17:0696(101)CA - Bureau of Prisons, Federal Correctional Institution (Danbury, CT) and AFGE, Council of Prison Locals C-33, Local 1661 -- 1985 FLRAdec CA
[ v17 p696 ]
17:0696(101)CA
The decision of the Authority follows:
17 FLRA No. 101
BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
(DANBURY, CONNECTICUT)
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON
LOCALS C-33, LOCAL 1661, AFL-CIO
Charging Party
Case No. 1-CA-20137
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Exceptions to the Judge's Decision were
filed by the Respondent. Both the General Counsel and the Charging
Party filed oppositions to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
The Judge found that the Respondent maintained a rule prohibiting its
employees from releasing information to the press and requiring that all
inquiries by members of the media be referred to the prison warden for
response. When an employee, acting in his capacity as a union
representative, gave an interview to a newspaper reporter concerning the
possibility of impending staff reductions, the Respondent admonished the
employee for having done so and cautioned him concerning the release of
similar information in the future. The Judge concluded, and the
Authority agrees, that the Respondent's conduct, to the extent that it
interfered with the right of an employee, acting in a representative
capacity, to state the views of a labor organization on matters
affecting unit employees' terms and conditions of employment, interfered
with the exercise of employee rights guaranteed by section 7102 of the
Statute. /1A/ In this regard, the legitimate conduct of an employee,
who, acting in his representative capacity, seeks to publicize, through
contacts with the media, issues having a direct bearing upon the working
conditions of unit employees, enjoys the protections of the Statute.
See Veterans Administration, Veterans Administration Medical Center,
Shreveport, Louisiana, 5 FLRA 216 (1981).
This is not to say that the right of an employee acting in the
capacity of a union representative to communicate information to the
press, the general public, or other interested parties, is an unfettered
one. See, e.g., United States Forces Korea/Eighth United States Army,
11 FLRA 434, n. 3 (1983); United States Forces Korea/Eighth United
States Army, 17 FLRA No. 102 (1985). Thus, in reaching our conclusion
herein, we have considered the Respondent's mission as a penal
institution and its contention that in certain circumstances the release
of information to outside parties could prejudice the maintenance of
security and order within such an institution. The Authority notes in
this regard that the information at issue in the instant case only
served to confirm reports of anticipated temporary staff reductions
which a newspaper reporter had already obtained from other sources.
Moreover, there is no showing that the information was, on its face, so
sensitive as to pose a threat to the continuing security or safety of
the institution.
Accordingly, and in the circumstances of this case, the conduct of
Respondent's officials in applying a policy statement concerning
employee press contacts so as to proscribe the right of a union official
to act in his representative capacity infringed upon the exercise of
rights guaranteed employees by section 7102 of the Statute and thus
violated section 7116(a)(1) of the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Bureau of Prisons, Federal Correctional
Institution, Danbury, Connecticut, shall:
1. Cease and desist from:
(a) Admonishing or otherwise interfering with, restraining, or
coercing Clifford S. Steenhoff, or any other employee, in the exercise
of the right to assist American Federation of Government Employees,
Council of Prison Locals C-33, Local 1661, AFL-CIO, the employees'
exclusive representative, including the right to state to the press the
views of the Union concerning terms or conditions of employment.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind its memorandum to Mr. Clifford S. Steenhoff, dated
November 25, 1981.
(b) Post at its facilities in Danbury, Connecticut, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Such forms shall be signed by the Warden, Federal
Correctional Institution, Danbury, Connecticut, or his designee, and
shall be posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., April 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT admonish or otherwise interfere with, restrain, or coerce
Clifford S. Steenhoff, or any other employee in the exercise of the
right to assist American Federation of Government Employees, Council of
Prison Locals C-33, Local 1661, AFL-CIO, the employees' exclusive
representative, including the right to state to the press the views of
the Union concerning terms or conditions of employment. WE WILL NOT in
any like or related manner interfere with, restrain, or coerce any
employee in the exercise of any right under the Statute. WE WILL
rescind the memorandum to Mr. Clifford S. Steenhoff, dated November 25,
1981.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director for the Federal
Labor Relations Authority, Region I, whose address is: 441 Stuart
Street, 9th Floor, Boston, Massachusetts 02116, and whose telephone
number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 1-CA-20137
Ronald L. Brown, Esquire
Ms. Martha Jordan
For the Respondent
Gerard M. Greene, Esquire
On Brief: Richard D. Zaiger, Esquire
For the General Counsel
Mr. Clifford S. Steenhoff
For the Charging Party
Before: WILLIAM B. DEVANEY, Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq. /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., was initiated by a charge filed on March 2, 1982
(G.C. Exh. 1A), a First Amended Charge, filed on April 5, 1982 (G.C.
Exh. 1C) and a Second Amended Charge, filed on May 24, 1982 (G.C. Exh.
