[ v55 p704 ]

55 FLRA No. 127

U.S. PENITENTIARY
LEAVENWORTH, KANSAS
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 919
(Charging Party)

DE-CA-60026
DE-CA-60027
DE-CA-60028
DE-CA-60049
DE-CA-60050
DE-CA-60051
DE-CA-60349
DE-CA-60362
DE-CA-60365
DE-CA-60385
DE-CA-60405
DE-CA-60569

_____

DECISION AND ORDER

August 10, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Cases

      This case involves 12 consolidated unfair labor practice (ULP) complaints. It is before the Authority on the General Counsel's (GC's) and the Respondent's exceptions, and the Charging Party's cross-exceptions, to the Judge's decision. The Respondent filed oppositions to the GC's exceptions, and to the Charging Party's cross-exceptions. The Charging Party filed an opposition to certain of the Respondent's exceptions. The GC did not file an opposition to the Respondent's exceptions.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendations in Case Nos. DE-CA-60026, DE-CA-60027, DE-CA-60028, DE-CA-60049, DE-CA-60050, DE-CA-60051, DE-CA-60362, DE-CA-60365, DE-CA-60385, DE-CA-60405, and DE-CA-60569, only to the extent consistent with this decision. [n2]  For the reasons set forth below, we dismiss the complaint in Case No. DE-CA-60349. We also modify the recommended remedies to: (1) direct the Respondent to cease and desist from its violative conduct and require the Respondent to post a notice to all employees; (2) direct the Respondent to call a meeting of all employees, at which the notice will be read aloud; (3) require the parties to show cause why the Authority should not refer this matter to the Office of Special Counsel, or direct the Respondent to make such a referral, requesting an investigation into whether the warden of the penitentiary (the warden) committed prohibited personnel practices and any action deemed appropriate by the Special Counsel; (4) require the Respondent to distribute copies of the notice to all employees; and (5) modify the wording of the notice to indicate that the Respondent has been found to have committed ULPs during a 7-month period in 1995.

II.     Background

      The facts are fully set forth in the Judge's decision, and only briefly summarized here and in our discussion of the individual complaints below. This case involves a variety of statements and conduct occurring at the U.S. Penitentiary in Leavenworth, Kansas (the penitentiary).

      The GC filed complaints alleging, as relevant here, that the Respondent committed various violations of section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when:

• the warden told the Union president (the president) and the Union first vice-president (the first VP) that the warden had ways to discourage the first VP from representing another employee;
   
• the warden removed the first VP from the Agency's steering committee, and the warden's executive assistant (the executive assistant) told the first VP that he was being removed from the [ v55 p705 ] committee because the warden did not like the way that he represented certain bargaining unit employees;
   
• the warden told the Union chief steward (the chief steward) that he was going to take actions against the president and first VP because they were "f**king with" the warden;
   
• the warden held a meeting wherein he discussed various ULP charges but did not afford the Union the opportunity to participate;
   
• the warden refused to allow the president access to the penitentiary for particular representational purposes, while he was on home duty status;
   
• the Respondent permitted an employee to sign committee notes on the Union's behalf, when the Union had not authorized that employee to act on its behalf;
   
• the warden made anti-Union statements at a mandatory meeting of all employees; and
   
• the Respondent ordered the Union to relocate its office space, without providing the Union with the oportunity to negotiate over the relocation.
   

III.     Preliminary Matters Regarding the Judge's Credibility Determinations.

A.     Judge's Decision

      At the hearing, a number of witnesses testified for each side, and the Judge made several credibility findings in assessing whether the alleged violations occurred. In an "Introductory Overview" section of the decision, the Judge stated that "[m]ost of the witnesses presented by each side appeared to be highly credible," and that "[m]ost also had some motivation for telling either more or less than the whole truth." Decision at 4. The Judge also stated that his credibility determinations were "largely [a] product of an effort to reconstruct these events in a manner that is as consistent as possible with the record as a whole, and with how experience teaches that people might be expected to have acted in similar circumstances[.]" Id. The Judge compared this with Voltaire's views about the inaccuracy of written history, and he concluded: "Nonetheless, my responsibility is not to hold out for certainty but to reach for the more modest objective of closure." Id.

B.     Positions of the Parties

1.     Respondent's Exception  [n3] 

      Relying on the "prefatory comments" quoted above, the Respondent contends that the Judge determined that he was required to find one side more credible than the other, and in so doing, the Judge eliminated the possibility of evidentiary equipoise. In support of its claim that this constituted an improper shifting of the burden of proof, the Respondent cites Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994) (Greenwich Collieries). In addition, citing United States v. Garner, 767 F.2d 104, 116 (5th Cir. 1985) (Garner), the Respondent argues that the Judge's credibility determination process was arbitrary, capricious, and an abuse of discretion under the Administrative Procedure Act (APA). The Respondent requests that the Authority declare void any credibility determinations that are adverse to the Respondent, and dismiss any findings of liability based thereon.

2. Charging Party's Opposition

      The Charging Party asserts that the Respondent has not established that the Judge erred in the legal standard he used in making credibility findings. The Charging Party also maintains that the exceptions challenge the Judge's credibility determinations, and as such, should be denied.

C.     Analysis and Conclusion

      The Authority will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. See Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA 51, 51 (1994). Credibility determinations may be based on a variety of considerations, including: (1) the witness's opportunity and capacity to observe the event in question; (2) the witness's character as it relates to honesty; (3) prior inconsistent statements by the witness; (4) the witness's bias or lack thereof; (5) the consistency of the witness's testimony with other record evidence; (6) the inherent improbability of the witness's testimony; and (7) the witness's demeanor. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA 987, 1006 n.11 (1998) (NOAA). [ v55 p706 ]

      The Respondent interprets the Judge's statement that he was attempting to "reach . . . closure[,]" Respondent's Exceptions at 9, rather than holding out for certainty, as meaning that the Judge believed that "when both sides are credible" on a given issue, "the trier of fact [must] resolve the issue for one side or the other[.]" Id. at 9-10 (emphasis in original). In our view, this portrayal of the Judge, as believing that a finding had to be reached to resolve each credibility dispute, mischaracterizes his decision. It is belied by the fact that a careful reading of the decision in its entirety makes evident that the Judge did not resolve every credibility dispute. See, e.g., Decision at 9 (the Judge declined to make a credibility determination with regard to testimony by the first VP). Moreover, with respect to those credibility findings that the Judge did make, he explained the thorough and deliberate analysis he conducted. See, e.g., id. at 15 (discussing the credibility of the associate warden and the human resources manager). In short, the Respondent attaches significance to the Judge's philosophical digression into the world of Voltaire that is not supported by the record.

      Under the APA, when the evidence on both sides of an issue is equally balanced, the party with the burden of proof on that issue must lose. See Greenwich Collieries, 512 U.S. 267. The Judge's statement that most of the witnesses presented by each side were highly credible does not constitute a determination that, in the context of any particular ULP allegation, the Judge found the evidence equally balanced on both sides of the issue. In fact, in the cases where the Judge found that ULPs had been committed, the Judge found that the GC met its burden of proof. See, e.g., Decision at 22, 38. As such, the Respondent's citation to Greenwich Collieries does not demonstrate that the decision is contrary to the APA.

      Finally, the record demonstrates that the Judge carefully weighed the evidence in reaching his credibility findings and conclusions, and the Respondent's exception does not provide a basis for finding that the Judge's decision is arbitrary or capricious. The decision by the United States Court of Appeals for the Fifth Circuit in Garner, on which the Respondent relies, does not support the argument the Respondent advances. In Garner, the court held that, under the APA, an administrative rule or regulation will be set aside as arbitrary or capricious when "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." 767 F.2d at 116 (internal quotation omitted). The Respondent does not explain how the Judge's decision was arbitrary and capricious under that standard.

      For the foregoing reasons, we deny the Respondent's exception.

IV.     Case Nos. DE-CA-60027 and DE-CA-60050

A.     Background and Judge's Decision

      The complaint alleges that, during the course of the first VP's representation of a bargaining unit employee, the warden made threatening statements to Union officials on several days in September, 1995. Specifically, as relevant here, the complaint alleges that on September 20, the warden told the first VP that "he had ways of making [the first VP] back off the [employee's] case", GC Exhibit 1(s) at 3; on September 27, the warden asked the president to "get [the first VP] to back off the [employee's] case," and if the president failed to do so, that the warden had "ways to make [the first VP and the president] back off that case[,]" id. at 4; and on September 28, the warden again told the first VP that "he had ways [of] making [the first VP] back off [the employee's] case[,]" id. at 3. At the hearing, testimony by the warden, on the one hand, and the first VP, the president, and the Union sergeant-at-arms (the sergeant-at-arms), on the other hand, disputed whether these statements were made. In addition, the first VP testified at the hearing about statements made by the warden in meetings on two additional days -- September 7 and 8. Specifically, the first VP testified that on September 7, the warden stated, inter alia, that he "had ways of getting tough with" the first VP, Decision at 5, and on September 8, the warden told the first VP "again . . . that he had ways to back [him] off the . . . case." Id. at 6. The warden did not specifically testify regarding the September 7 and 8 meetings, but he generally "denied telling [the first VP] or anyone else to back off the [employee's] case." Id. at 8.

