United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Safford, Arizona (Respondent) and American Federation of Government Employees, Local 2313 (Union)

[ v59 p318 ]

59 FLRA No. 49

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
SAFFORD, ARIZONA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2313
(Union)

DE-CA-01-0349

_____

DECISION AND ORDER

September 30, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

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 (GC) filed an opposition to the exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by its conduct in a meeting held on February 1, 2001.

      The Judge found that the Respondent violated the Statute as alleged and recommended an Order requiring the Respondent to cease and desist from such conduct.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II.      Background and Judge's Decision

A.     Background

      The AFGE, Council of Prison Locals (the Council) is the exclusive representative of a unit at the Bureau of Prisons (BOP). AFGE, Local 2313 is the agent of the Council for the purposes of representing employees at [ v59 p319 ] the Respondent's facility in Safford, Arizona. The BOP and the Council are parties to a master agreement (CBA). Article 12, Section (c) of the CBA provides:

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.

Judge's Decision at 2. AFGE, Local 2313 and the Respondent negotiated a Supplemental Agreement (SA) for the Safford, Arizona facility. Article 12 of the SA, entitled Use of Office Facilities, provides as follows:

The employer agrees to establish a GroupWise mailbox in which staff access to the mailbox is controlled by the Union President. The Union agrees that access to the mailbox will be provided to one management official designated by the Warden. Union members may utilize the LAN system to communicate with Union officials, within existing regulations.

Id.

      The BOP issued Program Statement (PS) No. 1237.12, which stated that its purpose is:

To protect the Bureau's information resources from unauthorized use, misuse, and destruction.

Id.

      Section 5 of PS No. 1237.12 sets forth certain prohibitions for computer users. In particular, Section 5a.(5), prohibits:

Sending or forwarding E-Mail from or to government computers (attachments, photos, information, etc.), which could be determined offensive.
A.     These may include, but are not limited to items or descriptions that are sexually explicit or degrading to any other person, as it relates to a person's gender, sexual orientation, race, creed, culture, etc.

Id. at 3. The parties do not dispute that PS No. 1237.12 was in effect at all times relevant hereto.

      On Monday, January 29, 2001, a Union steward sent an E-mail message to the membership of the SAF/Union using the GroupWise Union mailbox, stating:

                                              JUST A THOUGHT
ISN'T IT AMAZING THAT THE WARDEN TALKS ABOUT TEAM WORK AND KEEPING STAFF HAPPY, WORKING WITH STAFF.
BUT ON THE OTHER HAND SHE SPEAKS VOLUMES WITH HER ACTIONS.
FOR MORE INFO CONTACT A UNION REP.

Id.

      The Judge found that the Union steward who sent the E-mail testified that his message was sent after he learned that another local steward had been denied annual leave to attend school, and he wanted to inform and get feedback from the membership on the matter. The Judge further found that after reading the E-mail, the Computer Services Manager, who had been appointed to monitor the GroupWise mailbox pursuant to the SA, thought it was offensive and disrespectful of the Warden and in violation of PS No. 1237.12 and provided the Warden with a copy.

      When the Union steward reported to work on February 1, 2001, he was informed by his immediate supervisor that he was "ordered to attend a meeting in the Warden's office and that he could take a Union representative." Id. at 4. The Union steward contacted the Chief Steward and they reported to the Warden's office that afternoon. When they arrived, the Warden, Assistant Warden, the Controller, and the Union steward's second-line and immediate supervisors were present.

      The Judge found that testimony at the hearing revealed that the meeting started when the Warden handed those present a copy of the E-mail message sent by the Union steward. The meeting lasted no more than a few minutes and the Warden did most of the talking.

      The Judge found that the Union steward testified that: (1) the Warden asked him what the E-mail was about, and "if he was trying to gather a following[,]" to which the Union steward replied "no[;]" (2) the Warden further stated that "the best way to keep your credibility with the Warden is to have a good relationship[;]" (3) when the Chief Steward asked the Warden what she meant by that statement, the Warden replied "well that's going to be it. That's it. And you'll get it[;]" and (4) the meeting ended and that as they walked out the door, the Chief Steward asked the Warden, "what do you mean by `get it?' and "[t]he Warden said you will get it in writing." Id. [ v59 p320 ]

      The Judge further found that the Chief Steward's testimony was similar to that of the Union steward. The Judge found that the Chief Steward testified that: (1) the Warden stated to the Union steward during the meeting that "I know what you are trying to do. You are trying to gain a following. And don't you know that the way a Union official gains credibility is by having a good working relationship with management[;]" (2) she asked the Warden, "how can the meeting be over when I still don't even know what we're talking about here[,]" and the Warden replied "[y]ou're going to get it[;]" and (3) the Warden pointed her finger at her and she (the Chief steward) laughed and asked "well, what am I going to get[,]" and the Warden stated "you're going to get it in writing." Id. at 5. The Judge also found that the Chief Steward testified that at the time of this final exchange, the other managers had left the room and only the Union representatives were present with the Warden.

