U.S. Department of Navy, U.S. Marine Corps, Marine Corps Logistics Base, Albany, Georgia (Respondent) and Barbara M. Drake, Employee (Charging Party) 

 



[ v04 p397 ]
04:0397(54)CA
The decision of the Authority follows:


 4 FLRA No. 54
 
 U.S. DEPARTMENT OF NAVY
 U.S. MARINE CORPS
 MARINE CORPS LOGISTICS BASE
 ALBANY, GEORGIA
 Respondent
 
 and
 
 BARBARA M. DRAKE, EMPLOYEE
 Charging Party
 
                                            Case No. 4-CA-235
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED
 IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND RECOMMENDING
 THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS
 AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER.  NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. SECTIONS 7101-7135), THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  IN THIS REGARD THE COMPLAINT HEREIN ALLEGED, THE
 ADMINISTRATIVE LAW JUDGE FOUND, AND THE AUTHORITY AGREES THAT RESPONDENT
 VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE BY DENYING A REQUEST
 BY THE CHARGING PARTY, AN EMPLOYEE, TO BE REPRESENTED BY HER UNION
 REPRESENTATIVE AT AN INTERVIEW LIKELY TO RESULT IN DISCIPLINARY ACTION
 AGAINST HER.
 
                                   ORDER
 
    ACCORDINGLY, PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR
 RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE
 STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE U.S. DEPARTMENT OF NAVY,
 U.S. MARINE CORPS, MARINE CORPS LOGISTICS BASE, ALBANY, GEORGIA SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) CONDUCTING AN INVESTIGATIVE INTERVIEW OR EXAMINATION OF ANY
 EMPLOYEE WHICH MIGHT
 
    REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST SAID EMPLOYEE
 WITHOUT GIVING AMERICAN
 
    FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2317, THE
 EMPLOYEES' EXCLUSIVE BARGAINING
 
    REPRESENTATIVE, AN OPPORTUNITY, UPON REQUEST BY SAID EMPLOYEE, TO BE
 REPRESENTED AT SUCH
 
    INVESTIGATIVE INTERVIEW OR EXAMINATION.
 
    (B) 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) POST AT ITS FACILITIES IN ALBANY, GEORGIA COPIES OF THE ATTACHED
 NOTICE MARKED
 
    "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT
 OF SUCH FORMS, THEY SHALL
 
    BE SIGNED BY THE COMMANDING OFFICER AND SHALL BE POSTED AND
 MAINTAINED BY HIM 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
 
    ENSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (B) NOTIFY THE REGIONAL DIRECTOR OF REGION 4, SUITE 501, NORTH WING,
 1776 PEACHTREE STREET,
 
    NW., ATLANTA, GEORGIA 30309, 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., SEPTEMBER 30, 1980
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                                 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
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT CONDUCT AN INVESTIGATIVE INTERVIEW OR EXAMINATION OF ANY
 EMPLOYEE WHICH MIGHT REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST
 SAID EMPLOYEE WITHOUT GIVING AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2317, THE EMPLOYEES' EXCLUSIVE BARGAINING
 REPRESENTATIVE, AN OPPORTUNITY, UPON REQUEST BY SAID EMPLOYEE, TO BE
 REPRESENTED AT SUCH INVESTIGATIVE INTERVIEW OR EXAMINATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
 1776 PEACHTREE STREET, NW., SUITE 501, NORTH WING, ATLANTA, GEORGIA
 30309, AND WHOSE TELEPHONE NUMBER IS:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    ELBERT C. NEWTON
    LABOR RELATIONS SPECIALIST
    CAPTAIN WILLIAM R. SEALE
    DEPUTY STAFF JUDGE ADVOCATE
                            FOR THE RESPONDENT
 
    BRENDA S. GREEN, ESQUIRE
    WILLIAM N. CATES, ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM NAIMARK
                          ADMINISTRATIVE LAW JUDGE
 
                                               CASE NO. 4-CA-235
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON NOVEMBER 16,
 1979 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
 ATLANTA, GEORGIA REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON
 JANUARY 17, 1980 AT ALBANY, GEORGIA.
 
    THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED
 THE ACT).  BASED UPON A CHARGE FILED ON SEPTEMBER 24, 1979 BY BARBARA M.
 DRAKE, AN EMPLOYEE, AGAINST U.S. DEPARTMENT OF NAVY, UNITED STATES
 MARINE CORPS, MARINE CORPS LOGISTICS BASE, ALBANY, GEORGIA (HEREIN
 CALLED RESPONDENT), A COMPLAINT WAS ISSUED AGAINST SAID RESPONDENT.  IT
 WAS ALLEGED THEREIN THAT THE LATTER VIOLATED SECTIONS 7116(A)(1) AND (8)
 OF THE ACT BY DENYING, ON SEPTEMBER 4, 1979, A REQUEST BY DRAKE TO BE
 REPRESENTED BY HER UNION REPRESENTATIVE AT AN INTERVIEW LIKELY TO RESULT
 IN DISCIPLINARY ACTION AGAINST SAID EMPLOYEE.
 