      In concluding that the September 20 statements were made as alleged, the Judge discussed the testimony concerning other statements by the warden on September 7 and 8. The Judge explained that he was "more inclined to believe [the first VP] and [the sergeant-at-arms]" than the warden's denial because of the first VP's testimony about September 7 and 8. Specifically, the Judge found that the first VP's testimony "present[ed] a credible description of the warden's style in dealing with [the first VP]." Id. at 9. In discussing the September 8 events, the Judge expressly declined to make a credibil- [ v55 p707 ] ity finding with regard to the warden's purported statement.

      With regard to the statement alleged to have been made on September 27, the Judge found the warden's denials "incomplete". Id. He credited the president's testimony about the statement because of the "expression" he attributed to the warden. Id. Specifically, he determined that the president's testimony about the September 27 meeting attributed the same linguistic expression -- i.e., that the employee the first VP was representing "had a path worn to her back door" -- to the warden that the first VP had "credibly attributed" to the warden when he testified about the September 7 meeting. Id.

      With regard to the September 28 statement alleged in the complaint, the Judge found the testimony of the first VP and the sergeant-at-arms to be "mutually corroborative". Id. at 10. Because the warden "didn't testify regarding this meeting," the Judge found that there was "no explanation in the record for his purpose in summoning [the first VP] to his office other than to say the things [the first VP] and [the sergeant-at-arms] testified that he said." Id. The Judge concluded that the warden made the statement as alleged.

B.     Respondent's Exceptions  [n4] 

      The Respondent argues that the Judge erred by relying on testimony about the September 7 and 8 statements in reaching his conclusion that the September 20, 27, and 28 statements alleged to violate the Statute were made. Additionally, the Respondent asserts that the Judge erred by finding that the warden's denial of the alleged statements was incomplete, and that the Judge improperly discredited that denial. According to the Respondent, the decision is also arbitrary, capricious, or an abuse of discretion because the Judge relied on the warden's "protected" September 7 statement (regarding "get[ting] tough" with the Union) in order to reach his conclusion that unprotected statements (regarding backing the first VP off the employee's case) were subsequently made. Respondent's Exceptions at 15, n.4.

      The Respondent also contends that, in two respects, the Judge made inconsistent credibility determinations. First, the Respondent asserts that the Judge considered the warden's denial to be credible with regard to the September 8 statement, but not with regard to the September 7 statement. See id. at 14 n.3 (noting, without any supporting citation, that "[w]hile the [Judge] professed to not make a credibility determination as to [the September 8] meeting, his commentary thereon makes it clear that he did, indeed, assess credibility.") Second, the Respondent maintains that because the Judge found the first VP's testimony regarding September 8 to be incredible, it was inconsistent for the Judge to find the first VP's testimony regarding September 20 to be credible.

C.     Analysis and Conclusions

1.     The Judge Did Not Improperly Rely on Statements Not Alleged in the Complaint.

      "As a general rule, we will not review allegations that are not included in [a] complaint." American Federation of Government Employees, Local 2501, Memphis, Tennessee and Clarence C. Brown, An Individual, 51 FLRA 1657, 1660 (1996) (internal citation omitted). Nevertheless, the Authority has held that, in assessing the credibility of a witness, a judge may rely on the consistency of the witness's testimony with other record evidence. See NOAA, 54 FLRA at 1006 n.11.

      The Judge acknowledged that he was precluded from finding that statements on September 7 and 8 violated the Statute because those statements were not alleged in the complaint to violate the Statute. Nevertheless, the Judge relied on the fact that similar statements had been "credibly attributed to [the warden] throughout the hearing" -- e.g., by the president when testifying regarding the September 27 statement and by the Union second vice-president (the second VP) when testifying regarding the September 28 statement -- in finding that the warden made the alleged September 20 statement. Decision at 9-10. In other words, the Judge found the testimony of the first VP and the sergeant-at-arms concerning the September 20 statement to be consistent with other record evidence, and he credited that testimony.

      The Judge did the same with regard to the allegations concerning September 27. Specifically, the Judge compared the first VP's testimony about what the warden said on September 7 with the president's testimony about what the warden said on September 27. He found that both the first VP and the president attributed the same expression -- i.e., that the employee the Union first VP was representing "had a path worn to her back door" -- to the warden, and that the first VP's attribution was "credibl[e]." Decision at 9. As with the Judge's findings regarding the September 20 statement, the Judge credited the witness testimony regarding the warden's September 27 statement, because such testimony was consistent with other record evidence. Consistent with [ v55 p708 ] the Authority's statement in NOAA, 54 FLRA at 1006 n.11, we find that the Respondent's exception does not demonstrate that the Judge acted improperly by relying on the testimony about prior statements in concluding that the warden made the September 20 and 27 statements.

      With regard to the alleged statement of September 28, the Judge weighed the mutually corroborative testimony of the first VP and the sergeant-at-arms against the warden's failure to testify regarding that meeting, and he concluded that the warden made the statement as alleged. Although the Authority has not heretofore determined whether a judge may rely on a witness's failure to testify regarding a particular matter to draw an adverse inference regarding that witness, courts, in civil cases, have answered that question in the affirmative. See, e.g., Watson v. Perry, 918 F. Supp. 1403, 1415 (W.D.Wash. 1996) (citing Baxter v. Palmigiano, 425 U.S. 308, 319 (1976)). Consistent with those holdings, we find that, under these circumstances, the Respondent has not established that the Judge erred by drawing an adverse inference from the warden's failure to testify regarding the September 28 meeting.

      Accordingly, we deny this exception

2.     The Judge Did Not Err in Finding that the Warden's Denial Was "Incomplete."

      Although the Judge stated that the warden's denial was incomplete because the warden did not testify regarding September 7 and 8, the Judge did not discredit that denial merely because it was incomplete. Rather, as discussed above, the Judge determined that the first VP's testimony provided a credible description of the warden's general style, and the Judge found such testimony to be more credible than the warden's generic denial. The Respondent's assertion that the Judge erred by finding the warden's denial incomplete does not provide a basis for reversing the Judge's decision, and we deny this exception.

3.     The Judge Did Not Improperly Rely on Protected Statements in Order to Conclude that Unprotected Statements Were Made.

      According to the Respondent, the Judge erred by relying on an allegedly "protected" statement of September 7, in order to conclude that unprotected statements were subsequently made. Respondent's Exceptions at 16. This argument is, in effect, the same as the Respondent's argument, addressed above, that it was improper for the Judge to rely on a statement not alleged in the complaint -- here, the September 7 statement -- in order to conclude that subsequent statements were made. For the reasons already discussed, this does not provide a basis for reversing the Judge's decision, and we deny this exception.

4.     The Judge Did Not Improperly Discredit the Warden's Denial.

      Contrary to the Respondent's assertion, the Judge did not discredit the warden's denial simply because it did not reference a specific date. Rather, the Judge found that the testimony of the first VP, the sergeant-at-arms, and the president was more credible than the warden's generic denial. Decision at 9. The Judge also found that the first VP's testimony presented a "credible description of the warden's style in dealing with [the first VP]." Id. The Respondent's arguments mischaracterize the Judge's decision. They do not provide a basis for reversing the decision, and we deny this exception.

5.     The Judge Did Not Make Inconsistent Credibility Determinations.

      Contrary to the Respondent's assertion, the Judge did not find the warden's denial to be credible with regard to the September 8 statements. In fact, the Judge expressly found it likely that the warden made improper statements either on September 7, September 8, or on both dates. Id. Similar to the previous exception, the Respondent's exception mischaracterizes the Judge's findings, and does not provide a basis for reversing the decision.

      We also reject the Respondent's claim that the Judge erred by finding that the first VP's testimony regarding September 20 was credible, while finding that his testimony regarding September 8 was incredible. This argument is based on a further mischaracterization of the Judge's findings. In his discussion of the purported September 8 statements, the Judge found that the first VP's testimony "present[ed] a credible description of the warden's style in dealing with [the first VP]." Id. Thus, contrary to the Respondent's assertion in its exceptions, the Judge did not find the first VP's testimony regarding September 8 to be incredible. The Respondent does not demonstrate that the Judge acted inconsistently by finding that the first VP's testimony regarding September 20 to be credible.

