Lackland Air Force Base Exchange, Lackland Air Force Base, Texas (Respondent) and American Federation of Government Employees, Local 2911, AFL-CIO (Charging Party) 



[ v05 p473 ]
05:0473(60)CA
The decision of the Authority follows:


 5 FLRA No. 60
 
 LACKLAND AIR FORCE BASE EXCHANGE,
 LACKLAND AIR FORCE BASE, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2911, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-219
 
                            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 A SUPPORTING BRIEF.
 
    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 RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                                   ORDER
 
    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 LACKLAND AIR FORCE BASE EXCHANGE,
 LACKLAND AIR FORCE BASE, TEXAS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REQUIRING ANY BARGAINING UNIT EMPLOYEE TO TAKE PART IN AN
 EXAMINATION OR INVESTIGATIVE INTERVIEW IN CONNECTION WITH AN
 INVESTIGATION, WITHOUT UNION REPRESENTATION BY THE AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 2911, AFL-CIO, THE BARGAINING UNIT'S
 EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION
 HAS BEEN REQUESTED BY THE EMPLOYEE, AND IF THE EMPLOYEE REASONABLY
 BELIEVES THAT THE EXAMINATION OR INVESTIGATIVE INTERVIEW MAY RESULT IN
 DISCIPLINARY ACTION AGAINST SUCH 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) POST AT ITS FACILITIES AT LACKLAND AIR FORCE BASE, TEXAS, COPIES
 OF THE ATTACHED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY
 THE LACKLAND AIR FORCE BASE EXCHANGE MANAGER, 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 EXCHANGE MANAGER SHALL TAKE
 REASONABLE STEPS TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VI, 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 17, 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 REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION
 OR INVESTIGATIVE INTERVIEW IN CONNECTION WITH AN INVESTIGATION, WITHOUT
 REPRESENTATION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 2911, AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
 REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE
 EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION OR
 INVESTIGATIVE INTERVIEW MAY RESULT IN DISCIPLINARY ACTION AGAINST 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
 STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:
 
                                   BY:
 
                                (SIGNATURE)
 
                   EXCHANGE MANAGER, LACKLAND AIR FORCE
 
                     BASE EXCHANGE, LACKLAND AIR FORCE
 
                                BASE, TEXAS
 
    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 VI,
 WHOSE ADDRESS IS:  BRYAN & ERVAY STREETS, OLD POST OFFICE BUILDING, ROOM
 450, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS:  (214)
 767-4996.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    ROBERT E. EDWARDS, ESQUIRE
    FOR THE RESPONDENT
 
    IRENE JACKSON, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    ERNEST CANTU, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  LOUIS SCALZO
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
 PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
 STAT. 1191, 5 U.S.C.  7101, ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
 AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
 
    ON JANUARY 28, 1980, A COMPLAINT WAS FILED BY THE REGIONAL DIRECTOR,
 REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS, TEXAS, AGAINST THE
 LACKLAND AIR FORCE BASE EXCHANGE (RESPONDENT), ON BEHALF OF THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2911 (UNION), THE
 EXCLUSIVE BARGAINING REPRESENTATIVE FOR BARGAINING UNIT MEMBERS EMPLOYED
 BY THE LACKLAND AIR FORCE BASE EXCHANGE.  THE COMPLAINT, AS AMENDED,
 ALLEGED THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE
 STATUTE BY DENYING ONE NATALIE SOLIZ, A BARGAINING UNIT MEMBER, UNION
 REPRESENTATION AFTER A REQUEST HAD BEEN MADE FOR SUCH REPRESENTATION,
 AND AFTER NATALIE SOLIZ FORMULATED A REASONABLE BELIEF THAT THE
 EXAMINATION MIGHT RESULT IN DISCIPLINARY ACTION.  /1/
 
    RESPONDENT TAKES THE POSITION THAT VIOLATIONS OF SECTIONS 7116(A) (1)
 AND (8) DID NOT OCCUR BECAUSE SOLIZ WAS NOT QUESTIONED BY
 REPRESENTATIVES OF THE RESPONDENT;  THAT SHE WAS MERELY DETAINED FOR
 LATER QUESTIONING BY A SPECIAL AGENCY EMPLOYED BY THE AIR FORCE OFFICE
 OF SPECIAL INVESTIGATIONS (OSI), LACKLAND AIR FORCE BASE, TEXAS;  AND
 FURTHER THAT SUCH A PERIOD OF DETENTION IS NOT AN "EXAMINATION" WITHIN
 THE MEANING OF SECTION 7114(A)(2)(B) OF THE STATUTE.  RESPONDENT ARGUES
 THAT THE RIGHT PROVIDED BY SECTION 7114(A)(2)(B) DOES NOT BECOME
 OPERATIVE UNLESS AN ORAL INTERROGATION ACTUALLY COMMENCES AND THE
 EMPLOYEE THEREAFTER REQUESTS REPRESENTATION;  AND THAT SINCE SOLIZ DID
 NOT SPECIFICALLY REQUEST UNION REPRESENTATION AFTER OSI INITIATION OF
 INTERROGATION, NO DEPRIVATION OF ANY SECTION 7114(A)(2)(B) RIGHT
 OCCURRED.  (RESPONDENT BRIEF AT 4-5).
 
    ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
 CROSS-EXAMINE WITNESSES.  POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
 REPRESENTING THE GENERAL COUNSEL AND COUNSEL REPRESENTING THE
 RESPONDENT.  THESE HAVE BEEN DULY CONSIDERED.  /2/ BASED UPON THE ENTIRE
 RECORD HEREIN, INCLUDING MY OBSERVATIONS OF THE WITNESSES AND THEIR
 DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
 HEARING, /3/ AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS:
 
                             FINDINGS OF FACT
 
    ON JULY 14, 1979, AT ABOUT 11:30 A.M., NATALIE SOLIZ, A CASHIER
 EMPLOYED BY THE RESPONDENT AT THE LACKLAND MAIN EXCHANGE, LACKLAND AIR
 FORCE BASE EXCHANGE, WAS APPROACHED BY HER IMMEDIATE SUPERVISOR, LELA
 MCDONALD, AND AIRMAN SUSAN SPACHT.  SOLIZ WAS ASKED IF SPACHT HAD MADE A
 PURCHASE THROUGH SOLIZ'S REGISTER;  AND SOLIZ REPLIED THAT SHE HAD DONE
 SO.  SOLIZ WAS INFORMED BY MCDONALD THAT SPACHT FELT SHE HAD NOT
 RECEIVED A DISCOUNT THAT SHE WAS ENTITLED TO IN CONNECTION WITH THE
 PURCHASE OF SWIM WEAR.  SOLIZ STATED THAT SHE COULD NOT REMEMBER WHETHER
 SHE HAD DISCOUNTED THE PURCHASE OR NOT.
 
