Office of Administrative Law Judges
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION (FCI) MCKEAN, BRADFORD, PENNSYLVANIA Respondent
Case No. BN-CA-90247
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3947, AFL-CIO
Lawrence L. Kuo, Esquire Richard D. Zaiger, Esquire For the General Counsel
Before: SAMUEL A. CHAITOVITZ Chief Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101 et seq. (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (FLRA/Authority), 5 C.F.R. Part 2411 et seq.
Based upon an unfair labor practice charge filed by the
American Federation of Government Employees, Local 3974 (AFGE Local
3974/Union), a complaint and notice of hearing was issued on behalf
of the General Counsel (GC) of the FLRA by the Regional Director of
the Boston Regional Office. The complaint alleges that the U.S.
Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution (FCI) McKean, Bradford, Pennsylvania (FCI
McKean/Respondent) violated section 7116(a)(1) and (2) of the
Statute by sending the Union's Acting President home to change his
footwear and charging him with one hour of annual leave as a
result, and also violated section 7116(a)(1) of the Statute by
telling him that the reason for such action was the Acting
President's conduct during negotiations the previous day. The
Respondent filed an answer denying that it had violated the
A hearing was held in Pittsburgh, Pennsylvania on November
4, 1999, at which time all parties were afforded a full opportunity
to be represented, to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. The GC of the
FLRA and the Respondent filed post-hearing briefs, which have been
Based upon the entire record, including my observation of
the witnesses and their demeanor, I make the following findings of
fact, conclusions, and recommendations.
Findings of Fact
The American Federation of Government Employees, Council of
Prison Locals (AFGE), is the certified exclusive representative of
a nationwide unit of employees within the Federal Bureau of
Prisons, including employees at FCI McKean. AFGE Local 3974 is an
agent of AFGE for the purpose of representing the employees at FCI
McKean. Since 1997, and at all times material to this proceeding,
Richard D. Yovichin was the Union's Acting President. For 6 years
prior to that, he had been the Union's Secretary-Treasurer and also
served as a union steward. Among his responsibilities as the
Union's President, Yovichin occasionally represents employees in
meetings with management and serves as the chief negotiator during
collective bargaining with the Respondent. Those who have known and
worked with Yovichin for many years all describe his personality
and behavior as loud, profane and excitable toward almost
everybody, particularly when labor-management relations are
involved. For example, Lieutenant Barbara Roy, Yovichin's immediate
supervisor for more than 4 years, testified that Yovichin is a good
corrections officer but that he has an explosive temper which can
be directed at supervisors and fellow employees alike. Similarly,
Captain Donald Reich, who is Yovichin's second-level supervisor at
FCI McKean, testified that he is accustomed to seeing Yovichin
react in an excitable and confrontational manner during
labor-management meetings. There is no evidence that such behavior
ever has resulted in disciplinary action.
B. The Negotiating Session on January 21, 1999
Since November 1998, the Respondent and the Union had held 22
meetings to negotiate the terms of a local supplemental agreement
covering the employees at FCI McKean, but some issues remained
unresolved. Among those issues was the amount of money each
correctional officer would receive as reimbursement from the
Respondent to defray the expense of purchasing footwear to be worn
while on duty at the facility. On January 21, 1999, the parties met
to negotiate these issues with the assistance of a mediator
designated by the Federal Mediation and Conciliation Service
(FMCS). For the most part, the mediator met separately with
representatives of management and the Union during the day-long
session, engaging in what is commonly known as "shuttle diplomacy."
For example, the Union's chief negotiator, Yovichin, proposed that
the existing footwear reimbursement level of $45 be increased to
$175, and the mediator would convey the Union's position to
Respondent's negotiating team headed by Associate Warden Miner.