    A RESPONSE WAS FILED BY RESPONDENT ON DECEMBER 3, 1979 WHEREIN IT
 DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.  IT SPECIFICALLY
 DENIED THAT:  (A) DRAKE REQUESTED REPRESENTATION BY HER UNION AT THE
 INTERVIEW, AS ALLEGED, AND (B) RESPONDENT REFUSED OR DENIED ANY REQUEST
 BY DRAKE TO HAVE HER UNION REPRESENTATIVE PRESENT AT THE INTERVIEW.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES, AND TO FILE BRIEFS WITH THE UNDERSIGNED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN, AND SINCE 1964, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2317 (HEREIN CALLED THE UNION),
 HAS BEEN, AND STILL IS, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL
 GRADED AND UNGRADED EMPLOYEES OF THE MARINE CORPS LOGISTICS BASE,
 ALBANY, GEORGIA.  /1/ A CONTRACT WAS EXECUTED BETWEEN THE PARTIES ON
 JUNE 3, 1976 WHICH COVERED SAID UNIT AND IS, BY ITS TERMS, EFFECTIVE FOR
 A PERIOD OF THREE YEARS.
 
    2.  BARBARA DRAKE IS, AND HAS BEEN AT ALL TIMES MATERIAL HEREIN, AN
 EMPLOYEE OF RESPONDENT WITHIN THE BARGAINING UNIT REPRESENTED BY THE
 UNION.  DRAKE IS EMPLOYED AS AN INVENTORY MANAGEMENT SPECIALIST.
 
    3.  BETWEEN AND DURING THE PERIOD FROM MONDAY, AUGUST 27, 1979
 THROUGH FRIDAY, AUGUST 31, 1979, /2/ DRAKE DID NOT REPORT TO WORK.  SHE
 TELEPHONED THE BASE EACH DAY STATING THAT HER HUSBAND WHO WAS
 HOSPITALIZED NEEDED HER ATTENTION AND THAT HER CHILD WAS ILL.  NO
 SANCTION OR APPROVAL FOR THE ABSENCE WAS GRANTED BY MANAGEMENT.
 
    4.  ON SEPTEMBER 4 JACK A. SWANSON, SUPERVISOR, INVENTORY MANAGEMENT
 SPECIALIST, CALLED DRAKE TO ATTEND A MEETING AT BRANCH HEAD JIMMY
 TURNER'S OFFICE.  THE MEETING WAS HELD AT 8:30 A.M. ON THAT DATE FOR THE
 PURPOSE OF INTERROGATING DRAKE CONCERNING HER ABSENCE FROM WORK DURING
 THE WEEK OF AUGUST 27 AND ASCERTAINING THE REASON THEREFOR.  PRESENT
 THEREAT WERE DRAKE, SWANSON, TURNER AND RENA MONG, /3/ SECRETARY TO THE
 BRANCH HEAD.
 
    5.  AT THE ONSET OF THE SEPTEMBER 4 MEETING, AND PRIOR TO ANY
 INTERROGATION, DRAKE TOLD SWANSON THAT IF HE WAS CONTEMPLATING ANY
 ACTION HARMFUL TO HER AND HER CAREER, SHE WANTED REPRESENTATION.  THE
 SUPERVISOR THEN ASKED WHY SHE WAS ABSENT ON MONDAY (AUGUST 27).  DRAKE
 REPLIED THAT HER CHILD, WHO HAD A HIGH TEMPERATURE, WAS ON STRONG
 MEDICATION SINCE SHE WAS A CANDIDATE FOR EPILEPSY.  MOREOVER, SHE STATED
 HER HUSBAND WAS HOSPITALIZED AND NEEDED HER ATTENTION.  DRAKE AGAIN
 REQUESTED REPRESENTATION.  SWANSON ASKED WHY THE EMPLOYEE WAS ABSENT ON
 TUESDAY AND WEDNESDAY.  SHE EXPLAINED HER HUSBAND WAS STILL HOSPITALIZED
 AND IT WAS REALLY A FAMILY EMERGENCY.  TURNER REMARKED THAT HE CALLED
 THE SCHOOL AND WAS INFORMED DRAKE'S DAUGHTER HAD BEEN IN SCHOOL ON
 AUGUST 27 AND 28.  WHEREUPON DRAKE OBJECTED TO TURNER CALLING THE
 SCHOOL.  SHE REPEATED HER REQUEST FOR REPRESENTATION, AND TURNER
 COMMENTED THAT HE UNDERSTOOD SHE WAS ONLY ENTITLED TO HAVE
 REPRESENTATION AFTER SHE RECEIVES "THE LETTER." AT THE CONCLUSION OF THE
 MEETING SWANSON STATED HE WAS DISAPPROVING THE LEAVE AND WOULD PLACE
 DRAKE ON UNAUTHORIZED ABSENCE.  NO RESPONSES WERE MADE, EXCEPT AS NOTED,
 TO THE EMPLOYEE'S REQUEST FOR REPRESENTATION AT THE SAID MEETING.  /4/
 