    MCDONALD THEN TOOK SPACHT TO DONALD E. ATKINSON, STORE MANAGER OF THE
 LACKLAND MAIN EXCHANGE.  MCDONALD REPORTED TO ATKINSON THAT THEY HAD
 FOUND THE SALES SLIP AND THAT THERE WAS AN "UNDERRING ON THE SALES SLIP"
 (TR. 84).  /4/ ATKINSON INSTRUCTED MCDONALD TO RETURN TO SOLIZ'S CASH
 REGISTER AND TO "DO A CASH REGISTER READING AND A CASH COUNT TO
 DETERMINE IF THERE WAS OR WAS NOT AN OVERAGE IN THE CASH REGISTER," AND
 TO ASCERTAIN WHETHER THERE WAS ANY EVIDENCE OF WRONGDOING (TR. 85).
 ATKINSON ALSO INSTRUCTED EXCHANGE DETECTIVE BOB CRABLE TO ACCOMPANY
 MCDONALD, TO ASSIST HER, AND TO LOOK INTO THE CASE (TR. 86-87, 151-152).
  /5/
 
    CRABLE INFORMED SOLIZ THAT THE FACTS INDICATED "A POSSIBLE CASH
 REGISTER MANIPULATION," AND THAT HE AND MCDONALD "WANTED TO CONDUCT A
 SPOT CHECK OF THE CASH REGISTER AND THE TAPES," (TR. 152-154).  MCDONALD
 CONDUCTED THE COUNT IN SOLIZ'S PRESENCE WHILE CRABLE OBSERVED (TR. 133,
 140, 152).  AFTER THE COUNT WAS COMPLETED CRABLE INQUIRED WHETHER
 SOLIZ'S REGISTER WAS OVER OR SHORT (TR. 39, R-1).  HE WAS INFORMED THAT
 THE CHECK OF THE REGISTER REFLECTED A $20.00 OVERAGE.  CRABLE DETERMINED
 THAT THE PRICE OF THE SWIM WEAR WAS $24.00, THAT SOLIZ HAD RUNG UP THE
 SALE AS A $4.00 ITEM, THAT TWO $20.00 BILLS WERE USED BY SPACHT TO PAY
 FOR THE PURCHASE, AND THAT $20.00 HAD NOT BEEN GIVEN OUT IN CHANGE ON
 THE TRANSACTION (TR. 126, 145-146).
 
    CRABLE INFORMED SOLIZ "THAT SHE WAS BEING TAKEN OFF OF THE CASH
 REGISTER FOR POSSIBLE CASH REGISTER MANIPULATION" (TR. 127).  SOLIZ
 UNDERSTOOD CRABLE'S STATEMENT TO MEAN THAT SHE COULD BE SUBJECTED TO
 POSSIBLE DISCIPLINARY ACTION AS A RESULT OF THE TRANSACTION (TR. 26).
 HE THEN DIRECTED SOLIZ TO ACCOMPANY HIM TO THE SECURITY OFFICE (TR. 43),
 A ROOM USED EXCLUSIVELY BY EXCHANGE DETECTIVES IN CONNECTION WITH THEIR
 WORK (TR. 60-61, 68, 78-79).  /6/
 
    SOLIZ AND CRABLE DEPARTED THE CASH REGISTER AREA BETWEEN 12:00 NOON
 AND 12:15 P.M. (TR. 53).  ON THE WAY TO THE SECURITY OFFICE SOLIZ MADE
 THE FIRST OF A NUMBER OF REQUESTS FOR A UNION REPRESENTATIVE TO ASSIST
 HER (TR. 127).  /7/ CRABLE REFUSED TO GRANT HER REQUEST AND ADVISED
 SOLIZ THAT HE WAS NOT GOING TO ASK HER ANY QUESTIONS, THAT THE OSI WOULD
 INTERROGRATE HER AND THAT SHE COULD ASK THE OSI ABOUT OBTAINING
 ASSISTANCE (TR. 128).  UPON REACHING THE SECURITY OFFICE SOLIZ AGAIN
 ASKED CRABLE FOR A UNION REPRESENTATIVE, AND SHE SPECIFICALLY IDENTIFIED
 ONE CATHY WASSON, A UNION STEWARD AT LACKLAND (TR. 26).  CRABLE DID NOT
 ACKNOWLEDGE THIS REQUEST (TR. 27).  HOWEVER, CRABLE DID INQUIRE
 CONCERNING THE REASON FOR THE OVERAGE.  /8/ SOLIZ REPLIED THAT SHE WAS
 "HUMAN AND PEOPLE MAKE MISTAKES" (TR. 41, 26).  CRABLE DID NOT
 ACKNOWLEDGE HER ANSWER.  INSTEAD HE TOLD SOLIZ THAT HE WAS GOING TO CALL
 IN THE OSI (TR. 26-27).
 
    THE EVIDENCE REVEALED THAT ATKINSON REQUESTED CRABLE TO CALL IN THE
 LACKLAND AIR FORCE BASE SECURITY POLICE BECAUSE ATKINSON THOUGHT THE
 FACTS INDICATED THE EXISTENCE OF A MATTER WITHIN THE JURISDICTION OF THE
 SECURITY POLICE (TR. 68, 91-92).  ATKINSON ALSO ANTICIPATED THAT CRABLE
 WOULD ARRANGE FOR STATEMENTS TO BE RECEIVED FROM SPACHT AND SOLIZ (TR.
 92).  THE SECURITY POLICE WERE A PART OF THE MILITARY ESTABLISHMENT (TR.
 60-61, 68), AND TOGETHER WITH THE OSI, HAD RESPONSIBILITY FOR THE
 DEVELOPMENT OF CRIMINAL CASES AT LACKLAND AIR FORCE BASE (TR.  112,
 117-118).  THE OSI HAD RESPONSIBILITY FOR DEALING WITH SERIOUS CRIMINAL
 CASES INCLUDING FRAUD AND EMPLOYEE INTEGRITY MATTERS, WHEREAS THE
 SECURITY POLICE DEALT WITH MINOR OFFENSES SUCH AS THOSE RELATING TO
 SHOPLIFTING (TR. 99-100, 117-118, 128-129).  IN RESPONSE TO ATKINSON'S
 INSTRUCTION, CRABLE PHONED THE SECURITY POLICE;  HOWEVER, HE WAS TOLD
 THAT THE CASE WAS ONE WITHIN OSI JURISDICTION (TR. 128, 132, 155).  /9/
 
