09:0951(134)CA - Treasury, Customs Service, Region V and NTEU and NTEU Chapter 168 -- 1982 FLRAdec CA



[ v09 p951 ]
09:0951(134)CA
The decision of the Authority follows:


 9 FLRA No. 134
 
 UNITED STATES DEPARTMENT
 OF THE TREASURY, UNITED
 STATES CUSTOMS SERVICE,
 REGION V
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 168
 Charging Party
 
                                            Case No. 6-CA-237
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  /1/ THEREAFTER, THE
 GENERAL COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S
 DECISION.  /2/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
 JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  /3/ UPON CONSIDERATION OF
 THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
 MODIFIED HEREIN.
 
    THE GENERAL COUNSEL ALLEGES IN THE COMPLAINT THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1) OF THE STATUTE WHEN ITS REPRESENTATIVE
 CONDUCTED INTERVIEWS WITH BARGAINING UNIT EMPLOYEES WHICH, IT IS
 CONTENDED, CONSTITUTED "COERCIVE INTERROGATION." ADDITIONALLY, THE
 GENERAL COUNSEL ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1),
 (5) AND (8) OF THE STATUTE WHEN IT FAILED TO AFFORD THE NATIONAL
 TREASURY EMPLOYEES UNION (NTEU) THE OPPORTUNITY TO BE REPRESENTED AT THE
 INTERVIEWS WHICH, IT IS CONTENDED, WERE FORMAL DISCUSSIONS WITHIN THE
 MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE.  /4/ LASTLY, THE
 GENERAL COUNSEL ALLEGES THAT THE "COERCIVE INTERROGATION" INTERFERED
 WITH AN UNFAIR LABOR PRACTICE PROCEEDING IN VIOLATION OF SECTION
 7116(A)(8) OF THE STATUTE.
 
    IN AGREEMENT WITH THE JUDGE AND BASED ON THE ENTIRE RECORD, INCLUDING
 THE JUDGE'S CREDIBILITY FINDINGS, THE AUTHORITY FINDS THAT THE
 INTERVIEWS CONDUCTED BY THE RESPONDENT'S REPRESENTATIVE WERE
 NON-COERCIVE IN NATURE AND, HENCE, DID NOT OTHERWISE VIOLATE THE
 PROTECTED RIGHTS OF EMPLOYEES.  MOREOVER, BASED ON THE ENTIRE RECORD,
 INCLUDING THE JUDGE'S CREDIBILITY FINDINGS, AND FOR THE REASONS
 EXPRESSED IN INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER, 9
 FLRA NO. 132(1982), THE AUTHORITY FINDS THAT THE RESPONDENT DID NOT
 VIOLATE SECTION 7116(A)(1), (5) OR (8) OF THE STATUTE BY NOT AFFORDING
 NTEU THE OPPORTUNITY TO BE PRESENT AT THE INTERVIEWS BETWEEN THE
 RESPONDENT'S REPRESENTATIVE AND BARGAINING UNIT EMPLOYEES.  IT FOLLOWS,
 PERFORCE, THAT THE RESPONDENT CANNOT BE FOUND TO HAVE INTERFERED WITH AN
 UNFAIR LABOR PRACTICE PROCEEDING.  THE COMPLAINT SHALL, THEREFORE, BE
 DISMISSED IN ITS ENTIRETY.  /5/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 GARY B. LANDSMAN, ESQUIRE
    FOR THE RESPONDENT
 
 ALVARO GARZA, ESQUIRE
    FOR THE GENERAL COUNSEL
 
 B. CRAIG DEATS, ESQUIRE
    FOR THE CHARGING PARTY
 
 BEFORE:  RANDOLPH D. MASON
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON AUGUST 12, 1980, BY THE
 REGIONAL DIRECTOR, REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS,
 TEXAS, AGAINST THE UNITED STATES CUSTOMS SERVICE, REGION V
 ("RESPONDENT").
 
    THE COMPLAINT RAISES TWO PRINCIPAL ISSUES RELATING TO CERTAIN
 INTERVIEWS CONDUCTED BY AN ATTORNEY FOR RESPONDENT WITH UNIT EMPLOYEES
 WHO WERE PROSPECTIVE WITNESSES FOR AN UPCOMING UNFAIR LABOR PRACTICE
 HEARING:  (1) DID THE INTERVIEWS CONSTITUTE "COERCIVE INTERROGATION" IN
 VIOLATION OF SEC. 7116(A)(1) OF THE STATUTE, AND (2) WERE THE INTERVIEWS
 "FORMAL DISCUSSIONS" CONCERNING "GENERAL CONDITIONS OF EMPLOYMENT"
 WITHIN THE MEANING OF SEC. 7114(A)(2)(A) WHICH REQUIRED THAT THE UNION
 BE GIVEN AN OPPORTUNITY TO BE REPRESENTED?  SINCE THE UNION WAS NOT
 GIVEN THIS OPPORTUNITY, THE COMPLAINT ALLEGES VIOLATIONS OF SECTIONS
 7116(A)(1), (5) AND (8) WITH RESPECT TO THE SECOND ISSUE.  THE GENERAL
 COUNSEL SEPARATELY ALLEGES A VIOLATION OF SEC.  7116(A)(8) ON THE GROUND
 THAT THE ALLEGED COERCIVE INTERROGATION VIOLATED SEC. 7118 BY
 INTERFERING WITH AN UNFAIR LABOR PRACTICE PROCEEDING.  RESPONDENT DENIES
 ALL THESE ALLEGATIONS, ARGUING THAT THE INTERVIEWS WERE NOT COERCIVE IN
 NATURE AND THAT THEY DID NOT CONSTITUTE SEC. 7114(A)(2)(A) DISCUSSIONS.
 THE OFFICE OF PERSONNEL MANAGEMENT WAS PERMITTED TO FILE A BRIEF ON THE
 SEC. 7114(A)(2)(A) ISSUE AS AN AMICUS CURIAE;  OPM SIDED WITH THE
 RESPONDENT IN ALL MATERIAL RESPECTS.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT NEW
 ORLEANS, LOUISIANA ON OCTOBER 15, 1980.  ALL PARTIES WERE REPRESENTED BY
 COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
 EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES.  THE PARTIES FILED
 BRIEFS WHICH HAVE BEEN DULY CONSIDERED.  /6/ BASED ON THE ENTIRE RECORD
 HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
 THE EXHIBITS, STIPULATIONS, /7/ AND OTHER RELEVANT EVIDENCE ADDUCED AT
 THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW,
 AND RECOMMENDED ORDER:
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, THE NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 168 ("THE UNION") HAS BEEN THE EXCLUSIVE REPRESENTATIVE
 OF AN APPROPRIATE UNIT OF EMPLOYEES OF THE RESPONDENT U.S. CUSTOMS
 SERVICE, REGION V.  RESPONDENT AND THE UNION ARE PARTIES TO A COLLECTIVE
 BARGAINING AGREEMENT COVERING ALL MATERIAL PERIODS.
 
