U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION PEKIN, ILLINOIS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 701, AFL-CIO
Office of Administrative Law Judges
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
Case No. CH-CA-90107
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 701,
Greg A. Weddle, Esquire John F. Gallagher, Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding arises under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the
United States Code, 5 U.S.C. § 7101, et
the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1,
et seq. and
concerns whether the Federal Correctional Institution, Pekin,
Illinois (Respondent) violated § 16(a)(1) and (2) of the Statute by
failing to select employee Paul Sailer for the position of
Correctional Counselor, GS-9, because Sailer had engaged in
representational activities on behalf of AFGE Local 701 (Union).
Respondent denies that its failure to select Mr. Sailer for the
position was unlawfully motivated (G.C. Exh. 1(j)).
This case was initiated by a charge filed on November 16,
1998 (G.C. Exh. 1(a)), alleging violation of §§ 16(a)(1), (2) and
(4) of the Statute; the Complaint and Notice of Hearing issued July
21, 1999 (G.C. Exh. 1(c)), but alleged violation only of §§
16(a)(1) and (2) of the Statute. The hearing was set for September
15, 1999, in Peoria, Illinois, at a place to be determined and by
notice dated September 8, 1999 (G.C. Exh. 1(x)), the place of
hearing was fixed, pursuant to which a hearing was duly held on
September 15, 1999, in Peoria, Illinois, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issue
involved and were afforded the opportunity to present oral argument
which General Counsel waived and which Respondent exercised. At the
conclusion of the hearing, October 15, 1999, was set as the date
for filing post-hearing briefs, which time, subsequently, was
extended, on motion of General Counsel, to which the other parties
did not object, for good cause shown, to November 5, 1999. General
Counsel and Respondent each timely mailed a helpful brief, received
on, or before, November 10, 1999, which have been carefully
The legal skirmishing in this case actually began on August
26, 1999, with Respondent's filing of a motion for summary judgment
(G.C. Exh. 1(l)) and a motion for a more definite complaint (G.C.
Exh. 1(p)). Additionally, on September 3, 1999, the Respondent
petitioned to revoke a subpoena requiring the production of various
correspondence pertaining to the selection of an applicant for the
vacant Correctional Counselor position (G.C. Exh. 1(t)). Not
surprisingly, General Counsel opposed such motions (G.C. Exhs.
1(n),(r), and (v)). The Chief Judge denied the first two motions
but granted the third, in part, by Order dated September 9, 1999
(G.C. Exh. 1(dd)). Respondent also filed a motion on September 7,
1999, to suppress the testimony and witness statement of Kimberly
Chermock (G.C. Exh. 1(z)), to which motion General Counsel
responded on September 8, 1999 (G.C. Exh. 1(bb)).(2) On September 10, 1999, General Counsel
petitioned to revoke Respondent's subpoenas which sought to compel
specified FLRA employees to produce certain statements and
documents obtained from Ms. Chermock during the investigation of
the unfair labor practice charge in this case (G.C. Exh. 1(ff)). By
Order dated September 13, 1999, the Chief Judge granted General
Counsel's motion to revoke Respondent's subpoenas (G.C. Exh.
Based upon the entire record, including my observation of
the witnesses and their demeanor, I make the following findings and
A. The Parties' Relationship
The Federal Correctional Institution at Pekin, Illinois, is
a large new Federal prison, having opened in 1994 (Tr. 19, 87-88).
Mr. David Helman was appointed as its first Warden and served in
that capacity until his retirement in April, 1999 (Tr. 19, 88).
During his 26 years of service for the Federal Bureau of Prisons,
Mr. Helman performed a number of functions. For example, prior to
becoming the Warden at Pekin, Mr. Helman served as the Deputy
Assistant Director of Human Resources Management Division at the
Bureau of Prisons, Headquarters in Washington, D.C., where he was
responsible for overseeing the nationwide labor-management
relations program for the agency (Tr. 87). He also has had
considerable experience in labor-management relations throughout
his career with the Bureau of Prisons (Tr. 109).
At the FCI in Pekin, employees included in the nationwide
bargaining unit are represented by AFGE Local 701 (G.C. Exhs. 1(c)
and 1(j)). Mr. Randy Martin is the Union's President (Tr. 19-20)
and had a good relationship with Warden Helman, both during his
tenure as the Union's Vice-President and after becoming President
two years ago (Tr. 20, 23-24, 30-31, 111).
