U.S. Customs Service, Region VII, Los Angeles, California (Respondent) and National Treasury Employees Union (Charging Party) 



[ v05 p297 ]
05:0297(41)CA
The decision of the Authority follows:


 5 FLRA No. 41
 
 U.S. CUSTOMS SERVICE, REGION VII
 LOS ANGELES, CALIFORNIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 8-CA-193
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS DECISION AND ORDER FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
 UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT
 IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET
 FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER.
 THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
 JUDGE'S DECISION AND ORDER, AND THE GENERAL COUNSEL AND THE CHARGING
 PARTY FILED OPPOSITIONS TO SUCH EXCEPTIONS.
 
    THEREFORE, 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. 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 DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE EXCEPTIONS OF SUCH EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
 THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION,
 AS MODIFIED HEREIN.
 
                                 ORDER /1/
 
    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.  CUSTOMS SERVICE, REGION VII, LOS
 ANGELES, CALIFORNIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING OR FAILING TO AFFORD AN OPPORTUNITY TO THE NATIONAL
 TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS
 EMPLOYEES, TO BE REPRESENTED AT AN EXAMINATION OF MARIA ANTONIETA
 VALDEZ, OR ANY OTHER BARGAINING UNIT EMPLOYEE, IN CONNECTION WITH A
 SUBSEQUENT INVESTIGATION HEREIN, OR ANY OTHER INVESTIGATION WHICH COULD
 REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST HER OR SUCH EMPLOYEE
 WHEN SUCH REPRESENTATION IS REQUESTED BY THE EMPLOYEE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) WITHDRAW AND REMOVE FROM THE PERSONNEL FOLDER OF MARIA ANTONIETA
 VALDEZ THE REPRIMAND LETTER, DATED JUNE 15, 1979, AND ANY OTHER
 REFERENCES TO THE DISCIPLINARY ACTION WHICH IT ISSUED AGAINST HER
 ARISING OUT OF THE EVENTS OF DECEMBER 9, 1978.
 
    (B) AFFORD THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER
 EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, THE OPPORTUNITY TO BE FULLY
 REPRESENTED AT ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
 REPRESENTATIVE OF THE AGENCY IN CONNECTION WITH AN INVESTIGATION IF THE
 EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS SUCH
 REPRESENTATION.
 
    (C) POST AT ITS FACILITIES AT U.S. CUSTOMS SERVICE, REGION VII, LOS
 ANGELES, CALIFORNIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
 FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON
 RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER,
 U.S. CUSTOMS SERVICE, REGION VII, AND THEY 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.  THE REGIONAL COMMISSIONER SHALL TAKE
 REASONABLE STEPS TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VIII, 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., MARCH 19, 1981
 
                       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 REFUSE OR FAIL TO AFFORD AN OPPORTUNITY TO THE NATIONAL
 TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR
 EMPLOYEES, TO BE REPRESENTED AT AN EXAMINATION OF MARIA ANTONIETA
 VALDEZ, OR ANY OTHER BARGAINING UNIT EMPLOYEE, IN CONNECTION WITH A
 SUBSEQUENT INVESTIGATION HEREIN, OR ANY OTHER INVESTIGATION WHICH COULD
 REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST HER OR SUCH EMPLOYEE,
 WHEN SUCH REPRESENTATION IS REQUESTED BY THE EMPLOYEE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL WITHDRAW AND REMOVE FROM THE PERSONNEL FOLDER OF MARIA
 ANTONIETA VALDEZ THE REPRIMAND LETTER, DATED JUNE 15, 1979, AND ANY
 OTHER REFERENCES TO THE DISCIPLINARY ACTION ISSUED AGAINST HER ARISING
 OUT OF THE EVENTS OF DECEMBER 9, 1978.
 
    WE WILL AFFORD THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER
 EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, THE OPPORTUNITY TO BE FULLY
 REPRESENTED AT ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
 REPRESENTATIVE OF THE AGENCY IN CONNECTION WITH AN INVESTIGATION IF THE
 EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS SUCH
 REPRESENTATION.
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
                    REGIONAL COMMISSIONER, REGION VII,
 
                           U.S. CUSTOMS SERVICE
 
    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 WHOSE ADDRESS IS:
 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CA, 90071, AND WHOSE
 TELEPHONE NUMBER IS (213) 688-3805.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DONNA RAE EIDE, ESQUIRE
    GARY LANDSMAN, ESQUIRE
    FOR THE RESPONDENT
 
    SILVIA M. DIAZ, ESQUIRE
    GERALD M. COLE, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    CAROL W. PERKINS, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  WILLIAM NAIMARK
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON MARCH 3, 1980
 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, LOS
 ANGELES, CALIFORNIA, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON MAY
 13, 1980.
 
    THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (HEREIN CALLED THE ACT).  IT IS BASED ON A CHARGE
 FILED ON AUGUST 22, 1979 BY THE NATIONAL TREASURY EMPLOYEES UNION
 (HEREIN CALLED THE UNION OR CHARGING PARTY) AGAINST U.S. CUSTOMS
 SERVICE, REGION VII, LOS ANGELES, CALIFORNIA (HEREIN CALLED THE EMPLOYER
 OR RESPONDENT).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT CONDUCTED AN
 INVESTIGATORY INTERVIEW OF EMPLOYEE MARIA ANTONIETA VALDEZ ON APRIL 13,
 1979 BUT DENIED THE LATTER'S EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO
 PARTICIPATE IN A REPRESENTATIVE CAPACITY ON HER BEHALF.  SUCH DENIAL
 OCCURRED, IT WAS AVERRED, DESPITE THE FACT THAT THE EMPLOYEE HAD
 REASONABLE CAUSE TO BELIEVE THAT DISCIPLINARY ACTION COULD BE TAKEN
 AGAINST HER.  BASED ON THE FOREGOING IT WAS ALLEGED RESPONDENT FAILED OR
 REFUSED TO COMPLY WITH SECTION 7114(A)(2)(B)(I)(II) OF THE ACT;
 FURTHER, THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE ACT
 BY THE AFORESAID CONDUCT.
 
    AN ANSWER DATED MARCH 28, 1980 WAS FILED BY RESPONDENT IN WHICH IT
 DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.  MOREOVER, THE
 ANSWER AVERRED THAT EMPLOYEE VALDEZ'S UNION REPRESENTATIVE WAS PRESENT
 AT THE INVESTIGATORY INTERVIEW AND WAS AFFORDED THE OPPORTUNITY TO
 PARTICIPATE IN A REPRESENTATIVE CAPACITY.
 
    ALL PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER BRIEFS WERE FILED WITH THE
 UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
 
    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.  MARIA ANTONIETA VALDEZ (HEREIN CALLED VALDEZ) HAS BEEN EMPLOYED
 BY RESPONDENT SINCE 1974 AT SAN YSIDRO, CALIFORNIA, WHICH IS THE PORT OF
 ENTRY FROM MEXICO.
 
    2.  ON DECEMBER 9, 1978 VALDEZ CROSSED THE BORDER FROM MEXICO, EN
 ROUTE TO SAN DIEGO, CALIFORNIA, IN THE COMPANY OF HER SISTER AND A BABY
 BELONGING TO ANOTHER WOMAN.  THE IMMIGRATION OFFICIALS AT SAN YSIDRO
 QUESTIONED VALDEZ SINCE THEY SUSPECTED SHE WAS IN THE PROCESS OF
 ILLEGALLY SMUGGLING AN ALIEN INTO THE UNITED STATES.
 
    3.  PREPARATORY TO CONDUCTING AN INVESTIGATION OF THE AFORESAID
 INCIDENT, DONALD FARRELL, WHO WAS THE RESPONDENT'S RESIDENT AGENT,
 OFFICE OF MANAGEMENT AND INTEGRITY, TELEPHONED VALDEZ ON MARCH 28, 1979
 TO ARRANGE AN INTERVIEW.  AFTER NOTIFICATION WAS GIVEN BY VALDEZ TO THE
 BARGAINING AGENT, NATIONAL TREASURY EMPLOYEES UNION, THE SAID UNION
 ASSIGNED ALAN HERSCH, ASSOCIATE GENERAL COUNSEL, TO REPRESENT THE
 EMPLOYEE DURING THE INVESTIGATION.  HERSCH THEN CALLED FARRELL AND
 INFORMED THE RESPONDENT'S OFFICIAL THAT HE WAS VALDEZ'S REPRESENTATIVE.
 AFTER EXPLAINING TO HERSCH THE PURPOSE OF THE INTERVIEW, FARRELL STATED
 THAT ANY DISCIPLINE DIRECTED TOWARD VALDEZ WOULD BE WITHIN THE AGENCY;
 THAT NO CRIMINAL PUNISHMENT WOULD ENSUE, SINCE THE U.S.  ATTORNEY DID
 NOT INTEND TO PROSECUTE THE MATTER.  A MEETING WAS SCHEDULED FOR APRIL
 13.
 
    4.  BOTH HERSCH AND VALDEZ APPEARED ON APRIL 13 FOR THE INTERVIEW.
 HERSCH INTRODUCED HIMSELF TO FARRELL AS THE EMPLOYEE'S UNION
 REPRESENTATIVE.  ALL THREE INDIVIDUALS THEN WENT INTO FARRELL'S OFFICE
 WHERE THEY WERE JOINED BY HOWARD DILKES, SPECIAL AGENT WITH THE
 RESPONDENT'S OFFICE OF MANAGEMENT AND INTEGRITY.  AT THE OUTSET FARRELL
 EXPLAINED THAT UNDER HIS STANDARD PROCEDURE FOR CONDUCTING
 INVESTIGATIONS THERE WOULD BE AN INITIAL INFORMAL INTERVIEW.  HE STATED
 THAT THE PURPOSE OF THE INFORMAL SESSION WAS TO ENABLE VALDEZ TO GATHER
 HER THOUGHTS AND REFRESH HER RECOLLECTION;  THAT SOMETIMES EMPLOYEES ARE
 UNDER STRESS WHEN BEING QUESTIONED;  AND THAT THE INTERVIEW WAS
 ADMINISTRATIVE AND NOT CRIMINAL IN NATURE.  FARRELL ALSO INFORMED THEM
 THAT THE INFORMAL SESSION WOULD BE FOLLOWED BY A TAPE-RECORDING SESSION,
 AT WHICH TIME HE WOULD TAPE QUESTIONS DIRECTED TOWARD VALDEZ AS WELL AS
 HER ANSWERS.
 