1E). The Complaint and Notice of Hearing issued on July 26, 1982, for a
hearing on a date, time and place to be determined (G.C. Exh. 1G). On
September 3, 1982, a Further Notice of Hearing issued setting the
hearing for November 10, 1982, at 1:00 p.m. at a place to be determined
in Hartford, Connecticut (G.C. Exh. 1I). Subsequently, the time of
hearing was changed to 9:00 a.m. and the National Guard Armory was
designated as the place for the hearing, pursuant to which a hearing was
duly held on November 10, 1982, in Hartford, Connecticut, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument. At the close of the hearing,
December 10, 1982, was fixed as the date for mailing post-hearing
briefs. /2/ Each party has timely mailed a brief, received on or before
December 14, 1982, which have been carefully considered. Upon the basis
of the entire record, I make the following findings and conclusions:
The Issues
The basic issue is whether an employee has a protected right under
the Statute to give an interview, as an officer of the Union, to a
newspaper reporter concerning matters relating to terms and conditions
of employment, specifically, a possible RIF as the result of the
Presidential veto of the FY 1982 budget. Secondarily, whether, if the
right to give such an interview is generally protected conduct, the
Regulation of the Federal Prison System, which provides, in essence,
that only the Warden may issue Press Releases, precluded the interview
in question?
Findings
1. In November, 1981, Respondent was confronted with an all too
familiar money crisis as the result of the President's veto of the FY
1982 budget and the failure of Congress to override the veto and/or to
pass an appropriations measure acceptable to the President. Faced with
a possible lapse of appropriations, Respondent undertook plans to meet
such contingency, including plans for a RIF. The Warden, and other
officials of Respondent, met with the President of Local 1661, Mr.
Clifford Steenhoff, met with the President of Local 1661, Mr. Clifford
Steenhoff, with regard thereto at various times on November 23, 1981.
2. During the course of the day, Mr. Steenhoff, on November 23, ,
1981, received a call, as President of Local 1661, from a reporter for
the Danbury News Times who stated that he understood that the Prison was
going to start laying people off and asked for confirmation. Mr.
Steenhoff responded that discussions were in progress in Washington /3/
seeking a resolution by Congress of the budget question; that if there
were no resolution, there might be a RIF but that no decision had been
made as to who might be affected. /4/ Mr. Steenhoff testified that, in
Mr. Scott Miller's office, he told Mr. Miller and the Warden that he had
received a telephone call from a reporter and that he " . . . probably
told them what the nature of the call was about, the layoffs" (Tr. 7)
and they made no comment (Tr. 7).
3. The News Times in its November 23, 1981, issue carried an article
about the possible layoff at the prison, including, with attribution,
the telephone interview with Mr. Steenhoff (G.C. Exh. 2).
4. By memorandum dated November 25, 1981, the Warden, Mr. Robert A.
Gunnell, advised Mr. Steenhoff that his conduct in giving an interview
was "not appropriate and in fact was in violation of Federal Prison
System (FPS) policy" and instructed Mr. Steenhoff to "refrain from
giving similar press releases in the future and maintain compliance with
Bureau policy." (G.C. Exh. 3).
5. Subsequently, in late January or early February, 1982, Warden
Gunnell, in a meeting with Mr. Steenhoff, told Mr. Steenhoff that he
could not make any press releases under current Bureau policy (Tr. 12,
27).
6. The regulations are found in 5 C.F.R. 540.60, et seq.; however,
the document relied upon by Respondent is a Program Statement, subject,
"Contact with News Media", No. 1480.2, July 16, 1979, which provides, in
part, as follows:
"Program Statement
"Effective Date: August 1, 1979
"1. (Purpose and Scope Sec. 540.60. The Bureau of Prisons
recognizes the desirability of establishing a policy that affords
the public information about its operations via the news media.
Representatives of the news media (see Sec. 540.2) may visit
institutions for the purpose of preparing reports about the
institution, programs, and activities. It is not the intent of
this rule to provide publicity for an inmate or special privileges
for the news media, but rather to insure a better informed public.
The Bureau of Prisons also has a responsibility to protect the
privacy and other rights of inmates and members of the staff.
Therefore, an interview in an institution must be regulated to
insure the orderly and safe operation of the institution.) /5/
"8. Release of Information Sec. 540.65.
"((a) The Warden shall promptly make announcements stating the
facts of unusual, newsworthy incidents to local news media.
Examples are deaths, inside escapes, and institution emergencies.)
. . . .
"The Warden of each institution, or his designated
representative, is solely responsible for contact with the press.
Other staff members shall refer all press inquiries to the Warden
or his designee.
