[ v18 p831 ]
The decision of the Authority follows:
18 FLRA No. 100 DEPARTMENT OF JUSTICE BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION BUTNER, NORTH CAROLINA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3696, COUNCIL OF PRISON LOCALS Charging Party Case No. 4-CA-1255 DECISION AND ORDER The Administrative Law Judge issued her Decision in the above-entitled proceeding finding that the Respondent had engaged in the unfair labor practice alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record in this case, the Authority hereby adopts the Judge's findings, /1/ conclusions and recommended Order. In agreement with the Judge, the Authority concludes that section 7116(d) of the Statute /2/ does not bar this unfair labor practice proceeding, based on the finding by the Judge that the charge herein was filed by the aggrieved party prior to the filing of the grievance. The Authority has held that the filing of an unfair labor practice charge by an aggrieved party constitutes a selection of the unfair labor practice procedure as the procedure within which to raise the issue. See Headquarters, Space Division, Los Angeles Air Force Station, California, 17 FLRA No. 131 (1985). Moreover, in any event, the issue raised in the grievance procedure was not the same as the issue raised in this unfair labor practice proceeding. See Department of Defense Dependents Schools, Pacific Region, 17 FLRA No. 135 (1985). Thus, the grievance complains that the suspension of Officer Painter was "without just cause and for other than reasons to promote efficiency of service." The gravamen of the charge and complaint herein concerned the interference and restraint imposed on Officer Painter's exercise of his protected right under the Statute to investigate and secure information in the processing of the grievance, not the merits of the suspension. With respect to the merits of the complaint, the Authority adopts the Judge's finding that the Respondent violated section 7116(a)(1) of the Statute /3/ by threatening to discipline an employee for conduct in connection with the filing and processing of a grievance under the negotiated grievance procedure. In so concluding, the Authority emphasizes that the employee was engaging in protected activity within the meaning of section 7102 of the Statute /4/ when, prior to his filing of a grievance, he conducted his own investigation on his own time in order to stave off the disciplinary action which led to his filing the grievance. That is, an employee's right pursuant to section 7102 of the Statute to file and process a grievance under a negotiated grievance procedure also encompasses the right to gather evidence in support of that grievance or an investigation as to whether to file a grievance. Therefore, the Respondent by its memorandum of August 27, 1981, which in effect warned the employee that he would be subject to discipline if he had further contact with any witnesses involved in the investigation of his alleged misconduct until the official investigation had been completed, violated section 7116(a)(1) of the Statute. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, shall: 1. Cease and desist from: (a) Interfering with the right of employees to file and process a grievance under the negotiated grievance procedure, including their right to interview witnesses. (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) Rescind the memorandum issued on August 27, 1981 to Jerry K. Painter, expunge and remove from its files all references to it, and notify Mr. Painter, in writing, of its actions. (b) Post at the Federal Correctional Institution, Butner, North Carolina, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Such forms shall be signed by the Warden, or a designee, 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 insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., June 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT interfere with the right of employees to file and process a grievance under the negotiated grievance procedure, including their right to interview witnesses. 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 Federal Service Labor-Management Relations Statute. WE WILL rescind the memorandum issued on August 27, 1981 to Jerry K. Painter, expunge and remove from our files all references to it, and notify Mr. Painter, in writing, of our action. (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, Region IV, Federal Labor Relations Authority, whose address is: Suite 501, North Wing, 1776 Peachtree Street, NW., Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324. -------------------- ALJ$ DECISION FOLLOWS -------------------- Robert M. Wilansky, Counsel for Respondent Regina Naomi Kane, Counsel for the General Counsel, Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO, Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp. V, 1981), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the "Statute", and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. Pursuant to a charge filed on September 28, 1981, by the Charging Party, the Regional Director of Region IV of the Federal Labor Relations Authority (hereinafter, the "Authority") investigated and, on September 8, 1982, issued the complaint initiating this proceeding. The complaint alleges that Respondent has violated 5 U.S.C. 7116(a)(1) in that it has interfered with, restrained and coerced employees, in particular, one Jerry K. Painter, in the exercise of the right to file and process a grievance, under a negotiated grievance procedure. /5/ Defendant denies this allegation and raises two defenses-- that "flagrant misconduct" on the part of Officer Painter removed him from the ambit of protected activity; and that 5 U.S.C. 7116(d) is a bar to this action. /6/ A hearing on the matter was held in Durham, North Carolina, on February 16, 1983. The parties appeared, adduced evidence, and examined witnesses. Briefs were filed by the General Counsel and Respondent on April 18, 1983. Based upon the record made, my observation of the demeanor of the witnesses, and the briefs, I enter the following findings of fact, conclusions of law, and recommended order. Findings of Fact /7/ 1. It is admitted that, at all times material herein, Respondent has been an "agency," and the Charging Party (hereinafter also referred to as the "Union") has been a "labor organization," within the meaning of the Statute. 