13:0027(5)CA - Bureau of Governmental Financial Operations, HQ and NTEU and NTEU Chapter 202 -- 1983 FLRAdec CA



[ v13 p27 ]
13:0027(5)CA
The decision of the Authority follows:


 13 FLRA No. 5
 
 
 BUREAU OF GOVERNMENTAL FINANCIAL
 OPERATIONS, HEADQUARTERS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 202
 Charging Party
 
                                            Case No. 3-CA-2646
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practice alleged in the complaint, and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Exceptions to the Judge's Decision were filed by
 the Respondent, and an opposition was filed by the Charging Party.
 
    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.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations only to the extent
 consistent herewith.
 
    The Administrative Law Judge, upon concluding that interviews of unit
 employees as witnesses in preparation for hearing before the Merit
 Systems Protection Board (MSPB) are formal discussions of grievances
 within the meaning of section 7114(a)(2)(A) of the Statute, found that
 the Respondent herein violated section 7116(a)(1) and (8) of the Statute
 by virtue of its failure to notify the Charging Party of a pre-trial
 interview of an employee held prior to his appearance at an MSPB hearing
 involving a fellow employee.  The Authority disagrees.
 
    Subsequent to the issuance of the Judge's Decision, the Authority
 issued its Decision in Internal Revenue Service and Brookhaven Service
 Center, 9 FLRA No. 132 (1982), wherein it concluded, in general, that
 "fact-gathering sessions between a representative of the Respondent and
 a unit employee wherein management was merely seeking information to aid
 in the preparation of its cases for presentation at proceedings before a
 third-party neutral, in the same manner as an exclusive representative
 may gather the facts from employees prior to such proceedings," did not
 constitute formal discussions within the meaning of section
 7114(a)(2)(A).  /1A/ Based on the entire record and for the reasons
 expressed in Internal Revenue Service, the Authority finds that the
 Respondent did not violate section 7116(a)(1) and (8) of the Statute by
 not affording the Charging Party the opportunity to be present at a
 pre-MSPB hearing interview between the Respondent's representative and a
 bargaining unit employee.  The complaint shall, therefore, be dismissed
 in its entirety.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint be, and it hereby is,
 dismissed.  
 
 
 Issued, Washington, D.C., September 15, 1983 
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CA-2646
 
    Arthur S. Rosenzweig, Esquire
       For the Respondent
 
    Patricia Eanet Dratch, Esquire
       For the General Counsel
 
    Patricia Armstrong, Esquire
       For the Charging Party
 
    Before:  BURTON S. STERNBURG
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5
 U.S.C.Section 7101, et seq., and the Rules and Regulations issued
 thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46,
 No. 154, August 11, 1981, 5 C.F.R. Chapter XIV, Part 2411, et seq.
 
    Pursuant to a charge filed on July 2, 1981, by the National Treasury
 Employees Union and NTEU Chapter 202 (hereinafter called the NTEU or
 Union), a Complaint and Notice of Hearing was issued on March 22, 1982,
 by the Regional Director for Region III, Federal Labor Relations
 Authority, Washington, D.C.  The Complaint alleges that the Bureau of
 Government Financial Operations, Headquarters (hereinafter called the
 Respondent or BGFO), violated Section 7116(a)(1) and (8) of the Federal
 Service Labor-Management Relations Statute (hereinafter called the
 Statute or Act), by virtue of its actions in holding a formal discussion
 with an employee without notifying the Union and giving it an
 opportunity to be present.
 
    A hearing was held in the captioned matter on April 27, 1982, in
 Washington, D.C.  All parties were afforded full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The Respondent and the Union
 submitted post-hearing briefs on May 27, 1982, which have been duly
 considered along with the General Counsel's closing argument made on the
 record.
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union, the charging party herein, is the exclusive bargaining
 representative of the Respondent's "non-professional non-supervisory
 general schedule (GS) and wage grade (WG) employees. . . ."
 