    6.  LATER IN THE DAY OF SEPTEMBER 4 SWANSON GAVE DRAKE A COPY OF HER
 LEAVE SLIP WHICH HAD BEEN MARKED "DISAPPROVED." AT 4:15 P.M. THE
 SUPERVISOR CALLED HER INTO THE OFFICE WHERE TURNER WAS ALSO PRESENT.
 SWANSON SAID THAT HE WAS PREPARING A PROPOSAL FOR DRAKE'S SUSPENSION FOR
 FIVE DAYS BASED ON HER UNAUTHORIZED ABSENCE BETWEEN AUGUST 27-31.
 
    7.  ON SEPTEMBER 11 DRAKE WAS GIVEN A "NOTIFICATION OF CONTEMPLATED
 SUSPENSION FROM DUTY" SIGNED BY SWANSON.  THIS PROPOSED FIVE DAY
 SUSPENSION WAS DECLARED TO BE A DISCIPLINARY OFFENSE PREDICATED ON HER
 UNAUTHORIZED ABSENCE FROM WORK.  THE NOTIFICATION ALSO REFERRED TO THE
 HEARING HELD ON SEPTEMBER 4, AND IT RECITED THAT SWANSON REJECTED
 DRAKE'S EXPLANATION FOR BEING ABSENT FROM AUGUST 27 TO AUGUST 31.
 
    8.  THEREAFTER SWANSON WAS ADVISED BY THE NAVAL CIVILIAN PERSONNEL
 COMMAND THAT, UNDER THE AGREEMENT BETWEEN THE PARTIES, MANAGEMENT
 SHOULD
 HAVE NOTIFIED DRAKE PRIOR TO THE SEPTEMBER 4 MEETING THAT SHE COULD HAVE
 A UNION REPRESENTATIVE THEREAT.  SINCE SWANSON FAILED TO SO ADVISE DRAKE
 DESPITE HIS INTENTION TO DISCUSS DISCIPLINARY ACTION WITH HER, THE
 COMMAND SUGGESTED THE PROPOSED SUSPENSION BE RESCINDED AND NOT
 EFFECTUATED AT THAT TIME.  /5/
 
    9.  IN ACCORDANCE WITH THE ADVICE RECEIVED FROM THE COMMAND, SWANSON
 SUBMITTED A MEMORANDUM TO DRAKE, DATED OCTOBER 12, 1979, WHICH RESCINDED
 THE CONTEMPLATED SUSPENSION.  THE MEMO ALSO RECITED THAT A PRE-ACTION
 INVESTIGATION WOULD BE HELD ON OCTOBER 15;  THAT DRAKE WAS ENTITLED TO
 HAVE HER UNION REPRESENTATIVE PRESENT THEREAT;  AND THAT APPROPRIATE
 ACTION WOULD BE TAKEN AFTER THE INVESTIGATION.
 
    10.  ON OCTOBER 15 A MEETING WAS HELD IN THE DIVISION DIRECTOR'S
 OFFICE.  PRESENT WERE SWANSON, TURNER, UNION REPRESENTATIVE DOUG SMITH
 AND THE SECRETARY TO THE DIVISION DIRECTOR.  TURNER, WHO CONDUCTED THE
 MEETING, ASKED DRAKE WHY SHE WAS ABSENT ON EACH DAY-- AUGUST 27 THROUGH
 AUGUST 31-- AND THE EMPLOYEE REPLIED THE REASONS WERE THE SAME AS GIVEN
 AT THE PRIOR INVESTIGATIVE MEETING.  UNION REPRESENTATIVE SMITH REMARKED
 THAT MANAGEMENT HAD ALREADY ASKED THESE QUESTIONS, AND HE TOLD TURNER TO
 USE THE INFORMATION PROVIDED AT THE PREVIOUS INVESTIGATION.
 