2. It is further admitted and established that Local 3696 of the Union is affiliated with the Council of Prison Locals which, at all times material herein, has been the exclusive representative of certain employees, including Jerry Painter, a Senior Correctional Officer at Respondent's Butner prison facility. 3. Officer Painter has been employed by the Bureau of Prisons for a little over five years. He has been a Senior Correctional Officer at the Butner prison since May 27, 1981. He has been a member of the Union for over five years, but has never held any official union position. 4. On August 16, 1981, /8/ Officer Painter escorted three inmates to an Alcoholic Anonymous ("AA") meeting in Chapel Hill, North Carolina. Officer Painter was off duty on this day and acted as an Escorting Officer on a voluntary basis, at the request of a staff member. The AA meeting was over at approximately 4:30 p.m. 5. After the AA meeting, Officer Painter took the three inmates to the Godfather Pizza Parlor for dinner. He allowed this because he was worried about getting back to the institution before the meal period ended. 6. The three inmates were named Crittenden, Fernandez and Wickline. A member of the AA group, Tom Kelly, joined them at the pizza parlor. The inmate group left the pizza parlor with Officer Painter at approximately 5:35 or 5:40 p.m. and arrived back at the prison shortly before 6:00 p.m. At about 6:45 p.m., Mr. Kelly called the prison to report that the inmates had drunk beer on the outing. 7. August 18 was the next day upon which Officer Painter reported to work. He was met in the front lobby by Capt. Hungerford, Chief Correctional Supervisor, and Lt. Wayne Pearson, a Correctional Supervisor. They asked him to step into the Personnel Office, where they met the Personnel Officer, Alexander Howard. For approximately a half-hour, a discussion took place about the AA group's outing on August 16. Capt. Hungerford asked where the group had gone and what it had done. He informed Officer Painter that there had been "misconduct" allegations made against him and that an investigation was under way (TR 27). Officer Painter was told to have "no further contact with the inmates involved in this until further notice" (TR 27). No mention was made of not having contact with anyone else. The "misconduct" involved, inter alia, buying beer for the inmates while at the pizza parlor. 8. Approximately two days after this August 18 meeting, perhaps on August 20, Officer Painter entered the Personnel Office and made a request to review the investigative file pertaining to the August 16 incident. Officer Painter wanted to see his file, as he was "preparing a defense for (him)self" (TR 29). He was at first refused, and then granted permission to see the file. In it, he found statements taken from Tom Kelly and Tamara Abashian, a waitress at the Godfather Pizza Parlor. A statement of Lt. Pearson, the Investigating Officer, was also in the file. After reviewing his file, Officer Painter went to see Lt. Pearson, and requested to see any additional information. Lt. Pearson told him there was none, but that the investigation was "still under way" (TR 31). 9. On August 21, Officer Painter obtained copies of the statements in the investigation file from the secretary in the Personnel Office. He then drew the key to the unit where he was working. Thereupon, he was instructed to stop by Capt. Hungerford's office, where he was met by Capt. Hungerford and Mr. Howard. Capt. Hungerford showed him a letter proposing a 14-day suspension for alleged incidents, which had occurred during the August 16 outing with the AA group of inmates. Officer Painter was told that the proposal was going to be sent to the Warden for approval. 10. By August 23, Officer Painter was in the process of getting the paper work ready for filing an unfair labor practice charge and grievance over the proposed 14-day suspension. 11. On Sunday, August 23, Officer Painter went to the Godfather Pizza Parlor in hopes of finding the same people who had been working there the previous Sunday, August 16. Upon entering, he observed the same waitress, Sue Cooper, who had waited on them. Ms. Cooper was working behind the counter. Officer Painter asked if he could speak to her about the incident on the 16th, and if she would give him a statement pertaining to it. She agreed to do so, but asked him to return the following day to get the statement because she was working at that time. He spoke to her for about five minutes. The restaurant was not busy. 12. On August 24, Officer Painter returned to the restaurant to meet Ms. Cooper. They met in the parking lot at approximately 11:00 a.m. She agreed to go across the street, to a bank, where she wrote out a statement and had it notarized. In it, she stated that she had waited on Officer Painter and had served him a pizza and a pitcher of Mr. Pibb, a soda drink. The meeting with Ms. Cooper lasted a half-hour, or maybe a little longer. Ms. Cooper then went to work. Her shift had not started at the time she met with Officer Painter. 13. Before meeting with Ms. Cooper, Officer Painter spoke with the manager of the restaurant and identified himself as an "employee" of the prison at Butner (TR 81). Officer Painter then asked the manager if Ms. Abashian was there. It was her day off. Officer Pearson then asked for her telephone number and spoke to her over the phone. Ms. Abashian agreed to meet Officer Painter at the restaurant, that afternoon, at 1:00 p.m. 14. At 1:00 p.m. on August 24, Officer Painter met Ms. Abashian at the front of the restaurant. They sat at an empty table in the rear of the restaurant. Officer Painter recalled spending "(m)aybe an hour with her and asking her (m)aybe 20 questions" (TR 38). He asked her about the statement she gave to Lt. Pearson. They stepped out to his car then, where he showed her the statement earlier given to him by Ms. Cooper. They sat in the car for "(m)aybe five minutes" (TR 40). Ms. Abashian agreed to give a statement also. The two of them went to a supermarket, in the same shopping center as the restaurant, to purchase a pen and some paper. They then went across the street to the bank where Ms. Abashian gave him a statement and had it notarized. The statement reads: On Tuesday, 18 August, 1981 I was interviewed by an individual from the Dept. of Justice. I gave a statement to him concerning an incident that occurred on 16 August 1981. He explained how this statement should be written and words to be used. This occurred at approximately 5:45 p.m. (GC 3) Officer Painter perceived Ms. Abashian as having become "excited," during his discussion with her, and stating to him that "the investigator (Lt. Pearson) had showed her picture, four pictures, that she had noted the names and the numbers underneath the pictures, that was the first time that she had seen 'mug shots'," and that "'it was like a George Raft movie'" (TR 100). 