13:0164(35)CA - Labor, Employment Standards Administration and James Brown -- 1983 FLRAdec CA
[ v13 p164 ]
The decision of the Authority follows:
13 FLRA No. 35 DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION Respondent and JAMES BROWN Charging Party Case Nos. 2-CA-745 2-CA-765 2-CA-771 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the consolidated complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision and the Respondent filed an opposition thereto. 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 recommended order. The Authority agrees with the Judge's conclusion that the Respondent did not violate the Statute on January 20 by directing a unit employee to answer inquiries concerning his whereabouts on January 7 although he was unaccompanied by a Union representative. Section 7114(a)(2)(B) requires that an exclusive representative be given the opportunity to be represented at "any examination of an employee . . . in connection with an investigation" where the employee "reasonably believes that the examination may result in disciplinary action" and "the employee requests representation." As noted by the Judge, the Respondent had postponed the meeting on three prior occasions due to the employee's failure to secure Union representation, or to explain his failure to do so. In addition, before the January 20 meeting, the Respondent specifically notified the Union that the employee was having difficulty in obtaining a Union representative and was advised that such representation would be arranged. Nevertheless, on January 20, the employee again appeared without a Union representative and provided no indication of when he would be able to attend with a representative, if ever. Under the foregoing circumstances, wherein the Respondent had taken every reasonable step to ensure that the Union had an opportunity to represent an employee who had requested such representation, the Authority finds that the Respondent did not violate section 7116(a)(1) and (8) of the Statute by proceeding with the January 20 meeting. ORDER IT IS ORDERED that the consolidated complaint in Case Nos. 2-CA-745, 2-CA-765 and 2-CA-771 be, and they hereby are, dismissed. Issued, Washington, D.C., September 29, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos.: 2-CA-745, 2-CA-765, 2-CA-771 Sheila K. Cronan, Esq. For the Respondent James Brown Pro Se Steven Sharfstein, Esq. For the General Counsel, FLRA Before, SAMUEL A. CHAITOVITZ 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. 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R.XIV, 2410 et seq. James Brown, an individual, (hereinafter called Brown and/or the Charging Party) filed a charge in Case No. 2-CA-745 on January 12, 1981, a charge in Case No. 2-CA-765 on January 21, 1981 and a charge in Case No. 2-CA-771 on February 5, 1981 alleging that Department of Labor, Employment Standards Administration (hereinafter called Respondent and/or DOL-ESA) violated the Statute. On March 30, 1981 the General Counsel of the FLRA, by the Director of Region 2, issued an Order Consolidating Cases, Complaint and Notice of Hearing alleging that Respondent violated Sections 7116(a)(1) and (8) of the Statute by denying Brown's request to be represented at meetings conducted by DOL-ESA. Respondent filed an answer denying that it violated the Statute. A hearing in this matter was conducted before the undersigned in New York, New York. The General Counsel of the FLRA, Respondent and Charging Party were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Post hearing briefs were filed and have been fully considered. Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact A. Background At all times material herein Respondent and the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (hereinafter called the Union) were parties to a collective bargaining agreement covering a collective bargaining unit composed of all Department of Labor employees throughout the nation in field duty stations. The Charging Party, is an employee of Respondent's Office of Contract Compliance Programs (OFCCP), New York Area Office, 60 Hudson Street, New York City and is a member of the collective bargaining unit. At all times material herein Brown's immediate supervisor was Module Supervisor Leroy Gillead and the City Area Office Director of the New York Area Office of OFCCP was Harry Anbarlian. The New York Area Office was divided into four modules, each headed by an Equal Employment Opportunity Supervisor or Module Supervisor. On January 7, 1981 Brown had a morning appointment with an FLRA investigator. /1/ On January 7, 1981, prior to his leaving his office, Brown was approached by Gillead at 9:00 or 9:15 a.m. and Gillead reminded Brown of the appointment with the FLRA. Brown attended a staff meeting and then assembled the material for the investigation. At about 10:20 a.m. Gillead asked Brown why Brown had not yet left and Brown explained that he had to assemble certain material. Brown arrived at the FLRA office at about 10:30 a.m. and left at about 11:30 a.m. /2/ with an amended charge which, after lunch, Brown served on Respondent's Regional Administrator, Mr. Mercurio, at