    PRIOR TO THE CHARGES UNDERLYING THE INSTANT CASE, THE UNION FILED
 FOUR UNFAIR LABOR PRACTICE COMPLAINTS IN 1978 UNDER EXECUTIVE ORDER
 11491 AGAINST THE RESPONDENT AGENCY.  THE 1978 COMPLAINTS ALLEGED THAT
 THE AGENCY HAD COMMITTED UNFAIR LABOR PRACTICES AT ITS AIR SUPPORT
 BRANCH (ASB) IN BELLE CHASSE, LOUISIANA.  ON MAY 7, 1979, THE REGIONAL
 DIRECTOR, FLRA, REGION VI, ISSUED A NOTICE OF HEARING AND ORDER
 CONSOLIDATING CASES SETTING A HEARING TO COMMENCE ON JUNE 26, 1979, IN
 THE FOUR EXECUTIVE ORDER CASES.  AT THE HEARING, RESPONDENT WAS
 REPRESENTED BY ELIZABETH BRIGMAN, ESQ., AN ASSOCIATE REGIONAL COUNSEL
 FOR THE AGENCY IN ITS NEW ORLEANS OFFICE.  THE FINAL DECISION OF THE
 AUTHORITY WAS ISSUED ON SEPTEMBER 29, 1980.  UNITED STATES CUSTOMS
 SERVICE, REGION V, NEW ORLEANS, LOUISIANA, 4 FLRA NO. 42(1980).  THE
 AUTHORITY FOUND, IN PART, THAT RESPONDENT HAD UNILATERALLY CHANGED THE
 ESTABLISHED PAST PRACTICE OF PILOTS REPORTING AIRCRAFT DISCREPANCIES TO
 MECHANICS, AND ORDERED RESPONDENT TO RETURN TO THE STATUS QUO ANTE ON
 THIS ISSUE.  THE REMAINING ISSUES, ALSO INVOLVING ALLEGED UNILATERAL
 CHANGES IN WORKING CONDITIONS, WERE DECIDED IN RESPONDENT'S FAVOR.
 
    IN PREPARING RESPONDENT'S DEFENSE PRIOR TO THE HEARING IN THE
 EXECUTIVE ORDER CASES, ATTORNEY ELIZABETH BRIGMAN DECIDED TO INTERVIEW
 SOME OF THE UNIT EMPLOYEES AT THE AIR SUPPORT BRANCH FACILITY IN BELLE
 CHASSE, LOUISIANA.  PRIOR TO DOING SO, HOWEVER, SHE DID SOME LEGAL
 RESEARCH AND CHECKED WITH HER NATIONAL OFFICE TO ASCERTAIN THE PROPER
 PROCEDURE FOR CONDUCTING SUCH INTERVIEWS.  IT WAS DECIDED THAT AT EACH
 EMPLOYEE'S INTERVIEW SHE WOULD COMPLY WITH THE SAFEGUARDS SET FORTH IN
 THE CASE OF JOHNNIE'S POULTRY CO., 146 NLRB 770, 55 LRRM 1403, FOR THE
 PURPOSE OF ELIMINATING THE POSSIBILITY OF COERCIVE INTERROGATION.  THAT
 CASE ALLOWS AN EMPLOYER TO QUESTION UNIT EMPLOYEES TO ASCERTAIN THE
 NECESSARY FACTS FOR A ULP HEARING IF THE EMPLOYER FIRST:
 
    (1) COMMUNICATES TO THE EMPLOYEE THE PURPOSE OF THE QUESTIONING,
 
    (2) ASSURES HIM THAT NO REPRISAL WILL TAKE PLACE, AND
 
    (3) OBTAINS HIS PARTICIPATION ON A VOLUNTARY BASIS;  AND, IN
 ADDITION,
 
    (4) THE QUESTIONING MUST OCCUR IN A CONTEXT FREE FROM EMPLOYER
 HOSTILITY TO UNION
 
    ORGANIZATION AND MUST NOT BE ITSELF COERCIVE IN NATURE;  AND
 
    (5) THE QUESTIONS MUST NOT EXCEED THE NECESSITIES OF THE LEGITIMATE
 PURPOSE BY PRYING INTO
 
    OTHER UNION MATTERS, ELICITING INFORMATION CONCERNING AN EMPLOYEE'S
 SUBJECTIVE STATE OF MIND,
 
    OR OTHERWISE INTERFERING WITH THE STATUTORY RIGHTS OF EMPLOYEES.
 