15. Officer Painter then returned home to call the AA Chapter at Chapel Hill in an effort to locate Tom Kelly. He was unsuccessful. Then he recalled going to the prison Personnel Office, showing the two statements he had just received to Mr. Howard, and asking him for the address or telephone number of Mr. Kelly. Mr. Howard gave him the address of Mr. Kelly. Officer Painter recalls Mr. Howard laughing about the fact that one statement was in conflict with one given to the institution. Officer Painter explained that he showed the statements to Mr. Howard in the hope that a possible error might be perceived and the investigation and charges dropped. 16. On August 26, Officer Painter obtained a statement from Mr. Kelly, after leaving a note for Mr. Kelly, at his residence, in which he asked Mr. Kelly to contact him as soon as possible. Mr. Kelly and Officer Painter met in the parking lot of a bank for 30 to 45 minutes. Mr. Kelly gave Officer Painter the following notarized statement: On the 16th of August 1981 I went to the pizza parlor (Godfather's Pizza). I thought I observed a pitcher of beer being consumed today (August 26). I cannot be sure that in fact it was a pitcher of beer or a pitcher of soda. This statement is of my own free choice, I have not been coerced to change my statement in any way. (GC 4). 17. Before meeting with Officer Painter on August 26, Mr. Kelly called Lt. Pearson and told him that he was "concerned" about keeping the appointment with Officer Painter (TR 135(a)). At the time Lt. Pearson took the statement from Mr. Kelly, on August 19th, Mr. Kelly had expressed a "concern about receiving physical harm (from Officer Painter) for making a statement" (TR 135(b)). Mr. Kelly did not "verbalize" why he had this concern (TR 135(b)), and no action by Officer Painter was shown to justify it. Mr. Kelly's concern may have been the "very normal, ordinary reaction" of any person caught up in an investigation (TR 182). 18 a. After meeting with Officer Painter, Mr. Kelly called Lt. Pearson and requested a meeting. They met at 7 p.m. on August 26. The following is what Lt. Pearson testified to Mr. Kelly telling him. Mr. Kelly stated that he had been served a pitcher of Mr. Pibb mixed with a lighter cola that "looked too much like beer," and he was no longer sure that the inmates had drunk beer on the August 16 outing. Mr. Kelly made this statement to Officer Painter. Officer Painter told him that: "this thing is going to court, that he (Mr. Kelly, apparently) was going to have to testify, that the inmates were in seclusion, that they were going to lose their parole, and that Mr. Painter himself was going to get a suspension" (TR 140). Lt. Pearson asked Mr. Kelly how he could have been so sure, on his first statement to him, that it was beer served to the inmates, and was "now not . . . able to be sure" (TR 140). Mr. Kelly responded "that after Mr. Painter showed him this picture (pitcher?) that it left doubts in his mind" (TR 141). 18 b. Lt. Pearson perceived Mr. Kelly as having been "coerced" by Officer Painter, on August 26, by Mr. Kelly's "mannerisms," namely looking "subdued, humbled" and not looking at him (TR 187). I find that Mr. Kelly's mannerisms may have simply reflected his embarrassment over having instigated this whole investigation on doubtful evidence. 19. On August 26 Lt. Pearson had two contacts with restaurant personnel. First, he received a telephone call from Martha Cox. Ms. Cox identified herself as the roommate of Ms. Abashian, and then told him that Ms. Abashian had had a long discussion with Officer Painter and was "upset and wanted to know what was going on out there" (TR 118). Lt. Pearson offered to meet Ms. Abashian. Ms. Cox told him he could meet her at 6:00 p.m. at the restaurant, which he did. When he arrived, Ms. Abashian was behind a counter. They say down at a table and talked for approximately 20 to 30 minutes. The following is what Ms. Abashian told Lt. Pearson, according to Lt. Pearson. Officer Painter called her at home, on August 24, and requested her "permission" to come and talk to her (TR 120). She "agreed" to meet him at the restaurant (TR 120). Officer Painter did not "threaten(ed)" her (TR 173). Officer Painter kept asking her the same question, over and over; and this is the only reason she specified as causing her to feel "intimidated" by Officer Painter's "questions and attitude." See TR 122, 128, 130, 171, 174, and 175. Officer Painter "tried to have her say that (Lt. Pearson) had influenced her statement, that (Lt. Pearson) had told her what to put in her statement, and also to try to confuse her by saying that she couldn't remember what had happened three days before" (TR 121). Ms. Abashian stood by her statement and that this made Officer Painter "mad," "angry" (TR 122, 128, and 175). Lt. Pearson conceded that Officer Painter may have been "angry" at the situation he was in, and not at Ms. Abashian. Officer Painter told Ms. Abashian that one inmate, Crittenden, was not an inmate, when she said that she had served him a beer at the counter. Officer Painter told her that she would have to go to court, that he was getting a suspension, and that the inmates were locked up and were going to lose their parole. 20. Ms. Abashian subsequently was called to testify at an arbitration hearing involving the August 16 incident. The arbitrator summarized her testimony, in his opinion filed in the matter. See R 1.15-18. According to the arbitrator, Ms. Abashian testified that Lt. Pearson had "not tried to change her recollection, had not led her," but "had helped her as she had told him what had happened and she had asked him how he had wanted her to say it," that "he had helped her get sentenced together," that he "had helped her with a word when she had gotten stuck," and that when writing the statement "if she got stuck, she would ask him what he would want" (R 1.16). According to the arbitrator, Ms. Abashian testified that Officer Painter "had not been threatening," but seemed "frustrated" and "kept pressuring her as to whether she had been sure that she had served him the beer" (R 1.18). 