Then the Respondent's counter-offer to increase the allowance to
$100 would be conveyed by the mediator to the Union.(1) During the course of discussions on this
issue, a separate matter arose "accidentally" when Associate Warden
Miner raised a question about the proof of purchase that a
correctional officer would need to provide when seeking
reimbursement. He suggested that the employee should bring in the
black footwear as well as the sales slip to verify the quality and
cost of the item. When the mediator conveyed this suggestion to the
Union, Yovichin replied with his customary exuberance that the
employees were not required to purchase black boots in order to
qualify for reimbursement, and that he wore brown boots and did not
even own a pair of insulated black boots. When the mediator
transmitted Yovichin's comments to Respondent's negotiators, the
reply was that the color of footwear was not an issue for
negotiation since it was covered by the agency's national policy as
reflected in management's policy statement. After some further
interchange through the mediator, the parties then dropped the
matter of footwear reimbursement altogether and went on to discuss
C. The Confrontations on January 22, 1999
1. The colloquy on the compound
The next morning, Yovichin arrived at the facility about
20 minutes before the start of his 7:15 a.m. shift. Since the
parties were not scheduled to continue their negotiations on
January 22, Yovichin reported for work in his "nickel gray"
correctional officer's uniform. He also wore a blue zip-up
sweatshirt with a hood; an AFGE jacket; and a pair of brown,
fur-lined, insulated, Chippewa boots. Yovichin testified that he
had worn the same pair of boots to work for the past six winters
during inclement weather to keep his feet warm and
dry.(3) Yovichin further testified
that the weather on January 22 was inclement, and that while he was
assigned to work in the central tool room that day, he also
anticipated that his duties would require him to be outdoors in the
mud from time to time as well.(4)
The established practice at FCI McKean was that employees,
including corrections officers in uniform, were permitted to wear
insulated boots of varying colors(5)to protect themselves against the elements
under these circumstances.(6)
As Yovichin was leaving the Administration building with the
keys to the tool room in order to start his shift, he encountered
Captain Reich who was heading to his daily 7:30 a.m. meeting with
Warden Bernie Ellis and Associate Warden Miner in the
Administration building. As the two men neared each other in the
compound, an open outdoor area between the Respondent's buildings,
Reich pointed to Yovichin's footwear and declared in a loud voice
that Yovichin was out of uniform. Yovichin responded that Reich was
retaliating against him by making a big deal over his boots because
of the discussion of footwear during negotiations the previous day.
Reich repeated that Yovichin was out of uniform, to which Yovichin
responded, "write me up" and walked away to his post.(7)
Reich reported the foregoing incident to Warden Ellis at the
7:30 a.m. meeting, and the latter asked Reich what action he
planned to take. Reich testified that even though he thought
Yovichin was challenging his authority by wearing irregular
footwear the day after a dispute arose during negotiations
regarding the appropriate style and color of footwear to be worn by
corrections officers, his initial reaction was to allow Yovichin to
wear the boots in the tool room that day but to instruct Yovichin
not to wear such boots in the future. He further testified that he
changed his mind and decided to send Yovichin home to change into
black shoes because of what he considered to be Yovichin's
insubordinate behavior during their confrontation in the
compound.(8) Accordingly, he advised
Warden Ellis of his intention to send Yovichin home to change, and
to charge him annual leave or leave without pay for the time spent
away from the facility. Warden Ellis agreed with Reich's approach,
but instructed him to check with Personnel first. After the morning
meeting with Warden Ellis ended, Reich went to Personnel and
explained what had occurred and what Reich planned to do. According
to Reich, Personnel supported his decision and, when so informed,
Warden Ellis then told Reich to proceed.
2. The meeting in Reich's office
Reich then returned to his office, directed his assistant to
arrange for Yovichin to be brought to his office, and asked
Lieutenant Roy to be present as an observer at the meeting. A few
minutes later, at around 8:30 a.m., Yovichin was relieved from his
post by a lieutenant who directed him to report to Reich's office
with a union representative. Yovichin went to the Union's chief
steward, Jeff Labesky, and both men arrived at Reich's office a few
minutes later.(9) Yovichin closed
the door to Reich's office and sat down next to Reich's desk. Lt.