    CRABLE REQUESTED AN EXCHANGE MANAGEMENT OFFICIAL IDENTIFIED AS MR.
 TUCKER, TO STAY WITH SOLIZ WHILE HE LEFT THE SECURITY OFFICE TO PHONE
 THE OSI AND WHILE HE OBTAINED THE STATEMENT OF AIRMAN SPACHT, WHO WAS
 THEN IN THE OFFICE OF THE STORE MANAGER.  CRABLE ADMITTED THAT SOLIZ WAS
 CONSTANTLY WATCHED SO THAT SHE WOULD NOT DISPOSE OF INCRIMINATING
 EVIDENCE (TR.  26-27, 129, 154-155).  WHEN TUCKER ARRIVED IN THE
 SECURITY OFFICE CRABLE LEFT FOR THE STORE MANAGER'S OFFICE (TR. 156).
 WHILE TUCKER WAS IN CHARGE OF SOLIZ'S DETENTION, SOLIZ ASKED HIM TO
 OBTAIN A UNION REPRESENTATIVE TO ASSIST HER.  HOWEVER, TUCKER DID NOT
 RESPOND TO, OR ACKNOWLEDGE HER REQUEST (TR. 45, 160-161).  THE FACTS
 CONCERNING THE REQUEST AND TUCKER'S FAILURE TO RESPOND WERE ADMITTED BY
 THE RESPONDENT (TR. 160-161).
 
    AFTER A PERIOD OF TIME TUCKER WANTED TO RETURN TO HIS MANAGERIAL
 DUTIES.  ARRANGEMENTS WERE MADE FOR EXCHANGE DETECTIVE RAUL OVALLE TO
 ASSUME THE DUTY OF WATCHING SOLIZ IN THE SECURITY OFFICE UNTIL AN OSI
 AGENT ARRIVED (TR. 28, 156).  DURING THIS PERIOD SOLIZ ASKED OVALLE TO
 SUMMON A UNION REPRESENTATIVE TO ASSIST HER;  HOWEVER, OVALLE ALSO
 IGNORED HER REQUEST (TR. 28).  AFTER A PERIOD OF TIME SOLIZ BEGIN TO
 FEEL ILL (TR. 29).  SHE REQUESTED PERMISSION TO GO TO A REST ROOM.  SHE
 WAS ALLOWED TO DO THIS, BUT ONLY WITH A FEMALE ATTENDANT WHO OBSERVED
 SOLIZ THROUGHOUT THE PERIOD THAT SHE WAS IN THE REST ROOM (TR. 28-29).
 /10/
 
    CRABLE PHONED THE OSI FOR THE PURPOSE OF INITIATING A CRIMINAL
 INVESTIGATION (TR. 111-112).  HE TELEPHONICALLY INFORMED THE OSI THAT
 THE CASE INVOLVED POSSIBLE CASH REGISTER MANIPULATION (TR. 103-104,
 157).  CRABLE ALSO COMPLETED THE TAKING OF A STATEMENT FROM AIRMAN
 SPACHT, WHO WAS THEN IN THE STORE MANAGER'S OFFICE (TR. 129).  OSI
 SPECIAL AGENT LEWIS A. STREET RESPONDED TO THE CALL BETWEEN 2:30 AND
 2:45 P.M., AND WAS BRIEFED BY CRABLE AND OVALLE AS TO WHAT HAD HAPPENED
 (TR. 53, 104-107, 130).  /11/ STREET ALSO SPOKE WITH AIRMAN SPACHT (TR.
 104).  CRABLE INTENDED TO PARTICIPATE IN THE INTERROGATION OF SOLIZ, BUT
 WAS INFORMED BY STREET THAT OVALLE SHOULD ASSIST HIM BECAUSE SOLIZ WAS
 HOSTILE TO CRABLE (TR. 130, 139-140, 157-158).  /12/ STREET ADVISED
 SOLIZ OF HER CONSTITUTIONAL RIGHTS, THAT IS THAT SHE HAD THE RIGHT TO "A
 LAWYER OR AN ATTORNEY," AND A RIGHT TO REMAIN SILENT;  HOWEVER, SHE
 WAIVED THESE RIGHTS (TR. 29, 107).  SHE DID NOT AT THIS JUNCTURE AGAIN
 RENEW HER REQUEST FOR UNION REPRESENTATION AT THE INTERVIEW BECAUSE SHE
 THOUGHT IT WOULD BE FUTILE (TR. 51-53).  /13/
 
    IN THE PRESENCE OF OVALLE, STREET COMMENCED HIS EXAMINATION OF SOLIZ
 (TR. 101).  UPON LEARNING THAT SOLIZ FELT ILL, STREET TERMINATED THE
 INTERVIEW (TR. 107-108).  HOWEVER, AT STREET'S REQUEST SOLIZ CONSENTED
 TO A RENEWAL OF THE INTERVIEW (TR. 108).  THEY RETURNED TO THE SECURITY
 OFFICE AGAIN, AND SOLIZ EXHIBITED TO STREET THE POSSESSIONS THAT SHE HAD
 IN HER POCKETS (TR. 108).  /14/ THE RECORD DISCLOSED THAT CRABLE WAS
 ALSO PRESENT DURING THE SEARCH AS OVALLE HAD STEPPED OUT OF THE SECURITY
 ROOM DURING THIS PERIOD (TR. 130-131, 139-140, 147-148).  FOLLOWING THE
 INTERVIEW OVALLE INSTRUCTED SOLIZ NOT TO LEAVE THE AREA UNTIL THE STORE
 MANAGER COULD TALK TO HER.  OVALLE CONTINUED TO WATCH HER UNTIL ATKINSON
 ARRIVED (TR. 30).  UPON ARRIVING ATKINSON PLACED SOLIZ ON ADMINISTRATIVE
 LEAVE FOR THE WEEKEND.  SHE WAS CARRIED AS BEING ON ADMINISTRATIVE LEAVE
 UNTIL JULY 28, 1979 (TR. 30-32).
 