. . ." (G.C. Exh. 4)
Conclusions
I am well aware that the Statute does not protect all rights nor
remedy all wrongs. To the contrary, the rights protected by the Statute
are narrowly drawn. Thus, Section 2 provides as follows:
"Each employee shall have the right to form, join, or assist
any labor organization, or to refrain from any such activity,
freely and without fear of penalty or reprisal, and each employee
shall be protected in the exercise of such right. Except as
otherwise provided under this chapter, such right includes the
right--
(1) to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the
views of the labor organization to heads of agencies and other
officials of the executive branch of the Government, the Congress,
or other appropriate authorities, and
(2) to engage in collective bargaining with respect to
conditions of employment through representatives chosen by
employees under this chapter." (5 U.S.C. 7102).
The only other provision of the Statute which treats "information" /6/
is the "proviso" to 16(b)(7) which provides:
"Nothing in paragraph (7) of this subsection shall result in
any informational picketing which does not interfere with an
agency's operations being considered as an unfair labor practice."
(5 U.S.C. 16(b)).
Section 19(b)(4) of Executive Order 11491 had been held to bar all
picketing, including informational picketing which did not interfere
with an agency's operation, Internal Revenue Service, A/SLMR No. 536, 5
A/SLMR 475 (1975), aff'd, FLRC No. 75A-96, 4 FLRC 170 (1976). However,
the order of the Assistant Secretary was vacated by the United States
District Court for the District of Columbia as overly broad and an
intrusion upon the right of free expression in violation of the First
Amendment, National Treasury Employees Union v. Fasser, 428 F.Supp. 295
(D.C.D.C. 1976), see, in relation thereto, FLRC No. 76P-4, 5 FLRC 991
(1977); Complaint in Case No. 536 dismissed, A/SLMR No. 783, 7 A/SLMR
58 (1977); and, in direct recognition of the decision of the District
Court, Congress inserted to above "proviso" to insure that informational
picketing which does not interfere with an agency's operations is not
banned, i.e., shall not be "considered as an unfair labor practice."
The substance of Section 1(a) of Executive Order 11491 was unchanged
from the language of Section 1(a) of Executive Order 10988. In Meehan
v. Macy, 392 F.2d 822 (D.C. Cir. 1968), the Court of Appeals stated, as
to Section 1(a) of Executive Order 10988, as follows:
"It suffices in the present case to point out that Executive
Order 10988, by its clear language, has no application to
appellant's activities. /7/ The pertinent provisions, entitled
'Employee-Management Cooperation in the Federal Service' reads as
follows:
"Section 1(a) Employees of the Federal Government shall have,
and shall be protected in the exercise of, the right, freely and
without fear of penalty or reprisal . . . to participat(e) in the
management of the organization and acting for the organization in
the capacity of an organization representative, including
presentation of its views to officials of the executive branch,
the Congress or other appropriate authority.
The regulation by its terms provides for presentations within
official channels, and establishes no special warrant for appeals
to the public." (392 F.2d at 829).
In Department of Transportation, Federal Aviation Administration, Las
Vegas Control Tower, Las Vegas, Nevada, Case No. 72-5388 (CA) (7 A/SLMR
151, 157 (1976)), I held, in part, as follows:
" . . . As the Court stated in Meehan . . . the pertinent
language of Section 1(a) of the Order provides for presentations
within official channels and establishes no special warrant for
appeal to the public. . . ."
The Assistant Secretary adopted my findings, conclusions and
recommendation, A/SLMR No. 796, 7 A/SLMR 150 (1977), but, in footnote 1,
noted as follows:
"1. This is not to say . . . that all appeals to the public
are not protected under Section 1(a) of the Order . . ." (7 A/SLMR
at 151 (citing Fasser, supra, and FLRC No. 76P-4, supra).
Section 1 of Executive Order 11491 was essentially like Sec. 2 of the
Statute and the Supreme Court in considering the freedom of speech
aspect of the content of a union publication under Section 1 of the
Executive Order, in Old Dominion Branch No. 496, National Association of
Letter Carriers, AFL-CIO, v. Austin, 418 U.S. 264 (1974), stated, in
part, as follows:
". . . we see nothing in the Executive Order which indicates
that it intended to restrict in any way the robust debate which
has been protected under the NLRA. Such evidence as is available,
rather, demonstrates that the same tolerance for union speech
which has long characterized our labor relations in the private
sector has been carried over under the Executive Order . . . (418
U.S.at 275)
"The primary source of protection for union freedom of speech
under the NLRA, however, particularly in an organizational
context, is the guarantee in Sec. 7 of the Act of the employees'
right 'to form, join, or assist labor organizations.' /8/
'Basic to the right guaranteed to employees in Sec. 7 to form,
join or assist labor organizations, is the right to engage in
concerted activities to persuade other employees to join for their
mutual aid and protection. Indeed, even before the
Norris-LaGuardia Act the Wagner Act, this Court recognized a right
of unions to "use all lawful propaganda to enlarge their
membership"' NLRB v. Drivers Local 639, 362 U.S. 274, 279 (1960)
(citations omitted).
