13:0156(34)CA - Customs Service, Region VIII, San Francisco, CA and NTEU -- 1983 FLRAdec CA
[ v13 p156 ]
The decision of the Authority follows:
13 FLRA No. 34 U.S. CUSTOMS SERVICE REGION VIII SAN FRANCISCO, CALIFORNIA Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 9-CA-20118 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practice alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party (the Union) filed exceptions to the Judge's Decision and a brief in support thereof. 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 in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendation that the complaint be dismissed. ORDER IT IS HEREBY ORDERED that the complaint in Case No. 9-CA-20118 be, and it hereby is, dismissed. Issued, Washington, D.C., September 28, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 9-CA-20118 Gary B. Landsman, Esq. For the Respondent Patricia Jeanne Howze, Esq. For the General Counsel David S. Handsher, Esq. For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute (herein called the Statute or Act). It stems from a first amended charge filed on February 25, 1982 by National Treasury Employees Union (herein called the Union) against U.S. Customs Service, Region VIII, San Francisco, California (herein called Respondent). /1/ The Complaint and Notice of Hearing, predicated on said amended charge, was issued on February 26, 1982 by the Acting Regional Director for the Federal Labor Relations Authority, San Francisco, California Region. It was alleged therein, in substance, that on or about December 14, 1981, Respondent met with bargaining unit employee Walter Lisowski re his testimony at the arbitration hearing on the grievance of unit employee Chester Lewandowski; that the Union was not advised of the meeting nor given an opportunity to attend; that Respondent failed to comply with Section 7114(a)(2)(A) of the Statute by conducting a formal discussion with a unit employee re a grievance and did not provide the Union with notice or an opportunity to attend - all in violation of Section 7116(a)(1), (5), and (8) of the Statute. Respondent's answer, dated March 19, 1982, admitted that the meeting occurred on December 14, 1981, as alleged, but denied it constituted a formal discussion and that Respondent violated the Statute as averred in the Complaint. A hearing was held before the undersigned on June 16, 1982 at San Francisco, California. 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. /2/ At the hearing the parties entered into a written Stipulation of Facts (Joint Exhibit 2), which, together with the transcript and other exhibits, shall constitute the entire record herein. Accordingly, based on the said Stipulation of Facts, as well as the exhibits herein, I make the following findings and conclusions: Findings of Fact 1. At all times material herein the Union has been, and still is, the certified collective bargaining representative of the following employees in an appropriate unit: "All nonprofessional employees assigned to the Headquarters office, and to Regions I, II, III, IV, V, VI, VII, VIII and IX of the U.S. Customs Service, excluding all professional employees, all employees assigned to the Office of Investigations and the Office of Internal Affairs, management officials, employees engaged in Federal personnel work in other than a purely clerical capacity, confidential employees, guards and supervisors." 2. Both Union and Respondent are parties to a collective bargaining agreement covering the aforesaid unit of employees. The said agreement, which became effective on April 18, 1980 for a period of two years, contained a negotiated grievance procedure. Under Article 31 (Grievance Procedure), Section 3(1) thereof, a grievance includes any complaint by any bargaining unit employee concerning any matter relating to the employment of the employee. The aforesaid bargaining agreement also contains, under Article 32, an arbitration procedure wherein a party, dissatisfied with final decision under the grievance procedure, may invoke arbitration and obtain a hearing thereon. /3/ 3. On or about August 25, 1981 the Union filed a grievance under the negotiated grievance procedure, as aforesaid, on behalf of bargaining unit employee Chester Lewandowski. In accordance with Article 32 of the aforementioned agreement, arbitration was invoked by the Union and a hearing was scheduled for December 16, 1981. 4. The arbitration concerned a disciplinary suspension of Lewandowski by Respondent. Prior thereto bargaining unit employee Walter Lisowski, pursuing his duties as a non-supervisory Customs Assignment Inspector, engaged in a disputed conversation re an upcoming overtime assignment. Management based its disciplinary action of Lewandowski upon Lisowski's version of that disputed conversation which the latter reported to management. The employer considered Lisowski's testimony as necessary to its case. 5. On or about December 14, 1981 Lisowski, who was stationed as an inspector at the Seattle/Tacoma Airport, was told by his immediate supervisor to report to the federal building at Seattle, Washington that day to meet with Sterl Miller and Jack Hammegar. The record reflects that, at all times material herein, Miller was Respondent's Director, Labor Relations Office, San Francisco Region - a position having no line authority over bargaining unit positions; that Hammegar, at all such times, was Respondent's Director of Inspection and Control, Seattle District - a position having line authority over Lisowski (his 4th level supervisor) and other bargaining unit positions. 