    PRIOR TO CONDUCTING ANY INTERVIEWS, ATTORNEY ELIZABETH BRIGMAN
 STUDIED THE ABOVE SAFEGUARDS AND COMMITTED THEM TO MEMORY.  SHE ALSO
 TOOK A WRITTEN LIST OF THE SAFEGUARDS TO THE SUBSEQUENT INTERVIEWS.
 THEN ON JUNE 11 AND 12, 1979, BRIGMAN WENT TO THE AIR SUPPORT BRANCH IN
 BELLE CHASSE AND CONDUCTED INTERVIEWS WITH THREE INDIVIDUAL UNIT
 EMPLOYEES.  SHE DID NOT KNOW WHETHER THE UNION INTENDED TO CALL THESE
 EMPLOYEES AS WITNESSES.  THE INTERVIEWS WERE CONDUCTED DURING WORKING
 HOURS IN A SUPERVISOR'S OFFICE.  THE INTERVIEWS WERE NOT SCHEDULED IN
 ADVANCE AND NO EMPLOYEE WAS ORDERED TO SUBMIT TO THE INTERVIEW.  AT EACH
 INTERVIEW ONLY BRIGMAN AND THE INDIVIDUAL EMPLOYEE WERE PRESENT.  THE
 UNION WAS NOT NOTIFIED IN ADVANCE THAT THE THREE INTERVIEWS WERE GOING
 TO OCCUR, AND WAS NOT OTHERWISE GIVEN AN OPPORTUNITY TO ATTEND.
 
    AT THE OUTSET OF EACH OF THE ABOVE INTERVIEWS, ELIZABETH BRIGMAN TOLD
 THE EMPLOYEE THAT SHE WAS CONDUCTING A FACTFINDING INVESTIGATION ON
 RESPONDENT'S BEHALF IN PREPARATION FOR THE UPCOMING UNFAIR LABOR
 PRACTICE HEARING.  SHE TOLD THEM THAT THEY DID NOT HAVE TO TALK TO HER
 IF THEY DID NOT WANT TO, AND, IF THEY CHOSE TO TALK, THEY COULD ALSO
 REFRAIN FROM ANSWERING ANY PARTICULAR QUESTIONS IF THEY DID NOT WANT TO
 ANSWER THEM.  SHE MADE IT CLEAR TO THEM THAT IT WAS STRICTLY VOLUNTARY
 AND THAT THERE WOULD BE NO REPRISALS AGAINST THEM IF THEY CHOSE NOT TO
 ANSWER THE QUESTIONS.  THESE STATEMENTS WERE MADE FROM MEMORY.  AFTER
 SHE CONCLUDED GIVING THE ABOVE "JOHNNIE'S POULTRY ASSURANCES," EACH
 EMPLOYEE INDICATED THAT HE UNDERSTOOD WHAT HAD BEEN SAID.
 
    THE JUNE 11 INTERVIEW WAS CONDUCTED WITH PILOT MEEK KIKER.  AT THE
 HEARING OF THE INSTANT CASE, THE LATTER TESTIFIED CREDIBLY THAT THE
 ABOVE ASSURANCES WERE GIVEN TO HIM AT HIS INTERVIEW WITH BRIGMAN.  AFTER
 KIKER AGREED TO SUBMIT TO THE INTERVIEW, THE ATTORNEY CONFINED HER
 QUESTIONS TO THE FACTS OF THE UPCOMING UNFAIR LABOR PRACTICE HEARING.
 THE INTERVIEW LASTED ABOUT 20-30 MINUTES.  AT THE 1979 EXECUTIVE ORDER
 HEARING, KIKER TESTIFIED ON BEHALF OF THE RESPONDENT, EVEN THOUGH HE WAS
 A MEMBER OF THE UNION.
 
    ON JUNE 12 BRIGMAN INTERVIEWED PILOTS TERRY WHITE AND WALTER
 CHANDLER.  WHILE SHE WAS GIVING WHITE THE "ASSURANCES," HE ASKED "DO YOU
 THINK I NEED MY UNION REPRESENTATIVE?" SHE TOLD HIM THAT SHE DID NOT
 THINK THAT HE NEEDED A REPRESENTATIVE, AND THAT THIS WAS NOT THE KIND OF
 INTERVIEW REQUIRING THE PRESENCE OF THE UNION.  SHE FURTHER STATED THAT
 SHE PREVIOUSLY HAD CHECKED THIS QUESTION WITH HER SUPERVISOR AND HAD
 BEEN TOLD THAT THE UNION HAD NO RIGHT TO ATTEND SUCH A MEETING.  WHITE
 SAID "OKAY" AND DIDN'T MENTION THE MATTER AGAIN.  BRIGMAN THEN FINISHED
 GIVING WHITE THE "ASSURANCES." WHITE INDICATED THAT HE UNDERSTOOD AND
 VOLUNTARILY SUBMITTED TO THE INTERVIEW, WHICH WAS CONFINED THEREAFTER TO
 THE FACTS OF THE UNFAIR LABOR PRACTICE CASES.  WHITE'S INTERVIEW LASTED
 ABOUT 20 MINUTES.
 