    THE RESIDENT AGENT FURTHER EXPLAINED THAT DURING THE FIRST SESSION,
 DURING WHICH QUESTIONS WOULD BE DIRECTED TO VALDEZ, HER REPRESENTATIVE
 WOULD BE PERMITTED TO PARTICIPATE.  FARRELL STATED THAT THE SECOND
 SESSION WOULD INVOLVE A RECORDING, OR TAPING, OF QUESTIONS ASKED OF
 VALDEZ AND ANSWERS GIVEN BY HER.  HOWEVER, HE ASSERTED THAT DURING THE
 TAPING HERSCH WOULD NOT BE ALLOWED TO SPEAK OR MAKE ANY STATEMENTS;  /2/
 THAT MANAGEMENT WAS ANXIOUS TO OBTAIN VALDEZ'S VERSION OF WHAT OCCURRED
 AND NOT A REPORT FROM HER REPRESENTATIVE, AND NO INTERRUPTIONS OR
 COMMENTS WERE TO BE MADE BY HERSCH DURING THE TAPING.
 
    5.  AFTER FARRELL EXPLAINED THE PROCEDURE WHICH WOULD BE FOLLOWED
 DURING THE INVESTIGATION, BOTH VALDEZ AND HERSCH REGISTERED OBJECTIONS
 THERETO.  THEY OBJECTED TO THE PROHIBITIONS PLACED ON THE UNION
 REPRESENTATIVE, AND HERSCH INSISTED HE SHOULD BE PERMITTED TO SPEAK
 DURING THE TAPING.  FARRELL SAID THE UNION AGENT HAD NO NEED TO TALK
 DURING THE RECORDED SESSION;  THAT HE WOULD HAVE FULL OPPORTUNITY TO DO
 SO IN THE INITIAL SESSION;  THAT IF HERSCH DID SPEAK OR INTERRUPT WHILE
 THE TAPING OCCURRED, VALDEZ WOULD BE HELD RESPONSIBLE AND IF REFUSAL TO
 REPLY COULD BE GROUNDS FOR DISCIPLINE.  /3/ THE RESIDENT AGENT FURTHER
 COMMENTED THAT THE MATERIAL COVERED AT THE TAPING SESSION WOULD BE THE
 SAME AS DISCUSSED AT THE INFORMAL SESSION;  THAT WHILE THE QUESTIONS
 MIGHT NOT BE IDENTICAL, THERE WOULD BE NO ATTEMPT TO COVER DIFFERENT
 GROUND OR POSE TRICK QUESTIONS.
 
    6.  DURING THE INFORMAL STAGE OF THE INTERVIEW FARRELL ASKED VALDEZ
 TO EXPLAIN WHAT OCCURRED ON DECEMBER 9.  IN RESPONSE TO THE EMPLOYEE'S
 REQUEST, HE ASKED SPECIFIC QUESTIONS DURING THE INFORMAL INTERVIEW,
 ALTHOUGH NO LIST HAD BEEN PREPARED BY FARRELL BEFOREHAND.  DURING THE
 "PRACTICE" SESSION HERSCH MADE SEVERAL OBJECTIONS, COMMENTED
 OCCASIONALLY, TOOK NOTES, AND ASSISTED IN CLARIFYING SOME OF THE
 QUESTIONS POSED BY MANAGEMENT.  NO ATTEMPT WAS MADE TO RESTRICT HERSCH
 AT THIS STAGE OF THE INVESTIGATION, ALTHOUGH HE CONTINUED TO PROTEST THE
 PROCEDURE ADOPTED BY MANAGEMENT.  ALL QUESTIONS ASKED BY FARRELL WERE
 ANSWERED BY VALDEZ.
 
    7.  UPON THE COMPLETION OF THE INFORMAL SESSION THE PARTIES RECESSED
 FOR LUNCH.  THE TAPING SESSION TOOK PLACE WHEN THEY RETURNED TO
 FARRELL'S OFFICE.  BEFORE COMMENCING THIS SECOND INTERVIEW, RESPONDENT'S
 REPRESENTATIVE REPEATED THE ADMONITION THAT NO INTERRUPTION FROM HERSCH
 WOULD BE COUNTENANCED;  THAT IF VALDEZ REFUSED TO ANSWER, FARRELL WOULD
 SEND UP THE REPORT TO MR. BURGESON, REGIONAL COMMISSIONER, WITHOUT HER
 INPUT.  FARRELL MADE IT CLEAR THAT HERSCH WOULD NOT BE PERMITTED TO MAKE
 OBJECTIONS OR STATEMENTS ON THE TAPED RECORD.  HERSCH AND VALDEZ
 CONTINUED TO INSIST THAT THE LATTER WAS BEING DENIED REPRESENTATION.
 HERSCH ALSO REQUESTED THAT THE RESTRICTIONS ANNOUNCED BY FARRELL BE
 PLACED ON THE TAPE BUT THE EMPLOYER'S AGENT REFUSED TO DO SO.
 