6. The purpose of the meeting, to be attended by Lisowski, Miller, and Hammegar, as aforesaid, was to enable Miller, who would serve as Respondent's representative at the arbitration hearing on December 16, 1981, to prepare for said hearing by having a discussion with Lisowski. The said representative proposed to conduct an interview of Lisowski to ascertain or confirm facts within the knowledge of said employee re his disputed conversation with Inspector Lewandowski and the report of the incident submitted to Lisowski to management. 7. The interview was conducted on December 14, 1981 as scheduled. The only people present thereat were Sterl Miller, Jack Hammegar and Walter Lisowski. The Respondent did not notify the Union of the interview nor allow Erick Lick, who was the Union Steward and its representative assigned to the Seattle, Washington federal building, or any other representative, to be present during the meeting. 8. At the commencement /4/ of the aforesaid interview Miller told Lisowski that management wanted to call him as a witness at the scheduled arbitration hearing; that questions to be asked that day would be like those asked at the hearing; that it was voluntary for Lisowski to answer these questions at the interview; that no reprisals would be taken if Lisowski refused to answer any of the questions at the interview. 9. Miller had asked Lisowski if he would agree to be a witness at the arbitration hearing, and Lisowski agreed to do so. After being informed by Miller of the information set forth in paragraph 8 above, Lisowski agreed to answer questions put to him at the interview and to testify at the forthcoming arbitration hearing. Whereupon, Miller questioned Lisowski re the incident being arbitrated on December 16, 1981. No questions were related to internal Union business, and the interview or meeting lasted about 15 minutes. 10. The arbitration hearing was held, as scheduled, on December 16, 1981 and Lisowski testified thereat as a witness for management. Conclusions The issue posed for determination herein is as follows: did the interview, which Respondent conducted with employee Walter Lisowski in preparation for an arbitration hearing involving disciplinary suspension of another unit employee, constitute a "formal" discussion requiring the employer to provide the Union an opportunity to be represented thereat? Under Section 7114(a)(2)(A) of the Statute an exclusive bargaining representative must be given an opportunity to be represented at "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." In the instant case it is conceded that no notification was given to the Union re the interview management held on December 14, 1981 with Lisowski, nor was the bargaining representative allowed to attend and be represented. Thus, if the meeting between Respondent's officials, Miller and Hammegar, and Lisowski may be deemed a "formal" discussion, a failure to allow the Union to be represented thereat will run afoul of 7114(a)(2)(A) and be violative of Section 7116(a)(1), (5), and (8) of the Statute. Department of Health, Education and Welfare, Region IV, Atlanta, Georgia, et al. 5 FLRA No. 58. The lead case in the public sector involving the particular issue raised herein is Internal Revenue Service and Brookhaven Service Center, 9 FLRA No. 132. Two different situations were involved therein. In one instance the bargaining representative had filed an unfair labor practice charge against the respondent employer. Counsel for the latter met with employee Diane Frisina in order to prepare for the forthcoming hearing. He advised the employee of his intentions; that he desired to ask her about the facts in the case; that she was not obliged to speak to him; and there would be no reprisal against her in any event. They discussed the facts re the unfair labor practice proceeding, but Frisina refused to give a written statement or testify at the hearing. Counsel did not notify the Union of the meeting. In the second situation the respondent employer decided it would be necessary to call two employees as its witnesses at a forthcoming arbitration hearing. The employer's representative, Elliot Carlin, advised William White, the union's Associate General Counsel, of his intention. Moreover, Carlin told the Associate General Counsel that he planned on interviewing one of these employees beforehand. White requested that a union representative be present at any meeting between Carlin and the employees, but his request was denied. The employer's officials met separately with each employee. He told the individuals that there was no requirement to speak with him; that the purpose of the interview was to prepare respondent's case for the arbitration hearing; that no reprisal would be taken against the employees if they chose not to be interviewed; that each could have a representative present if so desired. Each agreed to be interviewed and neither requested the presence of a union representative. The Authority concluded that the