    AGENT STREET BRIEFED CRABLE CONCERNING THE STATEMENTS MADE BY SOLIZ
 DURING THE INTERVIEW (TR. 109), AND AN OSI REPORT WAS MADE AVAILABLE TO
 THE ARMY AND AIR FORCE EXCHANGE SERVICE AS A RESULT OF A REQUEST
 RECEIVED FROM THE ARMY AND AIR FORCE EXCHANGE SERVICE (TR. 110, 116).
 AN INCIDENT REPORT RELATING TO THE INVESTIGATION WAS PREPARED BY CRABLE
 (G.C. 2, TR. 136-142).  THIS REPORT WAS FORWARDED TO THE LACKLAND AIR
 FORCE BASE EXCHANGE MANAGER AND TO THE LACKLAND AIR FORCE BASE PERSONNEL
 OFFICE (TR. 70, 134).  CRABLE'S SOURCES OF INFORMATION FOR THIS REPORT
 WERE THE CASH REGISTER CHECK, CASH COUNT, SPACHT'S STATEMENT, AND
 INFORMATION OBTAINED THROUGH THE INTERVIEW OF SOLIZ (TR. 140-142).  /15/
 ALTHOUGH COUNSEL FOR THE RESPONDENT ENDEAVORED TO INDICATE THE ABSENCE
 OF AN INTEREST IN THE SOLIZ INTERVIEW, THE RECORD CLEARLY REFLECTED A
 CLOSE AND IMPORTANT RELATIONSHIP BETWEEN RESPONDENT'S AGENTS AND THE
 INTERVIEW.  IN FACT, THE INCIDENT REPORT FILED BY CRABLE DESCRIBED THE
 INTERVIEW IN THE FOLLOWING TERMS:
 
    AT THIS TIME OSI WAS INFORMED AND SPECIAL AGENT LEWIS STREET CAME TO
 THE STORE.  MRS. SOLIZ
 
    (SIC) RIGHTS WERE READ TO HER, THEN SA STREET AND MYSELF (ROY OVALLE
 EXCHANGE DETECTIVE)
 
    INTERVIEWED HER. . .  (G.C. 2).
 
                        DISCUSSION AND CONCLUSIONS
 
    SECTION 7116(A)(1) OF THE STATUTE PROVIDES THAT IT SHALL BE AN UNFAIR
 LABOR PRACTICE FOR AN AGENCY TO INTERFERE WITH, RESTRAIN, OR COERCE ANY
 EMPLOYEE IN THE EXERCISE OF ANY RIGHT PROVIDED BY THE STATUTE, AND
 SECTION 7116(A)(8) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE TO
 OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF CHAPTER 71 OF
 THE STATUTE.  SECTION 7102 OF THE STATUTE SET FORTH CERTAIN EMPLOYEE
 RIGHTS INCLUDING THE RIGHT TO JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR
 TO REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
 REPRISAL, AND FURTHER THAT EACH EMPLOYEE SHALL BE PROTECTED IN THE
 EXERCISE OF SUCH RIGHT.  SECTION 7114(A)(2)(B) PROVIDES:
 
    (2) 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 BASIC QUESTION POSED IS WHETHER OR NOT SOLIZ WAS SUBJECTED TO AN
 "EXAMINATION" WITHIN THE MEANING OF SECTION 7114(A)(2)(B).  THE
 LEGISLATIVE HISTORY OF SECTION 7114(A)(2)(B) DISCLOSES THAT IT WAS
 ENACTED IN RESPONSE TO THE DECISION OF THE SUPREME COURT IN NATIONAL
 LABOR RELATIONS BOARD V. J. WEINGARTEN, INC., 420 U.S. 251, 95 S. CT.
 959 (1975).  /16/ WEINGARTEN HELD, INTER ALIA, THAT UNDER THE NATIONAL
 LABOR RELATIONS ACT AN EMPLOYEE HAS THE RIGHT TO THE PRESENCE OF A UNION
 REPRESENTATIVE AT ". . . AN INVESTIGATIVE INTERVIEW WHICH HE REASONABLY
 BELIEVES MAY RESULT IN THE IMPOSITION OF DISCIPLINE. . ." PRIOR TO THE
 ENACTMENT OF THE STATUTE THERE EXISTED NO COMPARABLE RIGHT UNDER
 EXECUTIVE ORDER 11491, TO REPRESENTATION DURING AN INVESTIGATIVE
 INTERVIEW.  THIS IS SPELLED OUT IN FEDERAL LABOR RELATIONS COUNCIL
 STATEMENT ON MAJOR POLICY ISSUE NO. 75P-2 (DECEMBER 2, 1976), 4 FLRC
 709.
 
    AS ORIGINALLY PASSED BY THE HOUSE OF REPRESENTATIVES THE REFORM BILL
 PROVIDED:
 
    (2) BEFORE ANY REPRESENTATIVE OF AN AGENCY COMMENCES ANY
 INVESTIGATIVE INTERVIEW OF AN
 
    EMPLOYEE IN A UNIT CONCERNING HIS CONDUCT WHICH COULD REASONABLY LEAD
 TO SUSPENSION, REDUCTION
 
    IN GRADE OR PAY, OR REMOVAL, THE EMPLOYEE SHALL BE INFORMED OF THAT
 EMPLOYEE'S RIGHT UNDER
 
    PARAGRAPH (3)(B) OF THIS SUBSECTION TO BE REPRESENTED BY AN EXCLUSIVE
 REPRESENTATIVE.
 
    (3) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
   .          .          .          .
 
 
    (B) ANY INVESTIGATIVE INTERVIEW OF AN EMPLOYEE IN THE UNIT BY A
 REPRESENTATIVE OF THE
 
    AGENCY IF--
 
    (I) THE EMPLOYEE REASONABLY BELIEVES THAT SUCH INTERVIEW MAY RESULT
 IN DISCIPLINARY ACTION
 
    AGAINST THE EMPLOYEE;  AND
 
    (II) THE EMPLOYEE REQUESTS SUCH REPRESENTATION.  /17/
 
    THE SENATE VERSION OF THE BILL CONTAINED NO PARALLEL PROVISION
 INCORPORATING THE WEINGARTEN RULE AND THIS ISSUE WAS ONE OF MANY
 RESOLVED IN THE CONFERENCE COMMITTEE BEFORE THE FINAL PASSAGE OF THE
 STATUTE.  THE COMMITTEE REPORTED:
 
    THE CONFEREES AGREED TO ADOPT THE WORDING IN THE HOUSE BILL WITH AN
 AMENDMENT DELETING THE
 
    HOUSE PROVISION REQUIRING THE AGENCY TO INFORM ITS EMPLOYEES ANNUALLY
 OF THE RIGHT TO
 
    REPRESENTATION.  THE CONFEREES FURTHER AMENDED THE PROVISION SO AS TO
 GIVE THE LABOR
 
    REPRESENTATIVE THE RIGHT TO BE PRESENT AT ANY EXAMINATION OF AN
 EMPLOYEE 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.
 THE CONFEREES RECOGNIZE
 
    THAT THE RIGHT TO REPRESENTATION IN EXAMINATIONS MAY EVOLVE
 DIFFERENTLY IN THE PRIVATE AND
 
    FEDERAL SECTORS, AND SPECIFICALLY INTEND THAT FUTURE COURT DECISIONS
 INTERPRETING THE RIGHT IN
 
    THE PRIVATE SECTOR WILL NOT NECESSARILY BE DETERMINATIVE FOR THE
 FEDERAL SECTOR.  /18/
 
    THE FINAL WORDING OF SECTION 7114 OF THE STATUTE REFLECTS THIS
 AGREED-UPON STATUTORY
 
    LANGUAGE.
 