    8.  THE TAPING PORTION OF THE INTERVIEW CONSISTED OF QUESTIONS
 DIRECTED TO VALDEZ AND HER ANSWERS IN REPLY THERETO.  FARRELL HAD NOT
 PREPARED A LIST OF QUESTIONS BUT POSED THEM AS A RESULT OF THE INFORMAL
 INTERVIEW CONDUCTED EARLIER THAT DAY.  RECORD FACTS REVEAL THE QUESTIONS
 ASKED DURING THE TAPED SESSION WERE DIFFERENT IN FORM THAN THOSE POSED
 IN THE MORNING;  HOWEVER, THESE QUESTIONS COVERED THE SAME GROUND OR
 SUBJECT MATTER AS EXPLORED IN THE INFORMAL INTERVIEW, AND WITH ONE
 EXCEPTION /4/ THERE WERE NO NEW ITEMS RAISED IN THE SECOND INTERVIEW.
 JUST PRIOR TO THE END OF THE TAPING, FARRELL TURNED OFF THE TAPE TO
 ALLOW VALDEZ TO VOLUNTEER ANY ADDITIONAL INFORMATION.  AT THIS POINT
 HERSCH WHISPERED TO VALDEZ AND THE LATTER MENTIONED THAT SHE HAD BEEN
 DENIED PROPER UNION REPRESENTATION.  /5/ THIS CONCLUDED THE TAPED
 SESSION.
 
    9.  ABOUT A WEEK LATER FARRELL GAVE VALDEZ THE TRANSCRIPT OF THE
 TAPED SESSION AND ASKED HER TO SIGN SAME.  SINCE SHE HAD SOME QUESTIONS
 REGARDING THE TRANSCRIPT, VALDEZ DEFERRED SIGNING IT.  THEREAFTER SHE
 MAILED A COPY THEREOF TO HERSCH WHO WANTED TO EXAMINE IT.  VALDEZ DID
 NOT SIGN THE TRANSCRIPT AS REQUESTED.
 
    10.  SUBSEQUENT TO THE INVESTIGATION CONDUCTED ON APRIL 13, FARRELL
 SENT IN HIS REPORT TO THE REGIONAL COMMISSIONER.  WHILE HIS REPORT
 CONTAINS INFORMATION RE THE BASIS OF THE INVESTIGATION AND WHAT OCCURRED
 THEREAT, THE ONLY EXACT STATEMENTS OF VALDEZ CONCERNING THE INCIDENT ON
 DECEMBER 9, 1979 WERE CONTAINED IN THE TRANSCRIPT OF THE TAPED
 INTERVIEW.
 
    11.  A LETTER OF REPRIMAND, DATED JUNE 15, 1979, WAS ISSUED BY
 RESPONDENT TO VALDEZ FOR HAVING BROUGHT A BABY INTO THE UNITED STATES
 WITHOUT DECLARING THE INFANT TO BE A MEXICAN CITIZEN.  THE LETTER WAS
 PLACED IN VALDEZ'S PERSONNEL FOLDER FOR A PERIOD NOT TO EXCEED THREE
 YEARS.
 
                                CONCLUSION
 
    THE CENTRAL ISSUE HEREIN IS WHETHER RESPONDENT FAILED TO PROVIDE
 VALDEZ'S UNION REPRESENTATIVE AN OPPORTUNITY TO BE REPRESENTED AT THE
 INVESTIGATORY INTERVIEW OF THE EMPLOYEE ON APRIL 13, 1980-- ALL AS
 REQUIRED BY SECTION 7114(A)(2)(B) OF THE ACT.  IT IS CONTENDED BY THE
 GENERAL COUNSEL THAT THE REFUSAL TO ALLOW UNION AGENT HERSCH TO
 PARTICIPATE IN THE TAPED PORTION OF THE INVESTIGATION FLOUTED THE
 AFORESAID REQUIREMENT.  ACCORDINGLY, IT IS ALLEGED THAT RESPONDENT
 VIOLATED SECTION 7116(A)(1) AND (8) OF THE ACT.
 
    RESPONDENT CONTENDS, CONTRARIWISE, THAT IT AFFORDED FULL OPPORTUNITY
 TO THE UNION OFFICIAL TO REPRESENT EMPLOYEE VALDEZ AT THE INVESTIGATION.
  IT AVERS THAT HERSCH WAS ALLOWED FULL PARTICIPATION AT THE INFORMAL
 SESSION;  THAT RESPONDENT NEVER STOPPED COMMUNICATION BETWEEN VALDEZ AND
 HER REPRESENTATIVE;  THAT THE TAPING SESSION WAS MERELY A
 'FORMALIZATION' OF THE EARLIER INTERVIEW;  THAT HERSCH WAS PERMITTED TO
 CONSULT WITH THE EMPLOYEE AT ALL TIMES DURING THE INVESTIGATION;  AND
 THAT JUST PRIOR TO CONDUCTING THE TAPED INTERVIEW VALDEZ WAS ALLOWED TO
 CONFER WITH HER REPRESENTATIVE AS WELL AS MAKE ADDITIONAL COMMENTS ON
 THE RECORD.  IT INSISTS THAT, UNDER ALL THE CIRCUMSTANCES, HERSCH WAS
 GRANTED COMPLETE FREEDOM TO ASSIST THE EMPLOYEE.  MOREOVER, IT URGES
 THAT, UNDER NLRB V. J. WEINGARTEN, INC., 420 U.S. 251(1975), IT WAS
 ENTITLED TO PROCURE A STATEMENT FROM VALDEZ WITHOUT INTERRUPTION AND IN
 A MILIEU FREE FORM ADVERSERIAL CONTROVERSY.
 