    WHEN WHITE LEFT HIS INTERVIEW, HE TOLD CHANDLER THAT MS. BRIGMAN
 WISHED TO SPEAK WITH HIM.  WHITE WAS APPARENTLY HAVING SECOND THOUGHTS
 ABOUT WHETHER THE UNION HAD A RIGHT TO ATTEND THE MEETINGS, BECAUSE HE
 MENTIONED THE MATTER TO CHANDLER JUST BEFORE THE LATTER ENTERED HIS
 INTERVIEW.  CONSEQUENTLY, WHEN BRIGMAN WAS GIVING CHANDLER THE
 "ASSURANCES," HE ASKED HER IF SHE WAS SURE THE UNION DID NOT HAVE A
 RIGHT TO ATTEND.  SHE TOLD HIM THE SAME THING SHE TOLD WHITE, I.E., THAT
 IT WAS HER SUPERVISOR'S OPINION THAT THE UNION HAD NO SUCH RIGHT.  SHE
 THEN FINISHED ASSURING CHANDLER THAT NO REPRISALS WOULD OCCUR REGARDLESS
 OF WHETHER HE PARTICIPATED OR NOT AND OBTAINED HIS VOLUNTARY COOPERATION
 TO PARTICIPATE IN THE ENSUING 5 MINUTE INTERVIEW.  AS IN THE PRECEDING
 INTERVIEWS, ALL QUESTIONS PERTAINED TO THE ESSENTIAL FACTS OF THE UNFAIR
 LABOR PRACTICE ISSUES AND DID NOT EXCEED THE NECESSITIES OF THIS
 LEGITIMATE PURPOSE.
 
    IN ALL THREE OF THE ABOVE INTERVIEWS BRIGMAN MADE SURE THAT SHE "GOT
 EVERYTHING IN" THAT WAS REQUIRED BY THE NLRB IN THE JOHNNIE'S POULTRY
 CASE.  SHE ALSO WAS CAREFUL TO CREATE A CORDIAL, NON-COERCIVE
 ATMOSPHERE.  ALL THREE EMPLOYEES WERE VERY COOPERATIVE AND HELPFUL IN
 ANSWERING HER QUESTIONS, AND EXPLORED MANY FACT SITUATIONS IN DETAIL.
 BRIGMAN TOOK NOTES DURING THE INTERVIEWS.
 
    SUBSEQUENT TO THE ABOVE MEETINGS, THE UNION STEWARD OBJECTED TO THE
 CONTINUATION OF SUCH INTERVIEWS UNLESS THE UNION WAS GIVEN THE
 OPPORTUNITY TO ATTEND.  NO FURTHER INTERVIEWS WERE CONDUCTED.
 
    AT THE 1979 HEARING IN THE EXECUTIVE ORDER CASES, WHITE AND CHANDLER
 TESTIFIED FOR THE UNION.  WHEN BRIGMAN CROSS-EXAMINED THEM, SHE BROUGHT
 OUT POINTS IN SUPPORT OF THE AGENCY'S CASE THAT SHE HAD LEARNED IN THE
 INTERVIEWS.  KIKER WAS CALLED AS A WITNESS FOR THE AGENCY.
 
                            CONCLUSIONS OF LAW
 
    THE COERCIVE INTERROGATION ISSUE
 
    THE FIRST ISSUE PRESENTED FOR CONSIDERATION IS WHETHER THE RESPONDENT
 AGENCY'S ATTORNEY CONDUCTED COERCIVE INTERROGATIONS OF BARGAINING UNIT
 EMPLOYEES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING.  A
 COERCIVE INTERVIEW OF A BARGAINING UNIT EMPLOYEE BY AGENCY
 REPRESENTATIVES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING HAS
 LONG BEEN PROHIBITED IN THE PRIVATE SECTOR BECAUSE IT INHIBITS THE
 EMPLOYEE IN THE EXERCISE OF HIS PROTECTED RIGHTS UNDER SEC. 7 OF THE
 LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. 157.  JOY SILK MILLS, INC. V.
 N.L.R.B., 185 F.2D 732(D.C. CIR. 1950), 27 LRRM 2012.  OVER THE YEARS,
 THE NATIONAL LABOR RELATIONS BOARD AND THE COURTS HAVE ATTEMPTED TO
 DEVELOP A STANDARD OF EMPLOYER CONDUCT FOR PRE-HEARING INTERVIEWS OF
 PROSPECTIVE EMPLOYEE WITNESSES WHICH STRIKES "A DELICATE BALANCE BETWEEN
 THE LEGITIMATE INTEREST OF THE EMPLOYER IN PREPARING ITS CASE FOR TRIAL,
 AND THE INTEREST OF THE EMPLOYEE IN BEING FREE FROM UNWARRANTED
 INTERROGATION." TEXAS INDUSTRIES, INC. V. N.L.R.B., 336 F.2D 128, 133
 (5TH CIR. 1964), 57 LRRM 2046.  THE INTERROGATION RULES FOLLOWED BY THE
 BOARD ARE SET FORTH IN THE WELL-KNOWN CASE OF JOHNNIE'S POULTRY, INC.,
 146 NLRB 770, 55 LRRM 1403(1964), ENFORCEMENT DENIED, /8/ 344 F2D
 617(8TH CIR. 1965), 59 LRRM 2117.  JOHNNIE'S POULTRY PROVIDES THAT THE
 FOLLOWING SAFEGUARDS MUST BE OBSERVED TO MINIMIZE THE COERCIVE IMPACT OF
 EMPLOYER INTERROGATION IN THESE CIRCUMSTANCES:
 