    COUNSEL FOR THE RESPONDENT ARGUES THAT NO "EXAMINATION OF AN
 EMPLOYEE" OCCURRED IN THIS CASE UNTIL THE OSI COMMENCED AN INTERROGATION
 OF SOLIZ, AND THAT AT SUCH TIME SOLIZ WAS PROVIDED WITH AN OPPORTUNITY
 TO OBTAIN COUNSEL.  THIS VIEW OF THIS CASE IS BASED UPON ASSERTIONS THAT
 SOLIZ WAS QUESTIONED BY THE OSI ONLY, THAT RESPONDENT'S REPRESENTATIVES
 WERE NOT INVOLVED IN THE QUESTIONING PROCESS, AND THAT UNTIL THE OSI'S
 QUESTIONING OF SOLIZ COMMENCED, SOLIZ HAD NO RIGHT TO A REPRESENTATIVE
 UNDER THE PROVISIONS OF SECTION 7114(A)(2)(B).  A CAREFUL REVIEW OF THE
 RECORD AND RELEVANT AUTHORITIES DISCLOSES THAT THE RESPONDENT'S VERSION
 OF THE FACTS AND THE LAW MUST BE REJECTED.  THE CONDUCT OUTLINED HEREIN
 REFLECTS THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) BY INTERFERING
 WITH, RESTRAINING, AND COERCING SOLIZ IN HER EXERCISE OF RIGHTS PROVIDED
 IN SECTION 7102 OF THE STATUTE.  THE SAME CONDUCT CONSTITUTES A
 VIOLATION OF 7116(A)(8) IN THAT IT REPRESENTS A FAILURE ON THE PART OF
 THE RESPONDENT TO COMPLY WITH THE PROVISIONS OF SECTION 7114(A)(2)(B).
 
    COUNSEL FOR THE RESPONDENT ACKNOWLEDGES, AND THE LEGISLATIVE HISTORY
 OF SECTION 7114(A)(2)(B) ESTABLISHES, THAT AT A MINIMUM, THE RIGHT TO
 UNION REPRESENTATION EXISTS WHEN AN EMPLOYEE IS QUESTIONED BY AN AGENCY
 DURING AN INVESTIGATORY INTERVIEW WHICH THE EMPLOYEE REASONABLY BELIEVES
 MAY RESULT IN THE IMPOSITION OF DISCIPLINE, AND THE EMPLOYEE REQUESTS
 REPRESENTATION.  THAT IS, THE SECTION WAS ENACTED TO PROVIDE RIGHTS OF
 THE TYPE UPHELD BY THE SUPREME COURT IN WEINGARTEN.  INTERNAL REVENUE
 SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE, HARTFORD
 DISTRICT OFFICE, 1-CA-77 (ADMINISTRATIVE LAW JUDGE DECISION, MARCH 13,
 1980);  U.S. CUSTOMS SERVICE, REGION VII, LOS ANGELES, CALIFORNIA,
 8-CA-193 (ADMINISTRATIVE LAW JUDGE DECISION, JULY 29, 1980);  INTERNAL
 REVENUE SERVICE, DETROIT, MICHIGAN, 5-CA-332 (ADMINISTRATIVE LAW JUDGE
 DECISION, AUGUST 8, 1980).  A NEARLY IDENTICAL FACTUAL PATTERN IS
 PRESENTED HERE.
 
    AN INVESTIGATION WAS IN PROCESS AND SOLIZ HAD A REASONABLE BELIEF
 THAT SHE MIGHT BE SUBJECTED TO DISCIPLINE AS A RESULT OF THE
 INVESTIGATION.  THIS BELIEF WAS ESTABLISHED JUST BEFORE THE CASH
 REGISTER CHECK, WHEN CRABLE INFORMED SOLIZ THAT THE FACTS INDICATED A
 "POSSIBLE CASH REGISTER MANIPULATION," AND IT WAS SUBSEQUENTLY
 REINFORCED BY THE STATEMENTS AND CONDUCT OF RESPONDENT'S REPRESENTATIVES
 DURING AND AFTER THE CASH REGISTER CHECK.  CRABLE INFORMED SOLIZ AFTER
 THE CHECK, "THAT SHE WAS BEING TAKEN OFF THE CASH REGISTER FOR POSSIBLE
 CASH REGISTER MANIPULATION." THIS STATEMENT, WITHOUT MORE WAS SUFFICIENT
 TO GENERATE A REASONABLE BELIEF THAT DISCIPLINARY ACTION MIGHT BE TAKEN
 BY THE RESPONDENT.  BASED UPON THIS BELIEF SOLIZ REQUESTED THAT SHE BE
 ALLOWED TO HAVE A UNION REPRESENTATIVE PRESENT DURING THE INTERVIEW.
 DESPITE THIS REQUEST CRABLE HAD A DISCUSSION WITH SOLIZ WHEREIN SHE WAS
 ASKED THE REASON FOR THE OVERAGE IN HER CASH REGISTER.  THIS QUESTION
 WENT TO THE HEART OF THE MATTER AND WAS DESIGNED TO ELICIT FROM SOLIZ A
 COMPLETE EXPLANATION.  IT DID IN FACT GENERATE A RESPONSE FROM SOLIZ
 WITHOUT BENEFIT OF REPRESENTATION.  SOLIZ'S SECTION 7114(A)(2)(B) RIGHT
 WAS INFRINGED AT THIS POINT SINCE THE QUESTION COMPRISED THE INITIAL
 PHASE OF AN INVESTIGATORY INTERVIEW.
 