    On December 20, 1980, Mr. James Lewis, a Sorting and Review Clerk,
 witnessed an altercation between Philip Murphy, a fellow employee, and
 his supervisor Eleanor Johnson.  Although not entirely clear from the
 record, it appears that because of the altercation Respondent decided to
 terminate Mr. Murphy's employment.  Therefore, Mr. Murphy appealed his
 removal to the Merit Systems Protection Board which set the matter down
 for hearing in August 1981.
 
    On June 8, 1981, Mr. John Maus, an attorney assigned to represent
 Respondent in the scheduled MSPB hearing, along with Labor Relations
 Specialists Harold Howard and Robert Johnson interviewed all the people
 "that had given statements in the (Respondent's) investigative file."
 
    Upon finishing the interviews with the employees who had previously
 given statements, Mr. Maus decided to interview Mr. Lewis, because he,
 Mr. Maus, was aware that Mr. Lewis was going to be called by the Union
 as a witness in the MSPB hearing.
 
    According to Mr. Maus, whose testimony is corroborated by Mr.
 Johnson, he had Mr. Johnson call up Mr. Lewis and tell him to report to
 Mr. Johnson's office.  When Mr. Lewis entered Mr. Johnson's office, Mr.
 Maus identified himself and told Mr. Lewis that they were investigating
 the December 20, 1980, incident between Mr. Murphy and Ms. Johnson.  Mr.
 Maus then proceeded to ask Mr. Lewis a number of questions concerning
 the events of December 20, 1980, and made notes thereon.  Mr. Lewis
 testified that upon entering Mr. Johnson's office the three individuals
 present only identified themselves by name not affiliation and that he
 was under the impression that they represented the Union.  Subsequently,
 when he, Mr. Lewis, noticed that the questions being propounded were
 "slanted against Mr. Murphy," he stopped answering the questions.
 Whereupon, the individuals identified themselves as agents of the
 Respondent and informed him that "it would be in the best interest of
 everybody if he cooperated, but he did not have to." Thereafter, he
 answered a few more questions.  According to Mr. Lewis, during the
 meeting which lasted some 20 to 30 minutes, he was asked how he felt
 about the incident and his impressions of Mr. Murphy and Ms. Johnson.
 /1/
 
                          Discussion and Analysis
 
    The sole issue to be decided herein is whether a pre-trial interview
 of a potential union witness in preparation for a scheduled hearing
 before the Merit Systems Protection Board is a formal discussion within
 the meaning of Section 7114(a)(2)(A) of the Statute to which the Union
 must be accorded notice and an opportunity to attend.
 
    The Union and the General Counsel, relying primarily on the
 Authority's decision in Internal Revenue Service, Fresno Service Center
 and NTEU, 7 FLRA No. 54, and the Assistant Secretary's decisions in U.S.
 Air Force, McClellan AFB, California, and Local 1857, AFGE, AFL-CIO,
 A/SLMR No. 830, 7 A/SLMR 350;  and Internal Revenue Service, South
 Carolina District and NTEU, A/SLMR No. 1172, 8 A/SLMR 1370, would answer
 the question in the affirmative.
 
    The Respondent, on the other hand, noting the pending decision of
 Administrative Law Judge Mason in U.S. Department of Treasury, United
 States Customs Service, Region V and NTEU, Case No. 6-CA-237, March 20,
 1981, wherein Judge Mason found pre-trial witness interviews in
 connection with unfair labor practice proceedings not to be formal
 discussions within the meaning of 7114(a)(2)(A) of the Statute, would
 answer the question in the negative.
 
    Respondent takes the position that Section 7114(a)(2)(A) involves
 only discussions concerning labor relations and is not applicable to
 adversary proceedings initiated under the MSPB pursuant to the
 discretion accorded employees by Section 7121(e)(1) of the Statute.
 
    Finally, Respondent takes the position that the meeting was not a
 discussion and that at best it was an examination in connection with an
 investigation within the meaning of Section 7114(a)(2)(B), wherein the
 Union was only entitled to attend if the employee reasonably believed
 that discipline was in the offing and requested union representation.
 In this latter context the Respondent points out that "there was no
 reasonable basis for believing that he (Mr. Lewis) would be disciplined"
 and "no indication that Mr. Lewis requested representation prior to, or
 during, the meeting."
 