    (T)HE EMPLOYER MUST COMMUNICATE TO THE EMPLOYEE THE PURPOSE OF THE
 QUESTIONING, ASSURE HIM
 
    THAT NO REPRISAL WILL TAKE PLACE, AND OBTAIN HIS PARTICIPATION ON A
 VOLUNTARY BASIS;  THE
 
    QUESTIONING MUST OCCUR IN A CONTEXT FREE FROM EMPLOYER HOSTILITY TO
 UNION ORGANIZATION AND
 
    MUST NOT EXCEED THE NECESSITIES OF THE LEGITIMATE PURPOSE BY PRYING
 INTO OTHER UNION MATTERS,
 
    ELICITING INFORMATION CONCERNING AN EMPLOYEE'S SUBJECTIVE STATE OF
 MIND, OR OTHERWISE
 
    INTERFERING WITH THE STATUTORY RIGHTS OF EMPLOYEES.
 
    146 NLRB AT 775.
 
    IT IS THE BOARD'S POSITION THAT FAILURE TO ADHERE STRICTLY TO THE
 RULES SET FORTH IN JOHNNIE'S POULTRY CONSTITUTES A PER SE VIOLATION OF
 SEC. 8(A)(1) OF THE LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. 158(A)(1).
  HOWEVER, THAT POSITION HAS NOT BEEN ADOPTED BY SEVERAL CIRCUIT COURTS
 OF APPEALS WHICH HAVE TENDED TO IGNORE TECHNICAL OMISSIONS AND LOOK TO
 THE "TOTALITY OF THE CIRCUMSTANCES" WHEN DECIDING WHETHER COERCION IS
 PRESENT.  SEE DISCUSSION OF CASES IN A & R TRANSPORT, INC. V. N.L.R.B.,
 601 F2D 311(7TH CIR. 1979), 101 LRRM 2856.  DUE TO THE PARTICULAR
 CIRCUMSTANCES OF THE INSTANT CASE, HOWEVER, IT WILL NOT BE NECESSARY TO
 DECIDE WHETHER THE BOARD'S VIEW IS TOO RIGID A TEST FOR THE PUBLIC
 SECTOR.  THIS IS SO BECAUSE I HAVE FOUND, BASED UPON THE CREDIBLE
 TESTIMONY OF THE AGENCY'S ATTORNEY, BETTY BRIGMAN, THAT SHE STRICTLY
 OBSERVED THE JOHNNIE'S POULTRY SAFEGUARDS (THE MOST RIGID TEST) AND
 CREATED A NON-COERCIVE ATMOSPHERE DURING EACH OF THE EMPLOYEE INTERVIEWS
 IN QUESTION.
 
    I WAS IMPRESSED WITH MS. BRIGMAN'S TESTIMONIAL DEMEANOR AND I AM
 CONVINCED THAT SHE WAS TELLING THE TRUTH.  /9/ SHE EXPLAINED HOW SHE HAD
 RESEARCHED THE JOHNNIE'S POULTRY RULES, AND OBTAINED THE INSTRUCTION OF
 HER NATIONAL OFFICE TO FOLLOW THOSE RULES, PRIOR TO CONDUCTING ANY
 INTERVIEWS.  SHE MADE NOTES AND MEMORIZED THE SAFEGUARDS.  AT THE OUTSET
 OF EACH INTERVIEW SHE TOLD THE EMPLOYEE THE PURPOSE OF HER QUESTIONING,
 AND ASSURED HIM THAT NO REPRISAL WOULD TAKE PLACE, AND OBTAINED HIS
 PARTICIPATION ON A VOLUNTARY BASIS.  /10/ THE QUESTIONS WHICH FOLLOWED
 PERTAINED STRICTLY TO THE ISSUES OF THE UNFAIR LABOR PRACTICE COMPLAINT
 AND THE ATMOSPHERE WAS NON-COERCIVE.  SHE DID NOT PRY INTO UNION
 MATTERS, ELICIT INFORMATION CONCERNING THE EMPLOYEES' SUBJECTIVE STATE
 OF MIND (MATTERS WITHOUT PROBATIVE VALUE), OR OTHERWISE INTERFERE WITH
 THEIR PROTECTED RIGHTS UNDER THE STATUTE.
 
    IN CONCLUSION, I HOLD THAT THE AGENCY ATTORNEY'S INTERVIEWS OF
 PROSPECTIVE EMPLOYEE WITNESSES IN PREPARATION FOR AN UNFAIR LABOR
 PRACTICE HEARING WERE NOT COERCIVE AND DID NOT OTHERWISE VIOLATE THE
 PROTECTED RIGHTS OF THE EMPLOYEES.  THEREFORE, I FIND NO VIOLATION OF
 SEC. 7116(A)(1) OF THE STATUTE.  IN ADDITION, SINCE THE QUESTIONING WAS
 PROPER, IT DID NOT INTERFERE WITH THE UNFAIR LABOR PRACTICE PROCEEDING
 AS CONTENDED BY THE GENERAL COUNSEL.  /11/
 
    THE "FORMAL DISCUSSION" ISSUE
 
    THE NEXT ISSUE FOR CONSIDERATION IS WHETHER THE ABOVE INTERVIEWS OF
 UNIT EMPLOYEES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING
 CONSTITUTED "FORMAL DISCUSSIONS" CONCERNING GENERAL CONDITIONS OF
 EMPLOYMENT WITHIN THE PURVIEW OF SEC. 7114(A)(2)(A) OF THE STATUTE.
 THAT SECTION PROVIDES THAT THE EXCLUSIVE REPRESENTATIVE SHALL BE GIVEN
 AN OPPORTUNITY TO BE REPRESENTED AT SUCH FORMAL DISCUSSIONS.  SINCE THE
 UNION WAS NOT GIVEN THAT OPPORTUNITY IN THIS CASE, THE GENERAL COUNSEL
 AND THE CHARGING PARTY CONTEND THAT RESPONDENT VIOLATED SECTIONS
 7116(A)(1), (5), AND (8).
 