B. Paul Sailer's Arrival at FCI
Warden Helman and Mr. Paul Sailer both testified concerning
the circumstances surrounding the latter's arrival at Pekin. To a
great extent, their testimony does not overlap. That is, Mr. Sailer
testified about a telephone conversation he had with Warden Helman
before moving from the U.S. Penitentiary in Lompoc, California, to
Pekin, a conversation about which Warden Helman was never
questioned. Instead, Warden Helman testified to a separate
telephone conversation he had with Lompoc's Warden, Patrick
Colhane, concerning Mr. Sailer's desire to relocate.(3) Accordingly, I have no way of determining
what Warden Helman would have testified about the purported
telephone conversation between himself and Mr. Sailer if given the
opportunity. I therefore credit Mr. Sailer's unrebutted testimony
and find that the conversation occurred. The inferences to be drawn
from that conversation are another matter, of course, and will be
In the spring of 1995, Warden Helman received a telephone
call from Warden Colhane in Lompoc, who explained that Mr. Sailer
had requested a transfer, or reassignment, to the Pekin facility
primarily for reasons of family hardship, i.e., a desire to be reunited with family in the area
from whom he and his wife had been separated for a long time (Tr.
89).(4) As Mr. Sailer describes it,
Warden Colhane called him out of a training session, told him of a
possible opening in Pekin, and instructed him to contact Warden
Helman (Tr. 48). Mr. Sailer called Warden Helman that night from
home and they discussed issues such as how inmates should be
managed and what living arrangements Mr. Sailer would make upon
being transferred to the Pekin facility (Tr. 49). According to Mr.
Sailer, Warden Helman then, ". . . brought up my union activities,
said he was concerned about my union activities" but did not
explain what he meant by concerned (id.). In response, Mr. Sailer
further testified that he explained to Warden Helman that he viewed
the union as a tool to help wardens manage their institutions, a
response which appeared to satisfy Warden Helman (id.). At some
point after these conversations, although Warden Helman was under
no obligation to honor the request, he agreed to Mr. Sailer's
transfer and paid his moving expenses (Tr. 89). Mr. Sailer was
officially transferred to the Pekin facility in May 1995 (Tr.
C. Mr. Sailer's Union Activities at FCI
On his first day of duty at Pekin, Mr. Sailer was offered
and accepted the position of Union Vice-President and served in
that capacity until December 1995, when he became the Union
President upon the incumbent's resignation (Tr. 50-51). Under his
administration, membership in the Union increased from 98 to
approximately 160, and he was involved in a number of
representational activities (Tr. 50-52). For example, in July 1996,
Mr. Sailer was interviewed by a reporter for an article which
appeared in the local newspaper concerning allegations by minority
employees at Pekin that they were hired by Warden Helman at lower
salaries than non-minorities (Tr. 52-53). Mr. Sailer's comments
elicited a rebuttal article from Warden Helman which appeared in a
later issue of that newspaper and an appearance by the Warden about
a month later at the next scheduled labor-management relations
meeting to request that, in the future, Mr. Sailer should raise
such concerns with the Warden before bringing them to the media
(G.C. Exh. 2; Tr. 52-56).(6) As Mr.
Sailer described the exchange at that meeting, ". . . To prove a
point, I got loud and talking over him and was explaining to him
that I represented the employees. I would speak to the employees
anytime I wanted and if that was the route I wanted to take care of
an issue, I would go that way." (Tr. 56).
Mr. Sailer filed between 30 and 40 grievances while Mr.
Helman served as the Warden at Pekin (Tr. 58)(7) and was the Union's representative at
arbitration hearings where he cross-examined Warden Helman who was
testifying as a witness (Tr. 61-62). On one such occasion,
involving the discipline of a unit employee for using profanity,
Warden Helman was asked (for purposes of comparison) about a
different employee who had used profanity in the past and testified
that there had been two such instances, whereas Mr. Sailer was
attempting to establish by questioning the Warden that in fact
there had been three previous occurrences (Tr. 62-64). At that
point, Mr. Bob Will, the agency's representative at the
arbitration, accused Mr. Sailer of calling the Warden a liar (Tr.
64). Mr. Helman testified credibly herein that he did not interpret
Mr. Sailer's questioning as Mr. Will did because Mr. Sailer was
proceeding in a civil and professional manner to establish the
facts (Tr. 113).