    HOWEVER, ASSUMING THAT THIS QUESTION WAS NOT POSED BY CRABLE, AND
 ASSUMING FURTHER THAT THE OSI CONDUCTED THE INTERROGATION OF SOLIZ,
 RESPONDENT'S FACTUAL AND LEGAL POSITION MUST BE REJECTED FOR OTHER
 REASONS.  HERE THE RESPONDENT WORKED CLOSELY WITH THE OSI BECAUSE OF
 INTERESTS COMMON TO BOTH AGENCIES.  THE SERVICES OF THE OSI WERE FULLY
 UTILIZED BY THE RESPONDENT IN CONNECTION WITH THE PERFORMANCE OF
 RESPONDENT'S RESPONSIBILITY TO RESOLVE THE FACTUAL ISSUES INVOLVED IN
 THIS CASH REGISTER MANIPULATION CASE.  ALTHOUGH THE OSI HAD SEPARATE
 CONCERNS RELATING TO THE RESOLUTION OF CRIMINAL INVESTIGATIONS, THE FACT
 IS THAT THE RESPONDENT ALSO HAD RELATED INTERESTS WHICH WERE RESOLVED
 THROUGH SERVICES PERFORMED BY THE OSI.  THIS COMMUNITY OF INTEREST IS
 CONCLUSIVELY SHOWN BY THE BRIEFING OF THE OSI BY CRABLE AND OVALLE, BY
 CRABLE'S UNREALIZED DESIRE TO BE PRESENT THROUGHOUT STREET'S
 INTERROGATION OF SOLIZ, BY OVALLE'S PRESENCE DURING THE INTERVIEW, BY
 CRABLE'S PRESENCE DURING THE INTERVIEW WHEN OVALLE WAS NOT PRESENT, BY
 THE RESPONDENT'S INTEREST IN THE POSSIBLE CASH REGISTER MANIPULATION,
 AND BY THE USE OF THE OSI WORK PRODUCT FOR THE RESPONDENT'S OWN
 ADMINISTRATIVE PURPOSES FOLLOWING THE INTERVIEW.  THIS WAS THE
 RESPONDENT'S OWN ADMINISTRATIVE PURPOSES FOLLOWING THE INTERVIEW.  THIS
 WAS NOT A CASE WHERE THE OSI INVESTIGATION WAS CONDUCTED INDEPENDENTLY
 OF THE RESPONDENT AND WITHOUT RESPONDENT'S PRIOR AWARENESS OF THE OSI'S
 INVESTIGATIVE ACTIVITY.  IT WAS ONE INITIATED IN THE FIRST INSTANCE, AND
 FACILITATED THROUGHOUT, BY THE RESPONDENT.  RESPONDENT'S AGENTS ASSISTED
 AND PARTICIPATED IN THE INVESTIGATIVE INTERVIEW.  IN FACT, THE FINAL
 PHASE OF THE INTERVIEW, INVOLVING THE SEARCH OF SOLIZ, WAS PRECIPITATED
 BY CRABLE (TR. 145-146).
 
    IT MUST BE DETERMINED ON THE BASIS OF THE EVIDENCE ADDUCED THAT THE
 INTERVIEW OF SOLIZ AFTER THE ARRIVAL OF THE OSI, WAS PERFORMED JOINTLY
 BY THE RESPONDENT AND THE OSI, AND NOT SOLELY BY THE OSI.  IT IS
 IMMATERIAL THAT THE OSI HAD THE SOLE RESPONSIBILITY TO CONDUCT A
 CRIMINAL INVESTIGATION.  IT IS SUFFICIENT THAT THE INTERESTS AND ACTIONS
 OF THE RESPONDENT, AS EXPRESSED THROUGH CRABLE, OVALLE, AND ATKINSON,
 WERE CLOSELY TIED, TO, AND IDENTIFIED WITH, THE INVESTIGATORY INTERVIEW
 CONDUCTED.  THUS, EVEN IF RESPONDENT'S VERSION OF THE FACTS WERE
 ACCEPTED, AND A CONCLUSION REACHED THAT CRABLE POSED NO QUESTION OR
 QUESTIONS, THE RESPONDENT WAS STILL UNDER AN OBLIGATION TO RESPOND
 APPROPRIATELY TO SOLIZ'S REQUEST FOR UNION REPRESENTATION AT THE
 INTERVIEW CONDUCTED JOINTLY BY THE RESPONDENT AND THE OSI.  THE
 RESPONDENT ANTICIPATED THE EARLY COMMENCEMENT OF THE INTERVIEW AFTER THE
 DETENTION OF SOLIZ BUT TOOK NO ACTION AT ALL TO ENSURE THAT SOLIZ WAS
 PROVIDED WITH REPRESENTATION.
 
    LASTLY, IT SHOULD BE NOTED THAT SOLIZ WAS DETAINED FOR A PERIOD IN
 EXCESS OF TWO HOURS PRIOR TO THE INTERVIEW.  REPEATED REQUESTS FOR
 REPRESENTATION WERE DENIED.  IT IS IMMATERIAL THAT SOLIZ DECLINED AGENT
 STREET'S OFFER TO PROVIDE LEGAL COUNSEL.  A UNION REPRESENTATIVE WAS
 SPECIFICALLY REQUESTED AND THIS TYPE OF REPRESENTATION IN PARTICULAR
 SHOULD HAVE BEEN PROVIDED BY REASON OF SECTION 7114(A)(2)(B), AT LEAST
 AS SOON AS THE COMMENCEMENT OF THE INTERVIEW.  THE RECORD HERE
 ESTABLISHES THAT SOLIZ RELINQUISHED HER RIGHT TO LEGAL COUNSEL BECAUSE
 SHE THOUGHT THAT ANOTHER REQUEST WOULD BE FUTILE.  THE EVIDENCE
 INDICATED THAT SHE WAS UPSET, NERVOUS, ANGRY AND ILL AS A RESULT OF THE
 EPISODE, AND THAT THESE ELEMENTS CREATED AN ATTITUDE OF FUTILITY.
 
    HOWEVER, AS NOTED SOLIZ HAD ALREADY EXPRESSED HER DESIRE FOR UNION
 REPRESENTATION PRIOR TO THE ARRIVAL OF SPECIAL AGENT STREET.  THERE WAS
 NO BASIS FOR THE RESPONDENT TO INSIST THAT SOLIZ REPEAT SUCH A REQUEST
 TO THE OSI REPRESENTATIVE, SINCE IT WAS THE OBLIGATION OF THE RESPONDENT
 TO ENSURE THAT SOLIZ'S REQUEST WAS HONORED.  THERE WAS NO INDICATION IN
 THE RECORD THAT HER PRIOR REQUEST FOR UNION REPRESENTATION WAS
 WITHDRAWN.  AT MOST, THE RECORD INDICATES THAT SOLIZ DECLINED AGENT
 STREET'S OFFER TO ARRANGE FOR "A LAWYER OR AN ATTORNEY" TO BE PRESENT
 DURING THE INTERVIEW.  THIS RIGHT MAY BE DISTINGUISHED FROM THE RIGHT OF
 THE EXCLUSIVE REPRESENTATIVE TO BE PRESENT DURING AN INVESTIGATIVE
 INTERVIEW UNDER SECTION 7114(A)(2)(B).
 