    SECTION 7114(A)(2)(A) PROVIDES AS FOLLOWS:
 
    (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 PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT.
 
    THE LANGUAGE CONTAINED IN THIS STATUTE HAD ITS GENESIS IN THE THIRD
 SENTENCE OF SEC. 10(E) OF EXECUTIVE ORDER 11491.  IT IS CLEAR THAT,
 UNDER THAT SENTENCE, TWO REQUIREMENTS HAD TO BE MET BEFORE THE UNION'S
 RIGHT TO BE REPRESENTED AT MEETINGS BETWEEN MANAGEMENT AND BARGAINING
 UNIT EMPLOYEES ATTACHED:  (1) THE MEETING MUST HAVE BEEN A "FORMAL" ONE;
  AND (2) THE MEETING MUST HAVE CONCERNED "GRIEVANCES, PERSONNEL POLICIES
 AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
 EMPLOYEES IN THE UNIT." NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
 (NASA), WASHINGTON, D.C., FLRC NO. 74A-95, 3 FLRC 618(1975).
 
    WHETHER A MEETING BETWEEN A BARGAINING UNIT EMPLOYEE AND AN AGENCY
 REPRESENTATIVE WAS A "FORMAL DISCUSSION" AS THAT TERM WAS USED IN SEC.
 10(E) OF THE ORDER WAS BASICALLY A FACTUAL DETERMINATION MADE BY
 CONSIDERING MANY TYPES OF FACTORS SUCH AS "WHO CALLED THE MEETING AND
 FOR WHAT PURPOSE;  WHETHER WRITTEN NOTICE WAS GIVEN;  WHERE THE MEETING
 WAS HELD;  WHO ATTENDED;  WHETHER A RECORD OR NOTES OF THE MEETING WERE
 KEPT;  AND WHAT WAS ACTUALLY DISCUSSED." DEPARTMENT OF DEFENSE, U.S.
 NAVY, NORFOLK NAVAL SHIPYARD, AND TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO, FLRC NO. 77A-141, 6 FLRC 1103(1978).
 
    THERE CAN BE NO DOUBT THAT THE ASSISTANT SECRETARY WOULD HAVE
 CONSIDERED THE EMPLOYEE INTERVIEWS IN QUESTION TO HAVE BEEN "FORMAL" IN
 NATURE, THEREBY SATISFYING THE FIRST REQUIREMENT OF SEC. 10(E).  IN
 INTERNAL REVENUE SERVICE SOUTH CAROLINA DISTRICT, A/SLMR NO. 1172, 8
 A/SLMR 1370(1978), HE HELD THAT THE INTERVIEW OF A UNIT EMPLOYEE WHO WAS
 A POTENTIAL WITNESS IN AN UPCOMING ARBITRATION HEARING CONSTITUTED A
 FORMAL DISCUSSION.  SEE ALSO, UNITED STATES AIR FORCE, MCCLELLAN AIR
 FORCE BASE, CALIFORNIA, A/SLMR NO. 830, 7 A/SLMR 350(1977), FLRC NO.
 77A-56 (1977).  THUS, IT WOULD APPEAR THAT THE INTERVIEWS OF POTENTIAL
 WITNESSES FOR AN UNFAIR LABOR PRACTICE HEARING AS IN THE INSTANT CASE
 WOULD BE CONSIDERED "FORMAL."
 
    HOWEVER, THE ABOVE-CITED CASES ARE NOT DISPOSITIVE OF THE INSTANT
 CASE SINCE SEC. 10(E) WAS HELD TO APPLY DUE TO THE FACT THAT THOSE
 INTERVIEWS WERE CONDUCTED IN CONNECTION WITH THE PROCESSING OF PENDING
 "GRIEVANCES." /12/ HERE, SINCE NO GRIEVANCE EXISTED, THE SECOND
 REQUIREMENT OF SEC. 7114(A)(2)(A) AND ITS PREDECESSOR WILL NOT BE
 SATISFIED UNLESS THE DISCUSSIONS CONCERNED A "GENERAL CONDITION OF
 EMPLOYMENT." /13/ "CONDITIONS OF EMPLOYMENT" ARE DEFINED IN SEC.
 7103(A)(14), IN PERTINENT PART, AS "MATTERS . . . AFFECTING WORKING
 CONDITIONS." "AFFECTING" IS DEFINED AS "PRODUCING AN EFFECT OR CHANGE
 IN" SOMETHING.  RANDOM HOUSE COLLEGE DICTIONARY (1973 ED.).
 