    Section 7114(a)(2)(A) which is similar in all pertinent respects to
 Section 10(e) of Executive Order 11491, as amended, 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 conditions of employment.
 
    Both a literal reading of the above cited section of the Statute and
 the existing case precedent make it clear that in order for a violation
 to be established herein it must be shown that (1) the meeting was
 formal, (2) a discussion occurred between representatives of management
 and a bargaining unit employee, and (3) the subject matter concerned a
 grievance or any personnel policy.
 
    Inasmuch as the meeting involved herein was called by management,
 held away from Mr. Lewis' work area in Respondent's office and marked by
 the taking of notes by the high level agency representatives, I find
 that the meeting to be "formal." Internal Revenue Service, Fresno
 Service Center;  U.S. Air Force McClellan AFB, California;  and IRS,
 South Carolina, supra.
 
    With respect to the second item, i.e. whether the meeting was a
 discussion between representatives of management and a bargaining unit
 employee, as noted above, Respondent takes the position that there was
 no "discussion" as defined in Webster's Seventh New Collegiate
 Dictionary since there was no informal debate or formal treatment of a
 topic.  Respondent would also distinguish the facts of the instant case
 from IRS, Fresno Service Center, supra, since the interview or meeting
 in Fresno concerned a meeting between the EEO complainant and management
 and not as here a meeting between a possible witness and management.
 Inasmuch as Mr. Lewis was only a witness and not the party-in-interest
 as in Fresno, there was neither possibility of settlement of the adverse
 action nor any foreseeable impact on existing conditions of employment.
 
    Although Respondent has correctly set forth the Webster Dictionary
 definition of "discussion" and the record evidence indicates that the
 meeting with Mr. Lewis would more aptly fall within the definition of
 "interrogation", i.e. to question formally and systematically, I am
 constrained, upon the basis of existing case precedent, to find that the
 meeting with Mr. Lewis was indeed a "discussion" between representatives
 of management and a bargaining unit employee within the meaning of
 Section 7114(a)(2)(A) of the Statute.
 
    In reaching this conclusion I rely on the Assistant Secretary's
 decisions in U.S. Air Force McClellan AFB, California and IRS, South
 Carolina, supra.
 
    In McClellan, Respondent's counsel, upon receiving a list of
 potential witnesses to be called in the plaintiff's behalf at an
 arbitration hearing to be held the following day, scheduled a meeting in
 the personnel office the morning of the day of the hearing for purposes
 of interviewing three witnesses on the list whose testimony he was
 unaware of.  In finding 19(a)(6) and (1) violation predicated upon
 Respondent's failure to afford the Union the opportunity to be present
 at the interviews, the Assistant Secretary stated, in pertinent part, as
 follows:
 
          In the instant case, I find that the Complainant, as the
       exclusive representative of the employees in the unit, had a
       legitimate interest in being represented at the interviews of the
       unit employees involved which were conducted in connection with
       the processing of a pending grievance.  Thus, clearly, the
       information discussed could potentially have affected the
       disposition of the pending grievance.  Moreover, in my view, under
       the circumstances herein, including the fact that the witnesses
       interviewed were those of the grievant, the Complainant's
       representational responsibility, which under Section 10(e) of the
       Order extends to all employees in the bargaining unit, outweighed
       any impact its presence during the interviews might have had on
       the Respondent's preparation of its case for arbitration.
 