      Accordingly, we deny the exception. [ v55 p709 ]

V.     Case No. DE-CA-60049

A.     Background and Judge's Decision

      The complaint alleges that the warden, during a telephone conversation with the chief steward, made statements indicating that he intended to take actions against the president and the first VP because of their Union activities.

      At the hearing, the chief steward testified that on October 1, 1995, the warden telephoned him and stated that he intended to "go[] after" the president and the first VP because they were "f**king with [the warden] all the time." Decision at 15, 16. According to the chief steward, the warden also informed him that he was going to reassign the first VP to the Custody Department. The chief steward testified that he took contemporaneous notes of that conversation.

      Finding that the chief steward's notes bolstered his credibility, the Judge credited his testimony. The Judge acknowledged that the notes did not specifically mention the president, but determined that such omission was reasonable because the chief steward was likely to have been so "riveted" by the warden's threat of specific action against the first VP that he neglected to note the warden's comments regarding the president. Id. at 17.

      The Judge stated that the chief steward had been asked, at the hearing, whether he could support the testimony of two other witnesses that the warden made certain other statements at a September 29 meeting, and that the chief steward "declined to do so because he did not remember hearing" the warden make those statements. Id. The Judge thus found the chief steward to be "a person who would be reluctant to make up a story in the interest of solidarity." Id.

      The Judge noted that the warden was asked, at the hearing, whether he had stated that he intended to "go after" the president and the first VP "because of their union activity[,]" and that the warden denied using those words "or anything like or similar to" those words. Id. The Judge also noted the chief steward's testimony that the warden said he was going after them "because they were [f**king] with" the warden. Id. The Judge found that the warden's denial left him with some "wiggle room[,]" given that he had not been asked whether he made the "f**king with" statement. Id.

      Finally, the Judge determined that the chief steward could reasonably have interpreted the warden's "f**king with" statement as meaning that the warden intended to retaliate against the president and the first VP for their Union activities. Accordingly, the Judge concluded that the warden's statement violated section 7116(a)(1).

B.     Respondent's Exceptions  [n5] 

      The Respondent contends that the Judge erred in finding the chief steward credible on the basis that the chief steward declined to corroborate the other witnesses' testimony regarding a September 29 meeting. According to the Respondent, "there was absolutely no testimony by anyone . . . by which to form an evidentiary basis" that the chief steward was asked about, or testified about, the September 29 meeting or the other witnesses' testimony regarding that meeting. Respondent's Exceptions at 17. The Respondent also asserts that no evidence supports the Judge's finding that the chief steward probably failed to mention the president in his contemporaneous notes of the meeting because his attention was riveted by the warden's statements regarding the first VP. The Respondent argues that the chief steward has a "self-professed poor memory," and thus was one of the least credible witnesses to reconstruct what had occurred during the conversation with the warden. Id. The Respondent maintains that the Judge's credibility finding regarding the chief steward was arbitrary, capricious, or an abuse of discretion.

      In addition, the Respondent asserts that, in the context of assessing whether the warden's statements indicated an anti-Union motivation, the Judge interpreted the warden's statement that he intended to take action against the president and the first VP because they were "[f**king] with" the warden, as meaning that he intended to retaliate against them because of their "union activities." Id. at 18-19. However, the Respondent argues, the Judge declined to interpret "[f**king] with" as meaning "union activities" in the context of assessing the credibility of the warden's denial that he said he intended to retaliate against the president and the first VP because they were "[f**king] with" him. Id. According to the Respondent, the Judge's inconsistency on this matter indicates a credibility determination process that was arbitrary, capricious, and an abuse of discretion. [ v55 p710 ]

C.     Analysis and Conclusions

1.     The Judge's Credibility Finding Regarding the Chief Steward Was Not Arbitrary and Capricious.

      The Judge partially based his finding that the chief steward was credible on the chief steward's refusal to corroborate two other witnesses' testimony regarding a September 29 meeting. See Decision at 17. Our review of the transcript confirms that the Respondent is correct in asserting that the chief steward was never asked about that meeting. See Transcript at 324-48. This fact casts some doubt on the Judge's finding that the chief steward was credible.

      Nevertheless, the Judge also based this credibility finding on the fact that the chief steward's contemporaneous notes of his phone conversation with the warden supported the chief steward's testimony. See Decision at 17. Acknowledging that the notes do not mention the president, the Judge attributed this to the likelihood that the chief steward's attention was so riveted by the warden's specific threats regarding the first VP that he neglected to note the warden's more general threats regarding the president. Even though one of the bases for the Judge's credibility determination regarding the chief steward is questionable, the Respondent has not established, by a clear preponderance of all relevant evidence, that the credibility finding was incorrect.

      Accordingly, we deny this exception.

2.     The Judge Did Not Act Inconsistently in Interpreting the Warden's Statement.

      The Respondent argues that the Judge acted arbitrarily and capriciously by interpreting the warden's statement -- i.e., "because they were f**king with" the warden -- as having one meaning at one point in this decision, but having a different meaning at another point in his decision. Specifically, according to the Respondent, the Judge first found that, in the context of his conversation with the warden, the chief steward could have interpreted the statement "because they were f**king with" as meaning "because of their Union activities", but then found that the warden, when asked at the hearing about the statement, probably did not interpret "because they were f**king with" as meaning "because of their Union activities", so that he could deny making anti-Union statements. The Respondent does not provide any support for finding that the chief steward and the warden should have interpreted the same statement in the same way, or that it was arbitrary, capricious, or an abuse of discretion for the Judge to not view them as the same in both contexts.

      Accordingly, we deny this exception.

VI.     Case No. DE-CA-60028

A.     Background and Judge's Decision

      The complaint alleges that the warden removed a Union steward (the steward) from the Agency's strategic planning steering committee. At the hearing, when asked whether the steward had behaved in an inappropriate manner during the committee meetings, the executive assistant testified that he could not remember anything noteworthy about the steward's behavior at those meetings. The steward testified that he was told by the executive assistant that he had been removed because the warden did not like the fact that the steward was representing certain employees. Although the executive assistant denied making that particular statement to the steward, the Judge found that the executive assistant's "silence on whether he was asked" why the steward had been removed left "no alternative, except [the executive assistant's] flat denial, to [the steward's] version of [the executive assistant's] answer." Decision at 21. The Judge credited the steward's testimony, and concluded that the executive assistant's statement violated section 7116(a)(1).

      The Judge also found that the GC had failed to establish that the committee dealt with "conditions of employment[,]" and as such, the Union did not have the right to have a representative on the committee. Id. at 25. Therefore, the Judge concluded that the steward's removal did not violate section 7116(a)(5). [n6] 

      With respect to the allegation that the removal from the committee violated section 7116(a)(2), the Judge concluded that it did because it was motivated by the steward's protected activities outside of the committee meetings. In explaining this conclusion, the Judge addressed whether it was necessary to establish that the steward had been treated disparately when compared with the treatment of similarly situated employees. The Judge concluded that a finding of such disparate treatment was necessary only if, in fact, there were employees similarly situated to the steward. See id. at 24 ("'disparate treatment' is only a meaningful concept among 'similarly situated employees'"). The Judge concluded, "purely out of considerations of practicality," that:

In order to invoke the requirement of showing disparate treatment, a respondent must shoulder the [ v55 p711 ] burden in the first instance of establishing that there were "similarly situated employees." That has not been established here.

Id. at 25.

      Based on the foregoing, the Judge found that a showing of disparate treatment was not necessary to establish a violation of section 7106(a)(2). Accordingly, the Judge found that the GC established a section 7116(a)(2) violation under the standard set forth in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) because the GC demonstrated that the Respondent's removal of the steward from the committee was motivated by the steward's protected activities.

B.     Respondent's Exceptions  [n7] 

      The Respondent asserts that the Judge improperly relied on the executive assistant's "silence" as to whether the steward asked the executive assistant why the steward was being removed. Respondent's Exceptions at 19 (quoting Decision at 21). According to the Respondent, no one at the hearing asked the executive assistant whether the steward had made such an inquiry, and as a result, the executive assistant did not have the opportunity to deny that the steward so inquired.

      The Respondent also argues that the Judge erred in the way he resolved whether proof of disparate treatment of similarly situated employees was required to establish a violation of section 7116(a)(2). According to the Respondent:

As the [Judge] has identified the showing of similarly situated employees as a part of the Authority's requirement for showing disparate treatment, and the APA requires the General Counsel to bear the burden of proving this same disparate treatment, the [Judge's] shifting of this burden of proof to the Respondent violates Authority precedent and the APA . . . . Therefore, based upon the [Judge's] own analysis of the facts before him, no prima facie case of disparate treatment was put forward by the General Counsel. Thus, . . . no unfair labor practice was committed . . . .

Id. at 26.