    THUS THE QUESTION BECOMES:  DOES A PRE-HEARING EMPLOYEE INTERVIEW,
 WHICH IS CONFINED TO ASCERTAINING THE FACTS IN PREPARATION OF THE
 AGENCY'S DEFENSE OF AN UNFAIR LABOR PRACTICE COMPLAINT, CONCERN A MATTER
 PRODUCING A CHANGE IN GENERAL WORKING CONDITIONS?  CERTAINLY THERE IS NO
 DIRECT CONNECTION BETWEEN THE ABOVE PROCESS OF GATHERING FACTS AND THE
 ULTIMATE DISPOSITION OF THE COMPLAINT.  IT IS, OF COURSE, POSSIBLE THAT
 THE ULTIMATE DISPOSTION WILL RESULT IN PUTTING UNILATERALLY CHANGED
 WORKING CONDITIONS BACK ON THE BARGAINING TABLE AND A RETURN TO THE
 STATUS QUO ANTE.  BUT THE CONNECTION BETWEEN THE INFORMATION ACQUIRED AT
 MEETINGS LIKE THE ONES IN QUESTION AND THIS ULTIMATE RESULT IS TOO
 TENUOUS.  /14/ SECTION 7114(A)(2)(A) NECESSARILY ENCOMPASSES ONLY THOSE
 MEETINGS IN WHICH THE UNION REPRESENTATIVE COULD BE EXPECTED TO PLAY A
 MEANINGFUL AND USEFUL ROLE REGARDING CHANGES IN WORKING CONDITIONS.  THE
 FACT-FACTING SESSIONS IN ISSUE HEREIN DO NOT LEND THEMSELVES TO THIS
 TYPE OF ROLE.  THEREFORE, I HOLD THAT THESE INTERVIEWS DID NOT
 CONSTITUTE "FORMAL DISCUSSION(S) . . . CONCERNING . . . GENERAL
 CONDITION(S) OF EMPLOYMENT" SINCE THEY LACKED THE REQUISITE NEXUS TO
 CHANGES IN WORKING CONDITIONS.
 
    HOWEVER, THERE ARE FAR MORE IMPORTANT REASONS WHY THE INTERPRETATION
 ADVANCED BY THE GENERAL COUNSEL AND THE CHARGING PARTY SHOULD NOT
 PREVAIL.  THEIR VIEW WOULD DEAL A SERIOUS BLOW TO THE ADVERSARY SYSTEM
 OF JUSTICE IN THE FIELD OF PUBLIC SECTOR LABOR LAW.  THE COLLECTIVE
 BARGAINING RELATIONSHIP ENVISAGED BY THE STATUTE REQUIRES THAT EACH
 PARTY HAVE THE ABILITY TO FUNCTION AS AN EQUAL PARTNER WITHIN THE
 RELATIONSHIP.  UNITED STATES AIR FORCE, AIR FORCE LOGISTICS COMMAND,
 AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK, OHIO, 4 FLRA NO.
 70(1980).  FURTHER, IT IS BASIC TO THE CONCEPT OF JUDICIAL FAIRNESS AND
 ADMINISTRATIVE DUE PROCESS THAT THE PARTIES TO A LAWSUIT BE AFFORDED
 EQUAL PROCEDURAL RIGHTS.  THE GENERAL COUNSEL'S INTERPRETATION OF SEC.
 7114(A)(2)(A) WOULD PUT THE PARTIES ON AN UNEQUAL FOOTING BY ALLOWING
 ONE PARTY ALONE, THE UNION, A FORM OF DISCOVERY ENCOMPASSING NOT ONLY
 THE FACTS ELICITED BY THE AGENCY ATTORNEY, TO THE EXTENT THEY ARISE
 DURING THE INTERVIEW, BUT ALSO THE CONFIDENTIAL THEORIES AND STRATEGIES
 OF THE AGENCY'S CASE IN DEFENSE OF THE UNFAIR LABOR PRACTICE COMPLAINT.
 THE QUESTIONS ASKED BY THE ATTORNEY WOULD INEVITABLY REVEAL THE FACTUAL
 TERRITORY ON WHICH THE AGENCY'S DEFENSES ARE BASED AND THEREBY GIVE THE
 UNION AN UNFAIR ADVANTAGE AND VALUABLE INSIGHT INTO THE AGENCY'S CASE IN
 ADVANCE OF THE HEARING.  THIS WOULD BE EQUIVALENT TO PROVIDING THE UNION
 WITH ITS OWN EXCLUSIVE PROCEDURAL RIGHT WHICH WOULD DIRECTLY CONFLICT
 WITH THE FAIR, BALANCED PRETRIAL AND TRAIL PROCEDURES PROVIDED BY THE
 AUTHORITY'S REGULATIONS.  IN SHORT, THE GENERAL COUNSEL'S AND CHARGING
 PARTY'S POSITION AMOUNTS TO UNJUSTIFIED TAMPERING WITH THE ADVERSARY
 SYSTEM ITSELF, WHICH HAS PROVEN TO BE A WORKABLE MEANS OF SEEKING THE
 TRUTH.
 
    IN ADDITION, IT WOULD BE EQUALLY ABHORRENT TO THE ADVERSARY Y SYSTEM
 OF JURISPRUDENCE TO ALLOW ANY PARTY (IN THIS CASE, THE UNION) TO INVADE
 THE PRIVACY OF THE OPPOSING COUNSEL IN THE PREPARATION OF HIS CASE.
 THIS PRINCIPLE WAS ENUNCIATED BY THE SUPREME COURT IN HICKMAN V. TAYLOR,
 329 U.S. 495 AT 510(1947):
 
    . . . HERE IS SIMPLY AN ATTEMPT, WITHOUT PURPORTED NECESSITY OR
 JUSTIFICATION, TO SECURE
 
    WRITTEN STATEMENTS, PRIVATE MEMORANDA AND PERSONAL RECOLLECTIONS
 PREPARED OR FORMED BY AN
 
    ADVERSE PARTY'S COUNSEL IN THE COURSE OF HIS LEGAL DUTIES.  AS SUCH,
 IT FALLS OUTSIDE THE
 
    ARENA OF DISCOVERY AND CONTRAVENES THE PUBLIC POLICY UNDERLYING THE
 ORDERLY PROSECUTION AND
 
    DEFENSE OF LEGAL CLAIMS.  NOT EVEN THE MOST LIBERAL OF DISCOVERY
 THEORIES CAN JUSTIFY
 
    UNWARRANTED INQUIRIES INTO THE FILES AND THE MENTAL IMPRESSIONS OF AN
 ATTORNEY.
 
