18:0831(100)CA - Justice, Bureau of Prisons, Federal Correctional Institution, Butner, NC and AFGE Local 3696, Council of Prison Locals -- 1985 FLRAdec CA
[ v18 p831 ]
18:0831(100)CA
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.