21. Based upon the above accounts of Officer Painter, Lt. Pearson, and the arbitrator, I find that Ms. Abashian was not threatened by Officer Painter, in any physical sense. She may have been "upset" and "excited" in the manner of any person caught up in an investigation involving prison inmates, and curious as to what was going on. Her "intimidation" may have simply grown out of her awareness that her statements were being questioned by Officer Painter and by his pressing her to be sure of the accuracy of her statements, as they were being used against him and the inmates, who would suffer as a result. 22 a. During their discussion on August 26, Ms. Abashian told Lt. Pearson that her boss, Mr. Percival wanted to talk to him. Lt. Pearson then spoke with Mr. Percival, at approximately 6:30 p.m. The following is what Mr. Percival told Lt. Pearson, according to Lt. Pearson. Mr. Percival stated "that he and his employees did not mind cooperating in this investigation but that it was becoming time-consuming" (TR 132). (By this, the manager could have referred to Lt. Pearson's investigation, but Lt. Pearson perceived that the remark referred to the activities of Officer Painter. See TR 178 and 212.) Officer Painter told Mr. Percival that he "had been sent down to insure that Lieutenant Pearson was conducting a proper investigation" and that "he thought that (Lt. Pearson) was conducting a biased investigation" (TR 133). Mr. Percival would not have given Officer Painter the telephone number of Ms. Abashian if he had known that Officer Painter was "the object of the investigation" (TR 135). Mr. Percival then asked if "we could do anything to keep Mr. Painter from coming in to Godfather's restaurant, that he had been there several times in the last few days and it was upsetting some of his staff" (TR 135(a)). 22 b. Lt. Pearson, in initially interviewing Ms. Abashian, had spent an hour with her, and she may have been on duty at the time. See TR 163-165. He asked her between 20 and 30 questions, possibly more. He was in uniform and told her that he was conducting an investigation concerning possible misconduct of one (the prison's) officers" (TR 165) and was a Correctional Supervisor at the prison (TR 165). She was "hesitant . . . slightly" to give him a statement and only did so after he told her "it would help in (his) investigation" (TR 208). 22 c. I find that the restaurant manager was probably annoyed at the total time being spent on the investigation, including the time of Lt. Pearson, and that the "upset" of the employees may have been over being caught up in an investigation involving prison inmates, and might have been caused as much by Lt. Pearson's investigation, as by that of Officer Painter. 23. At the conclusion of his discussions with Ms. Abashian, Mr. Kelly, and Mr. Percival, Lt. Pearson gave a "synopsis" of their accounts to Capt. Hungerford, in a 10 to 15 minute call to his home (TR 190-191). 24 a. On August 27, Lt. Pearson and Capt. Hungerford discussed again, for about an hour, the August 26 meeting of Lt. Pearson with Mr. Kelly, Ms. Abashian, and the restaurant manager. Capt. Hungerford told Lt. Pearson that he would have to tell the Warden about the matter. 24 b. Lt. Pearson then told the Warden that Ms. Abashian had been "intimidated" by Officer Painter, but did not tell him that the "intimidation" consisted solely of being asked the same question over and over again. Lt. Pearson recalls telling the Warden that Officer Painter and Ms. Abashian met for about two hours and that Officer Painter had attempted to get her to retract her statement. Lt. Pearson also told the Warden that Ms. Abashian had given a statement to Officer Painter, but had not retracted her prior statement to him, Officer Pearson. Lt. Pearson recalls telling the Warden that Mr. Kelly had seen a pitcher of Mr. Pibb mixed with soda and could no longer be sure that he had seen the inmates drinking beer. Officer Painter further recalls telling the Warden that Mr. Kelly and Ms. Abashian were told by Officer Painter that they would have to appear in court, that he (Officer Painter) was going to receive a suspension, and that the inmates were in seclusion and were going to lose their parole. Lt. Pearson also told the Warden that Mr. Kelly seemed "coerced and cowed" by Officer Painter, but did not give any reason (TR 197-198). 24 c. The Warden asked no questions, but spoke in an "angry" tone. He called Mr. Howard and asked him to come to his office "to listen to something" (TR 144). The Warden told Mr. Howard "some of the witnesses had called the institute and had complained about (Officer Painter) contacting them" (TR 219). Then the Warden said something to the effect that "it appears that there ought to be something that we can do to keep (Officer Painter) from harassing the witnesses" (TR 216 and see also TR 220 and 230). The Warden may have used the word "intimidate" or "bothering the witnesses," rather than "harass" (TR 216 and 220). The Warden was not called as a witness. 25. On August 27 or 28, Capt. Hungerford and Mr. Howard, after consulting the Regional Attorney, presented a memorandum to Officer Painter which was signed by the Warden. The memorandum, dated August 27, reads: It has been reported that you have been in contact with several witnesses in an investigation of alleged misconduct on your part. Your contact with these witnesses is interfering with an official investigation. If you persist in your contacts with the witnesses you may subject yourself to disciplinary action. You are hereby directed to have no further contact with any witnesses involved in this investigation of alleged misconduct until the official investigation has been completed. (GC 2) 26. Officer Painter did not again contact any of the witnesses to the August 16 incident, because he felt that any further contact might result in disciplinary action being taken against him. He would have liked to reinterview Ms. Abashian and to have spoken to another witness to the incident. It bothered him "greatly" that he could not (TR 92). 