    HISTORICALLY, A LAWYER IS AN OFFICER OF THE COURT AND IS BOUND TO
 WORK FOR THE ADVANCEMENT
 
    OF JUSTICE WHILE FAITHFULLY PROTECTING THE RIGHTFUL INTERESTS OF HIS
 CLIENTS.  IN PERFORMING
 
    HIS VARIOUS DUTIES, HOWEVER, IT IS ESSENTIAL THAT A LAWYER WORK WITH
 A CERTAIN DEGREE OF
 
    PRIVACY, FREE FROM UNNECESSARY INTRUSION BY OPPOSING PARTIES AND
 THEIR COUNSEL.  PROPER
 
    PREPARATION OF A CLIENT'S CASE DEMANDS THAT HE ASSEMBLE INFORMATION,
 SIFT WHAT HE CONSIDERS TO
 
    BE THE RELEVANT FROM THE IRRELEVANT FACTS, PREPARE HIS LEGAL THEORIES
 AND PLAN HIS STRATEGY
 
    WITHOUT UNDUE AND NEEDLESS INTERFERENCE.  THAT IS THE HISTORICAL AND
 THE NECESSARY WAY IN
 
    WHICH LAWYERS ACT WITHIN THE FRAMEWORK OF OUR SYSTEM OF JURISPRUDENCE
 TO PROMOTE JUSTICE AND
 
    TO PROTECT THEIR CLIENT'S INTERESTS.  THIS WORK IS REFLECTED, OF
 COURSE, IN INTERVIEWS,
 
    STATEMENTS, MEMORANDA, CORRESPONDENCE, BRIEFS, MENTAL IMPRESSIONS,
 PERSONAL BELIEFS, AND
 
    COUNTLESS OTHER TANGIBLE AND INTANGIBLE WAY-- APTLY THOUGH ROUGHLY
 TERMED BY THE CIRCUIT COURT
 
    OF APPEALS IN THIS CASE (153 F.2D 212, 223) AS THE "WORK PRODUCT OF
 THE LAWYER." WERE SUCH
 
    MATERIALS OPEN TO OPPOSING COUNSEL ON MERE DEMAND, MUCH OF WHAT IS
 NOW PUT DOWN IN WRITING
 
    WOULD REMAIN UNWRITTEN.  AN ATTORNEY'S THOUGHTS, HERETOFORE
 INVIOLATE, WOULD NOT BE HIS
 
    OWN.  INEFFICIENCY, UNFAIRNESS AND SHARP PRACTICES WOULD INEVITABLY
 DEVELOP IN THE GIVING OF
 
    LEGAL ADVICE AND IN THE PREPARATION OF CASES FOR TRIAL. THE EFFECT ON
 THE LEGAL PROFESSION
 
    WOULD BE DEMORALIZING.  AND THE INTERESTS OF THE CLIENTS AND THE
 CAUSE OF JUSTICE WOULD BE
 
    POORLY SERVED.
 
    THESE PRINCIPLES SHOULD NOT BE VIOLATED UNLESS EXCEPTIONAL
 CIRCUMSTANCES ARE SHOWN.  GOOD CAUSE HAS NOT BEEN SHOWN.  OBVIOUSLY, IF
 THE UNION WERE ALLOWED TO ATTEND INTERVIEWS SIMILAR TO THOSE IN QUESTION
 IT WOULD BE AIDED IN THE PREPARATION OF ITS OWN CASE BY GATHERING
 ADDITIONAL EVIDENCE.  BUT THIS "NEED" IS MORE THAN OFFSET BY THE
 UNWARRANTED INTRUSION INTO THE SUBTLETIES OF THE AGENCY'S DEFENSE.
 ALSO, SINCE THE PURPOSE OF THE INTERVIEW INVOLVES A SEARCH FOR THE
 TRUTH, THIS PURPOSE MIGHT SOMETIMES BE THWARTED.  ALTHOUGH THE UNION
 WOULD GENERALLY BE EXPECTED, IN THE INTEREST OF GOOD LABOR-MANAGEMENT
 RELATIONS, TO PLAY A CONSTRUCTIVE ROLE IN ELICITING FACTS FROM THE
 EMPLOYEE, IT IS UNFORTUNATELY FORESEEABLE THAT SOME UNION
 REPRESENTATIVES MIGHT INSTRUCT THE EMPLOYEE TO REFRAIN FROM ANSWERING
 CERTAIN LEGITIMATE QUESTIONS.  ALSO, SOME EMPLOYEES MIGHT BE RELUCTANT
 TO REVEAL FACTS WHICH ARE CONTRARY TO THE UNION'S POSITION IN THE
 PRESENCE OF THE UNION REPRESENTATIVE.  FINALLY, IT MIGHT BE ARGUED THAT
 THE UNION'S PRESENCE WOULD HELP TO INSURE AGAINST COERCIVE
 INTERROGATION.  HOWEVER, THE EXPERIENCE IN THE PRIVATE SECTOR HAS SHOWN
 THAT THE UNION'S PRESENCE IS NOT NEC