      The Judge found that after the meeting, the Warden never asked the Union to delete the E-mail in question nor did the Union steward receive any type of disciplinary action. The Judge also found that nothing else was ever sent in writing to the Union steward or the Chief Steward and the Union continues to use the GroupWise system under the negotiated terms.

      The Union filed a charge concerning the meeting, and later, the General Counsel issued a complaint that alleged the Respondent violated § 7116(a)(1) of the Statute when during the meeting the Warden told the Union representative words to the effect that: (1) the GroupWise system was not for editorializing; (2) the best way for a Union official to gain credibility is by maintaining a good relationship with the Warden; and (3) the Chief Steward was going to "get it."

B.     Judge's Decision

      The Judge first addressed the issue of whether the Union steward was engaged in protected activity when he sent the E-mail. The Judge found that Article 12 of the SA provides that "Union members may utilize the LAN [local area network] system to communicate with Union officials, within existing regulations." Id. at 8. The Judge found that no other specific restrictions are placed on the Union's use of the GroupWise system. The Judge further found that there was no evidence that the Union in the negotiations of this article, "ever agreed not to use the GroupWise system for "`editorializing.'" Id. The Judge found there was no evidence that the Union steward did not have the authority to utilize the GroupWise system. Accordingly, the Judge concluded that since the Union steward was engaged in activity provided in the SA, the sending of the E-mail was protected under the Statute. In support, the Judge cited United States Dep't of Labor, Employment and Training Admin., San Francisco, Calif., 43 FLRA 1036 (1992) (DOL, ETA).

      The Judge next addressed the question of whether the E-mail constituted flagrant misconduct and thus removed the otherwise protected activity from the protection of the Statute. The Judge noted § 7102 of the Statute and cited Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7 (1995) (Grissom), wherein the Authority set forth the test for determining flagrant misconduct.

      The Judge stated that a "simple reading of the [E-mail] does not show any obscene or intemperate language. There is nothing that could be considered `. . . sexually explicit or degrading to any other person, as it relates to the person's gender, sexual orientation, race, creed, culture, etc.'" Judge's Decision at 10 (quoting Respondent Exh. 2 at 3). The Judge determined that "[w]hile the language is not complimentary, criticism of a management official . . . does not necessarily remove the conduct from protected activity and in this case, does not in any way constitute flagrant misconduct." Id.

      The Judge next turned to the February meeting and the question of whether the Respondent by its conduct at that meeting violated § 7116(a)(1) of the Statute. The Judge found that although a Union representative was present at the meeting, the Warden made it clear "that this was a one-way conversation and she was not interested in what anyone else had to say." Id. at 11. The Judge found that during this meeting, the Warden "questioned [the Union steward] about his [E-mail] . . . [but] was merely asking rhetorical questions and was not expecting or wanting any response from him or his representative." Id. The Judge credited the Union's steward's version of the meeting, corroborated in part by the Chief Steward, the steward's supervisor, and the Controller.

      Citing Dep't of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 35 FLRA 891 (1990) (Hill AFB), the Judge set forth the standard for determining whether management's statements violated the Statute.

      Applying the test, the Judge found that the tone of the meeting was established prior to its commencement. In this regard, the Judge found that the Union steward's supervisor told him to be at the Warden's office and to bring his Union representative; and further asked him "what did [he] do to get the Warden mad at him." Id. at [ v59 p321 ] 12. The Judge also found that it was clear from the testimony that the Warden was "`mad'" at the Union steward. Id. Based on the fact that four levels of supervision were present at the meeting, the overall tone of the meeting, and the inability of the Union steward and his representative to ask questions or offer any explanation, the Judge found that the meeting was coercive in nature, and therefore, the Warden's actions violated § 7116(a)(1) of the Statute.