      In addition, the Respondent contends that the executive assistant's testimony that he could not remember anything "noteworthy," or anything that "[stood] out in [his] mind," about the steward's behavior at the committee meetings, does not support the Judge's finding that the executive assistant saw nothing "untoward" in the steward's behavior at those meetings. Id. at 20. The Respondent maintains that "it is equally conceivable" that the executive assistant meant that the steward was acting in his capacity as a Union representative at the meetings, but that he did not do so in a noteworthy way. Id. at 20 n.6. The Respondent argues that the Judge's "mischaracterization" of the executive assistant's testimony indicates that the decision is arbitrary, capricious, or an abuse of discretion. Id. at 20. According to the Respondent, the executive assistant's statement to the steward referred to the steward's representation of the Union during the committee meetings, rather than the steward's Union activities outside of those meetings. Because the Union was not entitled to have a representative on the committee, the Respondent asserts that management had the right to remove the steward, and the executive assistant's statement to the steward did not violate the Statute.

C.     Analysis and Conclusions

1.     The Judge's Findings Regarding the Executive Assistant's Testimony Were Not Arbitrary, Capricious, or an Abuse of Discretion.

      Respondent did not dispute, before the Judge, that the steward had asked the executive assistant why he was being removed from the committee. See Decision at 21. Additionally, the Judge found it likely, as a logical matter, that the steward would have asked the executive assistant why he was being removed from the committee. Faced with the steward's testimony regarding the executive assistant's response to that question, and the executive assistant's flat denial that he responded as alleged -- as well as the executive assistant's failure to testify as to what response he did give the steward -- the Judge found "the probabilities to be with [the steward's] version[.]" Decision at 21. In other words, the Judge concluded that the executive assistant's denial was improbable. The Authority has held that "the inherent improbability of the witness's testimony" is a proper basis for finding that witness's testimony incredible. See NOAA, 54 FLRA at 1006 n.11. The Respondent's exception does not demonstrate that the Judge erred by crediting the steward's testimony in this regard.

      The Respondent offers an alternative interpretation to the Judge's interpretation that when the executive assistant asserted he could not remember anything "noteworthy" about the steward's behavior, this means that the executive assistant could not recall the steward acting in an "untoward" manner. Respondent's Exceptions at 20. According to the Respondent, "[g]iven the [ v55 p712 ] open-ended, subjective nature of the[] questions" that the executive assistant was asked at the hearing in this connection, "it is equally conceivable that [the executive assistant] saw [the steward] engage in a gentlemanly process of acting as the Union's representative" at the meetings, but that the steward did not do so in a "noteworthy" way. Id. at 20 n.6. Even assuming that the Respondent's alternative explanation is plausible, the Respondent does not establish that it is more plausible than the Judge's interpretation. Nor does the Respondent contend that it was precluded from asking the executive assistant, during the hearing, to clarify what he meant by that statement. Accordingly, the Respondent does not demonstrate that the Judge's findings in this regard were arbitrary, capricious, or an abuse of discretion, and we deny these exceptions.

2.     The Judge Did Not Err in Finding that the Respondent Violated Section 7116(a)(2).

      In Letterkenny, 35 FLRA at 118, the Authority set forth the analytical framework for resolving alleged violations of section 7116(a)(2) of the Statute. Under Letterkenny, the GC has, at all times, the overall burden of establishing by a preponderance of the evidence that: (1) the employee against whom the discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the treatment of the employee in connection with hiring, tenure, or other conditions of employment. If the GC 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 employees' protected activity. See, e.g., Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia, 52 FLRA 602, 605 (1996).

      As found by the Judge, and not disputed by the parties, the steward was engaged in protected representational activities outside the context of the committee meetings. As a result, the first requirement of the Letterkenny prima facie case is met.

      With regard to the second Letterkenny requirement, the Judge credited the steward's testimony regarding the executive assistant's statement about the warden's motivation. The Judge also found that the executive assistant was in a position to be aware of the warden's actual motivation. Additionally, the Judge found no evidentiary support for the Respondent's claim that the removal was, instead, motivated by improper behavior by the steward during the committee meetings. The Judge concluded that the steward's protected activities motivated the Respondent's actions, and the Respondent has not established that the Judge erred in this respect.

      The Respondent argues that the GC did not establish a prima facie case of disparate treatment of similarly situated employees, and as a result, the Judge erred in finding that the steward's removal constituted a ULP. However, the Authority has clarified that a showing of disparate treatment is not a necessary element of a prima facie case of a 7116(a)(2) violation. See 305th Air Mobility Wing, McGuire Air Force Base, New Jersey, 54 FLRA 1243, 1245 n.2 (1998). As such, the Respondent's assertion does not demonstrate that the Judge erred in finding a 7116(a)(2) violation. For the same reason, it is not necessary to address the Judge's dicta regarding party burdens to establish the existence of similarly situated employees in undertaking a disparate treatment analysis.

      We also find that the Respondent's assertion that it had the right to remove the steward from the steering committee because the Respondent had the right to determine the committee's composition, is without merit. Essentially, the Respondent is arguing that its right to determine the committee's composition allowed it remove employees for any reason, including a prohibited one. As discussed above, the Judge properly found that the removal violated section 7116(a)(2) of the Statute because it was motivated by the steward's protected activities, and the Respondent's argument here does not provide a basis for reversing that finding.

      Based on the foregoing, we deny these exceptions.

VII.     Case No. DE-CA-60349

A.     Background and Judge's Decision

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to allow the president access to the institution for particular representational purposes.

      The president was appointed as the Union's representative on the housing committee, which holds its meetings within the penitentiary. Additionally, the president designated himself to teach the Union class at the Agency's annual refresher training, which also was to be held within the penitentiary. Prior to the appointment and designation, the warden placed the president on home duty status pending the results of an investigation into whether he made statements alleged to incite inmates and other staff members to fight one another. [n8]  Although the Union secretary-treasurer, pursuant to the president's authorization, signed and submitted a memo- [ v55 p713 ] randum to the warden appointing the president as the Union's member of the housing committee, the warden did not respond to that memorandum. When the associate warden received notice from the president that he intended to teach the Union class, the associate warden sent a letter to the president, reminding him that he was not allowed within the penitentiary without the warden's approval. The warden later denied the president's request for access to the penitentiary for purposes of teaching the Union class. The Respondent requested that the Union provide a list of alternate instructors for the Union class, but the Union failed to do so.

      The Judge interpreted Article 30, Section g of the parties' Master Agreement as allowing the Respondent to deny employees access to the institution when such access might conflict with the employer's security or operational interests. [n9]  Nevertheless, the Judge determined that this contract provision did not address how the Union's right to designate its representatives should be accommodated.

      The Judge found that the warden's denial of access to the president reflected the warden's "rigid and peremptory stance[,]" rather than a "specific assessment of th[e] risk" of the president's presence. Decision at 37, 38. The Judge determined that the Respondent had the burden to devise alternative ways to allow the president to perform his representational duties. The Judge concluded that the Respondent violated sections 7116(a)(1) and (5) by refusing to grant the president access.

B.     Respondent's Exceptions  [n10] 

      The Respondent contends that the Judge's decision "creates an unacceptable interference with the discretion granted the Respondent in its administration of the prison facility at Leavenworth, to include its 5 U.S.C. § 7106(a)(1) right to determine internal security procedures." Respondent's Exceptions at 30. The Respondent asserts that the president was removed for making inflammatory comments during a period of extreme security concerns at the penitentiary, and that the Judge should not have "second-guess[ed]" the Respondent's determinations in this regard. Id. The Respondent maintains that the Authority and the courts provide management with greater discretion in the prison setting than in other contexts.

      In addition, the Respondent argues that the Judge erred in placing the burden on the Respondent to devise an alternative solution to accommodate the Union's representational rights. According to the Respondent, the Union acted at its peril by designating as its representative an employee who had already been indefinitely banned from the institution. The Respondent maintains that requiring the Respondent to grant the president access in these circumstances would permit the Union to circumvent management's internal security determination.

      The Respondent also challenges the Judge's reliance on Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), to "express[ly] interpret[]" Article 30, Section g of the parties' agreement. Respondent's Exceptions at 28. According to the Respondent, the Judge should have applied the differing and arguable interpretation analysis applied in Marine Corps Logistics Base, Barstow, California, 33 FLRA 626 (1988).