27. Officer Painter was never informed of the finish of the "official investigation" alluded to in the August 27 memorandum (GC 2 and see TR 54-55). Officer Painter did inquire of Mr. Howard as to when the official investigation would be over and was told "when (he) got whatever award (he) was going to receive" (TR 93). Mr. Howard so advised him on approximately August 29 or 30. Mr. Howard is on the same level in the prison hierachy as Capt. Hungerford. The investigation did end around August 30 or September 1. 28. On September 23, an attorney for the Union signed an unfair labor practice charge against Respondent. The charge was filed on September 28 and alleges, as its basis, that: The Charging Party is the exclusive representative for the employees at FCI, Butner, NC. On August 27, 1981, Warden Ingram warned bargaining unit employee Jerry Painter (Correctional Officer) of future disciplinary action if he persisted in investigating a proposed disciplinary action against him by contacting witnesses with information that might be used in his own defense. By warning Correctional Officer Painter of disciplinary action if he persisted in gathering information to support his own defense, Warden Ingram changed conditions of employment at FCI Butner. Prior practice had been to allow employees and union representatives to gather information in support of any actions that might be taken against them. Further, the action of Warden Ingram interfered with Mr. Painter's ability to secure information that he could provide to the exclusive representative to assist him in the defense of the actions taken against him. Accordingly, the Bureau unilaterally changed conditions of employment without an offer of prior negotiations, and further interfered with the ability of the exclusive representative to assist employees against whom disciplinary actions are proposed. 29. At some date before October 6, Officer Painter was suspended for 14 days without pay in connection with the August 16 incident. 30. On October 6, Officer Painter signed a Grievance Report, on the Union's letterhead. The nature of the grievance was stated to be: "Suspension without just cause and for other than reasons to promote efficiency of service" (Jt 6). The relief requested was: "Cancellation of action, back pay, removal of all related material from Official Personnel File, counsel fees and costs allowed by law under 5 U.S.C. 5596" (Jt 6). Jerry E. Clem signed the Grievance Report in the space provided on the form for the signature of a "Steward." Mr. Clem is president of Local 3696. Officer Painter signed in the space provided on the form for "Signature of employee". 31. In making the above findings, I have had to resolve some credibility questions and rely upon some hearsay testimony. For example, the persons who were allegedly intimidated by Officer Painter or knew of the alleged intimidation (Tamara Abashian, Tom Kelly, and Martha Cox) were not called as witnesses. The first two could not be located by Respondent in order to have them appear as witnesses in this proceeding. Also not located was the restaurant manager, Mr. Percival, who allegedly complained to Lt. Pearson about the investigation. Lt. Pearson testified to what these persons told him about the matter, including their conversations with Officer Painter. Officer Painter did not take the stand to rebut the account given by Lt. Pearson as to what occurred during his meeting with Ms. Abashian, Mr. Kelly, and Mr. Percival, and Lt. Pearson appeared to be an honest witness. However, his testimony and actions in this matter may have been colored somewhat by the fact that he had some interest in the matter to which he was testifying, namely protection of the integrity of his own investigation. Accordingly, I have basically credited his testimony about what Ms. Abashian, Mr. Kelly, and Mr. Percival told him about the events here at issue. See findings 18a, 19 and 22a, supra. His testimony as to what he perceived from their demeanor and statements has been accorded little weight, however, because of his self-interest in the matter. See finding 18 b, supra and 22 a, supra. Officer Painter also appeared to be an honest witness. There is some conflict between his testimony and that of others concerning certain events, such as his showing favorable statements he was obtaining to Mr. Howard, Capt. Hungerford and Lt. Pearson. He testified that he showed the statements to them. They could not recall this. In these instances I have credited the testimony of Officer Painter, for two reasons. His recollection of events generally seemed to be firmer than theirs, which would be natural since they were of vital concern to him. Also, it makes sense that he would show exculpatory statements to his superiors, as he received them, in the hope of staving off the proposed disciplinary action. Respondent notes some discrepancies between the sworn statements of Officer Painter made at this hearing and earlier statements given to an arbitrator and to an investigator of the Authority. See RBr 23. The discrepancies, involving matters of whether there were "normal" meal hours at the prison and whether the restaurant manager or Officer Painter called Ms. Abashian, could have been genuine memory lapses over minor points. They do not reflect serious doubt on the credibility of Officer Painter. Officer Painter also has a self-interest in this proceeding, and that has been considered. I have accordingly given little weight to any perceptions he may have been formed from the statements and actions of others. See finding 14, supra. 32. On March 18, 1982 an arbitration hearing was held on the grievance and, on April 16, 1982, an opinion was rendered by the arbitrator. See R 1. According to the opinion, six witnesses testified for Respondent and two witnesses, plus Officer Painter, testified for the grievant. The Union was represented by its attorney. 32 a. Respondent adduced documentary evidence which included its August 27 memorandum to Officer Painter, directing him to have no further contact with any witnesses involved in the investigation of the conduct which led to the suspension. See R 1.2 and finding 25, supra. 32 b. The Union adduced documentary evidence which included the statements by Sue Cooper, notarized on August 24. See R 1.2 and finding 12, supra. 32 c. Of the witnesses whom Officer Painter had contacted in August, only Ms. Abashian and Ms. Cooper testified at the arbitration hearing. See R 1.15. The opinion does not indicate who called them as witnesses. 