Roy and Reich were already seated at the desk. The meeting began
with Reich handing Yovichin a copy of the agency's program
statement and stating that it required black shoes to be worn;
advising Yovichin that he was out of uniform and had to go home and
change into appropriate black footwear;(10) and stating that if Yovichin were not back
in an hour, he would be charged as AWOL. Yovichin responded angrily
that the parties' master agreement superseded the program statement
and did not require black shoes to be worn, and that in any event
Yovichin was being unfairly discriminated against by having to go
home to change his boots when others wearing non-black footwear
were not also required to do so. Labesky inquired whether Yovichin
could remain on his shift and report the next workday in black
boots, but Reich responded that Yovichin had to leave at once.
Yovichin stated that Reich was being "idiotic" about the
situation,(11) and abruptly left
Reich's office followed by Labesky. The meeting lasted about 5 or
3. The meeting in Warden Ellis' office
Yovichin then decided to advise Associate Warden Miner of the situation. He and Labesky stopped and collected John Siffrinn, the Union's Vice-President, along the way to Miner's office. When Miner refused to see them, the group continued on to Warden Ellis's office to discuss the matter, apparently unaware that Reich previously had discussed with Ellis, at the 7:30 a.m. meeting, what action would be taken with respect to Yovichin as a result of the encounter in the compound. The three union officials walked through the open doorway into Ellis's office and closed the door. Ellis was seated at his desk; Labesky and Siffrinn sat down, but Yovichin remained standing. Yovichin related to Ellis what Reich had done-- i.e., ordered Yovichin to go home and change into black footwear and be charged with AWOL if it took longer than an hour.(12) Yovichin asked Ellis why he was being harassed and singled out to go home and change his shoes when many others also were not wearing black footwear. Ellis replied that he would make a tour of the facility and, if others were out of uniform, he would handle it. However, he indicated support for Reich's decision, stating that "I'm not going to have somebody discredit my Captain." At that point, Siffrinn showed Ellis that he, too, was wearing brown boots and asked whether he had to go home and change as well. Ellis replied, "No, I'm going to send Mr. Yovichin because it's on bad faith bargaining and he's the Union president."(13) The meeting ended after about 5 minutes, and Yovichin drove home to comply with Reich's order,(14) returning to the facility about an hour later wearing unlined black boots that he had never worn to work before.(15) Thus, Yovichin became the first and only employee at FCI McKean ever sent home to change footwear.
Discussion and Conclusions of Law
The GC contends that the Respondent FCI McKean, violated
section 7116(a)(1) and (2) of the Statute by sending Union
President Yovichin home to change his footwear and charging him an
hour of leave for the time it took him to do so, based on
Yovichin's protected activity during contract negotiations the
previous day. The GC further contends that the Respondent
independently violated section 7116(a)(1) of the Statute when
Warden Ellis told Yovichin, in the presence of employees/Union
representatives Labesky and Siffrinn, that the reason for his being
sent home was his bad faith bargaining the day before.
Section 7116(a)(2) of the Statute makes it an unfair labor
practice for an agency to "encourage or discourage membership in
any labor organization by discrimination in connection with hiring,
tenure, promotion, or other conditions of employment[.]" In
Letterkenny Army Depot, 35 FLRA 113
(1990)(Letterkenny), the Authority set forth the analytical
framework for resolving alleged violations of section 7116(a)(2) of
the Statute. Under Letterkenny, the General Counsel at all
times has the overall burden of establishing by a preponderance of
the evidence that: (1) the employee against whom the allegedly
discriminatory action was taken had been engaged in protected
activity under the Statute; and (2) such activity was a motivating
factor in the agency's treatment of the employee in connection with
hiring, tenure, or other conditions of employment. If the General
Counsel meets this burden, then the respondent may establish by a
preponderance of the evidence, as an affirmative defense, that: (1)
there was a legitimate justification for the action; and (2) the
same action would have been taken even in the absence of the
employee's protected activity. See U.S. Penitentiary,
Leavenworth, Kansas, 55 FLRA 704, 712 (1999); Department of
the Air Force, Warner Robins Air Logistics Center, Warner Robins
Air Force Base, Georgia, 52 FLRA 602, 605 (1996). For the
reasons set forth below, I find that the General Counsel has
established a prima facie case that Respondent violated
section 7116(a)(2) of the Statute as alleged in the complaint. I
further find that the Respondent has failed to establish as an
affirmative defense that its action was justified and would have
been taken regardless of union activity.