Several grievances were filed on Mr. Sailer's behalf. In one
such case occurring in 1995, Mr. Sailer was charged with using
abusive and insulting language toward a woman in an elevator, for
which his supervisor had recommended a three-day suspension (Tr.
90-91). Warden Helman reduced the discipline to a letter of
reprimand in light of Mr. Sailer's excellent work record and his
expression of remorse over the incident in a discussion with the
Warden (R. Exh. 5; Tr. 91-92). On two other occasions, grievances
involving Mr. Sailer's performance evaluations were granted and the
ratings raised by the Warden to the highest possible level of
"outstanding" (R. Exh. 1, G.C. Exh. 4; Tr. 28-29, 66-68, 96-97). On
the basis of such action, Mr. Sailer was awarded a retroactive
pay-enhancing quality step increase which was presented to him by
the Warden in a large staff meeting so that the award could be
shared with his colleagues (R. Exh. 9; Tr. 95-96, 97-98).
D. Meeting of Supervisors and Managers on
April 15, 1998
It is undisputed that Warden Helman called a meeting of all
managers and supervisors at the Pekin facility for April 15, 1998,
to discuss the significant new terms contained in the
recently-completed nationwide agreement negotiated between the
Federal Bureau of Prisons and AFGE's Council of Prison Locals (Tr.
35, 108-09, 135-36). The testimony differs as to what Warden Helman
said at the meeting. As previously noted, I credit Warden Helman's
version of these events to the extent that the witnesses disagree.
In this instance, the Warden's testimony is corroborated by John
Copley, who was at that time FCI Pekin's Human Resources Manager
and was present at the meeting to conduct the substantive training
on the contract's provisions (Tr. 135-36).(8) Ms. Kimberly Chermock, who was then the
Assistant Safety Manager at FCI Pekin and was present at the
meeting in her supervisory capacity,(9) testified to a somewhat different version of
the same meeting (Tr. 35-38). I was unpersuaded by Ms. Chermock's
testimony not only on the basis of her demeanor, but also because
of certain internal inconsistencies and imprecise recollections on
her part. For example, Ms. Chermock testified that she took notes
of the meeting and thought that Warden Helman's comments were
"completely inappropriate" (Tr. 39-40), but threw her notes away
because she did not believe they were important enough to keep (Tr.
40-41). Additionally, she waited for more than a year to tell Mr.
Sailer what the Warden allegedly said at the meeting and even
longer to give a statement about those events to a representative
of the General Counsel (Tr. 39-41). She also could not remember
when she told Mr. Sailer about the Warden's comments or when she
gave a statement to the General Counsel (id.).
At the meeting on April 15, 1998, attended by some 30 to 40
of FCI Pekin's managers and supervisors, Warden Helman gave some
introductory remarks which lasted about 30 minutes (Tr. 36, 108-09,
137). He explained that FCI Pekin was a new institution with young
and inexperienced supervisors, many of whom had never received
training in labor-management relations and did not understand the
importance of a master agreement in dealing with labor issues which
were bound to arise, whereas he had a quarter century of experience
in those areas which he wanted to convey to them. In particular, he
wanted them to know the importance that he and the Director of the
Federal Bureau of Prisons attached to the master agreement, and his
expectation that the managers and supervisors ". . . understand it,
read it, study it, abide by it." (Tr. 109). Warden Helman also
mentioned and discussed several of the Union's representatives,
including Randy Martin, the Union's President, and Paul Sailer, its
Chief Steward (Tr. 110-11). With regard to Mr. Sailer, Warden
Helman described him as, ". . . an expert on labor/management
relations"; ". . . well versed on the master agreement"; ". . .
very active in pursuing grievances he felt needed to be pursued";
". . . very assertive"; and as a "tenacious" individual who ". . .
would certainly not hesitate to challenge management when he
thought it was appropriate." (id.).(10) His purpose in describing Mr. Sailer in
these terms was to ensure that his managers understood the need for
them to learn the master agreement as well as Mr. Sailer did, and
that they should not shy away from their responsibilities in
dealing with him (Tr. 111).(11)
Warden Helman then described Union President Martin as less
experienced in both prison work and in union representational
responsibilities than Mr. Sailer, and therefore as someone who
would rely heavily on Mr. Sailer to resolve labor problems at the
facility (id).(12) Warden Helman
also made it clear that the Union had the right to represent unit
employees, and that he expected them to act within the confines of
the master agreement in keeping with the good labor-management
relationship at the facility (Tr. 137-38).