32 d. Mr. Howard's testimony is summarized in the opinion, which states that Mr. Howard testified that he proposed the memorandum to Officer Painter advising him not to contact witnesses, that the Warden had checked with the Regional Office first, "as to whether or not it would constitute a violation," and that the reason for the memorandum was that a waitress of Godfather's and the Manager had called and complained" (R 1.30). 32 e. The opinion lists the contentions of the parties. The 7th contention of the Union concerned officials of Respondent "persecuting the Grievant" (R 1.39). One support of this contention was that: Management had even interfered with the Grievant's abilities to investigate the case, despite the fact that the Civil Service Reform Act has plainly provided that a person was to have the right and opportunity to go around and collect evidence on that person's behalf when the person was faced with anything up to a 14 day suspension. The Grievant had attempted to go out and get affidavits, and the Warden had told him that he couldn't do that; and that if he did, the Warden would take further disciplinary action against the Grievant. They had wanted to put a stop to the man defending himself by threatening him with action. They had already given him a two weeks suspension, so they would have fired him. They could have argued that that was progressive discipline, which had been absent with respect to the 14 day suspension. See R 1.39. The Union also, contended that counsel fees were justified, under the Back Pay Act, because, inter alia, Respondent "had interfered with the ability of the employee to obtain evidence in his own behalf" (R 1.40). 32 f. In his discussion of the case, the arbitrator found that the Respondent failed to prove certain allegations, but did find that the Respondent proved one charge, concerning the beer served to the inmates on August 16. The arbitrator noted that the evidence was "in conflict", however, and that there was "no direct evidence that any of the inmates consumed any beer (R 1.43). He made such an "inference," however, after determining the "credibility" of the three witnesses who testified about the ordering of the beer (R 1.44). He credited the testimony of Ms. Abashian, that she served beer to the inmates and found support for her testimony in the testimony concerning Officer Painter securing a statement from her. The arbitrator commented that: "Certainly, the Grievant had a right to conduct an investigation, to interview witnesses, and to secure statements" (R 1.47). He drew no conclusions as to whether Respondent's memorandum to Officer Painter, advising him to cease his investigatory efforts, was coercive or interfered with a statutory right. 32 g. In connection with the Union's request for attorney's fees, the arbitrator considered, inter alia, the Union's contention that "the Agency interfered with the Grievant in the preparation of his defense when Ingram wrote to him on August 27, 1981, and directed the Grievant to have no further contact with any witnesses involved in the investigation or alleged misconduct until the official investigation had been completed" (R 1.56). As to this contention, the arbitrator relied upon standards which included whether an agency has "harass(ed)" an employee, or has committed a "gross procedural error" which "prolonged the proceeding" or "severely prejudiced" the employee (R 1.56). The arbitrator ruled, inter alia, that: The memorandum to the Grievant from Ingram did not deny him the right to contact witnesses. Its purpose was to prevent the Grievant's interference until the official investigation had been completed, and the Grievant was not burdened with any restriction thereafter. The Agency had secured the advice of Counsel before issuing the letter. Even if the memorandum had been improper, there has been no evidence that the Grievant suffered any injury therefrom. (R 1.56) Discussion and Conclusions Respondent acknowledges that "under ordinary circumstances," bargaining-unit employees have a statutory right "to gather evidence and present and process a grievance in his/her own behalf" (RBr 14). As already stated, Respondent raises two defenses to its action in denying Officer Painter that right, in this case. One is that his "flagrant conduct," in gathering evidence, namely his "harassment and intimidation of the witnesses he encountered" (RBr 15), removed him from the ambit of protected activity. The other is that this unfair labor practice proceeding is barred by 5 U.S.C. 7116(d). 1. The application of 5 U.S.C. 7116(d) to this action will be resolved first. This statutory provision provides, in relevant part, as follows: . . . issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. Two facts are relevant and undisputed as to this issue-- (1) the filing of the unfair labor practice charge preceded the filing of the grievance, and (2) the arbitrator in the later-filed grievance procedure did "address" the matter of Respondent's limiting the ability of Officer Painter to secure evidence, and this limitation is the crux of the unfair labor practice. Because I conclude that the prior filing of the unfair labor practice charge is controlling, discussion will be limited to that aspect of the 5 U.S.C. 7116(d) issues raised by the parties. The issue here must turn on the meaning of the term "raised", and any congressional intent which can be perceived in using it. A dictionary definition of "raise" is "to activate or set in motion". See The Random House College Dictionary, page 1091. Thus, an employee can be said to "raise" the issue at the time he or she files either the unfair labor practice charge or the grievance. To so hold would be consonant with the clear language of Congress placing the election of forum squarely "in the discretion of the aggrieved party", a discretion which would be frustrated if the choice of a forum turned on the happenstance of whether the grievance or the unfair labor practice charge is heard first in time. While Congress obviously did not intend to give an employee "two bites at the apple," as Respondent argues at page 14 of its brief, this can be prevented by an employer raising the Section 7116(d) bar as a defense, if the issue happens to surface first in the later filed proceeding. This seems to be the common sense approach; and I have found nothing in the legislative history of the Statute or case precedent of the Authority to signal any other. Respondent cites no