Vigorous exercise of this right 'to persuade other employees to join'
must not be stifled by the threat of liability for the overenthusiastic
use of rhetoric or the innocent mistake of fact. Thus, the Board has
concluded that statements of fact or opinion relevant to a union
organizing campaign are protected by Sec. 7, even if they are defamatory
and prove to be erroneous, unless made with knowledge of their falsity .
. . These considerations are equally applicable under the Executive
Order. Section 1 of the Order guarantees federal employees these same
rights. /9/
. . . .
"As noted, one of the primary reasons for the law's protection
of union speech is to insure that union organizers are free to try
peacefully to persuade other employees to join the union without
inhibition or restraint. . . . We see no reason to limit this
protection to statements made during representation election
campaigns. The protection of Sec. 7 and Sec. 1 is much broader.
Indeed Linn itself (Linn v. United Plant Guard Workers of America,
Local 114, 383 U.S. 53 (1966)) involved union organizing activity
outside the election campaign context. We similarly reject any
distinction between union organizing efforts leading to
recognition and post-recognition organizing activity. Unions have
a legitimate and substantial interest in continuing organizational
efforts after recognition. Whether the goal is merely to
strengthen or preserve the union's majority, or to achieve 100%
employee membership-- a particularly substantial union concern
where union security agreements are not permitted . . . these
organizing efforts are equally entitled to the protection of Sec.
7 and Sec. 1." (418 U.S.at 277-279).
Decisions under the National Labor Relations Act concerning, inter alia,
statements to media, Community Hospital of Roanoke Valley, 220 NLRB 217,
90 LRRM 1440 (1975), enf'd 538 F.2d 607, 92 LRRM 3158 (4th Cir. 1976),
cf., Bowling Green Manufacturing Company v. NLRB, 416 F.2d 371, 72 LRRM
2301 (enf't denied, 6th Cir. 1969); newspaper articles, etc., United
Parcel Service, Inc., 234 NLRB 223, 97 LRRM 1212 (1978); Springfield
Library and Museum Association, 238 NLRB 1672, 99 LRRM 1289 (1979), cf.,
Jefferson Standard Broadcasting Company, 94 NLRB 1507, 28 LRRM 1215
(1951), aff'd sub nom., NLRB v. Local 1229, International Brotherhood of
Electrical Workers, 346 U.S. 464 (1953), Kaiser Engineers v. NLRB, 538
F.2d 1379, 92 LRRM 3153 (9th Cir. 1976); American Arbitration
Association, Inc., 233 NLRB 71, 96 LRRM 1431 (1977), are bottomed on
"concerted activities" of Sec. 7 of the NLRA, which, as noted above, is
not a right accorded federal employees under Sec. 2 of the Statute and,
accordingly, such decisions are not directly in point except to the
extent like rights are accorded by the provisions of Sec. 2, " . . . to
form, join, or assist any labor organization. . . .
The phrase "or other appropriate authorities", with respect to
presenting the "views of the labor organization" first appeared in E.L.
10988, January 17, 1962 (2 U.S.Code Cong.& Adm.News 4269, 87th Cong.
Second Sess. 1962); was carried over into E.O. 11491, October 29, 1969,
which revoked E.O. 10988; was retained without change or comment in the
various amendments to E.O. 11491; /10/ and now appears in Sec. 2 of the
Statute. Nothing in the legislative history of the Statute sheds any
light on the meaning of the phrase, "or other appropriate authorities".
In Veterans Administration, North Chicago Veterans Hospital, North
Chicago, Illinois, Case Nos. 50-15408(CA) and 50-15412(CA), I held that
the right of employees to appear, on their own time, at a meeting of the
City Council on behalf of the union, to announce the impending removal
of the hospital director and to encourage expression of support for the
director by the public, was protected under Section 1(a) of the Order (8
A/SLMR 434, 440-441). The Assistant Secretary adopted my findings and
conclusions without further discussion of Section 1(a) of the Order,
Veterans Administration, North Chicago Veterans Hospital, North Chicago,
Illinois, A/SLMR No. 1024, 8 A/SLMR 430 (1978). Local 3254, American
Federation of Government Employees, AFL-CIO and Department of the Air
Force, Grissom Air Force Base, Peru, Indiana, A/SLMR No. 852, 7 A/SLMR
486 (1977), set aside, FLRC No. 77A-77, 6 FLRC 406 (1978), complaint
dismissed, A/SLMR No. 1057, 8 A/SLMR 640 (1978), is not directly in
point as the sole basis for the violation found by the Assistant
Secretary, which was set aside by the Council, was that Section 19(a)(3)
of the Order prohibited agency management from providing assistance to a
labor organization not in equivalent status by permitting publication of
an advertisement in a newspaper controlled by the agency; however, it
was recognized that, absent the "equivalent status" strictures,
publication of the same advertisement would have been protected and as
to the "equivalent status" strictures, the Council held that, " . . . a
finding of a 19(a)(3) violation based merely on the failure to prevent
the publication of the subject advertisement . . . is inconsistent with
the purposes of the Order." (6 FLRC at 412-413).