    11.  ON OCTOBER 23, DRAKE WAS GIVEN A NEW "NOTIFICATION OF
 CONTEMPLATED SUSPENSION FROM DUTY" BASED ON HER UNAUTHORIZED ABSENCE
 FROM DUTY DURING THE AUGUST 27-31 PERIOD.  THE NOTIFICATION STATED THAT,
 WHILE MANAGEMENT DID NOT INTEND TO USE THE EXPLANATIONS GIVEN BY DRAKE
 AT THE SEPTEMBER 4 MEETING, HER UNION REPRESENTATIVE AUTHORIZED THE USE
 THEREOF AT THE OCTOBER 15 MEETING.  FURTHER, DRAKE WAS NOTIFIED IN THE
 MEMO THAT SHE AND HER UNION REPRESENTATIVE STATED THAT, WHILE MANAGEMENT
 DID NOT INTEND TO USE THE EXPLANATIONS COULD ARRANGE TO MEET WITH TURNER
 IF EXPLANATIONS WERE DESIRED RE THE PROPOSED ACTION AND REASONS
 THEREFOR.
 
    12.  ON NOVEMBER 6 DRAKE RECEIVED A MEMO FROM TURNER NOTIFYING HER
 SHE WOULD BE SUSPENDED FOR A PERIOD OF FIVE DAYS FROM NOVEMBER 12
 THROUGH NOVEMBER 16 BASED ON HER UNAUTHORIZED ABSENCE.  THEREAFTER DRAKE
 WAS SO SUSPENDED FOR FIVE DAYS WITHOUT PAY.
 
                                CONCLUSIONS
 
    THERE ARE THREE ESSENTIAL ISSUES PRESENTED FOR DETERMINATION HEREIN:
 (1) WHETHER RESPONDENT DENIED DRAKE UNION REPRESENTATION AT THE
 SEPTEMBER 4 MEETING IN VIOLATION OF THE ACT;  (2) WHETHER MANAGEMENT'S
 SUBSEQUENT CONDUCT WHEREBY IT CONDUCTED AN INVESTIGATION OF DRAKE'S
 ABSENCES ANEW, AND WITH A UNION REPRESENTATIVE BEING PRESENT, CURED ANY
 INITIAL WRONGDOING AND RENDERED IT MOOT OR DE MINIMIS;  (3) WHETHER ANY
 REMEDIAL RELIEF SHOULD INCLUDE A RETURN TO STATUS QUO ANTE UNDER THESE
 CIRCUMSTANCES.
 
    (1) UNDER EXECUTIVE ORDER 11491, AS AMENDED, EMPLOYEES IN THE PUBLIC
 SECTOR WERE AFFORDED THE RIGHT TO HAVE THEIR UNION REPRESENTATIVE
 PRESENT AT FORMAL DISCUSSIONS HELD WITH MANAGEMENT CONCERNING PERSONNEL
 POLICIES OR CONDITIONS OF EMPLOYMENT.  THIS RIGHT WAS PROTECTED, AND
 SOMEWHAT MODIFIED, UNDER THE ACT HEREIN AS SET FORTH IN SECTION 7114
 THEREOF AS FOLLOWS:
 
    SECTION 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    "(A)(2).  AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN
 AGENCY SHALL BE GIVEN
 
    THE OPPORTUNITY TO BE REPRESENTED AT--
 
    "(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
 AGENCY AND ONE OR
 
    MORE EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
 GRIEVANCE OR ANY PERSONNEL
 
    POLICY OR PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT;  OR
 
    "(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE
 OF THE AGENCY IN
 
    CONNECTION WITH AN INVESTIGATION IF--
 
    (1) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINARY ACTION
 
    AGAINST THE EMPLOYEE;  AND
 
    (11) THE EMPLOYEE REQUESTS REPRESENTATION.
 
    IT BECOMES APPARENT THAT WHEN AN EMPLOYER CONDUCTS AN INTERVIEW OR
 INVESTIGATION OF AN EMPLOYEE CONCERNING THE LATTER'S ABSENCE FROM
 EMPLOYMENT, THE AFORESAID STATUTORY LANGUAGE REQUIRES THAT UNION
 REPRESENTATION THEREAT, IF REQUESTED, MUST BE ALLOWED.  IN THE CASE AT
 BAR, I AM SATISFIED THAT DRAKE MADE SEVERAL SUCH REQUESTS AT THE MEETING
 ON SEPTEMBER 4.  SHE MANIFESTED CONCERN RE THE LIKELIHOOD OF
 DISCIPLINARY ACTION BEING TAKEN AGAINST HER BY MANAGEMENT AND ASKED
 REPEATEDLY THAT HER UNION REPRESENTATIVE BE IN ATTENDANCE.  DESPITE HER
 ENTREATIES IN THIS RESPECT, SWANSON CONTINUED WITH THE INVESTIGATION.
 BY IGNORING DRAKE'S REQUESTS FOR SUCH REPRESENTATION, BY FAILING TO
 REPLY THERETO, AND CONTINUING TO INVESTIGATE THE REASON FOR HER ABSENCE
 FROM AUGUST 27-31, MANAGEMENT ABROGATED THE RIGHT AFFORDED THIS
 INDIVIDUAL UNDER THE STATUTE.  RESPONDENT'S CONDUCT RAN FOUL OF SECTION
 7114(A)(2)(B)(1)(11), AS AFORESAID, AND THUS WAS VIOLATIVE OF SECTIONS
 7116(A)(1) AND (8) OF THE ACT.
 