    UNDER EXECUTIVE ORDER 11491, AS AMENDED, GOVERNMENT EMPLOYEES WERE
 NOT ACCORDED THE RIGHT TO HAVE UNION REPRESENTATION AT AN INVESTIGATION
 OR DISCIPLINARY PROCEEDING.  WHILE, UPON REQUEST, AN EMPLOYEE COULD BE
 REPRESENTED BY HIS BARGAINING AGENT AT FORMAL DISCUSSIONS RE GRIEVANCES,
 PERSONNEL POLICIES AND PRACTICES, HE HAD NO PROTECTED RIGHT TO
 ASSISTANCE OR REPRESENTATION AT NON-FORMAL INVESTIGATIONS OR INTERVIEWS
 TO WHICH HE WAS SUMMONED.  STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 710
 (DECEMBER 2, 1976).
 
    HOWEVER, THIS WAS CHANGED BY THE ENACTMENT OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE IN 1978.  UNDER THIS ACT IT IS
 SPECIFICALLY PROVIDED BY SECTION 7114(A)(2) AS FOLLOWS:
 
    "AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT -
 
    (B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
 THE AGENCY IN
 
    CONNECTION WITH AN INVESTIGATION IF -
 
    (I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINARY ACTION
 
    AGAINST THE EMPLOYEE;  AND
 
    (II) THE EMPLOYEE REQUESTS REPRESENTATION.
 
    THE AFORESAID SECTION OF THE ACT REFLECTS THE HOLDING AND THE RATIO
 DECIDENDI EXPRESSED IN THE WEINGARTEN CASE, SUPRA, BY THE SUPREME COURT
 IN 1975.  WHILE THE CITED CASE AROSE IN THE PRIVATE SECTOR, THERE IS AN
 OBVIOUS ATTEMPT TO EXTEND THE SAME RIGHT OF REPRESENTATION UNDER SIMILAR
 CIRCUMSTANCES TO EMPLOYEES IN THE PUBLIC SECTOR.  THIS IS BORNE OUT BY
 THE ACT'S LEGISLATIVE HISTORY.  /6/ THUS, AS STATED BY THE SUPREME
 COURT, SINCE EMPLOYEES ARE ACCORDED THE RIGHT TO ENGAGE IN CONCERTED
 ACTIVITIES FOR THEIR MUTUAL AID OR PROTECTION, ACTION TAKEN BY THEM TO
 SEEK REPRESENTATION AT A CONFRONTATION WITH THEIR EMPLOYER FALLS WITHIN
 THE AMBIT OF THAT PROTECTION.  THE WEINGARTEN DECISION CLEARLY
 RECOGNIZED THE INEQUITY OF REQUIRING A LONE EMPLOYEE TO ATTEND AN
 INVESTIGATORY INTERVIEW WHICH HE REASONABLY BELIEVES COULD RESULT IN
 DISCIPLINARY ACTION AGAINST HIM.  MOREOVER, IT IS CONTEMPLATED THAT THE
 EMPLOYEE MAY BE TOO FEARFUL OR INARTICULATE TO RELATE AN INCIDENT
 ACCURATELY;  THAT THE UNION REPRESENTATIVE COULD ASSIST THE EMPLOYER IN
 ELICITING THE FACTS AND GET "TO THE BOTTOM OF THE INCIDENT."
 
    IN THE CASE AT BAR RESPONDENT ARGUES THAT IT HAS FULFILLED ITS
 OBLIGATION TO EXTEND UNION REPRESENTATION TO EMPLOYEE VALDEZ AT THE
 INVESTIGATORY INTERVIEW.  I DO NOT AGREE.  ALTHOUGH THE RECORD REFLECTS
 THAT HER REPRESENTATIVE, HERSCH, WAS AFFORDED FULL OPPORTUNITY TO ASSIST
 VALDEZ AT THE INITIAL INTERVIEW ON APRIL 13, AN IMPORTANT LIMITATION WAS
 IMPOSED UPON HIM DURING THE TAPED INTERVIEW.  THE EMPLOYER INSISTS THAT
 HERSCH WAS NOT PRECLOSED FROM CONFERRING WITH THE EMPLOYEE WHILE THE
 TAPING WAS IN PROGRESS, AND THAT VALDEZ WAS PERMITTED TO CONSULT WITH
 HER REPRESENTATIVE WHEN THE TAPE WAS TURNED OFF NEAR THE CLOSE OF THE
 SECOND SESSION.  NEVERTHELESS, I FIND IT DIFFICULT TO ACCEPT THE
 ARGUMENT THAT COMPLETE FREEDOM TO ASSIST AND CONSULT EXISTS WHERE THE
 REPRESENTATIVE IS ADMONISHED NOT TO SPEAK OUT OR MAKE STATEMENTS.  IN
 THAT POSTURE, HOW DOES ONE 'REPRESENT' AN EMPLOYEE?  IN LIGHT OF THE
 FACT THAT FARRELL INSISTED HERSCH COULD NOT MAKE ANY STATEMENT OR
 COMMENT DURING THE TAPED INTERVIEW, I CANNOT SUBSCRIBE TO THE VIEW THAT
 THE REPRESENTATIVE WAS ACCORDED FULL OPPORTUNITY TO ASSIST VALDEZ IN
 CLARIFYING QUESTIONS AND ELICITING ANSWERS THERETO.
 