E. Doris Haymon's Selection as Correctional Counselor
Early in September 1998, Respondent posted Vacancy
Announcement No. 98-PEK-017 to select a GS-9 Correctional Counselor
at FCI Pekin (G.C. Exh. 6). Among the employees who filed timely
applications were Paul Sailer and Doris Haymon (G.C. Exhs. 8 and
9), and both subsequently were included on the Best Qualified list
of 5 employees (G.C. Exh. 7) forwarded to Warden Helman as the
selecting official, along with the 5 relevant application packages,
for his consideration (Tr. 71-72, 99-101, 125). The applicants were
listed in alphabetical order rather than according to their
relative ranking under the qualification factors for the vacant
position, and, consistent with established practice, Warden Helman
was not furnished the applicants' scores (R. Exh. 11; Tr. 101-02,
124-29). Thus, Warden Helman did not know which applicant had been
ranked highest by the rating panel. (Tr. 102, 131).
Warden Helman selected Doris Haymon for the position (Tr.
102). He was aware that Mr. Sailer had a higher performance rating
as a Correctional Officer and more seniority than Ms. Haymon, but
his own educational training and experience in the field of
correctional counseling led him to conclude that fine performance
by an officer in maintaining custody of inmates and preserving
security at a prison facility does not equate necessarily with
excellence as a counselor (Tr. 105-08, 118-19). In his judgment,
the most important attributes of a successful counselor, who is
involved with programs for and treatment of inmates, are good
communication and interpersonal skills (Tr. 103-04). Warden Helman
had observed Ms. Haymon's career since 1994, when he selected her
as a member of his staff at the inception of FCI Pekin's operations
(Tr. 102). At that time, Ms. Haymon had been employed at an FCI
facility in Florida which, like FCI Pekin, housed female inmates
who present management approaches different from those applicable
to male inmates (Tr. 102-03). He worked with her during the
start-up phase of FCI Pekin's operations, and ". . . was impressed
with her interpersonal skills. She reached out to inmates from a
community level. She showed no unwillingness to work in housing
units which is probably the toughest job in terms of dealing with
inmates . . ." (Tr. 103). Warden Helman also observed Ms. Haymon as
she served in a temporary capacity as a correctional counselor, for
which she had volunteered, and found her skills in communication
and interaction very suitable to the successful performance of that
job (Tr. 104-05).(13) Accordingly,
he selected her for the position.
Shortly thereafter, the Union filed an unfair labor practice
charge which led to the issuance of the instant complaint alleging
that Mr. Sailer was not selected because of his protected union
§ 16(a)(2) of the Statute makes it an unfair labor practice
for an agency,
"(2) to encourage or discourage membership in any labor organization by discrimination
in connection with hiring, tenure, promotion, or other conditions of employment;" (5
U.S.C. § 7116(a)(2)).
In order to establish a violation of § 16(a)(2), General Counsel
must establish by a preponderance of the evidence that: (1) the
employee against whom the alleged discriminatory action was taken
had been engaged in protected activity; and (2) such activity was a
motivating factor in the agency's treatment of the employee in
connection with hiring, tenure, promotion, or other conditions of
employment. Internal Revenue Service, Washington,
DC, 6 FLRA 96, 99 (1981); Letterkenny Army
Depot, 35 FLRA 113, 118 (1990)(Letterkenny). If General Counsel fails to make the
required prima facie showing, the case ends without further inquiry.