legislative history. The only point of interest I could find was that, at one point in the progress of this legislation through Congress, a House bill contained a provision requiring the Authority "to issue regulations prescribing the procedure and time frame for the election (grievance procedure or unfair labor practice procedure)." See Section 7116(d) of H.R. 11280, 95th Cong., 2d Sess., reported with amendments July 31, 1978 and reproduced at pages 408-409 of the Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess. (hereinafter, referred to as "LH"). This requirement was subsequently dropped, and with no clarification to be found in the reported legislative history. The Authority has issued no such regulations. Case precedent cited by the parties does not really deal with the problem here at issue, but rather with situations where the grievance procedure was initiated before the unfair labor practice one, and/or the problem was addressed as being whether the same basic issues were raised in both procedures. See Internal Revenue Service, Chicago, Illinois, 3 FLRA No. 75, 3 FLRA 479 (1980), cited at pages 9, 10, and 11 of Respondent's brief and at page 19 of the General Counsel's brief; Boston District Office, Internal Revenue Service, 6 A/SLMR No. 727, 6 A/SLMR 535 (1976) cited at page 10 of Respondent's brief; Federal Aviation Administration, Muskogee Air Traffic Control Tower, 5 A/SLMR No. 534, 5 A/SLMR 458 (1975), cited at page 10 of Respondent's brief; and Norfolk Naval Shipyard, Portsmouth, Virginia, 2 FLRA No. 104, 2 FLRA 817 (1980), cited at page 10 of Respondent's brief. /9/ The only consideration which raises doubt in my mind is that elsewhere in this Statute Congress gave employees an option of proceeding in various forums, or under the negotiated grievance procedure, and explicitly made the filing date the exercise of the option. See 5 U.S.C. 7121(d) and (e)(1). The significance to attach to congressional silence on this point, in Section 7116(d), is a problem. But, as already discussed, the only way to assure a true option for employees, when dealing with various forums, is to make the filing date the determinative factor. Congress gave explicit recognition to this, in Sections 7121(d) and (e)(1). It makes no sense to ignore it, in Section 7116(d). I note that on June 13, 1983, in Department of the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA No. 50, the Authority upheld a dismissal of a case on the basis of Section 7116(d). In that case a grievance had been filed three days before the unfair labor practice charges, and the gravamen of both appeared to be the same. The grievance, however, had subsequently been withdrawn. From this, it seems that the Authority is going to fix on the filing date as the operative factor in deciding Section 7116(d) bars, and not upon subsequent events unfolding over the course of the proceedings. Accordingly, I conclude that Section 7116(d) does not constitute a bar to this action, because the charge initiating it was filed prior to the filing of the grievance. 2. Officer Painter's conduct in interviewing witnesses was not so "flagrant" as to remove him from the ambit of protected activity. The worse that can be said of Officer Painter's conduct is that he did put some pressure on the witnesses, by repeatedly questioning them, by trying to persuade them to change their testimony, and by telling them of the fix in which their statements had put him and the inmates, and that he made a couple of misrepresentations to them. The misrepresentations, that he was sent to investigate Lt. Pearson's investigation and that one inmate served by a waitress was not an inmate, are not condoned. But neither do they amount to "flagrant" misconduct, under the circumstances of this case. There is no credible evidence that Officer Painter consciously threatened, harassed, or intimidated any of the witnesses he interviewed so as to justify the label of "flagrant misconduct," which this Authority has held may remove an employee from the "ambit of protected activity." See Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA No. 7, 2 FLRA 54, at 55 (1979). Officer Painter was apparently polite to the witnesses. While he did press the witnesses as to the accuracy of their statements in a matter of vital concern to him-- his job, any concerns they may have felt could have as easily arisen from the situation-- an investigation into the conduct of a prison guard and inmates-- as from the conduct of Officer Painter. The anger of the Warden over the conduct of Officer Painter was based upon the account given him by Lt. Pearson, who was sparing on details as to just why the witnesses felt "harassed," "intimidated," or "bothered" by Officer Painter (see finding 24, supra), and who had a self-interest in keeping Officer Painter from further eroding the results of his own investigation. The "complaints" received by Respondent from witnesses about the investigation (RBr 15) cannot be so characterized with surety. In the case of Ms. Abashian, she did not herself call Respondent and the inquiry of her roommate may have been motivated by curiosity, as much as anything. In the case of Mr. Kelly, he may well have contacted Lt. Pearson, out of courtesy, to tell him that he could no longer be sure of facts he had previously given to him. In the case of the restaurant manager, his expressions of concern could have been motivated as much by the time Lt. Pearson was spending with his waitresses, while they were on duty, as by Officer Painter's interviews of them, which were conducted during their off-duty hours. Respondent argues that its August 27 memorandum to Officer Painter did not prevent him from processing his grievance, in that it only prevented him, but not his representative from further witness contact. See RBr 26. A lawyer might have detected this distinction in the memorandum. See finding 25, supra. But a prison guard, threatened with discipline over any future contacts with witnesses, cannot be charged with the ability to detect this legal nicety. Respondent further argues that Officer Painter should have queried some official of Respondent as to the duration of the official investigation, after which he was free to continue his own investigation, according to the August 27 memorandum. See RBr 36. There are two problems with this argument. One is that Officer Painter needed to interview the witnesses while