    RESPONDENT, HOWEVER, ARGUES THAT THE TAPING WAS MERELY A 'FORMALITY';
  THAT THE SECOND INTERVIEW COVERED THE SAME GROUND AS THE EARLIER
 INTERVIEW AT WHICH TIME NO RESTRAINT WAS PLACED UPON HERSCH TO SPEAK,
 OBJECT, OR ASSIST VALDEZ.  THE DIFFICULTY WITH THIS POSITION IS THAT THE
 QUESTIONS IN THE SECOND INTERVIEW WERE NOT THE SAME AS THOSE POSED
 EARLIER, AT LEAST AS TO FORM, AND THUS THE DIFFERENT PHRASEOLOGY COULD
 HAVE REQUIRED CLARIFICATION OR ASSISTANCE IN RESPONDING THERETO.  IT MAY
 BE THAT QUESTIONS ASKED IN THE TAPED SESSION COULD HAVE LED TO
 LEGITIMATE COMMENTS FROM THE UNION REPRESENTATIVE.  IF THE LATTER HAS NO
 VOICE IN PART OF THE INTERVIEW, ONE CAN SCARCELY CONCLUDE THAT THE
 EMPLOYEE HAS BEEN REPRESENTED AT THE INVESTIGATION.  FURTHER, THE
 REFUSAL TO ALLOW FULL PARTICIPATION BECOMES SIGNIFICANT WHEN IT IS SEEN
 THAT THE TAPED PORTION OF THE INVESTIGATION-- FROM WHICH HERSCH WAS
 BARRED-- WAS THE ONLY EMPLOYEE STATEMENT SENT TO THE REGIONAL
 COMMISSIONER.
 
    WHILE RESPONDENT INSISTS THAT HERSCH COULD HAVE PASSED NOTES TO
 VALDEZ-- AS HE ATTEMPTED TO DO-- DURING THE TAPING, SUCH A PROCEDURE
 OBVIOUSLY CIRCUMSCRIBES THE EFFECTIVENESS OF THE REPRESENTATIVE.  I AM
 NOT PERSUADED THAT THE LATTER MAY RENDER EFFECTIVE ASSISTANCE TO AN
 EMPLOYEE IF THE EMPLOYER ADAMANTLY INSISTS THAT HE NOT SPEAK NOR MAKE A
 STATEMENT DURING AN INTERVIEW.  FURTHER, IT IS DIFFICULT TO ENDORSE THE
 PROCEDURE WHEREBY AN INVESTIGATION IS COMPARTMENTALIZED, AND THE UNION
 REPRESENTATIVE IS ALLOWED PARTICIPATION IN ONLY A PART THEREOF.
 REPRESENTATION DURING AN EXAMINATION SHOULD NOT, IN MY OPINION, BE
 RESTRICTED TO A PORTION OF IT.  SUCH A LIMITATION IS INCOMPATIBLE WITH
 THE RIGHT TO BE REPRESENTED AS DECLARED UNDER SECTION 7115(A)(2) OF THE
 ACT.
 
    RESPONDENT FURTHER CONTENDS THAT, UNDER THE WEINGARTEN CASE, IT WAS
 ENTITLED TO OBTAIN A STATEMENT FROM THE EMPLOYEE WITHOUT INTERRUPTION
 FROM HER REPRESENTATIVE.  MOREOVER, IT HAS A LEGITIMATE INTEREST, AVERS
 THE EMPLOYER, IN SEEING THAT THE INTERVIEW DOES NOT BECOME ADVERSERIAL
 IN NATURE.  BUT THE SUPREME COURT IN WEINGARTEN DECLARED THAT THE
 PRESENCE OF THE UNION AGENT "NEED NOT TRANSFORM THE INTERVIEW INTO AN
 ADVERSARY CONTEST." IT MUST ALSO BE RECOGNIZED THAT THE EMPLOYEE HAS A
 LEGITIMATE CONCERN WHERE, AS HERE, DISCIPLINARY ACTION TOWARD HER MAY
 RESULT AFTER THE INVESTIGATION.  THUS, SOME INTERRUPTION, BY WAY OF
 COMMENTS RE THE FORM OF QUESTIONS OR STATEMENTS AS TO POSSIBLE
 INFRINGEMENT OF EMPLOYEE RIGHTS, SHOULD PROPERLY BE EXPECTED FROM THE
 EMPLOYEE'S REPRESENTATIVE.  THE EMPLOYER ALWAYS RETAINS THE OPTION TO
 REFRAIN FROM CONDUCTING THE EXAMINATION IN THE EVENT IT DECIDES THAT THE
 INTERVIEW, IN THE PRESENCE OF A UNION REPRESENTATIVE, IS NOT
 EFFICACIOUS.
 