C.     Analysis and Conclusion

      An exclusive representative has the right to designate its representatives when fulfilling its responsibilities under the Statute, and, absent special circumstances, an agency violates section 7116(a)(1) and (5) of the Statute when it refuses to honor the union's designation. See Food and Drug Administration, Newark District Office, West Orange, New Jersey, 47 FLRA 535, 566 (1993). However, the agency may refuse to honor a particular designation where it can demonstrate "special circumstances" that warrant precluding a particular individual from serving in that capacity. Cf. Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Federal Bureau of Prisons, Office of Internal Affairs, Aurora, Colorado, and Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, 54 FLRA 1502, 1513 (1998) (FCI Englewood) (presumption that a union can designate the individual it wants as its representative during a Weingarten examination, pursuant to section 7114(a)(2)(B) of the Statute, may be rebutted only where the agency can demonstrate "special circumstances" that warrant precluding a particular individual from serving in this [ v55 p714 ] capacity) (citing New Jersey Bell Telephone Company and Local 827, International Brotherhood of Electrical Workers, AFL-CIO, 308 NLRB 277, 282 (1992)). The Authority has previously stated that this exception based on "special circumstances" will, consistent with its application in the private sector, be construed narrowly to preserve the union's normal prerogatives. FCI Englewood, 54 FLRA at 1513.

      The Authority has recognized that "a Federal correctional facility has special security concerns which may not be present at other work locations." American Federation of Government Employees, AFL-CIO, Local 683 and Department of Justice, Federal Correctional Institution, Sandstone, Minnesota, 30 FLRA 497, 500 (1987). See, e.g., American Federation of Government Employees, Council of Prison Locals, Local 919 and U.S. Department of Justice, Federal Bureau of Prisons, Leavenworth, Kansas, 42 FLRA 1295, 1300-01 (1991) (finding an exception, in the case of a penitentiary, to its previous cases finding to be negotiable procedures, proposals requiring that employees be present when their lockers, desks, and other property are searched). At a correctional facility, internal security concerns are of "paramount importance." Id. at 1301.

      The Respondent placed the president on home duty because, during a period of acute security risk at the penitentiary, the president allegedly made several inflammatory statements that the Respondent deemed likely to lead to inmate disturbances. Neither the GC nor the Charging Party argues, before the Authority, that the Respondent acted improperly by placing the president on home duty. [n11]  The GC has not established, by a preponderance of the evidence, that the Respondent precluded the president from entering the penitentiary in order to prevent the Union from carrying out its representational activities. In fact, the Respondent requested that the Union provide a list of alternate instructors for the Union class, but the Union failed to do so. We find that, in the particular facts and circumstances of this case, the Respondent has demonstrated "special circumstances" warranting its refusal to grant the president access to the institution for representational purposes. As the Judge erred by allowing the Union's representational rights to trump the Respondent's legitimate security concerns under the special circumstances presented here, we grant the Respondent's exception and dismiss the complaint in Case No. DE-CA-60349. [n12] 

VIII.      Case No. DE-CA-60362

A.     Background and Judge's Decision

      The complaint alleges that the Respondent bypassed the Union by permitting an employee to sign roster committee notes on the Union's behalf, when that employee was not authorized to do so, and then refusing to reconsider that action when the Union brought the error to management's attention.

      The Union steward was the usual Union representative on the roster committee, although he sometimes alternated this duty with the president. When neither the Union steward nor the president attended one of the meetings, the Respondent asked for a volunteer to sign the meeting notes on the Union's behalf. An employee (the faux steward) held himself out to be authorized to represent the Union and signed the notes. The Union discovered this soon thereafter and brought to management's attention that the faux steward was not in fact authorized to sign the notes. The Judge found that management "peremptorily dismissed" the Union's statement that the faux steward was not authorized to sign the notes, and "proceeded on the dubious basis that the Union's representative had approved the new roster." Decision at 45.

      The Judge determined that substantial changes in conditions of employment were made at the meeting, and that the Union did not receive advance notice that the meeting would involve other than routine business. The Judge found that the Respondent's actions violated sections 7116(a)(1) and (5) because the Respondent treated the faux steward as the Union's representative "under circumstances that were calculated to result in his signature becoming the basis for bypassing the Union." Id.

B.     Respondent's Exceptions  [n13] 

      The Respondent asserts that the Judge erred on two grounds in finding violations of sections 7116(a)(1) and (5).

      First, the Respondent argues that the Judge erred by finding that the Respondent did not provide the Union with advance notice of the roster committee meeting. Specifically, the Respondent contends that the [ v55 p715 ] Judge "fail[ed] to acknowledge uncontroverted, credible evidence that the Union received sufficient advance notice of the meeting in order to have a representative of their choice present[.]" Respondent's Exceptions at 38. The Respondent argues that this, along with the Judge's "unsubstantiated predisposition to find a disregard by the Respondent of the Union's rights in this matter, indicate a credibility and proof analysis process marked by arbitrariness, capriciousness, and an abuse of discretion on the [Judge's] part." Id. at 38-39. Additionally, according to the Respondent, the Judge erred by finding that the Respondent bypassed the Union, because "[t]here can be no bypass of a Union when the Union fails to show up for the meeting, there[by] waiving its right to take part, and the employer doesn't force someone to act on the Union's behalf in the absence of the usual representatives." Id. at 37 (emphasis added).

      Second, the Respondent contends that the Judge erred by finding that the Respondent had a duty to inform the Union that the meeting would involve other than routine matters. The Respondent argues that because the Union failed to send an authorized representative to the meeting, the Union waived its right to participate.

C.     Analysis and Conclusions

1.     The Judge Did Not Find that the Respondent Failed to Provide the Union Steward with Advance Notice of the Committee Meeting.

      The Respondent's argument misconstrues the Judge's decision. The Judge did not find that the Respondent failed to provide the Union steward with advance notice of the meeting. Nor did the Judge base his finding of statutory violations on whether such notice was provided. Rather, as discussed below, the Judge found that, although the Union steward received advance notice of the meeting, the Union steward was not notified that the committee would be considering substantial changes in roster practice at that meeting, or that the meeting would be other than routine. Accordingly, the Respondent's argument that the Judge failed to acknowledge uncontroverted evidence that advance notice of the meeting was provided to Union officials does not provide a basis for reversing the Judge's finding that the Respondent violated the Statute, and we deny this exception.

2.     The Union Did Not Waive Its Right to Bargain over the Topics Discussed at the Meeting.

      Prior to implementing a change in conditions of employment of bargaining unit employees, an agency must provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain. See, e.g., U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 81 (1997) (Corps of Engineers). Adequate notice of a proposed change in conditions of employment triggers the exclusive representative's responsibility to request bargaining over the change. See Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1535 (1996). Failure to request bargaining in response to adequate notice of a proposed change in conditions of employment may be construed as a waiver of the exclusive representative's right to bargain. See, e.g., Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 582 (1992).

      Notice of a proposed change in conditions of employment must be sufficiently specific and definitive to adequately provide the exclusive representative with a reasonable opportunity to request bargaining. See, e.g., Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690, 698 (1991). Where an agency asserts waiver of bargaining rights as a defense to an allegation that it failed to bargain over a change in conditions of employment, it bears the burden of establishing that the exclusive representative received adequate notice of the change. See Corps of Engineers, 53 FLRA at 82-83.

      Although the Union steward received advance notice of the meeting, the Respondent has not demonstrated that the Judge erred in finding that "there [was] no evidence . . . that [the Union steward] was made aware that the committee would be asked to consider substantial changes in roster practice." Decision at 43. The Respondent has not met its burden of establishing that the Union received adequate notice of the proposed changes. Therefore, the Respondent has not demonstrated that the Union waived its right to bargain over those changes because it failed to send an authorized representative. The Respondent's exception confuses the Union's waiver of its right to be present at the meeting, with its right to bargain over the proposed changes discussed at that meeting. Even if the Union waived its right to participate in the meeting because it failed to send a designated representative, that does not establish that, absent a notification that substantial changes would be made at the meeting, the Union waived its right to negotiate over the proposed changes. As the Respondent's arguments do not provide a basis for reversing the Judge's decision, we deny the exception. [n14]  [ v55 p716 ]

IX.     Case No. DE-CA-60385

A.     Background and Judge's Decision

      The complaint alleges, in pertinent part, that the Respondent ordered the Union to relocate its office, without providing the Union the opportunity to negotiate over the relocation.

      The Judge found that although the Respondent notified the Union of its intention to move the office, this notice was not sufficiently detailed to make it incumbent upon the Union to initiate bargaining. As such, according to the Judge, the Union did not waive its right to negotiate over either the substance or the impact and implementation of the move. Because the Respondent failed to provide the Union with a sufficient opportunity to bargain over the move, the Judge concluded that the Respondent violated sections 7116(a)(1) and (5).

B.     Respondent's Exception  [n15] 

      The Respondent contends that the Judge "failed to [a]ccount for" Article 12, Section c of the parties' agreement. Respondent's Exceptions at 39. [n16]  According to the Respondent, this provision provides it with the discretion to determine "whether, when, and where the Union could have office space in the institution[.]" Id. The Respondent asserts that, "[b]ecause of this contractual discretion, . . . it fulfilled whatever obligation it may have had to the Union regarding any relocation of the Union's office." Id. at 39-40.

