatory statements" about her or the position she held. Judge's Decision at 25. The Judge also found that the Respondent failed to show that either 173 the EAP Counselor's ability to perform her duties as a psychologist to inmates, or the EAP program, was harmed by the flyer. Furthermore, the Judge noted that the psychologist did not testify at the hearing and, therefore, there is no way to know the impact of the flyer on her personally other that the "unsupported speculation offered by Respondent." Id.

      In sum, the Respondent has failed to show that the Union representative's conduct constituted flagrant misconduct or otherwise exceeded the bounds of protected activity. Accordingly, we deny the deny the Respondent's exception.

C.     The Judge correctly found that the Respondent did not have
         legitimate, nondiscriminatory reasons for referring the
         Union representative's conduct to the OIA for investigation,
         for conducting an SIS investigation and for subsequently
         proposing discipline.

      As previously stated, once the GC makes the required prima facie showing, the burden then shifts to the agency to establish, as an affirmative defense, 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. Davis Monthan AFB, 58 FLRA 636 (2003).

      The Respondent asserts that it had legitimate justifications for its actions and that it would have taken the same action absent the Union representative's protected activity. However, the Respondent relies on factual assertions that, as noted previously, are contrary to the Judge's factual findings. Among other things, the Judge found that the flyer was not derogatory or defamatory; it did not disrupt agency operations; it was not seen by inmates; and it did not harm either the psychologist's ability to perform her duties as a psychologist to inmates, or the EAP program. Judge's Decision at 25. The Judge further found that, while the contents of the flyer may have been offensive to some, the Respondent's right to maintain order and respect for its supervisory staff was not affected, particularly in light of the fact that the Union representative desisted from the activity once he was ordered to do so by the Associate Wardens.

      Put another way, the Respondent's alleged legitimate reason for taking the disciplinary action here is actually a relitigation of whether or not the employee was engaged in protected activity that was otherwise inappropriate. In that regard, however, we have already concluded that the employee's conduct fell within the bounds of protected activity that is not otherwise inappropriate. As a result, and in the absence of some other proffered reason for its actions, it makes no sense (or difference) for the Agency to now argue that it had a legitimate basis for its actions -- that legitimacy has already been disproven. It also is meaningless for the Agency to argue that it would have taken the same action in any event -- it has cited no reason for its action other than the one that has already been disproven. While the Agency argues that its actions are proper under Letterkenny, its lack of any other basis for its actions makes resolution of this case more like a traditional protected activity analysis: if the employee's activity is inappropriate, the Agency may discipline him; if not, the disciplinary action is improper. See generally Davis Monthan AFB, 58 FLRA at 636; Letterkenny, 35 FLRA at 120 (Where a respondent's motive is found to be pretextual, "unless the respondent establishes that there was an additional lawful (nonpretextual) motive for its allegedly discriminatory action, it is not necessary to determine whether the respondent would have taken the disputed action even without the unlawful motive.").

      In the instant case, the Judge found, and we agree for the reasons stated by him, that the Respondent failed to prove by a preponderance of the evidence that it had a legitimate reason for its actions. [n7] Accordingly, we deny the Respondent's exception.

D.     The Judge's recommended remedy is extraordinary and is
         not warranted in this case.

      The Respondent excepts to that portion of the remedy that directs the Respondent to post the Authority's notice on its television monitors and over its electronic mail system.

      The posting of a notice serves the two remedial purposes of demonstrating to bargaining unit employees that: 1) the Authority will vigorously enforce rights guaranteed under the Statute, and 2) the respondent recognizes and intends to fulfill its obligations under the Statute. Nat'l Guard Bureau, 57 FLRA 240, 245 (2001). In analyzing the proper scope of the posting requirement, the Authority considers whether the posting's scope serves the two goals of the notice remedy. Id. at 245.

      In this case, the Judge's order directing the Respondent to post notices on television monitors and the electronic mail system is not necessary to serve the goals of the notice remedy. Rather, the traditional posting of a notice at the respondent's facility "in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted" will serve the stated goals. 174

      We agree with the Respondent that posting a notice on television monitors and through the e-mail system would constitute a non-traditional remedy. In determining whether requested, nontraditional remedies are appropriate, the Authority applies the following standard:

[A]ssuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to recreate the conditions and relationships with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct.

F.E. Warren AFB, 52 FLRA at 161 (citation and internal quotations omitted).

      The record here does not establish that requiring the Respondent to post the order over its television monitors and electronic mail system is reasonably necessary and would be effective to recreate conditions and relationships with which the violation interfered or to effectuate the purposes and policies of the Statute. Accordingly, we grant the Respondent's exception and modify the Judge's remedy.

V.      Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Florence, Colorado, shall:

      1.      Cease and desist from:

           (a) Interfering with bargaining unit employees' rights protected by the Federal Service Labor-Management Relations Statute (the Statute) to distribute union literature by requiring the Council of Prison Locals, American Federation of Government Employees, Local 1300, AFL-CIO (Union), to stop distributing copies of its flyer and by removing such flyers.

           (b) Proposing to suspend for one day Dennis Turner, or any other bargaining unit employees, in order to discriminate against the employee because the employee engaged in activity protected by the Statute.

           (c) Communicating to the Office of Internal Affairs that the allegations underlying the proposed suspension issued to Dennis Turner on April 7, 2000, or any other unit employees, have been sustained because the employee engaged in activity protected by the Statute.

           (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

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

           (a) Permit the Union to distribute copies of its flyer in accordance with existing practices for distributing such union literature at the Facility.

           (b) Expunge from all Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, including the Office of Internal Affairs, any and all records of the alleged unprofessional conduct against Dennis Turner being sustained.

           (c) Post at its facilities where bargaining unit employees are located, 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, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver 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. 175


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Florence, 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 interfere with bargaining unit employees' rights protected by the Federal Service Labor-Management Relations Statute (the Statute) to distribute union literature by requiring the Council of Prison Locals, American Federation of Government Employees, Local 1300, AFL-CIO (Union), to stop distributing copies of its flyer and by removing such flyers.

WE WILL NOT propose to suspend for one day Dennis Turner, or any other bargaining unit employees, in order to discriminate against the employee because the employee engaged in activity protected by the Statute.

WE WILL NOT communicate to the Office of Internal Affairs that the allegations underlying the proposed suspension issued to Dennis Turner on April 7, 2000, or any other unit employees, have been sustained because the employee engaged in activity protected by the Statute.

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

WE WILL permit the Union to distribute copies of its flyer in accordance with existing practices for distributing such union literature at the Facility.

WE WILL expunge from all Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, including the Office of Internal Affairs, any and all records of the alleged unprofessional conduct against Dennis Turner being sustained.

                         _______________________________
(Respondent/Activity)

Dated:_____________By:_____________________

                 Signature) (Title)

     

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, t