      The Judge also found that the Warden made comments to the Union steward and Chief Steward to the effect that they would "`get it.'" Id. In so finding, the Judge stated that although the substance of this comment is unclear, the Warden's response to attempts by the Union to get further information was clearly coercive. The Judge found the fact that nothing was done to either employee or to the GroupWise mailbox did not alleviate the original threat. Therefore, the Judge concluded that by its conduct at the meeting, the Respondent interfered with, restrained and coerced employees in their exercise of protected activity in violation of § 7116(a)(1) of the Statute.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent contends that the Judge applied the wrong standard in finding the E-mail was protected under the Statute. According to the Respondent, the Charging Party's right to use the GroupWise E-mail as an electronic bulletin board was established by the SA, which incorporated its regulations, and therefore, the Union's right to use the system had to be exercised in accordance with those contractual limits and not the boundaries of the Statute. In support, the Respondent cites, among other cases, Dep't of Defense, United States Army Reserve Personnel Command, St. Louis, 55 FLRA 1309 (2000) (ARPERCOM). The Respondent thus argues that by failing to apply the standards established by the SA and the regulation, the Judge erred as a matter of law.

      The Respondent contends that the E-mail is inconsistent with its governing policy and is not protected activity. According to the Respondent, the "standard in PS 1237.12 . . . prohibits [electronic communications] that `could be determined offensive[.]'" Exceptions at 9 (quoting PS No. 1237.12). Referring to Webster's Dictionary definition for "offensive," the Respondent argues that the question in this case was whether the E-mail "could cause anger, irritation, or displeasure, or could be deemed disagreeable, rude, or insulting." Id.

      The Respondent asserts that in determining whether the E-mail met its policy and the SA, the "General Counsel and not the Respondent had the burden of proof." Id. at 9-10. According to the Respondent, documentary and testimonial evidence support its position that the E-mail was offensive because it "reflected unfavorably on the [Warden] personally and was disrespectful and insulting to her." Id. at 10. The Respondent contends that its position is further supported by the fact that the General Counsel introduced no evidence or testimony that the message could not be found offensive.

      Based on its arguments, the Respondent asserts that its action, in bringing to the Union steward the "consequences of not adhering to [its] policy on electronic communications[,]" was proper under the SA and PS No. 1237.12. Id. at 12. Also, the Respondent contends that its conduct at the meeting did not violate the Statute because there is no evidence that the E-mail was removed or that any action other than the verbal warnings to the employee took place.

B.     General Counsel's Opposition

      The General Counsel asserts that the Judge properly analyzed the case as one involving the statutorily protected assertion of a contract right which did not involve flagrant misconduct. The General Counsel contends that the Judge's finding that the E-mail was protected activity is supported by DOL, ETA and the record. The General Counsel asserts that the SA authorizes Union members to use the LAN system within existing regulations.

      The General Counsel argues that this case is distinguishable from ARPERCOM. Also, the General Counsel contends that to the extent the exceptions seek to overturn the Judge's credibility determinations, the exceptions are without merit. As to the Respondent's contention that it is the General Counsel's burden to establish that the E-mail met Agency policy, the General Counsel asserts that it is the Respondent's burden to establish that otherwise protected activity constitutes flagrant misconduct.

IV.     Analysis and Conclusions

The Judge Did Not Err by Concluding that the Respondent Violated § 7116(a)(1) of the Statute

      Before addressing the question of whether the Respondent violated § 7116(a)(1) of the Statute, we note that the Respondent challenges the Judge's application of the flagrant misconduct standard in this case arguing that instead of applying such standard, the Judge should have applied the parties' contractual standard [ v59 p322 ] to determine whether the E-mail sent by the Union steward complied with the parties' SA and Agency regulations incorporated therein.

      The complaint's sole allegation is that the Respondent violated § 7116(a)(1) of the Statute by making certain statements at the February 1 meeting. Under Authority precedent, a respondent violates § 7116(a)(1) of the Statute by making statements that would tend to interfere with, restrain, or coerce a reasonable employee in the exercise of rights under the Statute. U.S. Dep't of Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba, Ky., 49 FLRA 1020 (1994). The questions of whether the prior E-mail was protected activity, whether it complied with the parties' contractual standard, and whether there was flagrant misconduct are not relevant to this inquiry. In particular, flagrant misconduct arises as a defense to alleged discrimination in violation of § 7116(a)(2) of the Statute. See United States Dep't of the Air Force, Aerospace Maintenance and Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003) (Davis Monthan AFB) (flagrant misconduct standard applied where complaint alleged discrimination in violation of § 7116(a)(2) of the Statute). As no such allegation was made in this case, it was unnecessary for the Judge to address the flagrant misconduct standard or whether the E-mail sent by the Union steward complied with the parties' SA and Agency regulations incorporated therein. Accordingly, we do not address the Judge's determination on these matters. [n1] 

      Turning to the issue of whether the Respondent violated § 7116(a)(1) of the Statute, the Judge found that the Respondent violated the Statute by its action at the February 1 meeting. For the reasons discussed below, we conclude that the Judge correctly determined that the Respondent violated § 7116(a)(1) of the Statute.