A. The General Counsel's Prima Facie Case
It is undisputed, and I find, that Yovichin was engaged in protected activity within the meaning of the Statute on January 21, 1999, when he participated as the Union's chief negotiator in collective bargaining on the issue of footwear allotments to corrections officers with the assistance of an FMCS mediator. I further find, and it is uncontested, that Yovichin's forceful rejoinder during negotiations to Associate Warden Miner's suggestion that only black footwear could be worn by corrections officers similarly constituted protected activity. There is no suggestion that such protected activity lost its protection due to Yovichin's intemperate language or aggressive demeanor in responding to Associate Warden Miner's comments. Accordingly, if a factor in Respondent's decision to send Yovichin home to change his boots the next morning was his position during negotiations that brown footwear could be worn by corrections officers with their uniforms, the General Counsel has established a prima facie case of discrimination.
I conclude that the General Counsel has established that
Yovichin's treatment by Captain Reich was motivated at least in
part by the comments Yovichin made during negotiations the previous
afternoon. Thus, no witness could recall any other corrections
officer ever having been sent home in the past to change footwear
for any reason. Yovichin was sent home for this purpose the morning
after his heated comments about the appropriate color of
corrections officers' footwear during the previous afternoon's
bargaining session. The close proximity between Yovichin's
protected activity and the Respondent's challenged actions, while
not alone dispositive, is probative of the motivation underlying
the decision to send Yovichin home to change footwear. See U.S.
Department of Veterans Affairs Medical Center, Northampton,
Massachusetts, 51 FLRA 1520, 1528 (1996); U.S. Department of
Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba,
Kentucky, 49 FLRA 1020, 1033 (1994)(Forest Service).
The inference that Yovichin's protected activity was a factor underlying the Respondent's actions is reinforced by the testimony of Captain Reich, the management official who decided that Yovichin had to go home to change his boots.(16) Thus, Reich testified that when he first encountered Yovichin in the compound early in the morning on January 22, 1999, and saw that Yovichin was wearing brown insulated work boots with his nickel gray corrections officer uniform, Reich immediately thought that Yovichin was trying to challenge his authority to require only black shoes to be worn with the uniform in order to underscore the Union's position as expressed during the previous afternoon's negotiating session that brown boots also were acceptable. Accordingly, Reich decided to make an issue of Yovichin's being out of uniform as the two men approached each other, knowing (based on years of direct experience) that Yovichin would react emotionally to Reich's provocation.
I further find that Reich had no legitimate basis for
challenging Yovichin's footwear on the day in question. Thus, Reich
and other management witnesses admitted that employees at FCI
McKean, including corrections officers under Reich's supervision,
were entitled to wear insulated boots in a variety of colors rather
than the standard low-cut black shoes when local weather conditions
were inclement and their duties might expose them to the elements.
Reich claimed that the weather on January 22, 1999, was clear and
dry. I have taken official notice that it was raining, sometimes
heavily, at FCI McKean on the morning in question, with
temperatures not much above freezing, and I have credited
Yovichin's undisputed testimony that his duties in the tool room
and his other responsibilities throughout the day would likely
expose him to the wet, cold and muddy conditions existing outdoors.
Under these circumstances, I conclude that Reich's stated reason
for stopping Yovichin over his footwear was pretextual.
My conclusion in this regard is buttressed by other facts as
well. Thus, I have credited Yovichin's testimony that he was
wearing the same brown, insulated Chippewa work boots on January
22, 1999, that he had worn for the past six winters at FCI McKean,
without a challenge from Reich since 1997. I also have rejected
Reich's assertion that he could not recall ever seeing Yovichin
wear brown boots with his uniform prior to the morning in question.