Veterans Administration, Veterans Administration Medical Center,
Shreveport, Louisiana, 5 FLRA No. 27 (1981), did, directly, involve a
union steward's interview by a TV reporter. With respect thereto, I had
held,
"The term 'other appropriate authorities' is not defined in the
Act, but I have no doubt that such term includes reporters,
whatever the medium. Otherwise, employees acting in the capacity
of a representative of a labor organization would be denied
protection under the Statute when presenting the views of the
labor organization to the press, a result clearly not contemplated
by Congress. . . Accordingly, I conclude that Respondent's act of
disciplining Ms. Lucas in retaliation for her activity, as a
representative of the Union, in contacting a television reporter
and giving a television interview violated Sec. 16(a)(1).
Further, the discriminatory and disparate treatment of the Union's
Chief Steward, Ms. Lucas, constituted action . . . in violation of
Sec. 16(a)(2) of the Statute." (6-CA-261 at pp. 7-8).
The Authority affirmed the finding of violation but stated,
"In reaching its determination herein the Authority adopts the
Administrative Law Judge's conclusion that Respondent's reprimand
of Lucas was in retaliation for her activity as a representative
of the Union and that the expressed reason for such discipline was
pretextual. Under such circumstances the Authority finds it is
unnecessary to pass upon, and specifically does not adopt, the
Administrative Law Judge's conclusion at p. 7 of his Decision that
the language 'other appropriate authorities' in section 7102(1) of
the Statute applies to reporters. Accordingly, the Authority
concludes that the Respondent's reprimand of Lucas interfered
with, restrained and coerced her in violation of section
7116(a)(1) of the Statute and such discipline constitutes
discrimination in connection with her conditions of employment in
violation of section 7116(a)(2) of the Statute." (5 FLRA No. 27).
It is entirely possible that the Authority, by its refusal to decide
whether "other appropriate authorities" in Sec. 2(1) of the Statute
applies to reporters, implicatively rejected inclusion of reporters in
the language "other appropriate authorities". Certainly, the issue was
directly raised in the Medical Center case, supra, but the Authority
declined to decide the issue and quite specifically did not adopt my
conclusion that the language "other appropriate authorities" in Sec.
2(1) applies to reporters. On the other hand, while the Authority did
not decide the issue in the Medical Center case, supra, it stated that
it did not do so because, ". . . the Authority finds it is unnecessary
to pass upon . . . the Administrative Law Judge's conclusion . . . that
the language 'other appropriate authorities' in section 7102(2) of the
Statute applies to reporters." In avoiding decision of an unnecessary
issue, the Authority not only demonstrated judicious discretion but
followed an honored judicial tenet, see, for example, United States v.
O'Brien, 391 U.S. 367, 386 (1968).
Here, the issue of an employee-union officer's statement to the press
is the controlling issue. I have carefully reviewed all of the
foregoing decisions, including the decision of the Court of Appeals for
the District of Columbia Circuit in Meehan v. Macy, supra, my decision
based thereon, in Department of Transportation, Federal Aviation
Administration, Las Vegas Control Tower, supra, the Assistant
Secretary's qualifying footnote, thereto, supra, and the decision in
Veterans Administration, Veterans Administration Medical Center,
Shreveport, Louisiana, supra, and conclude that I was in error, in the
Medical Center case, supra, in holding that, "The term 'other
appropriate authorities' . . . includes reporters, whatever the medium.
. . ." (6-CA-261). Accordingly, I conclude, as I held in Department of
Transportation, Federal Aviation Administration, Las Vegas Control
Tower, supra, and as the Court of Appeals had held in Meehan v. Macy,
supra, with respect to the identical language of E.O. 11491 and E.O.
10988, that the language of Sec. 2 of the Statute, as had Section 1 of
E.O. 10988 and of E.O. 11491, provides for presentations within official
channels and establishes no special warrant for appeal to the public.