meetings with the employees in the Brookhaven Service Center case, supra, were not formal discussions within the meaning of Section 7114(a)(2)(A) of the Statute. It stated that these meetings were, in truth, fact-gathering sessions; that management was merely seeking information to aid in the preparation of its cases for prosecution before a third-party neutral, in the same manner as the exclusive representative might gather facts prior thereto. Under these circumstances, the Authority maintained, the agency was not required to give the bargaining representative an opportunity to be present, and its failure to do so did not constitute an unfair labor practice. /5/ The rationale adopted in the cited case was adhered to in United States Department of the Treasury, United States Customs Service, Region V, 9 FLRA No. 134 (involving interviews with employees to gather facts for unfair labor practice hearing). The Union herein attempts to distinguish the instant matter from the recent decisions handed down by the Authority. It contends that in both previous cases management conducted interviews in order to ascertain necessary facts, whereas the Respondent herein already knew the facts prior to the interview. Further, the Union would distinguish instances where a bargaining representative ascertains facts from those where management interviews an employee. It adverts to the inability of the union to order a supervisor, during working hours, to have the employee report to the union office. Upon due consideration I am constrained to conclude that the asserted dissimilarities among these cases are distinctions without a difference. Respondent's representative Miller conducted the same type of interview of Lisowski as took place in the Brookhaven Service Center and U.S. Customs Service case, supra. In essence, management sought to interview Lisowski in order to discuss the facts concerning that employee's conversations with Inspector Lewandowski - all in preparation for calling Lisowski as a witness at the arbitration hearing scheduled for December 16, 1981. In the cited cases management interviewed employees in order to verify factual data and present the individuals as witnesses on behalf of the employer in forthcoming hearings. While the Union herein might not welcome the holding by the Authority in the Brookhaven Service Center and U.S. Customs Service cases, I deem the facts therein equitable to those in the case at bar. Accordingly, I find that said decisions are determinative of the issue raised in the instant matter and conclude the interview management held with Lisowski was not a formal discussion under 7114(a)(2)(A) of the Statute. Therefore Respondent was not obliged to permit the Union herein to be represented. Its failure to do so was not violative of Section 7116(a)(1), (5), and (8) as alleged. Accordingly, and in view of the foregoing, I recommend the Authority adopt the following Order: ORDER It is hereby ordered that the Complaint in Case No. 9-CA-20118 be, and it hereby is, dismissed. WILLIAM NAIMARK Administrative Law Judge Date: October 22, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The said amended charge also named U.S. Customs Service, Washington, D.C. as a party against whom it was filed. However, the complaint herein is limited to U.S. Customs, Region VIII, San Francisco, California. /2/ In a motion dated September 8, 1982 the General Counsel moved the undersigned to remand this case to the Regional Director for withdrawal of the Complaint based on recent Authority decisions in Internal Revenue Service and Brookhaven Service Center, 9 FLRA No. 132, and U.S. Department of the Treasury, U.S. Customs Service, Region V, 9 FLRA No. 134. The undersigned issued an Order To Show Cause on September 14, 1982 why such motion should not be granted. A Response to said Order To Show Cause was filed with the undersigned on October 1, 1982 by the Charging Party. The latter, in opposing the said Motion, contended there are factual distinctions between the case at bar and the Brookhaven case, supra. Further, it asserts the circumstances herein call for a different conclusion, and that the interview by Respondent met the criteria of a "formal" discussion. In view of those contentions, and since the Charging Party indicates it desires to preserve its rights of appeal, the undersigned hereby denies the General Counsel's Motion to remand the case for withdrawal of the Complaint. /3/ Under Article 32 arbitration may be invoked only by the Union or the employer. /4/ Respondent's representative had previously identified specific and general questions he intended to ask the employee. Miller had a few written notes with him at the interview. /5/ In its decision the Authority pointed out that such fact-gathering sessions may not be conducted without limitation. Thus, its questioning must not be coercive, and the employee must be assured no reprisal will ensue if he refuses to participate in the session. In the case at bar no allegation is made in the complaint, nor is it contended, that Respondent engaged in coercive questioning in violation of 7116(a)(1) of the Statute. Moreover, it is conceded that the employee was assured his participation was voluntary and no reprisal would follow if he refused to answer any questions.