However, even if Yovichin had been wearing tan (rather than brown)
boots which were in poor condition on January 22, the outcome here
would be the same. As previously found, employees had worn boots in
many colors (including tan) during inclement weather without
challenge, so the specific color of Yovichin's boots that day could
not have justified Reich in sending Yovichin home to change
footwear. Moreover, no employees had been sent home in the past due
to the poor condition of their footwear. Indeed, Reich never
mentioned the poor condition of Yovichin's boots at any time that
morning as a reason for sending him home to change. Rather, Reich
himself testified that Yovichin would not have been ordered to go
home and change if it had not been for his attitude in responding
to Reich's challenge that morning. Yet Reich never told Yovichin at
any point that morning (either in the compound or later in Reich's
office) that his allegedly insubordinate behavior was the reason
for sending him home to change footwear.(17) The foregoing discussion convinces me that
the Respondent's shifting reasons for sending Yovichin home--his
non-compliance with the agency's footwear policy, the poor
condition of his boots, his allegedly insubordinate behavior--are
pretexts intended to hide the real and unlawful reason for its
action, Yovichin's protected activity during the parties'
negotiations. See Department of Housing and Urban Development,
Pennsylvania State Office, Philadelphia, Pennsylvania, 53 FLRA
1635, 1653-54 (1998), quoting St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 511 (1993).
Finally, I find it significant, and refreshingly candid,
that Warden Ellis revealed the true reason for Respondent's
decision to send Yovichin home to change footwear when facing the
three angry Union representatives in his office who were there to
challenge Reich's announced order. By his own account, Ellis is a
manager who dislikes confrontation and prefers to let his
subordinates carry out the daily routine of the institution. When
Ellis was confronted unexpectedly by Yovichin, Labesky and Siffrinn
in his office and forced to defend the decision of his Captain,
Reich, to send Yovichin home to change his brown boots, and then
was caught off guard by Siffrinn's inquiry whether he, too, would
be required to go home and change his brown boots, Ellis responded
that only Yovichin would be so required because he, as Union
President, had bargained in bad faith the previous day. This
surprising but understandable admission under the circumstances is
highly probative of the Respondent's true motivation in dealing
with Yovichin in the manner it did, and provides an independent
basis for finding that the Respondent unlawfully discriminated
against him in violation of section 7116(a)(1) and (2) of the
Statute, as alleged in the complaint.
B. Respondent's Affirmative Defense is Rejected
Having examined and discussed the entire record in finding
that the General Counsel carried the burden of proving a prima
facie case of unlawful discrimination, I have anticipated and
rejected the Respondent's assertion that it had a legitimate reason
for sending Yovichin home to change his footwear and that it would
have taken the same action even if Yovichin had not engaged in
protected collective bargaining activity the previous day. Thus, I
have found that in wearing brown boots to work on January 22, 1999,
an inclement day in the local area, Yovichin was conforming with
the established practice at FCI McKean and gave the Respondent no
cause to single him out for treatment that no other employee at
that facility had ever experienced.
In addition, I have rejected the assertion that Yovichin was
sent home because of his insubordinate behavior towards Captain
Reich. First, of course, Reich never mentioned that he was sending
Yovichin home for that reason. Rather, the one and only reason
announced by Reich repeatedly was that Yovichin was out of uniform.