This is not to suggest that all appeals to the public are unprotected by
the Statute. To the contrary, as the Supreme Court stated, in Old
Dominion Branch No. 496, National Association of Letter Carriers,
AFL-CIO v. Austin, supra, with respect to E.O. 11491, which language was
carried over to Section 2 of the Statute without change,
"'Basic to the right guaranteed to employees in Sec. 7 (of the
NLRA) to form, join or assist labor organizations, is the right to
engage in concerted activities to persuade other employees to join
for their mutual aid and protection. . .' (418 U.S.at 477)
These considerations are equally applicable under the Executive
Order. Section 1 of the Order guarantees federal employees these
same rights. /11/ (418 U.S.at 478)
". . . We see no reason to limit this protection to statements made
during representation election campaigns. The protection of Sec. 7 and
Sec. 1 is much broader . . . Whether the goal is merely to strengthen or
preserve the union's majority, or to achieve 100% employee membership--
a particularly substantial union concern where union security agreements
are not permitted . . . these organizing efforts are equally entitled to
the protection of Sec. 7 and Sec. 1." (418 U.S.at 479). I am well aware
that the Supreme Court, in Austin, supra, limited its comments to
organizing efforts of a union. Certainly, it could be argued that the
protection of union speech under Section 1 of the Executive Order, and
now under Sec. 2 of the Statute, flowing from the right, "to form, join,
or assist any labor organization" extends only to union membership
activities, which was not present in this case; however, I do not
believe that the right of union speech is limited, merely, to membership
activities. Thus, in Veterans Administration Regional Office, Denver,
Colorado, 2 FLRA No. 106, 2 FLRA 854 (1980), the Authority adopted the
conclusions of Judge Chaitovitz, in part, that:
". . . Section 1 of the Order grants each employee the right to
join and assist a labor organization. If the employees are to
have the right to join and assist a labor organization and to be
effectively represented by such a labor organization, the
employees must be free from interference to manage the labor
organization and to engage in all conduct which is permissible for
the labor organization. . . ." (2 FLRA at 863).
In addition, the "proviso" to Sec. 16(b)(7) of the Statute expressly
permits informational picketing "which does not interfere with an
agency's operations"; and Sec. 16(e) of the Statute, under stated
conditions, protects "The expression of any personal view, argument,
opinion or the making of any statement . . . if the expression contains
no threat of reprisal or force or promise of benefit or was not made
under coercive conditions. . . ." See, Oklahoma City Air Logistics
Center (AFLC), Tinker Air Force Base, Oklahoma, supra; American
Federation of Government Employees, Local 2000, AFL-CIO v. William R.
Massengale, Case Nos. 6-CO-37 and 6-CO-38, OALJ-82-52 (February 24,
1982).
Moreover, as the right, set forth in Sec. 2 of the Statute, ". . . to
form, join, or assist any labor organization. . . ." protects employee
speech, as the Supreme Court stated in Austin, supra, and as the
Authority necessarily recognized in Veterans Administration, Veterans
Administration Medical Center, Shreveport, Louisiana, supra, i.e., ". .
. Respondent's reprimand of Lucas was in retaliation for her activity as
a representative of the Union. . . .", Mr. Steenhoff's statement to the
press, as President of the Union, was protected activity as a
representative of the Union unless specifically proscribed by applicable
regulations, notwithstanding that the language in Sec. 2(1) of the
Statute, ". . . other appropriate authorities" does not include
"reporters", i.e., the enumeration of rights set forth in Sec. 2(1) is
not coextensive with the right of "Each employee . . . to form, join, or
assist any labor organization. . . ." but is merely illustrative of
rights included therein.
While an employee has a protected right under Sec. 2 of the Statute
to communicate the views of the labor organization concerning terms and
conditions of employment of the bargaining unit, such right is not
without limitation. As Judge Chaitovitz further noted, in Veterans
Administration Regional Office, Denver, Colorado, supra,
". . . this does not give employees license, because they may
also be union officials, to engage in any conduct they wish, and
be insulated from discipline. Rather . . . that the employees are
protected when engaging in reasonable conduct as union
representatives because they were engaging in union conduct which
was protected by the Order. . . ." (2 FLRA at 863).
And as the Supreme Court noted in Austin, supra, with regard to Section
1 of Executive Order 11491,
" . . . the lack of protection for concerted activities might
be thought to indicate an intention in the Executive Order to
regulate the location or form of employee speech to a somewhat
greater extent than under the NLRA. . . ." (418 U.S.at 278).
In this case, the General Counsel concedes the validity of Respondent's
Program Statement (Tr. 22, 24) but, challenges ". . . the application of
the regulation. . . ." (Tr. 24) and as stated in his Brief, ". . . it is
perfectly clear that Warden Gunnell's broad proscription to Steenhoff
precluding him from issuing any information to the press under any
circumstances constituted interference with a basic right under the
Statute. . . ." (G.C. Brief, p. 4) (Emphasis in original).
5 C.F.R. 540.65, which is included in the Program Statement provided,
in part, that:
"(a) The Warden shall promptly make announcements stating the
facts of unusual, newsworthy incidents to local news media.
Examples are deaths, inside escapes, and institution emergencies.
"(b) The Warden shall provide information about an inmate that
is a matter of public record . . .
"(c) Information in paragraphs (b)(1) through (8) . . . may not
be released if confidential for protection cases.