    Similarly, in IRS, South Carolina, supra, the Assistant Secretary
 found a 19(a)(6) and (1) violation predicated upon Respondent's action
 in interviewing a unit employee witness a week before a scheduled
 arbitration hearing without affording the Union the opportunity to be
 present at the interview.  In reversing the Administrative Judges
 decision to the contrary, the Assistant Secretary disagreed with the
 Administrative Judges determination that the case was distinguishable
 from McClellan on the grounds that the interview was held a week before
 the scheduled arbitration hearing and the witness was not listed as a
 potential witness for the Plaintiff.  In the Assistant Secretary's
 opinion, the distinctions between McClellan and the subject case were
 immaterial.  Thus, the Assistant Secretary concluded in pertinent part
 as follows:
 
          In my view, when an employee who is a member of the bargaining
       unit at all times material to a pending grievance is interviewed
       by management representatives concerning the events surrounding
       the grievance, Section 10(e) of the Order grants the exclusive
       representative the right to be represented at such a formal
       discussion.  As the Assistant Secretary stated in the McClellan
       case, cited above, an exclusive representative has a legitimate
       interest in being represented at the interviews of unit employees
       conducted by management in connection with the processing of a
       pending grievance, and the representational responsibilities
       conferred by Section 10(e) of the Order in this regard outweigh
       any impact its presence might have on management's preparation of
       its case for arbitration.
 
    Turning to the last element of Section 7114(a)(2)(A), i.e. whether
 the discussion concerned grievances or any personnel policy or practice,
 I find, based primarily on the Authority's decision in IRS, Fresno
 Service Center, that the interview of Mr. Lewis, which has been found
 above to be a "formal discussion", did concern "grievances or any
 personnel policy or practice."
 
    In IRS, Fresno, supra, the Authority concluded that "grievances"
 cognizable under Section 7114(a)(2)(A) of the Statute were not to be
 limited to only those grievances which had their genesis in the existing
 collective bargaining agreements.  In line with its conclusion in Fresno
 the Authority found that an EEO complaint fell within the statutory
 definition of "grievance" even though it was being processed under
 another statute which contained an appeals procedure that was separate
 and apart from the one established by the collective bargaining contract
 between the agency and the union.
 
    Inasmuch as the Fresno decision of the Authority makes it clear that
 a "grievance" encompasses any complaint involving or impacting on
 working conditions, irrespective of the ultimate forum which will decide
 the merits of the complaint, it follows that the adverse action involved
 herein falls within the statutory definition of a grievance as defined
 by the Authority.  Like the EEO complaint in Fresno, the adverse action
 herein will impact upon the unit employees since the ultimate issue to
 be decided by MSPB is what constitutes insubordination and what is the
 proper penalty for the type of insubordination underlying the adverse
 action.
 
    Accordingly, as interviews of witnesses in connection with the
 processing of grievances have been found by the Assistant Secretary to
 constitute "discussions" and since the Authority has defined
 "grievances" to encompass or include any complaints by unit employees,
 irrespective of whether or not such complaints are cognizable under the
 Statute, it follows that interviews of witnesses in preparation for a
 MSPB hearing are formal discussions of grievances within the meaning of
 Section 7114(a)(2)(A) of the Statute.  /2/
 
    Having found that the pre-trial interview of Mr. Lewis on June 8,
 1981, constituted a formal discussion within the meaning of Section
 7114(a)(2)(A) of the Statute, I further find that the Respondent
 violated Sections 7116(a)(1) and (8) of the Statute by virtue of its
 actions in failing to notify the Union of the June 8, 1981, meeting and
 affording it the opportunity to be present.  Accordingly, I hereby
 recommend that the Authority issue the following Order designed to
 effectuate the purposes of the Statute.
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
 Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
 2423.29(b)(1), the Authority hereby orders that the Bureau of Government
 Financial Operations, Headquarters, shall:
 
    1.  Cease and desist from:
 
          (a) Conducting formal discussions between representatives of
       the agency and employees in the unit or their respective
       representatives concerning grievances or any personnel policy or
       practices without affording the National Treasury Employees Union
       or its representative the opportunity to be represented at such
       discussions.
 
          (b) Interfering with, restraining, or coercing its employees in
       the exercise of their rights assured by the Statute by failing to
       afford the National Treasury Employees Union or its
       representatives the opportunity to be represented at formal
       discussions between representatives of the agency and employees in
       the unit or their respective representatives concerning grievances
       or any personnel policy or practices.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Notify the Natio