Second, the Respondent has not established that Yovichin's behavior
was in fact insubordinate under the circumstances. Thus, Reich
provoked Yovichin by challenging him in the compound without
justification, knowing from past experience that Yovichin would
react defensively. In examining the record, I find nothing
objectionable in Yovichin's defending his right to wear the same
brown boots he had worn for the past six winters at the facility
with Reich's acquiescence.(18)
While Yovichin predictably became loud and excited, there was no
evidence that any inmate had overheard the exchange. Moreover,
Yovichin exercised good sense in ending the conversation with the
invitation that Reich could write him up if necessary. I will not
discuss the events that transpired later in Reich's office, because
Reich admittedly informed Ellis at the earlier 7:30 a.m. executive
meeting that he had decided to send Yovichin home to change his
footwear on the basis of their confrontation in the compound. In
any event, I have found that Reich declared Yovichin to be out of
uniform and directed him to go home and change his footwear at the
8:30 a.m. meeting before Yovichin gave Reich any further reason to
find Yovichin insubordinate. Yovichin's behavior at the second
meeting clearly was a reaction to Reich's announcement that
Yovichin would be required to go home and change. Thus, Yovichin's
behavior at the second meeting could not have contributed to
Reich's decision to send Yovichin home.
Accordingly, I conclude that the General Counsel has
established that the Respondent violated section 7116(a)(1) and (2)
of the Statute.
C. Respondent Independently Violated Section
As found above, Warden Ellis stated to Union President
Yovichin, Union Vice-President Siffrinn, and Chief Steward Labesky,
that the reason Yovichin was being sent home to change his footwear
was because of his bad faith bargaining as the Union's chief
negotiator the previous day on the related subject of footwear
allotments. It was at those negotiations when Yovichin reacted
forcefully to Associate Warden Miner's statement that only black
shoes could be reimbursed. I find that Warden Ellis' statement
would tend to coerce an employee in the exercise of rights
protected by the Statute. Forest Service, 49 FLRA at
1034.(19) Accordingly, I conclude
that by such statement the Respondent independently violated
section 7116(a)(1) of the Statute.
D. The Remedy
Having found the foregoing violations of the Statute, I shall order the Respondent to take the following actions as requested by the General Counsel.(20)
Pursuant to section 2423.41(c) of the Authority's Rules and
Regulations and section 7118 of the Federal Service
Labor-Management Relations Statute, the U.S. Department of Justice,
Federal Bureau of Prisons, Federal Correctional Institution (FCI)
McKean, Bradford, Pennsylvania, shall:
1. Cease and desist from:
(a) Discriminating against Richard D. Yovichin,
President of the American Federation of Government Employees, Local
3974, AFL-CIO, or any other Union official, by sending them home to
change their apparel and placing them on annual leave for the time
taken to do so, because they engaged in activity protected under
(b) Making statements to its employees to the effect
that the chief Union negotiator is being sent home to change his
apparel due to his conduct during collective bargaining on a
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute to form, join, or assist the Union,
including their right to act as representatives of the Union,
freely and without fear of penalty or reprisal.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Post at the Federal Bureau of Prisons, Federal
Correctional Institution (FCI) McKean, Bradford, Pennsylvania,
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Warden and shall be posted in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted, and shall be
maintained for 60 consecutive days thereafter. Reasonable steps
shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(b) Pursuant to section 2423.41(e) of the
Authority's Rules and Regulations, notify the Regional Director,
Boston Regional Office, Federal Labor Relations Authority, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply.
Issued, Washington, DC, March 31, 2000.
SAMUEL A. CHAITOVITZ
Chief Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the
U.S. Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution (FCI) McKean, Bradford, Pennsylvania,
violated the Federal Service Labor-Management Relations Statute,
and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY BARGAINING UNIT EMPLOYEES THAT:
WE WILL NOT discriminate against Richard D. Yovichin, the
President of American Federation of Government Employees, Local
3974, AFL-CIO, or any other Union official, by sending them home to
change their apparel and placing them on annual leave for the time
taken to do so, because they engaged in activity protected under
WE WILL NOT make statements to our employees to the effect that
the chief Union negotiator is being sent home to change his apparel
due to his conduct during collective bargaining on a related
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Statute to form, join, or assist the Union,
including their right to act as representatives of the Union,
freely and without fear of penalty or reprisal.
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, Boston Regional Office, Federal Labor
Relations Authority, whose address is: 99 Summer Street, Suite
1500, Boston, Massachusetts 02110, and whose telephone number is:
2. Although one witness testified that the discussion of footwear color arose when the parties were meeting with the mediator in a joint session just after lunch, I credit the foregoing account of how the discussion of footwear color arose and who raised it. In any event, I find it immaterial to the disposition of this case how the question came up.