"(d) A request for additional information concerning an inmate
. . . is referred to the Public Information Officer, Central
Office, Washington, D.C.
"(e) The Public Information Officer . . . shall release all
announcements related to:
(1) Bureau of Prisons policy;
(2) Changes in an institutional mission;
(3) Type of inmate population; or
(4) Changes in executive personnel."
(5 C.F.R. 540.65, effective August 1, 1979).
5 C.F.R. 540.60, set forth in full hereinabove, contained the
sentence,
". . . The Bureau of Prisons also has a responsibility to
protect the privacy and other rights of inmates and members of the
staff. Therefore, an interview in an institution must be
regulated to insure the orderly and safe operation of the
institution." /12/ (5 C.F.R. 540.60, effective August 1, 1979).
The Program Statement contains the following, which does not appear in
the Regulation:
"The Warden of each institution, or his designated
representative, is solely responsible for contact with the press.
Other staff members shall refer all press inquiries to the Warden
or his designee." (Program Statement 1480.2, G.C. Exh. 4).
Obviously, the stated purpose and scope of the Program Statement,
inter alia,". . . to protect the privacy and other rights of . . .
members of the staff" does not purport to extend to statements of the
views of the Union concerning terms or conditions of employment in
general, which involve no question of privacy; nor does the statement
that, ". . . an interview in an institution must be regulated to insure
the orderly and safe operation of the institution", have any application
to such general statements by the Union. Literally, the provisions of
the Program Statement that, "The Warden . . . is solely responsible for
contact with the press. Other staff members shall refer all press
inquiries to the Warden. . . .", would preclude any employee from any
contact with the press, but, even literally applied, would have no
application to a non-employee Union representative. As Judge Chaitovitz
stated in Veterans Administration Regional Office, Denver, Colorado,
supra,
". . . It would seem strange, in effect, to require that for
labor organizations to engage in protected activities it must use
non-employees. Such a result would totally frustrate the
employees' right to effective representation which they themselves
could control. . .
. . . .
"Having concluded that employee-union officials, when acting in
their union representative capacity, must be free to engage in any
activity the union is privileged to engage in . . . it is
concluded . . . that the employees are protected when engaging in
reasonable conduct as union representatives because they were
engaging in union conduct which was protected. . . ." (2 FLRA at
863) (Emphasis in original).
Respondent, in its Brief, asserts, inter alia, that ". . . the
Federal Prison System is not bound by or forced to accede to another
agency's interpretation of its own regulation" (Res. Brief, p. 4).
Nevertheless, when an agency's interpretation and application of its own
regulations interferes with a right protected by the Statute, the
Authority can, and must, in order to insure that rights accorded by the
Statute are protected, declare that such regulations may not be enforced
in a manner which interferes with rights protected by Sec. 2 of the
Statute. Here, Respondent's Program Statement, literally, precludes
employees from any contact with the press, but does not purport to limit
in any manner contact by the Union, through non-staff members
(employees), to the press. I fully agree with the conclusion of Judge
Chaitovitz in Veterans Administration Regional Office, Denver, Colorado,
supra, and, therefore, conclude that Mr. Steenhoff, acting in his
capacity as Union president, was protected when engaging in reasonable
conduct as Union representative because he was engaging in union conduct
which was protected by the Statute and which was not precluded by the
Program Statement. Accordingly, Respondent's interpretation of the
Program Statement is overly broad and its admonition of Mr. Steenhoff
for engaging in protected Union conduct violated Sec. 16(a)(1) of the
Statute. Under the circumstances, I neither reach nor decide the effect
of an agency regulation which purports to limit, or proscribe, protected
Union activity.
Having found that Respondent violates Sec. 16(a)(1) of the Statute, I
recommend that the Authority adopt the following:
ORDER
Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that
the Bureau of Prisons, Federal Correctional Institution, Danbury,
Connecticut, shall:
1. Cease and desist from:
(a) Admonishing or otherwise interfering with, restraining, or
coercing Clifford S. Steenhoff, or any other employee, when acting
in the capacity of an officer of American Federation of Government
Employees, Council of Prison Locals C-33, Local 1661, AFL-CIO, the
exclusive representative, to engage in protected union conduct,
including the right to state to the press the views of the Union
concerning terms or conditions of employment in general of the
bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Rescind its memorandum to Mr. Clifford S. Steenhoff, dated
November 25, 1981.
(b) Post at its facilities in Danbury, Connecticut, copies of
the attached notice on forms to be furnished by the Authority.