    THE NATURE OF THE RESPONDENT'S OBLIGATION TO SOLIZ WAS FASHIONED IN
 LARGE MEASURE BY SOLIZ'S REPEATED REQUESTS THAT THE UNION BE REPRESENTED
 AT THE INVESTIGATIVE INTERVIEW, WHETHER SUCH WAS CONDUCTED SOLELY BY
 RESPONDENT'S REPRESENTATIVES, OR JOINTLY BY THESE REPRESENTATIVES AND AN
 OSI SPECIAL AGENT.  HERE, THE RESPONDENT WAS, IN THE ABSENCE OF A
 SPECIFIC WITHDRAWAL OF THE REQUEST FOR UNION REPRESENTATION, UNDER AN
 OBLIGATION TO MAKE CERTAIN THAT THE UNION WAS REPRESENTED.  INSTEAD, THE
 ACTIONS OF RESPONDENT'S REPRESENTATIVES OPERATED TO DENY SUCH
 REPRESENTATION DURING THE INVESTIGATIVE INTERVIEW.
 
    IN VIEW OF THE FOREGOING DISCUSSION, IT IS UNNECESSARY TO DETERMINE
 WHETHER SECTION 7114(A)(2)(B) APPLIES TO A PERIOD OF DETENTION WITHOUT
 QUESTIONING, NOR IS IT NECESSARY TO DETERMINE WHETHER THE WORD
 "EXAMINATION" IN SECTION 7114(A)(2)(B) SHOULD BE GIVEN A BROADER MEANING
 THAN THE TERM "INVESTIGATORY INTERVIEW." HAVING FOUND THAT THE
 RESPONDENT VIOLATED SECTION 7116(A)(1) AND (8) IN THE MANNER OUTLINED,
 IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. 2423.29(B)(1), THE
 AUTHORITY HEREBY ORDERS THAT THE LACKLAND AIR FORCE BASE EXCHANGE,
 LACKLAND AIR FORCE BASE, TEXAS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REQUIRING ANY BARGAINING UNIT EMPLOYEE TO TAKE PART IN AN
 EXAMINATION OR INVESTIGATIVE
 
    INTERVIEW IN CONNECTION WITH AN INVESTIGATION, WITHOUT UNION
 REPRESENTATION BY THE AMERICAN
 
    FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2911, AFL-CIO, THE
 BARGAINING UNIT'S EXCLUSIVE
 
    COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN
 REQUESTED BY THE
 
    EMPLOYEE, AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE
 EXAMINATION OR INVESTIGATIVE
 
    INTERVIEW MAY RESULT IN DISCIPLINARY ACTION AGAINST SUCH EMPLOYEE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING 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
 PURPOSE AND POLICIES OF THE STATUTE:
 
    (A) POST AT ITS FACILITIES AT LACKLAND AIR FORCE BASE, TEXAS, 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 LACKLAND AIR FORCE
 BASE EXCHANGE MANAGER,
 
    AND SHALL BE POSTED AND MAINTAINED 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 ENSURE THAT SAID NOTICES
 ARE NOT ALTERED, DEFACED,
 
    OR COVERED BY ANY OTHER MATERIAL.
 
    (B) NOTIFY THE 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.
 
                          LOUIS SCALZO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 28, 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 CHAPTER 71 OF TITLE
 
                5 OF THE UNITED STATES CODE FEDERAL SERVICE
 
                        LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION
 OR INVESTIGATIVE INTERVIEW, IN CONNECTION WITH AN INVESTIGATION, WITHOUT
 REPRESENTATION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 2911, AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
 REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE
 EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION OR
 INVESTIGATIVE INTERVIEW MAY RESULT IN DISCIPLINARY ACTION AGAINST 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
 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 OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION VI,
 WHOSE ADDRESS IS :  BRYAN & ERVAY STREETS, OLD POST OFFICE BUILDING,
 ROOM 450, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS:  (214)
 767-4996.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ AT THE HEARING THE COMPLAINT WAS AMENDED TO ALLEGE A VIOLATION OF
 SECTION 7116(A)(8) OF THE STATUTE.
 
    /2/ UNDER AUTHORITY PROVIDED IN SECTION 2423.29(R) OF THE
 REGULATIONS, 5 C.F.R. 2423.19(R), THE FOLLOWING CORRECTIONS ARE HEREBY
 MADE IN THE HEARING TRANSCRIPT:  (TABLE OMITTED)
 
    /3/ HEREINAFTER REFERENCES TO THE TRANSCRIPT WILL BE DESIGNATED "TR.
 . . .," AND REFERENCES TO EXHIBITS WILL BE DESIGNATED "G.C. . . ." OR
 "R. ... ."
 
    /4/ SPACHT DID NOT RECEIVE A SALES SLIP WITH HER PURCHASE AND THIS
 CIRCUMSTANCE GAVE RISE TO INQUIRY (TR. 64, 105).  THE SALES SLIP
 PERTAINING TO THE TRANSACTION WAS RETRIEVED BY MCDONALD NEAR SOLIZ'S
 REGISTER (TR. 84, 105-106, 125-126, 150-151, GENERAL COUNSEL EXHIBIT 2).
  THE EVIDENCE DISCLOSED THAT MCDONALD AND/OR CRABLE ENTERED INTO A
 DISCUSSION WITH SOLIZ CONCERNING THE WHEREABOUTS OF THE SALES SLIP (R. 1
 AT 1).
 
    /5/ EXCHANGE DETECTIVES REPORTED DIRECTLY TO THE EXCHANGE MANAGER,
 LACKLAND AIR FORCE BASE EXCHANGE, AND NOT TO THE SEPARATE STORE MANAGERS
 THEY SERVED.  INDIVIDUAL STORE MANAGERS CALLED UPON THEM AS NEEDED (TR.
 67-68).  THEIR FUNCTION WAS TO DETECT CRIMINAL ACTIVITY AND TO DETAIN
 SUSPECTS (TR. 133).  THEIR JOB DESCRIPTION CHARGED THEM WITH
 RESPONSIBILITY FOR "DETECTING SHOPLIFTERS AND EMPLOYEE PILFERAGE" (TR.
 150).  CRABLE AND ANOTHER EXCHANGE DETECTIVE, PAUL OVALLE, HAD
 RESPONSIBILITY FOR THE EXCHANGES AT LACKLAND AND KELLY AIR FORCE BASES
 (TR. 168-169).
 