    (2) RESPONDENT ARGUES THAT ANY VIOLATION IT MAY HAVE COMMITTED ON
 SEPTEMBER 4 WAS MERELY TECHNICAL IN NATURE.  IT INSISTS THAT SINCE IT
 AFFORDED DRAKE AN OPPORTUNITY TO HAVE A UNION REPRESENTATIVE PRESENT AT
 A LATER DATE, ANY INITIAL WRONGDOING WAS CORRECTED.  THUS, THE EMPLOYER
 CONTENDS THE ISSUE IS MOOT AND NO JUSTIFICATION EXISTS FOR A REMEDIAL
 ORDER HEREIN.
 
    I DISAGREE.  IT IS TRUE THAT RESPONDENT INITIATED A NEW
 INVESTIGATION.  DUE NOTICE WAS GIVEN THE UNION REPRESENTATIVE OF ANOTHER
 MEETING TO BE HELD ON OCTOBER 15, AND THE ORIGINAL NOTICE OF SUSPENSION
 WAS RESCINDED.  MOREOVER, THE UNION OFFICIAL ATTENDED THE SAID MEETING
 AND REPRESENTED DRAKE THEREAT.  NEVERTHELESS, I DO NOT DEEM RESPONDENT'S
 REFUSAL TO GRANT UNION REPRESENTATION ON SEPTEMBER 4 TO BE SO TRIVIAL OR
 DE MINIMIS AS NOT TO WARRANT FINDING A VIOLATION OCCURRED.  INSTANCES
 HAVE OCCURRED IN THE PUBLIC SECTOR WHERE CONDUCT HAS BEEN CHARACTERIZED
 AS DE MINIMIS AND NOT SUFFICIENT TO REQUIRE FINDING THE ORDER WAS
 VIOLATED.  THUS, IN VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT
 GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 435, FLRC NO.
 741-77, MANAGEMENT REFUSED TO CONTINUE NEGOTIATIONS AND WALKED OUT OF A
 MEETING.  HOWEVER, IT RESUMED NEGOTIATIONS ON THE FOLLOWING DAY AND
 RETURNED TO THE BARGAINING TABLE.  WHILE THE ASSISTANT SECRETARY FOUND A
 VIOLATION OCCURRED, THE FEDERAL LABOR RELATIONS COUNCIL CONCLUDED THE
 BRIEF INTERRUPTION HAD A DE MINIMIS EFFECT WHICH DID NOT WARRANT FINDING
 A VIOLATION.
 
    IN MY OPINION THE CITED CASE IS DISTINGUISHABLE FROM THE ONE AT HAND.
  A VERY SHORT TIME ELAPSED IN THE VANDENBERG CASE BETWEEN THE
 DISCONTINUANCE AND RESUMPTION OF NEGOTIATIONS.  THE EMPLOYER DID
 CONTINUE TO BARGAIN, AND THE BRIEF INTERRUPTION HAD NO SIGNIFICANT
 IMPACT.  IN THE INSTANT MATTER OVER A MONTH PASSED BEFORE RESPONDENT
 REINSTITUTED THE INVESTIGATION PROCESS WITH THE PROPER PROCEDURE.  THE
 EMPLOYER DID NOT ATTEMPT TO RECTIFY ITS WRONGDOING UNTIL AFTER THE
 EMPLOYEE HAD RECEIVED A SUSPENSION NOTICE AND THE INVESTIGATION WAS
 COMPLETED.  THIS WAS NOT, IN ANY SENSE, COMPARABLE TO THE "BRIEF
 INTERRUPTION" WHICH OCCURRED IN THE VANDENBERG CASE.  NOTE IS ALSO TAKEN
 OF THE DECISION IN DEPARTMENT OF THE AIR FORCE, 47TH FLYING TRAINING
 WING, LAUGHLIN AIR FORCE BASE, TEXAS, 2 FLRA NO. 24, WHERE THE EMPLOYER
 FAILED TO NOTIFY THE UNION OF A DECISION TO MODIFY ITS TELEPHONE SYSTEM.
  ACCORDINGLY, IT WAS HELD THAT THE UNION WAS DENIED THE RIGHT TO
 NEGOTIATE OVER IMPACT AND IMPLEMENTATION OF THE MODIFICATION.  DESPITE
 MANAGEMENT'S SUBSEQUENT NEGOTIATIONS OVER THE IMPACT OF THE CHANGES
 SEVERAL WEEKS AFTER THE NEW SYSTEM WAS INSTALLED, THE FEDERAL LABOR
 RELATIONS AUTHORITY CONCLUDED SUCH ACTION DID NOT REMEDY THE INITIAL
 FAILURE TO NOTIFY THE UNION.
 