C.     Analysis and Conclusion

      Under section 2429.5 of the Authority's Regulations, we will not consider a party's argument that it had no bargaining obligation prior to instituting a change because the subject matter of that change was "covered by" the parties' collective bargaining agreement, where that defense was not raised before the Judge. See Indian Health Service, Crownpoint Comprehensive Health Care Facility, Crownpoint, New Mexico, 53 FLRA 1161, 1162 (1998). Our review of the record makes evident that the Respondent did not raise a "covered by" defense before the Judge, although it could have done so. Accordingly, we do not consider the arguments raised in this exception.

X.     Requested Nontraditional Remedies

A.     Background and Judge's Decision

      At the hearing, the GC requested several nontraditional remedies. Applying the standard set forth by the Authority in F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149 (1996) (Warren), and citing to numerous National Labor Relations Board (NLRB) decisions, the Judge declined to grant the requested remedies. In reaching his decision to not grant the requested remedies, the Judge found that the ULPs were not "so flagrant or pervasive as to render inadequate the more typical Authority remedies[,]" and that they did not constitute "a calculated effort to 'break' the Union." Decision at 70. In addition, he stated that "what the parties most reasonably expect from the Authority is closure -- a final resolution of their dispute." Id. at 73. The Judge then predicted that granting the requested nontraditional remedies would engender exceptions to his decision. See id.

      The remedies recommended by the Judge [n17]  were for violations he found in 10 of the 12 complaints. The exceptions already described and resolved in this decision concern 7 of the 10 complaints in which violations were found. No exceptions were filed to the Judge's findings of violations in Case Nos. DE-CA-60041, DE-CA-60405, and DE-CA-60569. However, in its exceptions regarding the Judge's failure to grant nontraditional remedies, the GC focuses extensively on the violation found in one of these cases -- Case No. DE-CA-60569. In order to provide a more thorough context for assessing the GC's request for nontraditional remedies, we briefly summarize Case No. DE-CA-60569.

B.     Case No. DE-CA-60569

      The complaint alleges, in pertinent part, that the warden made anti-Union statements at a mandatory meeting of all employees.

      The Judge made the following factual findings: the president sent a letter to the Chief of Labor Relations at the Agency's central office, suggesting that a speech [ v55 p717 ] given by the warden should be officially investigated; subsequently, the warden called a mandatory staff meeting, where he exhibited a videotape of his speech, and read aloud the president's letter; at the meeting, the warden referred to Union officials as "pissants" or "pissant tin soldiers," and stated that he would rid the penitentiary of "scum" and "cancer[s]", Decision at 66; and the following day, the warden informed the second VP that he could be fired any time the warden wanted.

      On the basis of these factual findings, the Judge determined that the warden made it clear to employees at the mandatory staff meeting that the president had written the letter on the Union's behalf, and that the warden would not tolerate such conduct. Id. The Judge also found that the warden's threat to rid the institution of "scum" and "cancer" were "reasonably perceived as directed at Union officials." Id. With regard to the warden's statement to the second VP the following day, the Judge determined that this threat was at least partially in response to the second VP's protected activities. The Judge concluded that the warden's statements, both at the meeting and the following day, violated section 7116(a)(1). As no exceptions were filed to either the factual findings or legal conclusions of the Judge in Case No. DE-CA-60569, we adopt the Judge's findings on this complaint without precedential significance. See OIA, 55 FLRA at 388.

C.     Positions of the Parties

1.     GC's Exceptions

      The GC asserts that the Respondent engaged in a pattern of conduct and committed several particularly egregious unfair labor practices. The GC also maintains that the warden is likely to defy Authority orders and commit future violations, and as such, traditional remedies will not assure employees that the warden will respect their rights in the future.

      The GC argues that the Authority has broad discretion to fashion remedies it considers appropriate to carry out the Statute's policies, and that it should grant certain nontraditional remedies here. The GC contends that the Judge, in declining to grant the requested remedies, was motivated in part by a desire to avoid having exceptions to his decision filed. The GC asserts that such a concern should not influence whether a judge grants or denies a recommended remedy.

      The following nontraditional remedies are requested by the GC:

      First, the GC requests that the Authority direct the warden to read the notice aloud at a mandatory staff meeting. The GC asserts that such a remedy has been found appropriate in the private sector. According to the GC, this remedy would constitute an act of equal proportion to the warden's violation in DE-CA-60569, and "[o]nly through an act of equal proportion[] can the conditions and relationships [within the penitentiary] be truly restored" to their pre-ULP state. GC's Exceptions at 19.

      Second, the GC requests that the Authority direct the Respondent to place a nondisciplinary entry in the warden's personnel file, indicating that he violated the Statute. The GC contends that such a remedy would "assure employees that the Authority will make every effort to guarantee that such conduct by this [w]arden will not be tolerated." Id. at 16 (emphasis in original). Without such assurances, the GC argues, the conditions and relationships necessary for collective bargaining will never be restored at the penitentiary. The GC also maintains that this remedy is reasonably necessary to deter future violations by the warden and other management officials.

      Third, the GC requests that the warden and other responsible management officials be specifically named in the notice.

      Fourth, the GC requests that copies of the notice and order be distributed to all bargaining unit employees, in order to ensure that the remedial information will reach employees.

      Fifth, the GC requests that the order be posted alongside the notice.

2.     Charging Party's Exceptions

      The Charging Party alleges that, sometime after the Judge rendered his decision, the warden was reassigned to the penitentiary at Lewisburg, Pennsylvania (USP Lewisburg). According to the Charging Party, employees at USP Lewisburg have received news of the warden's conduct at the penitentiary, and as a result, even prior to the warden's arrival, they have been chilled in the exercise of their protected rights. In addition to the remedies requested by the GC, the Charging Party requests the nontraditional remedy that the Authority require the warden to read the notice at an all-staff meeting at USP Lewisburg.

3.     Respondent's Opposition

      The Respondent argues that "[a] critical review of the violations as found by the [Judge] fails to show any egregious pattern" of conduct, Respondent's Opposition at 7, and that the Authority should not grant any of the [ v55 p718 ] GC's requested nontraditional remedies. Specifically, the Respondent contends that requiring the warden to read the notice at a staff meeting at Leavenworth is unwarranted under the circumstances, and would be an unprecedented remedy for the Authority. Additionally, the Respondent maintains that neither the Authority nor the NLRB has ever named management officials in a notice, and that such a remedy is not warranted under the Warren standard. According to the Respondent, neither the Authority nor the NLRB has ever placed an entry in a management official's personnel file stating that the official violated the law. The Respondent argues that such a remedy would be punitive, and would violate the warden's due process rights. The Respondent contends that the Authority has never required a respondent to distribute a notice to all bargaining unit employees under circumstances such as those presented here.

      In response to the Charging Party's requested remedy, the Respondent argues that the record does not support the Charging Party's assertions that the warden has been reassigned to USP Lewisburg, or that employees there have been chilled in the exercise of their rights. The Respondent contends that statements by counsel in briefs do not constitute "evidence[,]" and even if they do, such evidence was not presented before the Judge and hence should not be considered by the Authority. Respondent's Opposition at 2. The Respondent also asserts that the Authority should not grant this remedy because it was not requested by the GC.

D.     Analysis and Conclusions

      In Warren, 52 FLRA 149, the Authority set forth the standard for assessing whether nontraditional remedies are appropriate in an individual case:

[A]ssuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to recreate the conditions and relationships with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct.

Id. at 161 (citation and internal quotations omitted).

      The Judge's statement concerning the likelihood that issuing extraordinary remedies would engender exceptions to his decision does not provide a basis for reversing the Judge's decision with respect to those remedies. Our review of the Judge's decision, in its entirety, persuades us that despite his statement, the Judge thoroughly analyzed each of the requested remedies. Even if he had not, however, based on the exceptions filed by the Charging Party and the GC, the Authority would independently assess, under Warren, whether such remedies are warranted. Accordingly, the Judge's statement, standing alone, does not provide a basis for reversing the Judge's decision.

1.     We Direct the Respondent to Call a Mandatory Meeting of All Employees at Leavenworth, at which the Notice Will Be Read Aloud, but We Do Not Require a Reading at USP Lewisburg.

      The Respondent, through the warden, engaged in a pattern of ULP violations over the course of a 7-month period. Some of those violations -- e.g., making threatening, anti-Union statements at a mandatory meeting of all employees (unit and nonunit), making repeated statements threatening to take action against Union officials -- were, in our view, egregious. In addition, the warden was personally involved to a significant extent in a majority of the Respondent's violations here. See Decision at 11 (Case Nos. DE-CA-60027 and DE-CA-60050); at 17-18 (Case No. DE-CA-60049); at 21 (Case No. DE-CA-60028); at 29-30 (Case No. DE-CA-60051); at 57 (Case No. DE-CA-60385); and at 66-67 (Case No. DE-CA-60569).