3. The parties are in sharp disagreement over the color and condition of the boots that Yovichin wore to work on January 22. I credit Yovichin's testimony that he was wearing his customary boots as accurately pictured in Respondent's Exhibit
9, rather than light tan work boots with the reinforced steel toe exposed. While Yovichin can be abrasive and volatile during interactions with management, I found him to be an honest and candid individual with a thorough, detailed and consistent recollection of the events occurring on January 22. Conversely, the Respondent's witnesses were inconsistent in their testimony about the events of January 22 and thereby call into question the accuracy of their recollections concerning the color and condition of Yovichin's boots.
4. The weather conditions in Bradford, Pennsylvania, on January 22 were in dispute at the hearing. Several of the Respondent's witnesses testified that the day was clear and dry, with just a dusting of snow on the grassy areas of the compound. The General Counsel's witnesses testified that a cold rain fell on January 22, creating muddy conditions for corrections officers whose work took them outdoors that day. The General Counsel has filed a motion requesting that I take official notice of the actual weather conditions as reflected on a detailed printout, attached to the motion, derived from an internet source, the Weather Underground. Respondent filed no opposition. Official notice of weather conditions is appropriate. See Indian Health Service, Crownpoint Comprehensive Health Care Facility, Crownpoint, New Mexico, 53 FLRA 1161, 1166 n.1 (1998). See also Kelco Roofing, Inc., 268 NLRB 456, 461 (1983) and Two Wheel Corp., 233 NLRB 81, 83 n.8 (1977). The data submitted by the General Counsel indicates, and I find, that the temperature in Bradford on January 22 between 7 and 10 a.m. was 37 degrees, and that light to heavy rain was falling.
7. Yovichin testified that he was surprised at Reich's reaction to his footwear because, in November 1997, Reich had questioned him about the same pair of boots and Yovichin had said that until the institution provided the employees with foul weather gear, he was allowed to wear his own boots, to which Reich had responded, "okay, fine," and never again raised a question about Yovichin's footwear until this incident. Reich testified that he could not remember ever seeing Yovichin wear any footwear other than the low, black, oxford-style shoes prescribed by agency regulations, even during inclement weather, although he conceded that officers in his department were permitted to wear brown or other colored boots when the weather was bad. It strains credulity to believe that Reich had never seen Yovichin wearing the fur-lined brown boots that Yovichin in fact had worn during bad weather for the past six winters. I therefore credit Yovichin's testimony that Reich had questioned the appropriateness of his boots almost 2 years earlier and thereafter had let the matter drop until January 22, 1999.
8. I credit Reich's testimony that Yovichin reacted loudly and with gesticulations when told by Reich that he was out of uniform, arguing that the collective bargaining agreement did not preclude him from wearing brown boots. However, I do not credit Reich's further testimony that Yovichin was insubordinate by raising his voice in an open area with inmates around. There was no evidence presented that inmates were in the compound at that early hour, much less that any inmates could hear what was being discussed. Yovichin testified credibly that no inmates were in the vicinity. And Harold Provost, Respondent's senior operations lieutenant, testified that he was in the compound that morning and observed the incident from approximately 90 feet away, but could not hear what was being said.
9. Reich testified that Yovichin arrived at his office alone and then requested union representation which Reich did not oppose. I credit Yovichin's version. It is far more likely that the summons from his post to Reich's office shortly after his confrontation with Reich in the compound would create in Yovichin's mind the reasonable fear of discipline and the need for a union representative irrespective of whether he was told by the lieutenant to bring one.
10. It is undisputed that Reich mentioned only the color of Yovichin's boots as the basis for requiring their replacement; no mention was made either about their condition or Yovichin's behavior towards Reich in the compound earlier that morning.