their recollections were fresh. Two of the most important witnesses were pizza parlor waitresses whose recollections would fade fast as to which customers were served beer by them on any particular date. By Respondent's placing Officer Painter on an indefinite hold, until "the official investigation ha(d) been completed" (see finding 25, supra), Respondent dealt a significant blow to the conceded right of Officer Painter to conduct his own investigation, in an effective way. Secondly, I have found that Officer Painter did inquire of the Personnel Officer as to when the official investigation would be completed, and was told "when (he) got whatever award (he) was going to receive." See finding 27, supra. Finally, Respondent justifies the "unusual and stern" measure taken in this case on the ground that Officer Painter's conduct pertained to "non-employees, the general public." See the last page of Respondent's brief, which is unnumbered. Insofar as Officer Painter's statutory rights are concerned, this is a distinction without a difference. The burden of proving "flagrant misconduct" was on Respondent. It did not meet this burden. Remedy The General Counsel seeks, as a remedy, that Respondent be ordered to: cease and desist from interfering with, restraining, or coercing its employees by threatening discipline for conduct in connection with the filing and processing of a grievance under the negotiated grievance procedure; rescind the memorandum issued to Officer Painter and remove or expunge from its files any reference to this memorandum or its contents; acknowledge the removal to Officer Painter in writing; and post a notice to all employees, on all official bulletin boards of its Butner facility, for a period of sixty days. See GCBr 23. This remedy is deemed appropriate, based upon the record made in this case. Ultimate Findings and Recommended Order The General Counsel has established, by a preponderance of the evidence, that the alleged violations of 5 U.S.C. 7116(a)(1) have been and are occurring. Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C. 7118, the Authority hereby orders that the Respondent shall: 1. Cease and desist from: (a) Interfering with the right of employees to file and process a grievance under the negotiated grievance procedure, including their right to interview witnesses. (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) Rescind the memorandum issued, on August 27, 1981, to Jerry K. Painter, expunge and remove from its files all references to it, and notify Mr. Painter, in writing, of its actions. (b) Post at its facilities at Butner, North Carolina, copies of the Notice to All Employees, attached hereto as Appendix, on forms to be furnished by the Regional Director, Region IV, Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Warden, and shall be posted and maintained for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Warden shall take all reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply herewith. ISABELLE R. CAPPELLO Administrative Law Judge Dated: July 12, 1983 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE We Hereby Notify Our Employees That: WE WILL rescind the memorandum issued on August 27, 1981, to Jerry K. Painter, expunge and remove from our files any reference to it, and notify Mr. Painter, in writing, of our action. WE WILL NOT interfere with the right of employees to file and process a grievance under the negotiated grievance procedure, including their right to interview witnesses. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the Federal Service Labor-Management Relations Statute. (Agency or Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region IV, whose address is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta, Georgia 30309, and whose telephone number is: (404) 881-2324. --------------- FOOTNOTES$ --------------- /1/ The Respondent excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule the Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution was incorrect. The Authority has examined the record carefully and finds no basis for reversing the Judge's credibility findings. /2/ Section 7116(d) of the Statute provides, in relevant part: (I)ssues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. /3/ Section 7116(a)(1) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter(.) /4/ It is well established that section 7102 of the Statute encompasses an employee's right to file and process a grievance under a negotiated grievance procedure and that any interference by management with that right is violative of section 7116(a)(1) of the Statute. See, e.g., Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA 766, 777 (1982). See also Consumer Product Safety Commission, New York, 10 FLRA 422, 424 (1982). /5/ 5 U.S.C. 7116(a) provides, inter alia, that it "shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter." One such right is the right to file a grievance under a negotiated grievance procedure. See 5 U.S.C. 7121. /6/ 5 U.S.C. 7116(d) provides, inter alia, that "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures." /7/ The following abbreviations will be used herein. "GC" refers to the exhibits of the General Counsel, "R" to those of Respondent, and "Jt" to the joint exhibits. Multipage exhibits will be referenced by the exhibit number followed by a page or paragraph number. "TR" refers to the transcript. "GCBr" refers to the brief of the General Counsel, and "RBr" refers to that of Respondent. Page 164 of the transcript is a copy of the original. It was inserted by me after notice to the parties and without objection from them. /8/ Unless otherwise noted, all dates herein are in 1981. /9/ All of these cases arose under Executive Order 11491, as amended which, in Section 19(d), provided, in pertinent part that: Issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under that procedure or the (unfair labor practice) complaint procedure under this section, but not under both procedures. See LH 1348. Section 19(d) of the Order was the precursor of Section 7116(d) of the Statute. See LH 749, which quotes Senate Report No. 95-969, 95th Cong., 2d Sess. on S.2640. S.2640 was the bill ultimated enacted, with some modifications. I do not view as case precedent, decisions by administrative law judges which have been rendered, but are not yet final. For this reason, I do not discuss such decisions cited and distinguished by the parties.