      In the private sector, where a particular management official has had "pervasive personal involvement" in a series of ULPs and has committed a majority of the violations, the NLRB has issued orders providing the respondent with the option of either having that individual management official personally read the notice to all employees, which informs employees that the employer has been found to have committed statutory violations, or having an NLRB agent read the notice with the management official present. See, e.g., Three Sisters Sportswear Co., 312 NLRB 853, 853 (1993). Cf. United States Service Industries, 319 NLRB 231, 232 (1995) (providing the respondent with the option of either having the operations manager at each worksite read the notice, or having an NLRB agent read the notice with the operations manager present; the NLRB selected the operations manager not because he personally committed the ULPs, but "because the record indicates that the employees view him as the personification of the Company").

      The Judge found that the warden had a legitimate purpose for calling the meeting in DE-CA-60569, and "went out of bounds at that meeting only when he went on to make comments" about the Union and Union officials. Decision at 72. As a result, the Judge concluded that having an Authority agent read the notice "would be excessive in these circumstances and therefore an [ v55 p719 ] unwarranted intrusion into the operation of the facility[.]" Id. at 71.

      We find the Judge's reasoning unpersuasive. In particular, requiring the Respondent to call a meeting at which the notice will be read aloud is not dependent on, or even connected to, the purpose for which the original meeting was called. The violation was the warden's behavior at the mandatory meeting, rather than the act of calling the meeting itself. In view of the fact that the warden made egregious, anti-Union statements at a mandatory meeting of all employees, we find that it is reasonably necessary to require those statements to be retracted, via a reading aloud of the notice, at another meeting of all employees. This remedy will reach the same group of employees that witnessed the offense, and is calculated to have a countervailing impact similar to the initial offense. Further, because the warden called this mandatory meeting and made these statements in his representational capacity as the warden of the penitentiary, we find it reasonably necessary to require the warden to conduct the reading, or alternatively, to require the warden to be present when the reading is conducted by an Authority agent, in order to recreate the conditions and relationships with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute.

      With regard to the GC's alternative requested remedy, we find that the Respondent has not explained why having an Authority agent read the notice (or having an Authority agent oversee the warden's reading of the notice) in these circumstances would be excessive, or would constitute an unwarranted intrusion into the Respondent's operation. Accordingly, we direct the Respondent, at the Union's request, to call a mandatory meeting of all employees (unit and nonunit), at which either the warden will read aloud the notice under supervision of an Authority agent, or an Authority agent will read aloud the notice with the warden present.

      With regard to the Charging Party's request that the Respondent also be directed to require the warden to read the notice aloud at USP Lewisburg, in addition to reading the notice at the penitentiary at Leavenworth, it is undisputed that none of the parties raised any issues regarding USP Lewisburg before the Judge. There is no "evidence" before us, other than the Charging Party's unsupported allegations, upon which to find that the warden has been or is being transferred to USP Lewisburg, or that this transfer has had a chilling effect on employees there. See Skyline Corporation v. NLRB, 613 F.2d 1328, 1337 (5th Cir. 1980) (statements by counsel in briefs do not constitute "evidence"). Thus, there is no basis for finding that the Charging Party's requested nontraditional remedy is warranted here, and we decline to issue that remedy.

2.     We Do Not Require the Respondent to Place a Nondisciplinary Entry in the Warden's Personnel File, but We Order the Parties to Show Cause Why this Matter Should Not Be Referred to the Office of Special Counsel.

      The General Counsel requests that the Respondent be required to place a nondisciplinary entry in the warden's personnel file, indicating that he was found to have violated the Statute. As the unfair labor charges were filed against the Respondent as an agency -- i.e., the warden was not named as a party to these cases -- the warden was not represented at the hearing, or placed on notice that future disciplinary actions against him might be affected by the Authority's decision. The warden did not have the same opportunity to defend himself before the Judge that he would have had if he had received such notice. Given this, granting the remedy requested by the GC raises substantial due process considerations. We note that the Authority has declined to award a similar remedy in the past. See U.S. Penitentiary, Florence, Colorado, 53 FLRA 1393, 1394 (1998) (USP Florence). We decline to do so here.

      Nevertheless, taking into account the egregious nature of the warden's behavior, we believe that further action may be appropriate. Actions taken, or threatened to be taken, against employees based on their protected representational activities may constitute prohibited personnel practices. Under 5 U.S.C. § 2302(b)(9), it is a prohibited personnel practice to, inter alia, "threaten to take . . . any personnel action against any employee or applicant because of --

(A)     the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

(B)     testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)."

The Merit Systems Protection Board has held, in this regard, that Union representation of employees in the agency's appeal processes constitute protected activities under 5 U.S.C. § 2302(b)(9). See Bodinus v. Department of the Treasury , 7 M.S.P.R. 536 (1981). Further, a "personnel action" includes "an action under chapter 75 of [title 5]", 5 U.S.C. § 2302(a)(2), and one type of action under chapter 75 of title 5 is "a removal". 5 U.S.C. § 7512(1). [ v55 p720 ]

      In Case No. DE-CA-60569, the warden threatened the second VP with removal for, inter alia, representing other employees in the Agency's internal grievance procedure. The warden's threat may have constituted a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(9). Given the egregious nature of the warden's behavior, further investigation appears warranted.

      The GC did not seek as a remedy consideration of the warden's actions as a prohibited personnel practice. As such, it is not clear what, if any, jurisdictional or other impediments may exist. Accordingly, we issue an order directing that the parties show cause why the Authority should not refer this matter to the Office of Special Counsel, or direct the Respondent to make such a referral, requesting an investigation into whether the warden committed prohibited personnel practices and any action deemed appropriate by the Special Counsel. [n18] 

3.     We Do Not Name the Warden and Other Responsible Management Officials in the Notice the Respondent Is Directed to Post.

      The Authority has previously declined to name, in a notice, an individual supervisor or manager whose actions are the basis for a finding that an agency has committed a ULP. See, e.g., United States Department of Justice, Immigration and Naturalization Service, 51 FLRA 914 (1996). Additionally, the Authority has noted that there are no private sector cases where such a remedy has been granted. See Department of Veterans Affairs, Medical Center, Phoenix, Arizona, 52 FLRA 182, 185 n.5 (1996). Consistent with our discussion in the previous section of this decision, and in view of the other remedies we grant in this case, we conclude that naming particular individuals in the notice is not reasonably necessary in order to recreate the conditions and relationships with which the unfair labor practice interfered, or to effectuate the policies of the Statute. Accordingly, consistent with the foregoing precedent, we decline to grant this requested extraordinary remedy.

4.     We Direct the Respondent to Distribute Copies of the Notice to All Employees, but We Do Not Require the Respondent to Distribute Copies of the Order, or to Post the Order Alongside the Notice.

      Where distributing a notice is reasonably necessary to notify employees that a respondent has violated the Statute, the Authority has granted a remedy requiring that the notice be distributed to all employees. See Department of the Army, Fort Bragg Schools, 3 FLRA 364 (1980). But cf. U.S. Patent and Trademark Office, 45 FLRA 1090 (1992), enforcement denied as to other matters, No. 92-2347 (4th Cir. Apr. 19, 1993) (where distributing the notice was not reasonably necessary to notify employees that the respondent has violated the Statute, the Authority has declined to grant a remedy similar to the one requested here).

      The unfair labor practices in Case Nos. DE-CA-60051 and DE-CA-60569 consisted of anti-Union statements at mandatory meetings of all employees, including all bargaining unit employees. Because an unusually large number of employees directly witnessed these egregious violations, we find that additional measures should be taken to ensure that the remedial information reaches all of the employees and to demonstrate to employees that their rights will be protected. Accordingly, we direct the Respondent to distribute copies of the notice to all employees.

      However, the record does not demonstrate why it is necessary to distribute copies of the order, or to post the order alongside the notice. A notice to all employees is designed to inform employees that the Authority has found that the agency has violated the Statute. It is not apparent that the order is in any way more informative than, or conveys any information different from, the notice. Accordingly, we decline to direct the Respondent to distribute copies of the order, or to post the order alongside the notice. We do, however, modify the standard wording of the notice to make clearer that the Respondent has been found to have acted unlawfully. [ v55 p721 ]

XI.     Order

      The complaint in Case No. DE-CA-60349 is dismissed. We modify the remedies recommended by the Judge, Decision at 73-75, to: (1) direct the Respondent to call a mandatory meeting of all employees, at which either the warden will read the notice aloud under supervision by an Authority agent, or an Authority agent will read the notice aloud with the warden present; (2) require the parties to show cause why the Authority should not refer this matter to the Office of Special Counsel, or direct the Respondent to make such a referral, requesting an investigation into whether the warden committed prohibited personnel practices and any action deemed appropriate by the Special Counsel; and (3) require the Respondent to distribute copies of the notice to all employees. We deny the Respondent's other exceptions, and we decline to issue the other remedies requested by the GC and the Charging Party.

