Appendix B - Investigatory Examinations
Element #1: Examination of an employee in connection with an investigation
Rule of Law: An investigatory examination, which can be undertaken in a number of ways, involves questioning of an employee to secure information.
National Treasury Employees Union v. FLRA, 835 F.2d 1446, 1450 (1987) (examination was conducted when questions were posed by nonmanagement employee to another nonmanagement employee by telephone, which was taped); compare Department of the Treasury, Internal Revenue Service, 15 FLRA No. 78, 15 FLRA 360 (1984) (meeting is not an examination where employee was told at the outset that its purpose was to tell him that he had committed a crime and to warn him about making threats, and he was advised not to say anything).
A. Examples of Situations Where An "Examination" Was Found
An "examination" may relate to either a criminal or civil investigation. U.S. Department of Justice Washington D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 56 FLRA No. 87, 56 FLRA 556, 560 (2000) (DOJ, IG) (relying upon National Aeronautics and Space Administration v. FLRA, 527 U.S. 229, 237 (1999), the Authority found the criminal aspect of an investigation as opposed to the administrative aspect of an investigation does not require a different outcome); Department of the Treasury, Internal Revenue Service, Jacksonville District and Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection, 23 FLRA No. 108, 23 FLRA 876, 877 (1986) (IRS-Jacksonville) (section 7114(a)(2)(B) applies to examinations in connection with criminal investigations, but surveillance of a telephone call between an employee and a taxpayer was not an examination where there was no direct questioning of the employee by an agency representative).
An "examination" does not have to occur on-site, nor does it have to occur on the employee's duty time. Internal Revenue Service, Los Angeles District Office, 15 FLRA No. 133, 15 FLRA 626, 637 (1981) (a tax audit of an IRS employee that took place in an attorney's office as part of an on-going investigation was an "examination").
A meeting or hearing need not be mandatory to be considered an examination; the right to representation attaches where an employee is willing to attend, and as a practical matter, has no choice but to attend. Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, 48 FLRA No. 83, 48 FLRA 787, 798 (1993) (VA, Jackson) (although two nurses were not required to attend a hearing before the Nurses Professional Standards Board, the nurses were compelled to attend if they wished to be heard); and American Federation of Government Employees, Local 1942 v. FLRA, 837 F.2d 495, 499 (D.C. Cir. 1988) (although not technically required to appear, a doctor in fact was compelled to attend if he wished to be heard on matters concerning his professional competence which could affect his career).
An examination need not be confrontational, it may be conducted in writing. U.S. Immigration and Naturalization Service, U.S. Border Patrol, Del Rio, Texas, 46 FLRA No. 31, 46 FLRA 363, 371 (1992) (the requirement that a border patrol agent prepare a memorandum explaining the circumstances of a prisoner escape constituted an "examination").
B. Examples of Situations Where An "Examination" Was Not Found
Meetings that are held for the purpose of giving an employee an assignment or a test are not "examinations." Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA No. 129, 7 FLRA 766, 780 (1982) (a meeting where an employee was informed that his work assignment was to take a test that was to be used to determine where the employee needed help, but would not be used to support disciplinary action, was not an examination).
Counseling meetings are not "examinations." United States Air Force 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 9 FLRA No. 117, 9 FLRA 871, 872 (1982) (a meeting where an employee was informed of a decision already reached was a counseling session and therefore not an "examination"); Internal Revenue Service, Detroit, Michigan, 5 FLRA No. 53, 5 FLRA 421, 435 (1981) (a review of an employee's work after the employee was warned about substandard performance where the employee was not questioned about his work, was not an "examination," but a counseling session); United States Air Force 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 10 FLRA No. 23, 10 FLRA 97, 99 (1982) (a counseling session was not an "examination" nor a continuation of an earlier examination because the employee was not asked to defend herself or to disclose information--it was remedial, not investigatory).
Element #2: Examination is conducted by a representative of the agency
Rule of Law: Absent statutory constraints, an investigator who conducts the investigation on behalf of agency management is a "representative of the agency," for the purpose of section 7114(a)(2)(B), even if employed by another organizational component that does not have a collective bargaining relationship with the union.