      As mentioned above, the complaint in this case alleges that the Respondent violated § 7116(a)(1) of the Statute by making three statements at a meeting to discuss the posting of a message on the Union's electronic bulleting board: (1) asking the Union steward about the electronic bulletin board message and telling him that the GroupWise system was not for editorializing; (2) telling him that the best way for a Union official to gain credibility is by maintaining a good relationship with the Warden; and (3) telling the Union's Chief Steward that she was going to "get it."

      The standard for determining whether a management's statement or conduct violates § 7116(a)(1) of the Statute is an objective one. The question is whether, under the circumstances, the statement or conduct would tend to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. See Dep't of the Air Force, Scott Air Force Base, Ill., 34 FLRA 956, 962 (1990). Although the surrounding circumstances are taken into consideration, the standard is not based on the subjective perceptions of the employee or the intent of the employer. See id.

      The Judge credited the Union's steward's testimony that the following occurred:

. . . the Warden said this will be a one-way conversation. [The steward] interrupted and said he had his Union representative and they had the right to speak. [The Warden] then asked [the steward] what was the GroupWise message all about? [The Warden] asked [the steward] if he was trying to gather a following and he said no. [The Warden] then said the best way to keep your credibility with the Warden is to have a good relationship. [The Chief Steward] then asked what do you mean? The Warden then said, well that's going to be it. That's it. And you'll get it. The meeting ended and everyone got up. As they walked out the door, [the Chief Steward] said well, what do you mean by "get it"? The Warden said you will get it in writing.

Judge's Decision at 4, 11.

      Consistent with the Judge's findings that these statements were made, we agree with the Judge that the Respondent violated § 7116(a)(1) of the Statute. These statements expressly discouraged the Charging Party's representatives from "gather[ing] a following," urged the Charging Party's representatives to conduct their representational activity in a way that pleases management representatives, and threatened that the Charging Party's representatives would "get it." Id. at 4. Read together and in context, the statements are coercive and, as such, interfere with, restrain, and coerce employees in the exercise of rights under the Statute. [n2] 

      Based on the foregoing, we find that the Respondent violated § 7116(a)(1) of the Statute, and we issue the following Order. [ v59 p323 ]

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, Safford, Arizona, shall:

      1. Cease and desist from:

           (a) Making statements that coerce or discourage employees from exercising the rights accorded by the Federal Service Labor-Management Relations Statute.

           (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

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

           (a) Post at its facilities at United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Safford, Arizona where bargaining unit employees represented by the Union 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 will be taken to insure that such Notices are not altered, defaced, or covered by any other material.

           (b) 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.


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, Safford, Arizona, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice

We hereby notify employees that:

WE WILL NOT make statements that coerce or discourage employees from exercising the rights accorded by the Federal Service Labor-Management Relations Statute.

WE WILL NOT in any like or related manner, interfere with , restrain, or coerce our employees in the exercises of their rights assured by the Federal Service Labor-Management Relations Statute.

  _____________________________
                     (Activity)

Dated:____________By:______________________
                                             (Signature) (Title)

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

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is: 303-944-5224.


File 1: Authority's Decision in 59 FLRA No. 49
File 2: ALJ's Decison


Footnote # 1 for 59 FLRA No. 49 - Authority's Decision

   Although the Judge's application of the flagrant misconduct standard is not relevant to this inquiry, Chairman Cabaniss would note that the Judge did not properly apply such standard. Cf. Davis Monthan AFB, 58 FLRA 636 (flagrant misconduct standard applied in circumstance where complaint alleged discrimination in violation of § 7116(a)(2) of the Statute).


Footnote # 2 for 59 FLRA No. 49 - Authority's Decision

   Chairman Cabaniss notes that she would find a violation only with respect to the second statement and that she would impose liability on the Respondent based solely on this statement. In view of this determination, she would find it unnecessary to review the merits of the remaining allegations set forth in the com