United States Customs Service, Region IV,
Charleston District, Charleston, South Carolina, 42 FLRA 177
(1991)(Customs Service); Letterkenny, supra. Even if
General Counsel makes the required "prima
facie" showing, an agency may show by a
preponderance of the evidence that it would have taken the same
action in the absence of protected activity, i.e., no violation of § 16(a)(2) will be found if the
agency demonstrates, 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 in the absence of protected
activity. Letterkenny, supra, 35 FLRA at 118-19; American
Federation of Government Employees, Local 1345, Fort Carson,
Colorado (In Trusteeship) and American Federation of Government
Employees, AFL-CIO, 53 FLRA 1789, 1793, 1794-95 (1998);
Department of the Air Force, Air Force Materiel
Command, Warner Robins Air Logistics Center, Robins Air Force Base,
Georgia, 55 FLRA No. 194, slip opinion p. 12 (January 11,
The record is clear that Mr. Sailer engaged in protected
activity and that Mr. Sailer, although among the five on the Best
Qualified List, was not selected for the posted vacancy for a GS-9
Correctional Counselor; but, for reasons more fully set forth
hereinafter, General Counsel has not established by a preponderance
of the evidence that Mr. Sailer's protected activity was a
motivating factor in his non-selection. General Counsel has
strained mightily to show that protected activity was a motivating
factor in Mr. Sailer's non-selection but has brought forth only a
mote. For example, General Counsel's reliance on Mr. Sailer's
assertion that Warden Helman in 1995 demonstrated anti-union
proclivity when he expressed concern about his, Sailer's, union
activities at Lompoc, not only is not supported by the record but
is shown by the record to be wholly fallacious. At the outset, if
Warden Helman, in fact, had had any concerns about Mr. Sailer's
union activity at Lompoc, he need only decline his request for a
transfer. Not only did Warden Helman approve his transfer but
arranged for the payment of his moving expenses. Then, Mr. Sailer's
reporting date at Pekin was delayed while Mr. Sailer was engaged as
a member of the Union negotiating team. Further, from the day he
arrived at Pekin, Mr. Sailer has been an active official of the
Second, General Counsel's assertion that Mr. Sailer's
criticism of Warden Helman in newspaper articles, a grievance and
during an arbitration hearing created motivation for Warden
Helman's refusal to select Mr. Sailer, i.e., that Warden Helman refused to select Mr. Sailer
because of his protected activity which was underscored by Warden
Helman's comments at a labor-management meeting in April 1998, is
not supported by the record which, contrary to General Counsel's
contention, affirmatively demonstrates an absence of bias towards
Mr. Sailer on the part of Warden Helman. As noted above, Warden
Helman did not take any action against Mr. Sailer over the 1996
newspaper article; Warden Helman did not rail at Mr. Sailer for
allegations that Warden Helman viewed as untrue, but, to the
contrary, responded factually to Mr. Sailer's allegations in a
rebuttal article and waited almost a month to raise the issue with
Mr. Sailer at a regularly scheduled labor-management meeting when
he requested that, in the future, Mr. Sailer raise such concerns
with the Warden before going to the media. Mr. Sailer needlessly
became loud and confrontational at the meeting. By contrast, Warden
Helman exercised admirable control and did not engage in a
provocative manner or raise his voice. While the record shows that
Mr. Sailer filed a grievance on, or about, January 8, 1998,
accusing Warden Helman of projecting ". . . a very negative image
of Blacks and Hispanics . . . ." on December 10, 1997, which
allegations Warden Helman found to be inaccurate (Tr. 112), the
record is silent as to the disposition of the grievance and,
certainly, does not show any adverse action taken against Mr.
Sailer. As to the cross-examination of Warden Helman by Mr. Sailer
in the Carter arbitration, Warden Helman very credibly testified
that, ". . . I recall the exchange which I felt was very civil,
very professional. I think the record would bear that out." (Tr.
113). Plainly, the record shows that whatever the agency advocate,
Mr. Bob Will (Tr. 65), may have said, Warden Helman, as he
testified, did not feel Mr. Sailer's cross-examination attacked his
veracity but had been civil and professional. Further, I have
examined with care, as set forth above, the record concerning the
meting of April 15, 1998, which Warden Helman called to review the
changes recently negotiated in the new nationwide master agreement
and find nothing which occurred at that meeting gave rise to any
inference of animus by Warden Helman towards the Union in general
or towards Mr. Sailer in particular.
On the other hand, the record affirmatively shows that
Warden Helman consistently, and on repeated occasions, treated Mr.
Sailer fairly, and without rancor which actions dispel any bias for
animus. Thus, Warden Helman granted Mr. Sailer's transfer from
Lompoc, California, on the grounds of family hardship and paid for
his moving expenses; in 1995, Warden Helman reduced a recommended
three day suspension of Mr. Sailer for disrespectful conduct and
use of insulting and abusive language, to a letter of reprimand
(Res. Exh. 5); in 1997, selected Mr. Sailer as a temporary
Counselor (Tr. 105), which position Mr. Sailer was assigned from
October, 1997, until January 3, 1998 (Tr. 70); and on two
occasions, grievances involving Mr. Sailer's performance
evaluations were granted by Warden Helman who, on each occasion,
raised Mr. Sailer to the highest possible level of "outstanding"
and on the basis of such action Mr. Sailer was awarded a
retroactive pay-enhancing quality step increase first, in June,
1996 (Res. Exh. 8) and again in September, 1998 (Res. Exh. 9; Tr.