National Aeronautics and Space Administration v. FLRA, 527 U.S. 229, 237 (1999), affirming 120 F.2d 1208 (11th Cir. 1997), affirming 50 FLRA No. 82, 50 FLRA 601 (1995) (Office of Inspector General is a "representative of the agency" for purposes of section 7114(a)(2)(B)); Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 36 FLRA No. 6, 36 FLRA 41, 50 (1990) (the degree of control exercised by agency management over Office of Professional Responsibility agents was irrelevant when the investigators were employees of the same agency and their purpose when conducting interviews was to solicit information concerning possible misconduct on the part of agency employees in connection with their work), remanded onothergrounds sub. nom. 939 F.2d 1170 (5th Cir. 1991); see also DOJ, IG, 56 FLRA at 560.
Element #3: Employee reasonably believes that discipline may happen as a result of the examination
Rule of Law: The circumstances surrounding an examination and the possibility, not the inevitability, of future discipline, determine whether it is reasonable for an employee to fear that his/her answers might lead to discipline.
Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, 51 FLRA No. 147, 51 FLRA 1741 (1996) (reasonable belief of discipline when an employee was not advised that a regulation places limits on the use of information obtained during the quality investigation; moreover, another independent investigation, which could result in discipline, could be spawned as a result of the quality assurance investigation).
Employee need not be the subject of the investigation to have a reasonable belief that discipline may result. Internal Revenue Service, Washington, D.C., 4 FLRA No. 37, 4 FLRA 237, 25-51 (1980), affirmed sub nom. Internal Revenue Service, Washington D.C. v. FLRA, 671 F.2d 560 (D.C. Cir. 1982) (employee, who was not suspected of wrongdoing but who had tax records of another employee who was the subject of an investigation, could have reasonably believed that discipline may result if his conduct in controlling tax records was deemed improper); U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 47 FLRA No. 117, 47 FLRA 1254, 1282 (1993) (although only a witness, an employee who was interviewed could have reasonably believed that discipline would result if he was found to have knowledge of the misconduct of others).
In some circumstances an express grant of immunity to an employee might remove any fear of disciplinary action. AFGE. Local 2544 v. FLRA, 779 F.2d 719, 724 (D.C. Cir. 1986) (employee could very reasonably have entertained doubts about the ability of OPR agents to grant him administrative immunity), reversing and remanding 15 FLRA No. 80, 15 FLRA 383 (1984).
An employee may have a reasonable fear of discipline even though the employer need not be contemplating discipline at the time the employee is examined. Department of the Navy, Norfolk Naval Base, Norfolk, Virginia, 14 FLRA No. 97, 14 FLRA 731, 747 (1981) (from the employee's point of view, it was important to have representation during an investigation concerning the employee's insubordination when possible administrative decisions were being formulated).
Element #4: Employee must request representation
Rule of Law: Basic Requirement - An employee's request for representation must be sufficient to put the employer on notice of the employee's desire for representation and need not be made in any specific form.
Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA No. 116, 35 FLRA 1069, 1074 (1990) (Norfolk NS).
Sufficient Requests for Representation:
Employee's statement that he would like to speak with a lawyer or somebody to advise him or explain what was happening. U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA No. 64, 55 FLRA 388, 402-03 (1999) (BOP/OIA); U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA No. 16, 41 FLRA 154 (1991) (DOJ/INS); and Southwestern Bell Telephone Company, 227 NLRB 1223 (1977).
Employee's statement that "maybe I need to see a union rep." United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA No. 97, 27 FLRA No. 874, 880 (1987).
Under the circumstances of the case, where request is termed "I am officially asking for representation" and employee acts as spokesperson for two other employees who are present and silent. U.S. Immigration and Naturalization Service, U.S. Border Patrol, Del Rio, Texas, 46 FLRA No. 31, 46 FLRA 363, 373 (1992).
Rule of Law: Waiver - Employee may waive the right to union representation if such waiver is "clear and unmistakable."
Norfolk NS, 35 FLRA at 1077.
A. No Waiver Found
Employee who is examined but whose request for a union representative is denied must be offered a choice between continuing the interview without a union representative or having no interview. U.S. Department of Labor, Mine Safety and Health Administration, 35 FLRA No. 84, 35 FLRA 790 (1990).
An employee's decline of union representation at previous interviews does not establish whether the employee would request representation at a subsequent examination. BOP/OIA, 55 FLRA at 394 n.10.
Statements by agency investigator to an employee who was informed that he might be accused of criminal misconduct, that it would not be in best interest of the employee if the union representative were present at the interview, were deemed coercive. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 42 FLRA No. 56, 42 FLRA 834, 839-40 (1991).
B. Waiver Found
After an employee's request for union representation was denied, the employee was told that he did not have to answer any questions and was free to leave; the employee's decision to stay was uncoerced. U.S. Department of Justice, U.S. Penitentiary, Leavenworth, Kansas, 46 FLRA No. 72, 46 FLRA 820 (1992).