    IN MY OPINION THE MEETING HELD ON OCTOBER 15 DID NOT RECTIFY THE
 VIOLATION WHICH OCCURRED AT THE INITIAL INTERVIEW.  THE FAILURE TO
 PERMIT DRAKE UNION REPRESENTATION AT THE MEETING ON SEPTEMBER 4 WAS NOT
 PROMPTLY REMEDIED. IT INSTITUTED A SEPARATE OR DISTINCT VIOLATION OF THE
 EMPLOYEE'S STATUTORY RIGHTS AND I DO NOT DEEM IT TRIVIAL OR DE MINIMIS.
 WHILE RESPONDENT MAY HAVE FOLLOWED THE PROPER PROCEDURE AND COMPLIED
 WITH ITS OBLIGATION AT A LATER DATE SO AS TO AFFORD DRAKE UNION
 REPRESENTATION, SUCH CONDUCT DID NOT 'CURE' THE VIOLATION OCCURRING ON
 SEPTEMBER 4.  FAILURE TO SO CONCLUDE WOULD REQUIRE EXONERATING A
 RESPONDENT WHO, UPON VIOLATING THE ACT, ENGAGES IN SUBSEQUENT CONDUCT
 WHICH PER SE IS NOT VIOLATIVE THEREOF.  UNLESS SUCH VIOLATION IS A MERE
 TECHNICAL FAULT-- WHICH I DO NOT FIND EXISTENT IN THIS CASE-- A PARTY
 COULD ENGAGE IN TRANSGRESSIONS WITH IMPUNITY.  ACCORDINGLY, I CONCLUDE
 THAT RESPONDENT'S ACTION IN LATER GRANTING DRAKE UNION REPRESENTATION
 DID NOT RENDER MOOT ITS WRONGDOING ON SEPTEMBER 4.
 
    (3) IT IS ALSO CONTENDED BY THE GENERAL COUNSEL THAT A RETURN TO THE
 STATUS QUO ANTE IS THE ONLY REMEDY WHICH COULD PROPERLY RECTIFY THE
 RESPONDENT'S MISCONDUCT HEREIN.  IN THIS RESPECT, IT IS URGED THAT THE
 SUSPENSION OF DRAKE BE REVOKED, ALL MATERIAL IN CONNECTION THEREWITH BE
 EXPUNGED FROM HER FILES, AND A RESTORATION BE MADE OF ANY BACK PAY OR
 LEAVE LOST BY THE EMPLOYEE.  GENERAL COUNSEL ARGUES THAT HAD PROPER
 REPRESENTATION BEEN AFFORDED DRAKE ON SEPTEMBER 4, SHE MIGHT NOT HAVE
 RECEIVED ANY DISCIPLINE FOR HER ABSENCES.  IN SUPPORT OF ITS POSITION
 THE GENERAL COUNSEL CITES TWO CASES /6/ IN THE PRIVATE SECTOR WHEREIN
 SUCH A REMEDY WAS ORDERED BY THE NATIONAL LABOR RELATIONS BOARD.
 
    WHILE I AGREE THAT THE LAW IN THE PUBLIC SECTOR HAS BEEN ALTERED TO
 CONFORM WITH THE DOCTRINE ENUNCIATED BY THE SUPREME COURT IN NLRB V. J.
 WEINGARTEN, INC., 420 U.S. 251, THE PROTECTION NOW AFFORDED EMPLOYEES IN
 THE PUBLIC SECTOR DOES NOT, IPSO FACTO, REQUIRE THE STATUS QUO ANTE
 REMEDY.  IT IS NOTED THAT IN THE CITED CASES, THE DISCHARGE OR
 DISCIPLINARY ACTION TAKEN BY MANAGEMENT TOWARD THE EMPLOYEES RESULTED,
 IN EACH INSTANCE, FROM AN INTERVIEW WHEREIN THE EMPLOYEES WERE PREVENTED
 FROM OBTAINING UNION REPRESENTATION.  THE EMPLOYERS MADE NO ATTEMPT TO
 COMPLY WITH THEIR OBLIGATION AND ARRANGE FOR ANOTHER INTERVIEW WITH THE
 PRESENCE OF A UNION REPRESENTATIVE.  ACTION TAKEN BY MANAGEMENT WAS
 PREDICATED ON THE SINGLE INTERVIEW AT WHICH THE EMPLOYEE WAS DENIED
 REPRESENTATION.  IN THE CASE AT BAR RESPONDENT DID START ITS PROCESS
 ANEW WITH THE MEETING ON OCTOBER 15, AT WHICH TIME THE UNION HEREIN
 ATTENDED AND SPOKE ON BEHALF OF DRAKE.  THE ORIGINAL SUSPENSION HAD BEEN
 REVOKED, AND THE DISCIPLINARY ACTION INVOKED AGAINST THE EMPLOYEE
 FOLLOWED THE SECOND MEETING.  THUS, RESPONDENT HAD COMPLIED WITH THE
 REQUIREMENT UNDER THE STATUTE BEFORE FINALLY SUSPENDING DRAKE FOR FIVE
 DAYS.
 