    IN SUM, I AM CONSTRAINED TO FIND THAT THE RIGHT OF REPRESENTATION,
 EXTENDED BY THE ACT HEREIN, WAS NOT PROPERLY GRANTED BY THE EMPLOYER IN
 THIS CASE.  NEITHER THE FACT THAT HERSCH CONSULTED WITH VALDEZ PRIOR TO,
 AND DURING THE INFORMAL INTERVIEW, NOR THAT A COPY OF THE TRANSCRIPT WAS
 ULTIMATELY FURNISHED BOTH INDIVIDUALS, CONVINCES ME THAT RESPONDENT HAS
 FULFILLED ITS STATUTORY OBLIGATION.  IN RESPECT TO THE ESSENCE OF THE
 INVESTIGATION-- THE INTERVIEW CONDUCTED ON APRIL 13-- THE EMPLOYER
 FAILED, IN MY OPINION, TO ACCORD FULL REPRESENTATION FOR THE EMPLOYEE.
 THEREFORE, I CONCLUDE RESPONDENT HAS FAILED TO COMPLY WITH THE STATUTORY
 REQUIREMENTS AS AFORESAID AND HAS VIOLATED SECTIONS 7116(A)(1) AND (8).
 /7/
 
                                  REMEDY
 
    THE RESPONDENT RESISTS THE IMPOSITION OF ANY REMEDY WHICH CALLS FOR
 THE REMOVAL OF THE REPRIMAND LETTER FROM VALDEZ'S PERSONNEL FILE.  IT
 PREDICATES THIS CONTENTION ON THE THEORY THAT NO NEXUS EXISTS BETWEEN
 THE INVESTIGATORY INTERVIEW AND THE DISCIPLINARY ACTION SO AS TO JUSTIFY
 SUCH A REMEDY.  THUS, IT ARGUES, ONLY A CEASE AND DESIST ORDER IS
 WARRANTED IN THE EVENT A VIOLATION EXISTS HEREIN.
 
    RECORD FACTS SHOW, HOWEVER, THAT NO DISCIPLINARY ACTION IS TAKEN BY
 RESPONDENT IN THESE INSTANCES UNTIL AN INVESTIGATORY INTERVIEW IS
 CONDUCTED AND A FULL REPORT IS TRANSMITTED TO THE REGIONAL
 COMMISSIONER'S OFFICE.  THIS REPORT INCLUDES THE STATEMENT OBTAINED FROM
 THE EMPLOYEE AT THE INTERVIEW AS WELL AS ANY INFORMATION INCLUDED BY
 RESPONDENT'S AGENT.  THE FACT THAT THE REPRIMAND LETTER DID NOT ALLUDE
 TO THE INVESTIGATION OR EXAMINATION OF VALDEZ DOES NOT, IN MY OPINION,
 WARRANT THE INFERENCE THAT THE DISCIPLINE WAS EFFECTED WITHOUT REGARD TO
 THE INTERVIEW.  IT IS REASONABLE TO INFER THAT RESPONDENT DID NOT
 UNDERTAKE THE INVESTIGATION AS A VAIN GESTURE.  NOR MUST ONE ASSUME THAT
 IF THE EXAMINATION ESTABLISHED VALDEZ'S INNOCENCE TO THE SATISFACTION OF
 RESPONDENT THE LATTER WOULD HAVE ISSUED THE REPRIMAND LETTER.  THE
 NEXUS, WHICH THE EMPLOYER MAINTAINS IS LACKING, BETWEEN THE
 INVESTIGATION AND THE ULTIMATE ACTION TAKEN BY RESPONDENT IS APPARENT.
 IN THE FACE OF A FAILURE TO EXTEND FULL UNION REPRESENTATION TO THE
 EMPLOYEE AT THE INTERVIEW, THE SUBSEQUENT DISCIPLINE BY THE EMPLOYER
 JUSTIFIES THE REMOVAL OF THE REPRIMAND LETTER.  OTHERWISE, THE
 CONSEQUENCES OF RESPONDENT'S UNFAIR LABOR PRACTICE REMAINS UNREMEDIED IN
 RESPECT TO THE EMPLOYEE INVOLVED HEREIN.
 
    HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF
 THE ACT BY REASON OF ITS FAILURE TO AFFORD MARIA ANTONIETA VALDEZ UNION
 REPRESENTATION AT AN INVESTIGATORY INTERVIEW ON APRIL 13, 1979, WHICH
 SHE HAD REASON TO BELIEVE COULD RESULT IN DISCIPLINARY ACTION AGAINST
 HER, I RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING ORDER.
 
                                   ORDER
 
    PURSUANT TO SECTION 7117(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
 IS HEREBY ORDERED THAT U.S.  CUSTOMS SERVICE, REGION VII, LOS ANGELES,
 CALIFORNIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING OR FAILING TO ACCORD AN OPPORTUNITY, UPON REQUEST, TO
 THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE, TO BE REPRESENTED AT AN EXAMINATION OF MARIA ANTONIETA
 VALDEZ, OR ANY OTHER BARGAINING UNIT EMPLOYEE, IN CONNECTION WITH AN
 INVESTIGATION WHICH COULD REASONABLY RESULT IN DISCIPLINARY ACTION
 AGAINST HER OR SUCH EMPLOYEE.
 