Not only is the record devoid of any evidence of animus by
Warden Helman towards Mr. Sailer because of his protected activity,
but the record shows that Warden Helman, for wholly legitimate
reasons, selected Ms. Haymon. First, Ms. Haymon was on the Best
Qualified List and the Warden was lawfully entitled to select any
person on the Best Qualified List. Second, the record shows without
contradiction that Warden Helman was not given, and did not know,
scores or rankings of candidates. Third, while aware that Mr.
Sailer received "Outstanding" on his performance appraisal, while
Ms. Haymon received "Exceeds", on the basis of his personal
observation of Ms. Haymon's work as a Counselor during her
temporary assignment to the position, from June, 1998, until
October, 1998, the Warden was impressed by her skill in
communication and interaction which skills made her very, very,
suitable for the Counselor's job. On the other hand, while he saw
Mr. Sailer during the period Mr. Sailer served as temporary
Counselor, from October, 1997, until January 3, 1998 (Tr. 70),
Warden Helman stated that he saw Mr. Sailer somewhat less
frequently during this period than he had seen Ms. Haymon and was
not as impressed with his skills as a counselor, although as a
correctional officer Mr. Sailer was recognized as outstanding.
Fourth, because Pekin houses both male and female inmates, Ms.
Haymon, as a female, and on the basis of her experience at the
Federal Correctional Institution in Marianna, Florida, with female
offenders, offered impressive credentials in handling female
inmates inasmuch as, ". . . There are definitely differences in
managing female inmates from male inmates. I liked the experience
that Ms. Haymon brought . . . ." (Tr. 103). Fifth, Ms. Haymon had
completed training programs directly in line with the Counselor's
role, including, ". . . the American Correctional Association
[program] in suicide prevention and communication and in special
needs offenders . . . ." (Tr. 104). While Mr. Sailer had Unit
Disciplinary Committee (UDC) certification and Central Inmate
Monitoring (CIM) certification, which Ms. Haymon did not, neither
was a prerequisite for this job and the training may be achieved,
". . . once you're on the job." (Tr. 120). Consequently, Ms.
Haymon's course qualifications for the job of Counselor were at
least as significant as Mr. Sailer's and perhaps, because of
specific relation to job content, even a bit more significant than
Mr. Sailer's UDC and CIM certifications.
Because I find that General Counsel has failed to make the
required prima facie showing that Mr. Sailer's non-selection was
motivated by his protected activity, the complaint must be
dismissed. Customs Service, supra; Letterkenny,
supra. Should it be determined, contrary to
my finding, that Mr. Sailer's protected activity was a motivating
factor for his non-selection, nonetheless, Respondent has shown by
a preponderance of the evidence that: (1) there was a legitimate
justification for its selection of Ms. Haymon. Justification for
the selection of Ms. Haymon has been discussed fully above and need
not be repeated in detail. These reasons include: First, Ms. Haymon
was on the Best Qualified List; Second, Warden Helman was not given
and did not know the scores or rankings of candidates on the Best
Qualified List; Third, Warden Helman's personnel observation of Ms.
Haymon's work as a Counselor during her temporary assignment to the
position demonstrated her skill in communication and interaction
with inmates which made her very, very suitable for the position.
On the other hand, his observation of Mr. Sailer's work as a
Counselor during his temporary assignment to the position was not
impressive. Fourth, Pekin houses both male and female inmates and
Ms. Haymon offered impressive credentials in handling female
inmates which Mr. Sailer did not. Fifth, Ms. Haymon's completed
training programs were at least as significant as Mr. Sailor's and
perhaps, because of specific relation to job content, even a bit
more significant than Mr. Sailer's UDC and CIM certification; and
(2) that respondent would have made the same selection in its
absence of Mr. Sailer's protected activity. Warden Helman
testified, in part, as follows:
"A: I selected Ms. Haymon because I thought she was best suited for this correctional
counselor position. I had known Ms. Haymon since she arrived at Pekin when we
opened the institution in early -- excuse me -- late 1994. I was the selecting official for
her to come there."
"Ms. Haymon brought excellent experience from the Federal Correctional Institution
in Marianna, Florida where she had worked before. Marianna is in many ways like our
institution, and one of the attributes I was particularly impressed with was that Marianna is
one of the other few institutions that houses female offenders. We, of course, have the
mission of housing female offenders. There are definitely differences in managing female
inmates from male inmates. I liked the experience that Ms.