      Pursuant to section 2423.41 of the Federal Labor Relations Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the United States Penitentiary, Leavenworth, Kansas, shall:

      1.     Cease and desist from:

           (a)     Making statements to employees that disparage union officials and threaten union officials with discharge or other adverse consequences because of their activities that are protected by the Statute.

           (b)     Telling any employee that the employee is being removed from a committee assignment because the warden does not like the way the employee is representing other employees.

           (c)     Removing any employee from a committee assignment because of that employee's activities that are protected by the Statute.

           (d)     Conducting a formal discussion without first giving the American Federation of Government Employees, Local 919 (Local 919), the agent of the employees' exclusive collective bargaining representative, a reasonable opportunity to participate.

           (e)     Selecting an employee who has not been designated by Local 919 to serve as its representative on the Food Service Department's roster committee.

           (f)     Relocating Local 919's office without first giving it an opportunity to negotiate concerning the move.

           (g)     Threatening any employee with discharge if that employee distributes documents concerning conditions of employment within the institution.

           (h)     In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     Upon his request, restore James Evans to the steering committee of the Strategic Planning Committee.

           (b)     Upon request by Local 919, restore its office space in the basement of the administration area and bear the cost of such restoration.

           (c)     Notify Local 919 of any proposed move of its office space; upon request, bargain in good faith concerning such proposed action; and maintain Local 919's restored office space until negotiations with respect to the office space have been completed.

           (d)     Post at the United States Penitentiary, Leavenworth, Kansas, copies of the attached Notice on forms furnished by the Authority. Upon receipt of such forms, they shall be signed by the warden of the United States Penitentiary, Leavenworth, Kansas, 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 placed. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (e)     Call a mandatory meeting of all employees, at which either the warden will read the Notice to All Employees aloud under supervision by an Authority agent, or an Authority agent will read the notice aloud with the warden present;

           (f)     Distribute copies of the Notice to All Employees to all of the employees at the penitentiary.

           (g)     Pursuant to Section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver 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. [ v55 p722 ]

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NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

      The Federal Labor Relations Authority has found that the United States Penitentiary, Leavenworth, Kansas, has acted unlawfully by committing numerous violations of the Federal Service Labor-Management Relations Statute during a 7-month period in 1995. Accordingly, the Authority has ordered us to post and abide by this Notice, to distribute copies of this Notice to all of our employees, and to call a mandatory meeting of all employees, at which either the warden will read this Notice aloud under supervision by an Authority agent, or an Authority agent will read this Notice aloud with the warden present.

We hereby notify our employees that:

WE WILL NOT make statements to employees that disparage union officials and threaten union officials with discharge or other adverse consequences because of their activities that are protected by the Statute.

WE WILL NOT tell any employee that the employee is being removed from a committee assignment because the warden does not like the way the employee is representing other employees.

WE WILL NOT remove any employee from a committee assignment because of that employee's activities that are protected by the Statute.

WE WILL NOT conduct a formal discussion without first giving the American Federation of Government Employees, Local 919 (Local 919), the agent of the employees' exclusive collective bargaining representative, a reasonable opportunity to participate.

WE WILL NOT select an employee who has not been designated by Local 919 to serve as its representative on the Food Service Department's roster committee.

WE WILL NOT relocate Local 919's office without first giving it an opportunity to negotiate concerning the move.

WE WILL NOT threaten any employee with discharge if that employee distributes documents concerning conditions of employment within the institution.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.

WE WILL, upon his request, restore James Evans to the steering committee of the Strategic Planning Committee.

WE WILL, upon request by Local 919, restore its office space in the basement of the administration area and bear the cost of such restoration.

WE WILL notify Local 919 of any proposed move of its office space; upon request, bargain in good faith concerning such proposed action; and maintain Local 919's restored office space until negotiations with respect to office space have been competed

      ______________________
(Activity)

Date: ___________ 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 any of its provisions, they may communicate directly with the Regional Director, Denver Regional Office of the Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado, 80204, and whose telephone number is: (303) 844- 5224.

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File 1: Authority's Decision in 55 FLRA No. 127
File 2: Opinion of Member Cabaniss
File 3: ALJ's Decision

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Footnote # 1 for 55 FLRA No. 127 - Authority's Decision

   The separate opinion of Member Cabaniss, dissenting in part, appears at the end of this decision.

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Footnote # 2 for 55 FLRA No. 127 - Authority's Decision

   The Judge dismissed the complaints in Case Nos. DE-CA-60026 and DE-CA-60365. He also found that the GC failed to establish certain of the alleged violations in Case Nos. DE-CA-60027, DE-CA-60050, DE-CA-60028, DE-CA-60051, DE-CA- 60349, DE-CA-60569, and DE-CA-60385, and that the GC demonstrated violations in DE-CA-60051, DE-CA-60405, and DE- CA-60569. Those findings of the Judge to which no exceptions were filed are adopted without precedential significance. See, e.g., U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and American Federation of Government Employees, Council of Prison Locals, 55 FLRA 388, 388 (1999) (OIA).

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Footnote # 3 for 55 FLRA No. 127 - Authority's Decision

   The GC did not file an opposition to this exception.

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Footnote # 4 for 55 FLRA No. 127 - Authority's Decision

   Neither the GC nor the Charging Party filed an opposition to these exceptions.

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Footnote # 5 for 55 FLRA No. 127 - Authority's Decision

   Neither the GC nor the Charging Party filed an opposition to these exceptions.

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Footnote # 6 for 55 FLRA No. 127 - Authority's Decision

   Consistent with footnote 2, supra, as the parties do not except to the decision in this regard, we adopt this finding without precedential significance. See, e.g., OIA, 55 FLRA at 388.

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Footnote # 7 for 55 FLRA No. 127 - Authority's Decision

   Neither the GC nor the Charging Party filed an opposition to these exceptions.

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Footnote # 8 for 55 FLRA No. 127 - Authority's Decision

   An employee is placed on home duty status when that employee is required to remain at home during duty hours, except during lunch or approved leave. See Decision at 32.

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Footnote # 9 for 55 FLRA No. 127 - Authority's Decision

   Article 30, Section g of the parties' Master Agreement provides, in pertinent part:

The Employer retains the right to respond to an alleged offense by an employee which may adversely affect the Employer's confidence in the employee or the security or orderly operation of the institution. Employer may elect to reassign the employee to another job within the institution or remove the employee from the institution pending investigation and resolution of the matter, in accordance with applicable laws, rules[,] and regulations.

Decision at 36.

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Footnote # 10 for 55 FLRA No. 127 - Authority's Decision

   Neither the GC nor the Charging Party filed an opposition to these exceptions.

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Footnote # 11 for 55 FLRA No. 127 - Authority's Decision

   The Union filed a grievance on the president's behalf, but there was no evidence before the Judge as to the outcome of that grievance. See Decision at 45.

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Footnote # 12 for 55 FLRA No. 127 - Authority's Decision

   Accordingly, we do not address the Respondent's argument that the Judge erred by failing to apply the "differing and arguable interpretation" analysis in his interpretation of the parties' agreement.

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Footnote # 13 for 55 FLRA No. 127 - Authority's Decision

   Neither the GC nor the Charging Party filed an opposition to these exceptions.

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Footnote # 14 for 55 FLRA No. 127 - Authority's Decision

   The Respondent contends that it did not bypass the Union because the Union waived its right to attend, and because the Respondent did not force anyone to act on the Union's behalf. See Respondent's Exceptions at 37. Given our finding that the Union did not waive its right to attend, and given the fact it is undisputed that the faux steward did not have the authority to act on the Union's behalf, we find it unnecessary to address the Respondent's assertion that it did not force the faux steward to sign the notes.

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Footnote # 15 for 55 FLRA No. 127 - Authority's Decision

   Neither the GC nor the Charging Party filed an opposition to this exception.

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Footnote # 16 for 55 FLRA No. 127 - Authority's Decision

   Article 12, Section c of the parties' agreement provides, in pertinent part, that "[t]he Employer, at its discretion, may informally authorize the use of office space when available." Decision at 50.

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Footnote # 17 for 55 FLRA No. 127 - Authority's Decision

   The Judge recommended a cease-and-desist Order and the posting of a notice to all employees.

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Footnote # 18 for 55 FLRA No. 127 - Authority's Decision

   We agree with our dissenting colleague that the Statute does not give us jurisdiction to adjudicate, in the context of a ULP proceeding, whether a prohibited personnel practice has occurred under 5 U.S.C. § 2302(b)(9). That is why we direct the parties to address the question of referring this matter to the Office of Special Counsel, which does have jurisdiction to resolve such issues, rather than making such a determination ourselves.