Upon receipt of such forms they shall be signed by the Warden and
shall be posted and maintained for 60 consecutive days thereafter
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Pursuant to Sec. 2423.30 of the Regulations, notify the
Regional Director of the Federal Labor Relations Authority, Region
1, whose address is: 441 Stuart Street, 9th Floor, Boston,
Massachusetts, 02116, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply therewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Date: January 5, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT admonish or otherwise interfere with, restrain, or coerce
Clifford S. Steenhoff, or any other employee, when acting in the
capacity of an officer of American Federation of Government Employees,
Council of Prison Locals C-33, Local 1661, AFL-CIO, the exclusive
representative, to engage in protected union conduct, including the
right to state to the press the views of the Union concerning terms or
conditions of employment in general of the bargaining unit. WE WILL NOT
in any like or related manner interfere with, restrain, or coerce any
employee in the exercise of any right under the Statute. WE WILL
rescind the memorandum to Mr. Clifford S. Steenhoff, dated November 25,
1981.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region 1, whose address is: 441
Stuart Street, 9th Floor, Boston, Massachusetts, 02116, and whose
telephone number is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1A/ Section 7102 of the Statute provides:
Sec. 7102. Employees' rights
Each employee shall have the right to form, join, or assist any
labor organization, or to refrain from any such activity, freely
and without fear of penalty or reprisal, and each employee shall
be protected in the exercise of such right. Except as otherwise
provided under this chapter, such right includes the right--
(1) to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the
views of the labor organization to heads of agencies and other
officials of the executive branch of the Government, the Congress,
or other appropriate authorities, and
(2) to engage in collective bargaining with respect to
conditions of employment through representatives chosen by
employees under this chapter.
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(1) will be referred to simply
as "16(a)(1)".
/2/ General Counsel's motion for extension of time to file briefs was
not timely filed and was denied on December 6, 1982.
/3/ Mr. Steenhoff had contacted the offices of various Senators and
Congressmen and an official of the Council of Prison Locals. This
conduct is not in question.
/4/ Mr. Steenhoff's response was wholly circumspect and there is no
assertion that he divulged any privileged information.
/5/ Bracketed material in the Program Statement is the language of
the Regulation as of June 29, 1979. The present language of Sec. 540.60
is substantially different; however, other sections including Sec.
540.65 have remained unchanged. No effort has been made to note changes
in the Regulations since only the Program Statement is relied upon.
/6/ I am, also aware of the provisions of Sec. 16(e) concerning the
"expression of any personal view, opinion of the making of any
statement". See, Oklahoma City Air Logistics Center (AFLC) Tinker Air
Force Base, Oklahoma, 6 FLRA No. 32, 6 FLRA 159 (1981).
/7/ Appellant Meehan had been, when the matter arose, President of
the Canal Zone Police Lodge 1798, American Federation of Government
Employees.
/8/ In other contexts, other provisions of the NLRA may be
sources of protection for union freedom of speech. For example,
one such source would be the system of representation elections by
secret ballot established by Sec. 9 of the Act. Wide latitude for
what is written and said in election campaigns is necessary to
insure the free exchange of information and opinions, and thus to
promote the informed choice by employees needed to make the system
work fairly and effectively. The same policy is applicable under
the Executive Order, which establishes in Sec. 10 a similar system
of representative elections for public employees.
/9/ Section 1 of the Executive Order does not grant federal
employees the right, guaranteed by Sec. 7 of the NLRA for
employees in the private sector, 'to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.' (Nor, of course, does Sec. 2 of the
Statute which is essentially like Section 1 of the Order). The
right to attempt to persuade others to join the union, however, is
derived from the rights to form, join, and assist a union, as well
as from the right to engage in concerted activities. The absence
of mention of a right to engage in concerted activities is
obviously no more than a reflection of the fact that the Order
does not permit federal employee unions to engage in strikes or
picketing. The prohibition of picketing and the lack of
protection for concerted activities might be thought to indicate
an intention in the Executive Order to regulate the location or
form of employee speech to a somewhat greater extent than under
the NLRA, but we do not perceive any intention to curtail in any
way the content of union speech." (418 U.S.at 278)
/10/ Section 1(a) of E.O. 11491 provided, in relevant part:
" . . . Except as otherwise expressly provided in this Order,
the right to assist a labor organization extends to . . .
presentation of its views to officials of the executive branch,
the Congress, or other appropriate authorities. . . . "
/11/ "13. . . . The right to attempt to persuade others to
join the union, however, is derived from the right to form, join,
and assist a union, as well as from the right to engage in
concerted activities. The absence of mention of a right to engage
in concerted activities is obviously no more than a reflection of
the fact that the Order does not permit federal employee unions to
engage in strikes or picketing. The prohibition of picketing and
the lack of protection for concerted activities might be thought
to indicate an intention in the Executive Order to regulate the
location or form of employee speech to a somewhat greater extent
than under the NLRA, but we do not perceive in any way any intent
to curtail in any way the content of union speech." (418 U.S.at
478, n. 13).
/12/ Sec. 540.60 now consists, in its entirety, of the language set
forth in the two concluding sentences set forth above.