Haymon brought to this post."
"The factor that I was most impressed with was that I had interacted with Ms. Haymon
throughout our activation or opening process. I observed her dozens of times interacting with
inmates. I was impressed with her interpersonal skills. She reached out to inmates from a
community level. She showed no unwillingness to work in housing units which is probably the
toughest job in terms of dealing with inmates . . . ."
. . .
"I also was impressed with Doris' willingness to volunteer. She was one of the few women
willing to volunteer on a disturbance control team, and that's noteworthy. She also, on her own
initiative, completed a number of training programs that were not expected of her, and those
training programs were directly in line with the counselor's role. She completed programs with
the American Correctional Association in suicide prevention and communication and in special
needs offenders, which we had our share of at Pekin.
"Ms. Haymon always has impeccable uniform wear. She has an excellent attendance record.
She willingly volunteered for activities. But most important, I looked at her skills in communication,
interaction and found them very, very suitable to this particular job which was a counseling job. . . . ."
Accordingly, even if Mr. Sailer's engagement in protected
activity had been a motivating factor in his non-selection, the
record shows that Respondent had legitimate justification for its
selection of Ms. Haymon and would have made the same selection in
the absence of protected activity by Mr. Sailer. Therefore, it is
recommended that the Authority adopt the following:
The complaint in Case No. CH-CA-90107 be, and the same is
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: February 3, 2000
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., section 7116(a)(2) will be referred to, simply, as "§ 16(a)(2)".
3. I found Mr. Helman to be a forthright and truthful witness who was neither evasive nor incomplete in his responses even when he had the opportunity to do so. Accordingly, whenever his testimony conflicted with that of other witnesses, I credited Warden Helman's version of events.
4. Mr. Sailer testified that previously he had been promised a transfer to a different correctional facility in Greenville, Illinois, which failed to materialize; that he had filed an unfair labor practice charge over such failure; and that Warden Colhane was attempting to settle the pending charge by contacting Warden Helman about the possibility of transferring Mr. Sailer to Pekin, a facility located two hours from Greenville (Tr. 46-48). Warden Helman did not refer to any of this history in describing his conversation with Warden Colhane.
5. Mr. Sailer's arrival at the Pekin facility was delayed while he participated on behalf of AFGE at the national level in the negotiations which resulted in a nationwide collective bargaining agreement between AFGE and the Federal Bureau of Prisons covering all bargaining unit employees including those located at the Pekin facility (Tr. 50).
6. Warden Helman admitted that he was bothered by the article because prisons rarely get good press anyway, and he felt the allegations of racial discrimination were inaccurate; however, as with many other similar situations, he took the allegations in stride and responded to them (Tr. 112-13).
7. One grievance filed by Mr. Sailer also involved allegations that Warden Helman had made inappropriate remarks about blacks and hispanics (G.C. 3; Tr. 59-61). Warden Helman testified that he did not like it when the grievance was filed, because he found the allegations to be inaccurate (Tr. 112). There is no further record evidence concerning this grievance.
10. I find, contrary to Ms. Chermock's testimony, that Warden Helman did not call Mr. Sailer a "pit bull" but rather that such description was Ms. Chermock's more colorful paraphrasing of the word "tenacious." In this regard, I credit Human Relations Director Copley's testimony that the term "pit bull" was not used, but that Mr. Sailer was described as a very active union representative (Tr. 138).
11. I specifically discredit Ms. Chermock's testimony to the effect that the Warden described Mr. Sailer as a hater of all managers -- even those at Wal-Mart -- simply because they are managers (Tr. 38).
12. Although there is no indication that Warden Helman brought up at the April 15 meeting how he personally interacted with the two men, Mr. Martin testified credibly that in a private conversation with the Warden in January 1998, the Warden said that Mr. Sailer was too aggressive or too direct in his approach, and demonstrated for Mr. Martin how Mr. Sailer would come into his office, stand in front of his desk while the Warden was seated behind it, and begin immediately to present a labor problem, whereas Mr. Martin would always sit at the side of the Warden's desk and engage in pleasantries before presenting a substantive issue for discussion (Tr. 24-27).
13. Warden Helman further testified that he appreciated Ms. Haymon's willingness to volunteer for a variety of tasks, her initiative in taking courses to augment her counseling and related job skills, and her neat appearance in uniform (Tr. 104).