    /6/ THE OFFICE USED WAS IDENTIFIED AS ONE WHERE SHOPLIFTERS WERE
 DETAINED FOR LAW ENFORCEMENT AUTHORITIES (TR. 78-79).
 
    /7/ CRABLE ACKNOWLEDGED THAT HE COULD NOT REMEMBER EXACTLY WHAT SOLIZ
 SAID TO HIM (TR. 154).  HOWEVER, HE ADMITTED THAT SOLIZ "KEPT ASKING FOR
 A UNION REPRESENTATIVE" AFTER HE INFORMED HER THAT SHE WAS BEING CHARGED
 WITH POSSIBLE CASH REGISTER MANIPULATION (TR. 157).
 
    /8/ CRABLE DISPUTES THE FACT THAT HE ASKED SOLIZ THIS QUESTION.
 HOWEVER, THIS CREDIBILITY ISSUE MUST BE RESOLVED AGAINST CRABLE.
 CRABLE'S RECOLLECTION OF WHAT SOLIZ SAID IN CONNECTION WITH ANOTHER
 CLOSELY RELATED AREA OF INTEREST, WAS ADMITTEDLY VAGUE (TR.  154).  THE
 QUESTION FITS APPROPRIATELY INTO THE GENERAL FACTUAL PATTERN DEVELOPED,
 AND SOLIZ'S TESTIMONY AS TO WHAT CRABLE SAID TO HER WAS CLEAR AND
 UNEQUIVOCAL.  FURTHERMORE, THE RECORD ESTABLISHES THAT CRABLE WAS IN
 FACT CHARGED WITH THE RESPONSIBILITY FOR ARRANGING THE INTERVIEW OF
 SOLIZ;  EXCHANGE DETECTIVES WERE CHARGED WITH SOME RESPONSIBILITY TO
 DETECT CRIME;  AND A CONSIDERABLE DEGREE OF INVESTIGATION WAS ACTUALLY
 CONDUCTED BY CRABLE.
 
    /9/ ALTHOUGH OSI POSSESSED CRIMINAL INVESTIGATIVE JURISDICTION IN
 CASES OF THIS NATURE, THE OSI WAS AWARE OF OTHER LEGITIMATE INTERESTS OF
 RESPONDENT AND RECOGNIZED THAT RESPONDENT'S REPRESENTATIVES MIGHT HAVE
 TO MAKE CERTAIN "NECESSARY" INQUIRIES (TR.  112).  IT WAS CLEAR THAT
 EXCHANGE DETECTIVES AND OTHER MANAGEMENT REPRESENTATIVES OF THE
 RESPONDENT HAD A CLOSE CONTINUING INTEREST IN THE DEVELOPMENT OF A
 PROSECUTABLE VIOLATION, AND/OR THE RESOLUTION OF A PROBLEM RELATING TO
 EMPLOYEE INTEGRITY.  THIS INTEREST WAS MANIFESTED IN THE FORM OF A CLOSE
 COLLABORATION WITH THE POLICE FOR THE PURPOSE OF PROTECTING AND
 DEVELOPING A SINGLE INVESTIGATIVE EFFORT.
 
    /10/ THE RECORD INDICATES THAT CRABLE AND OVALLE BOTH WATCHED SOLIZ
 DURING PORTIONS OF THE PERIOD SPENT WAITING FOR THE OSI REPRESENTATIVE
 (TR. 156).
 
    /11/ ALTHOUGH IT WAS ANTICIPATED THAT THE OSI WOULD RESPOND PROMPTLY
 TO THE INVESTIGATIVE REQUEST, A CONSIDERABLE PERIOD OF DELAY INTERVENED
 BEFORE STREET ARRIVED ON THE SCENE.
 
    /12/ THIS HOSTILITY WAS GENERATED BY THE REPEATED REFUSAL TO SUPPLY A
 UNION REPRESENTATIVE AND CRABLE'S PRIOR INSISTENCE THAT SOLIZ WAS NOT
 ENTITLED TO REPRESENTATION UNTIL AN OSI REPRESENTATIVE ACTUALLY BEGAN AN
 INTERROGATION (TR. 157-159).
 
    /13/ SOLIZ WAS SPECIFICALLY APPRISED OF HER RIGHTS UNDER MIRANDA V.
 STATE OF ARIZONA, 384 U.S. 436 (1966) (RESPONDENT'S BRIEF AT 8).
 MIRANDA ESTABLISHED THE RULE THAT STATEMENTS OBTAINED DURING CUSTODIAL
 INTERROGATION OF A DEFENDANT MAY NOT BE UTILIZED UNLESS PRIOR TO THE
 QUESTIONING THE PERSON IS "WARNED THAT HE HAS A RIGHT TO REMAIN SILENT,
 AND THAT ANY STATEMENT HE DOES MAKE MAY BE USED AS EVIDENCE AGAINST HIM,
 AND THAT HE HAS A RIGHT TO THE PRESENCE OF AN ATTORNEY EITHER RETAINED
 OR APPOINTED." (DECISION AT 444).
 
    /14/ CRABLE'S TESTIMONY ESTABLISHED THAT AIRMAN SPACHT HAD PAID FOR
 HER PURCHASE WITH TWO $20.00 BILLS, THAT SHE HAD RECORDED THE NUMBERS OF
 THESE BILLS, AND HAD FURNISHED THE NUMBERS TO CRABLE.  ONE OF THE BILLS
 WAS LOCATED IN SOLIZ'S CASH DRAWER.  THE SEARCH WAS AIMED AT UNCOVERING
 THE SECOND $20.00 BILL (TR. 145-146).
 
    /15/ THE OSI REPORT REFLECTED SOLIZ'S CLAIM THAT THE IRREGULARITY WAS
 DUE TO ADMINISTRATIVE ERROR OR MACHINE ERROR (TR. 117).  SHE WAS NOT
 DISCIPLINED.
 
    /16/ THE FACTS IN THIS CASE CLOSELY RESEMBLE THOSE FOUND IN
 WEINGARTEN.  IN WEINGARTEN AN EMPLOYEE OF A RETAIL STORE REPRESENTED BY