11. Reich testified that Yovichin called him an "idiot" at the meeting. Roy corroborated this. Labesky testified that the plural was used by Yovichin, presumably referring to Reich and Roy: "You people are being idiots about this situation." I find it immaterial whether Yovichin, in his agitated state, said that Reich was being an idiot or acting idiotically over the issue of Yovichin's footwear.
12. Yovichin noted that he lived 20-25 minutes away from the facility under normal driving conditions, but that he could not be expected to complete the round trip during rush hour in the heavy rain that day.
13. Yovichin took this as a reference to the negotiating session of the day before when he strongly disagreed with Miner's comment that only black footwear was appropriate to be worn by corrections officers with their uniforms. Siffrinn, who had not been present at the negotiations, testified that Ellis referred to the previous day's bargaining session in responding to Siffrinn's question, but that he (Siffrinn) did not understand the reference. Labesky, a member of the Union's negotiating team, testified that he was surprised when Ellis told Siffrinn that Yovichin was being singled out for conformity with the black shoe policy because of his bad faith bargaining over the boot allotment issue the previous day. Ellis denied having linked Reich's decision to send Yovichin home to the latter's role in the negotiations. I discredit Ellis's denial, not only because all 3 employees present at the meeting confirmed the remark, but also because Ellis was inconsistent in his recollections about the events occurring on January 22. For example, Ellis testified that he was told by Reich at their 7:30 a.m. meeting that Reich had no intention of sending Yovichin home to change his footwear, but changed his mind as a result of Yovichin's insubordinate behavior at the 8:30 a.m. meeting attended by Labesky. Yet Reich credibly testified that Ellis was told at the 7:30 a.m. meeting of the plan to send Yovichin home, and that Ellis agreed with the plan as long as Personnel was consulted and did not object.
15. Yovichin was charged with an hour of annual leave for the time spent complying with Reich's order, but that leave was later restored to his account. Yovichin also was proposed for a suspension as a result of his purported insubordination toward Captain Reich on January 22, but no such action was ever taken against him.
16. The Authority has held that, in determining whether a prima facie case of discrimination is established under the Letterkenny analytical framework, it is appropriate to look beyond the General Counsel's evidence and consider the record as a whole. Department of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 55 FLRA 1201, 1205 (2000); Internal Revenue Service, North Atlantic Region, Brookhaven Service Center, Holtsville, New York, 53 FLRA 732, 746-48 (1997).
17. While it is not within my province to determine whether the Respondent was reasonable in sending Yovichin home to change footwear as discipline for his alleged insubordination, it is my responsibility to decide whether at least one of the reasons for the Respondent's actions was unlawful. To the extent that the explanation given for the action taken appears to be non-responsive to the alleged infraction, it gives rise to an inference of unlawful motivation. Here, it makes no sense to send Yovichin home to change footwear in response to his alleged insubordination toward Reich. It does make sense to take such action if the true motivation is to bring Yovichin into compliance with the agency's regulations. Yet, Reich disclaims this as his motivation. Furthermore, I note that Yovichin's behavior towards Reich on January 22 was under consideration independently as the basis for discipline in the nature of a suspension, although management ultimately decided to take no such disciplinary action against him.
18. In defending himself, Yovichin may not have been engaged in "concerted" activity but, contrary to the Respondent's assertion, concerted activity is neither mentioned in nor required under the Statute. In any event, Yovichin's self-defense against Reich on January 22 is not the protected activity at issue. Rather, it is Yovichin's participation in negotiations on behalf of the entire bargaining unit the previous day which constitutes the protected activity herein.
19. The fact that Yovichin, Siffrinn and Labesky were all grizzled veterans of the labor-management relations wars and may not have been intimidated or otherwise discouraged from continuing to exercise their protected rights under the Statute is of no moment in reaching this decision, since the standard is an objective one. Id. See also U.S. Penitentiary, Florence, Colorado, 53 FLRA 1393, 1404 (1998).
20. Since Yovichin's leave balance has been restored already, and no disciplinary action has been taken against him arising out of the events recounted in this decision, the only affirmative action to be ordered herein is the posting of a Notice to all employees.