    (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 ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND
 POLICIES OF THE ACT:
 
    (A) WITHDRAW AND REMOVE FROM THE PERSONNEL FOLDER OF MARIA ANTONIETA
 VALDEZ THE REPRIMAND LETTER, DATED JUNE 15, 1979, WHICH IT ISSUED TO HER
 FOR ALLEGEDLY BRINGING AN INFANT INTO THE UNITED STATES WITHOUT
 DECLARING IT TO BE A MEXICAN CITIZEN.
 
    (B) POST AT ITS FACILITY AT U.S. CUSTOMS SERVICE, REGION VII, LOS
 ANGELES, CALIFORNIA COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX," ON
 FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON
 RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER,
 U.S. CUSTOMS SERVICE, REGION VII, AND THEY SHALL BE POSTED FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
 WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE REGIONAL
 COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY
 THEREWITH.
 
                            WILLIAM NAIMARK
                            ADMINISTRATIVE LAW JUDGE
 
    DATED:  JULY 29, 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 THE FEDERAL SERVICE
 
          LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
 
                             EMPLOYEES THAT:
 
    WE WILL NOT REFUSE OR FAIL TO ACCORD AN OPPORTUNITY, UPON REQUEST, TO
 THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE, TO BE REPRESENTED AT AN EXAMINATION OF MARIA ANTONIETA
 VALDEZ, OR ANY OTHER BARGAINING UNIT EMPLOYEE, IN CONNECTION WITH AN
 INVESTIGATION WHICH COULD REASONABLY RESULT IN DISCIPLINARY ACTION
 AGAINST HER OR SUCH EMPLOYEE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL WITHDRAW AND REMOVE FROM THE PERSONNEL FOLDER OF MARIA
 ANTONIETA VALDEZ THE REPRIMAND LETTER, DATED JUNE 15, 1979, WHICH WAS
 ISSUED TO HER FOR ALLEGEDLY BRINGING AN INFANT INTO THE UNITED STATES
 WITHOUT DECLARING IT TO BE A MEXICAN CITIZEN.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
 THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  350
 SOUTH FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS ANGELES, CA
 90071 AND WHOSE TELEPHONE NUMBER IS:  (213) 688-3805.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE AUTHORITY HAS MODIFIED THE AFFIRMATIVE PORTION OF THE
 ADMINISTRATIVE LAW JUDGE'S ORDER (PARAGRAPH 2) TO REQUIRE THE
 RESPONDENT, IN THE FUTURE, TO COMPLY WITH SECTION 7114(A)(2) OF THE
 STATUTE.
 
    /2/ WHILE VALDEZ AND HERSCH ATTEST TO THE FACT THAT FARRELL DID
 INDICATE, IN THE MORNING SESSION, THAT THE UNION REPRESENTATIVE WOULD BE
 SO RESTRICTED DURING THE TAPING, RESPONDENT'S WITNESSES CONTROVERTED
 SUCH TESTIMONY.  NOTE IS TAKEN THAT THE AFFIDAVIT OF FARRELL, INTRODUCED
 AS AN EXHIBIT HEREIN, ATTESTS TO THE FACT HE DID ADVISE HERSCH THAT THE
 LATTER COULD NOT SPEAK DURING THE TAPING.  THE VERSION RECITED BY
 GENERAL COUNSEL'S WITNESSES IS CREDITED IN THIS REGARD.
 
    /3/ THOUGH FARRELL DENIES HE MENTIONED THAT DISCIPLINE MIGHT RESULT
 IF VALDEZ WAS NOT COOPERATIVE, HE STATED IN THIS AFFIDAVIT THAT "THERE
 WAS REASONABLE CAUSE TO BELIEVE THIS." THE UNDERSIGNED CREDITS THE
 TESTIMONY OF VALDEZ IN THIS REGARD.
 
    /4/ JUST PRIOR TO COMPLETING THE TAPED SESSION, FARRELL ASKED VALDEZ
 IF THERE WAS ANYTHING SHE WISHED TO ADD TO HER STATEMENT.  NO SUCH
 QUESTION WAS ASKED AT THE INFORMAL INTERVIEW.
 
    /5/ IT DOES NOT APPEAR THAT FARRELL REFUSED TO ALLOW THE EMPLOYEE TO
 CONFER WITH HERSCH DURING THE TIME THAT THE TAPE WAS TURNED OFF, AND I
 MAKE NO SUCH FINDING.  ACCORDINGLY, I FIND IT UNNECESSARY TO DETERMINE
 WHEN FARRELL ANNOUNCED HIS INTENTION BEFOREHAND TO TURN OFF THE TAPE
 SINCE IT WOULD NOT, IN MY OPINION, BE MATERIAL TO THE DECISION HEREIN.
 
    /6/ SEE TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1979, 96TH
 CONGRESS, 1ST SESSION, COMMITTEE PRINT NO. 96-7 (NOVEMBER 19, 1979) PP.
 644, 651 824 AND 926.
 
    /7/ CF. A.T.&T. CO. AND COMMUNICATIONS WORKERS OF AMERICA, LOCAL
 12150 AFL-CIO, NLRB CASE NO. 16CA 7855 (JD109-79) WHERE THE EMPLOYEE DID
 NOT REQUEST REPRESENTATION, RAISED NO OBJECTION TO THE PROCEDURE, AND
 HIS UNION AGENT MADE NO EFFORT TO SPEAK OUT.  IN