Employee withdrew request for union representative when, after waiting for 30 minutes for union representative who was on route, the employer suggested that the interview continue and the employee merely shrugged and went on with the interview. Army and Air Force Exchange Service, Rocky Mountain Area Exchange, Fort Carson, Colorado, 16 FLRA No. 109, 16 FLRA 794, 802-03 (1984); and Department of Justice, Bureau of Prisons, Federal Correctional Institution, 14 FLRA No. 59, 14 FLRA 334, 336 (1984) (although told that a union representative would be there in 10 minutes or less, the employee said the management officials should go ahead with the oral interrogation).
Rule of Law: Exclusive Representative's Right to Designate Its Representative - Presumption that a union can designate the individual it wants as its representative during an investigatory examination may be rebutted only where the agency can demonstrate "special circumstances" that warrant precluding a particular individual from serving in this capacity, i.e., agency must show how the integrity of the investigation would be undermined.
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 No. 133, 54 FLRA 1502, 1513 (1998) (FCI Englewood).
A. Circumstances Where Particular Individual May Not Be Precluded From Serving As Union Representative
Agency did not show how integrity of investigation would be harmed by allowing chief steward, a witness to the incident under investigation, to be the union's representative. Id. at 1514.
B. Circumstances Where Particular Individual May Be Precluded From Serving As The Union Representative
Due to the individual's obstructive behavior during an earlier investigatory examination. FCI Englewood, 54 FLRA at 1512 (citing New Jersey Bell Telephone Co., 308 NLRB 277, 282 (1992).
Off-site representative is not readily available and an on-site representative is available. Id. (citing Pacific Gas & Electric Co., 253 NLRB 1143 (1981) and Roadway Express, Inc., 246 NLRB 1127, 1129 (1979).
Employer need not postpone an investigation where shop steward is unavailable and other representative is available. Id. (citing Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276, 1276 (1977).
Agency may bar an individual who is the subject of an investigation from serving as a union representative until after his/her interview has been completed. Federal Prison System, Federal Correctional Institution, 25 FLRA No. 16, 25 FLRA 210, 228-29 (1987).
Rule of Law: Role of Union Representative - A union representative has the right to actively participate in assisting an employee in an investigation as long as s/he does not interfere with the employer's interest in achieving the objective of the investigation or compromise its integrity. NASA, 50 FLRA at 607.
Representative has a right to consult with the affected employee. VA, Jackson, 48 FLRA at 799 (1993) (right to consult at Nurse Professional Standards Board hearing).
Any right to confer privately outside an interview room depends upon whether it is reasonably necessary to do so to ensure active and effective union representation. Bureau of Prisons, Office of Internal affairs, Washington, D.C., 52 FLRA No. 43, 52 FLRA 421, 439 (1996) (not reasonably necessary where union representative and employee had a right to confer in the examination room and could confer during 15-minute hourly breaks). Compare INS, Twin Cities, 46 FLRA at 1569 (no record evidence that a brief conference between the employee and the representative outside the hearing of the investigator would have interfered with the objective of the investigation or compromised its integrity).
Representative has a right to speak or otherwise participate on the record in a formal proceeding. Id.; United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA No 56, 35 FLRA 431, 440 (1990) and Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA No. 116, 6 FLRA 678, 687 (1981) (violation of the Statute when a union representative was disciplined for taking an active role at the investigatory interview and for not abiding by agency order to be quiet); U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA No. 41, 5 FLRA 297, 307 (1981) (violation of the Statute where a representative's participation was limited to "practice" interview prior to actual taped interview and comments at end of interview).
Representative's right to information under section 7114(b)(4) to prepare for an investigatory examination is balanced against employer's interest in achieving objective of examination and maintaining its integrity. Federal Aviation Administration, New England Region, Burlington, Massachusetts, 35 FLRA No. 73, 35 FLRA 645, 653 (1990) (the employer's refusal to provide requested information did not deny the union the opportunity to assist employees or participate fully in their examinations because the union was familiar with the circumstances having represented the employees during a prior interview).
Representative has no right to tape record an interview when such taping is contrary to agency policy. United States Immigration and Naturalization Service San Diego, California, 13 FLRA No. 102, 13 FLRA 591, 604-05 (1984) (a union representative could not insist upon tape recording an interview thereby obstructing the Office of Professional Responsibility in its conduct of the investigation).