the Regional Office at 1515 Broadway. Brown returned to his own office at about 3:30 p.m. and advised Gillead that he, Brown, had another appointment with the FLRA investigator the next morning, January 8, 1981 to continue the investigation. Gillead asked Brown what time Brown had returned to the office and Gillead advised Brown that Brown had to account for his time that day. Later, on January 7, Brown went to Anbarlian's office to talk to him. They discussed primarily a time and attendance matter and I find that Anbarlian did not tell Brown that Brown could not have Union representation at future meetings. /3/ On January 8, 1981, during the morning, Brown returned to the FLRA investigator and continued that investigation. Gillead and Anbarlian scheduled a meeting for January 8, 1981, on Brown's return, for the purpose of asking Brown to account for his time on January 7. Gillead advised Brown he could bring his Union representative. Brown arrived at the meeting without a Union representative and requested additional time. Anbarlian rescheduled the meeting for January 8, 1981, advising Brown that he could utilize two hours before the meeting to meet with the Union representative. On January 9, 1981 Anbarlian was advised that Union Shop Steward Barbara Ricks had been removed as Shop Steward. Brown advised Anbarlian that he wished to have the meeting postponed because of the unavailability of the Union Steward. Anbarlian agreed and the meeting was postponed and rescheduled for January 12, 1982. Brown indicated he would try to get Union representation. Anbarlian advised Brown that it was important that Gillead and Anbarlian knew of Brown's whereabouts. B. January 12, 1982 Meeting On January 12, 1982 Anbarlian called Brown during the morning and told him to come down to the meeting. Anbarlian, Gillead and Brown met in Anbarlian's office. When Brown arrived he indicated that he didn't have a Union representative. Anbarlian told Brown that the meeting had already been postponed a few times and that Anbarlian and Gillead wanted, and were entitled, to know where Brown was on January 7, 1981. Brown insisted that he wanted Union representation and refused to answer. Anbarlian advised Brown that they would have to charge Brown AWOL for the unaccounted for time on January 7. Anbarlian stated that they had to know where Brown was. Brown stated that it was management's fault that he could not get Union representation. After this meeting Anbarlian called Respondent's labor officer, Susan Horwitz, and advised her that Brown was having difficulty obtaining a Union representative. Horwitz then called Shirley Shivers-Hays, Union Executive-Vice President and advised Shivers-Hays about the problems Brown was having obtaining union representation. Shivers-Hays advised Horwitz that Shivers-Hays would contact Brown and arrange for Union representation. A few minutes later Union President Peter Richardson called Horwitz. Horwitz advised Richardson of her recent conversation with Shiver-Hays. Richardson indicated that he would speak with Shiver-Hays. C. January 20 Meeting On January 19, 1981 Gillead advised Brown that Anbarlian wanted to see Brown the next day, January 20, 1981, to discuss, among other things Brown's whereabouts on January 7, 1981 and that Brown should bring his Union representative. Brown arrived at the meeting with Gillead and Anbarlian without a Union representative. The meeting concerned three topics, a pay and leave problem, continued work performance counselling and Brown's whereabouts on January 7. Brown, when questioned about his whereabouts and use of time on January 7, requested Union representation. Anbarlian insisted that the meeting continue since it was important for Gillead and Anbarlian to know Brown's whereabouts on January 7. Brown, rather briefly, recounted his whereabouts. Gillead questioned Brown concerning the times he left the office and went to lunch on January 7. Gillead also asked whether Brown had checked in and out on January 7, as required by the collective bargaining agreement and Gillead also asked Brown whether Brown had misrepresented the time for the scheduled January 8 FLRA investigation. The meeting was, at least in part, heated. D. January 29 Meeting On January 29, 1981 there was an employee meeting concerning work in Anbarlian's office. Brown continued the discussion until about 1:55 p.m. Brown left for lunch at the conclusion of the discussion and returned from lunch at about 2:35 p.m. /4/ Mr. Gillead questioned Brown as to when he returned from lunch and why he had been so late. Brown explained that he had been at the meeting until 1:55 p.m. Gillead indicated that Brown had no permission for a late lunch and would Brown like to talk annual leave. Brown indicated that he would not and that he was going to see Anbarlian. The meeting lasted less than five minutes. With respect to this meeting I credit Mr. Gillead that Brown did not ask for a Union representative. In addition to the demeanor of the witnesses, the nature and brevity of the meeting made it highly unlikely that Brown would have specifically requested a Union representative. Discussion and