    IT IS FURTHER MAINTAINED BY THE GENERAL COUNSEL THAT THE SECOND
 MEETING HEREIN WAS A "SHAM," AND THAT RESPONDENT'S INVESTIGATION THEREAT
 WAS MERELY A FORMALITY SINCE IT USED THE REPORT AND INFORMATION OBTAINED
 AT THE MEETING ON SEPTEMBER 4 WHEN NO UNION REPRESENTATIVE WAS PRESENT.
 THE DIFFICULTY WITH THIS POSITION LIES IN THE FACT THAT UNION AGENT
 SMITH, DURING THE INVESTIGATION ON OCTOBER 15, URGED SWANSON TO USE THE
 INFORMATION GATHERED AT THE INITIAL INTERVIEW.  MOREOVER, HE BLOCKED ANY
 FURTHER DISCUSSION OF THE DETAILS RE DRAKE'S ABSENCE FOR FIVE DAYS AND
 OFFERED NO NEW FACTS IN SUPPORT THE EMPLOYEE'S ABSENCE. IN THIS POSTURE,
 THE UNION WAIVED ANY RIGHT, IN MY OPINION, TO CLAIM THAT MANAGEMENT
 COULD NOT PROPERLY RELY UPON THE DATA SECURED AT THE FIRST
 INVESTIGATION.  IT HAD, AT THIS INTERVIEW, AN OPPORTUNITY TO PRESENT ANY
 DETAILS OR ARGUMENT TO RESPONDENT IN AN EFFORT TO CONVINCE THE LATTER
 THAT DRAKE'S CONDUCT WAS JUSTIFIABLE AND NO DISCIPLINARY ACTION SHOULD
 BE TAKEN.
 
    THUS, UNDER ALL THE CIRCUMSTANCES, I AM NOT PERSUADED THAT, AS
 GENERAL COUNSEL MAINTAINS, NO DISCIPLINE WOULD HAVE BEEN INVOKED IF
 DRAKE HAD UNION REPRESENTATION ON SEPTEMBER 4.  MOREOVER, IN VIEW OF THE
 FACT THAT THE EMPLOYER CONDUCTED A NEW INVESTIGATIVE MEETING AND
 AFFORDED PROPER PROTECTION TO THE EMPLOYEE, A REASONABLE BASIS WAS
 PROVIDED FOR THE SUSPENSION OF DRAKE AFTER CONCLUDING HER ABSENCES WERE
 UNAUTHORIZED.  THE UNION HAD ITS OPPORTUNITY TO REPRESENT THE EMPLOYEE
 AT THE SECOND INTERVIEW, AND I CANNOT CONCLUDE-- NOR IS IT INCUMBENT
 UPON ME TO CONCLUDE-- THAT HERE ABSENCES DID NOT WARRANT DISCIPLINARY
 ACTION BY RESPONDENT.  UNDER THESE CIRCUMSTANCES I AM RELUCTANT TO
 REQUIRE THE EMPLOYEE HEREIN TO RESCIND THE SUSPENSION AGAIN AND ARRANGE
 FOR A THIRD INTERVIEW.  /7/ ACCORDINGLY, THE STATUS QUO ANTE REMEDY
 SEEMS IMPRACTICAL UNDER THESE CIRCUMSTANCES AND I MAKE NO ORDER IN THIS
 RESPECT.
 
    HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF
 THE ACT BY DENYING BARBARA M. DRAKE, EMPLOYEE, UNION REPRESENTATION AT
 AN INVESTIGATORY INTERVIEW ON SEPTEMBER 4, 1979, I RECOMMEND THAT THE
 AUTHORITY ISSUE THE FOLLOWING ORDER.
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
 IS HEREBY ORDERED THAT THE U.S. DEPARTMENT OF NAVY, U.S. MARINE CORPS,
 MARINE CORPS LOGISTICS BASE, ALBANY, GEORGIA SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) CONDUCTING AN INVESTIGATIVE INTERVIEW OR EXAMINATION OF ANY
 EMPLOYEE WHICH MIGHT REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST
 SAID EMPLOYEE WITHOUT GIVING AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2317, THE EMPLOYEES' EXCLUSIVE BARGAINING
 REPRESENTATIVE, AN OPPORTUNITY, UPON REQUEST BY SAID EMPLOYEE, TO BE
 REPRESENTED AT SUCH INVESTIGATIVE INTERVIEW OR EXAMINATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ACT.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE ACT:
 
    (A) POST AT IS FACILITIES IN ALBANY, GEORGIA COPIES OF THE ATTACHED
 NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.
 UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING
 OFFICER AND SHALL BE POSTED AND MAINTAINED FOR HIM FOR 60 CONSECUTIVE
 DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED.  REASONABLE STEPS
 SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR
 COVERED BY ANY OTHER MATERIAL.
 
