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59 FLRA No. 32
U. S. Dept. of Justice, Federal Bureau of Prisons, Federal Correctional Institution Florence, Colorado and AFGE, Local 1300, AFL-CIO Case No. DE-CA-00043 (Decided September 24, 2003)
The initial complaint alleged that the Respondent violated § 7116(a)(1) of the Federal Service Labor-Management Relations 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 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; 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
The Authority adopted the Judge's findings and conclusions that the Respondent violated § 7116(a)(1) and (2) of the Statute. The Authority modified the Judge's recommended Order with respect to these violations. It also dismissed the § 7116(a)(4) allegation that was added at the hearing. The Authority found that the Judge erred in amending the complaint and finding a violation of § 7116(a)(4) of the Statute. However, the Authority noted that the Judge did not err in finding that the flyer distributed and posted by the Union representative constituted protected activity under the Statute. Additionally, the Authority held that that the Judge correctly determined that the posting and distribution of the flyer were not prohibited by Article 7, Section (n) of the parties' agreement.