Conclusions Section 7114(a)(2)(B) of the Statute provides that an exclusive bargaining representative shall be given the opportunity to be represented at "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 meetings of January 12 and 20, 1981 between Brown and Gillead and Anbarlian were within the purview of Section 7114(a)(2)(B) because they were examinations of an employee by agency representatives in connection with an investigation of Brown's whereabouts. Further Brown reasonably believed these meetings could result in his discipline and he asked for Union representation. cf. Internal Revenue Service, Detroit, Michigan, 5 FLRA No. 53 (1981); Lackland Air Force Base Exchange, 5 FLRA No. 60 (1981); U.S. Department of Navy, U.S. Marine Corps, Marine Corps Logistics Base, 4 FLRA No. 54 (1980); and Internal Revenue Service, Washington, D.C. and Hartford District Office, 4 FLRA No. 37 (1980). Brown was therefore entitled to Union representation at these meetings. However, in the circumstances present in this case DOL-ESA did not deny Brown the right to such Union representation. Quite to the contrary, DOL-ESA took every reasonable step to enable Brown to secure Union representation including postponing meetings a number of times and then contacting the Union to advise it that Brown was apparently encountering difficulty in securing union representation. The record contains no evidence as to what steps, if any, Brown took to obtain Union representation. At the January 12 meeting Anbarlian reminded Brown that the meeting had already been postponed so that Brown could secure Union representation. Anbarlian told Brown that Respondent had a right to know where Brown was on January 7 and that if there was no explanation Brown could be charged with being AWOL. Brown insisted on his right to Union representation and answered no questions. The DOL-ESA representatives then did not insist that Brown answer nor did they pursue the matter and there is no evidence that Brown was in any way disciplined for failing to respond to Anbarlian's inquiry. At the January 20, meeting however, after a days warning that the meeting would be held, Brown again attended without Union representation. On this occasion Respondent's representative did insist that Brown respond to their inquiries, even though Brown had no Union representative. Brown did account for his time on January 7. Respondent did not at any time forbid Brown from bringing a Union representative and there is no showing that at any of the meetings Brown indicated precisely when, if ever, he would be able to attend a meeting with a Union representative. In these circumstances Respondent did not deny Brown permission to be represented by the Union; rather, after the numerous delays Respondent merely insisted that Brown account for this time on January 7. Accordingly it is concluded that, with respect to the January 12 and January 20, 1982 meetings, Respondent did not violate Section 7114(a)(2)(B) of the Statute by denying Brown Union representation. Rather when Brown repeatedly failed to bring a union representative, Respondent insisted on continuing the examination. With respect to the January 29 meeting I need not reach the issue whether it was encompassed by Section 7114(a)(2)(B) of the Statute /5/ because Brown did not request Union representation. Thus Respondent did not fail to comply with its obligations set forth in Section 7114(a)(2)(B) of the Statute. In light of the foregoing conclusions that Respondent did not fail to comply with Section 7114(a)(2)(B) of the Statute, it is concluded, that DOL-ESA did not violate Sections 7116(a)(1) and (8) of the Statute. Accordingly, I recommend that the FLRA adopt the following: ORDER It is hereby Ordered that the Consolidated Complaint in Case Nos. 2-CA-754, 2-CA-765 and 2-CA-771, be and hereby is dismissed. SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: April 29, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The FLRA was investigating the charge in Case No. 2-CA-709. That charge, filed by Brown, alleged a refusal to permit Brown to have union representation in violation of Section 7114(a)(2)(B). The charge in Case No. 2-CA-709 is not at issue in this proceeding and was withdrawn. /2/ Brown had left his briefcase containing relevant documents at home and therefore he made an appointment to meet the FLRA investigator again the next day, January 8, 1981, in the morning. /3/ In my findings, where there is a conflict, I credit Anbarlian's and Gillead's versions and do not credit Brown's. Anbarlian and Gillead were more credible witnesses than Brown, not only because of their demeanor, but also because their testimony was more reasonable and consistent with the other occurrences. /4/ There was a dispute whether this was in violation of an inter-office memo that provides that lunch periods are to begin and end between 11:30 a.m. and 2:00 p.m. The merits of this dispute are irrelevant to the instant case. /5/ If such a determination were necessary, I would conclude that this was the type of everyday supervisor-employee encounter that is not within the purview of Section 7114(a)(2)(B) of the Statute.