    (B) NOTIFY THE REGIONAL DIRECTOR OF REGION 4, SUITE 501, NORTH WING,
 1776 PEACHTREE STREET, N.W., ATLANTA, GEORGIA 30309 IN WRITING WITHIN 30
 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
                         WILLIAM NAIMARK
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MAY 1, 1980
    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 FEDERAL SERVICE
 
            LABOR-MANAGEMENT RELATIONS STATUTE LABOR-MANAGEMENT
 
                     RELATIONS IN THE FEDERAL SERVICE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT CONDUCT AN INVESTIGATIVE INTERVIEW OR EXAMINATION OF ANY
 EMPLOYEE WHICH MIGHT REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST
 SAID EMPLOYEE WITHOUT GIVING AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2317, THE EMPLOYEES' EXCLUSIVE BARGAINING
 REPRESENTATIVE, AN OPPORTUNITY, UPON REQUEST BY SAID EMPLOYEE, TO BE
 REPRESENTED AT SUCH INVESTIGATIVE INTERVIEW OR EXAMINATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
    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, FEDERAL LABOR RELATIONS AUTHORITY, 1776 PEACHTREE
 STREET, SUITE 501, NORTH WING, ATLANTA, GEORGIA 30309.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE UNIT DESCRIPTION WAS CHANGED IN 1979 SO AS TO COVER ALL
 APPROPRIATED FUND EMPLOYEES, AND THE UNION WAS CERTIFIED AS THE
 BARGAINING REPRESENTATIVE ON OCTOBER 19, 1979.
 
    /2/ UNLESS OTHERWISE INDICATED, ALL DATES HEREIN MENTIONED OCCURRED
 IN 1979.
 
    /3/ MONG, WHO TOOK NOTES AT THE MEETING WHICH WERE ADMITTENLY
 INCOMPLETE AND NOT COMPREHENSIVE, REFUSED TO APPEAR VOLUNTARILY AS A
 WITNESS AT THE HEARING.  SHE WAS NOT SUBPOENAED.
 
    /4/ BOTH SWANSON AND TURNER DENIED THAT DRAKE REQUESTED UNION
 REPRESENTATION UNTIL AFTER THE MEETING HAD CONCLUDED AND THE PARTIES
 WERE ABOUT TO LEAVE THE ROOM.  THEY TESTIFIED DRAKE THEN INDICATED SHE
 WOULD LIKE REPRESENTATION IF SWANSON PROCEEDED WITH DISCIPLINARY ACTION.
  I CREDIT DRAKE'S VERSION OF WHAT OCCURRED, AS SET FORTH HEREINABOVE.
 APART FROM THE FACT THAT SHE TESTIFIED IN GREATER DETAIL THAN HER
 SUPERVISORS, NEITHER MANAGEMENT OFFICIAL WAS ABLE TO RECALL STATEMENTS
 MADE AT THE MEETING WITH THE SAME EXACTITUDE AS THE EMPLOYEE.
 ACCORDINGLY, I FIND THAT DRAKE DID REQUEST UNION REPRESENTATION AT THE
 SEPTEMBER 4 MEETING.
 
    /5/ ARTICLE XVII, SECTION 2 OF THE AGREEMENT PROVIDES, IN SUBSTANCE,
 THAT IF A UNIT EMPLOYEE IS BEING QUESTIONED BY MANAGEMENT DURING A
 PRE-ACTION INVESTIGATION, HE SHALL BE SO ADVISED AND TOLD HE MAY HAVE A
 UNION REPRESENTATIVE PRESENT.  FURTHER, IF THE EMPLOYEE REQUESTS
 REPRESENTATION, NO FURTHER QUESTIONING MAY ENSUE, OR ACTION TAKEN, UNTIL
 THE REPRESENTATIVE IS PRESENT.
 
    /6/ ANCHORTANK, INC., 239 NLRB NO. 52;  SOUTHWESTERN BELL TELEPHONE
 CO., 227 NLRB 1223.
 
    /7/ GENERAL COUNSEL INSISTS A PROPER INVESTIGATION DEMANDS THAT OTHER
 REPRESENTATIVES OF MANAGEMENT CONDUCT THE INTERVIEW OR REVIEW THE
 RESULTS THEREOF.  I DO NOT SUBSCRIBE TO THIS VIEW SINCE IT IS NOT MY
 FUNCTION TO DECIDE WHICH SUPERVISORS SHOULD CONDUCT INVESTIGATIONS OR
 INTERVIEWS.