13:0591(102)CA - INS, San Diego, CA and AFGE -- 1984 FLRAdec CA



[ v13 p591 ]
13:0591(102)CA
The decision of the Authority follows:


 13 FLRA No. 102
 
 UNITED STATES IMMIGRATION AND
 NATURALIZATION SERVICE
 SAN DIEGO, CALIFORNIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-20110
 
                            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 case 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 General Counsel and
 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 Recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the United States Immigration and Naturalization
 Service, San Diego, California, shall:
 
    1.  Cease and desist from:
 
    (a) Suspending from employment or otherwise disciplining Marvin
 Foust, or any employee represented by the American Federation of
 Government Employees, National Border Patrol Council, the employees'
 exclusive collective bargaining representative, because of the conduct
 of the collective bargaining representative during an examination of a
 unit employee by a representative of the agency in connection with an
 investigation where the employee reasonably believes that the
 examination may result in disciplinary action against the 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
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Rescind the March 1982 five day disciplinary suspension of Marvin
 Foust, expunge any reference to such suspension from his personnel
 records, reimburse him for the loss of pay he suffered by reason of the
 suspension, and restore to him any right or privilege he may have lost
 by such disciplinary action.
 
    (b) Post, at its facilities, copies of the attached Notice on forms
 to be furnished by the Federal Labor Relations Authority.  Upon receipt
 of such forms, they shall be signed by the Border Patrol Regional
 Commissioner, or his designee, and 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.  Reasonable steps shall be taken to insure that such
 Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director, Region
 VIII, 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., January 13, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
  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 suspend from employment or otherwise discipline Marvin
 Foust, or any employee represented by the American Federation of
 Government Employees, National Border Patrol Council, the employees'
 exclusive collective bargaining representative, because of the conduct
 of the collective bargaining representative during an examination of a
 unit employee by a representative of the agency in connection with an
 investigation where the employee reasonably believes that the
 examination may result in disciplinary action against the employee.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL rescind the March 1982 five day disciplinary suspension of
 Marvin Foust, expunge any reference to such suspension from his
 personnel records, reimburse him for the loss of pay he suffered by
 reason of the suspension, and restore to him any right or privilege he
 may have lost by such disciplinary action.
                                       (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 its provisions, they may communicate directly with the Regional
 Director, Federal Labor Relations Authority, Region VIII, whose address
 is:  350 South Figueroa Street, 10th Floor, Los Angeles, California
 90071, and whose telephone number is (213) 688-3805.
 
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    UNITED STATES IMMIGRATION AND
    NATURALIZATION SERVICE, SAN
    DIEGO, CALIFORNIA
                                Respondent
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, AFL-CIO
                              Charging Party
 
                                       Case No. 8-CA-20110
 
    Patrick T. McDermott, Esq.
    For the Respondent
 
    E. A. Jones, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    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. Sec.
 7101, et seq.
 
    Upon an unfair labor practice charge filed by the American Federation
 of Government Employees, AFL-CIO on December 23, 1981, and amended
 thereafter, against the United States Immigration and Naturalization
 Service, San Diego, California (herein referred to as the Respondent),
 the General Counsel of the Authority, by the Regional Director for
 Region 8, issued a Complaint and Notice of Hearing on July 22, 1982
 alleging Respondent violated section 7116(a)(1) and (2) of the Statute
 by suspending an employee because of his Union representative's conduct
 during an investigative examination.
 
    A hearing on the Complaint was conducted on October 6, 1982 in San
 Diego, California at which time the Respondent and the General Counsel
 were represented by counsel and afforded full opportunity to adduce
 evidence, call, examine and cross-examine witnesses and argue orally.
 Briefs were filed by Respondent and the General Counsel.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from any evaluation of the evidence I
 make the following findings of fact and conclusions of law:
 
    Background and Events
 
    At all times material herein the American Federation of Government
 Employees, National Border Patrol Council (hereinafter referred to as
 the National Council or the Union), has been the exclusive collective
 bargaining representative of various of Respondent's employees including
 Border Patrol Agents.  The Union is comprised of various Locals,
 including Local 2544 which, through its officers, deals with
 representatives of Respondent in matters concerning working conditions
 of employees attached to Respondent's Tucson Border Patrol Sector
 Office.
 
    In March 1981 Respondent's Office of Professional Responsibility
 (herein OPR) was engaged in an investigation of allegations that
 approximately 14 employees at the Tucson Border Patrol Station had
 engaged in various acts of misconduct including falsification of
 government documents, sexual misconduct, harassment towards aliens, and
 theft of aliens' property.  As part of the investigation OPR notified
 various employees that it desired to interview them.  /1/ On March 11,
 1981 Marvin Foust, a Border Patrol Agent and Local 2544 President,
 received a request from employees Curtis Hobbs and Bob Rogers to
 represent them during their interview with OPR scheduled for March 13.
 Thereupon Foust sought advice from Richard Bevans, AFGE National Border
 Patrol Council President, Richard Webster, AFGE National Representative,
 and David Nicholson, Regional Vice-president of the Council regarding
 what he should do as the employees' representative during the
 interviews.  Foust was told he should insist upon taking a separate tape
 recording of the interviews to assure the presence of an accurate
 transcript of the interviews.  Foust was further advised that, in their
 opinion, Respondent would threaten the employees with discipline for not
 proceeding with the interview unless the Union's conditions were met but
 such disciplines would not occur and eventually Respondent would either
 provide an immediate transcript of the interview or allow the tape
 recording to take place without adverse repercussion to the employees.
 Foust previously receive similar advice in February 1981 at a National
 Border Patrol Council convention in San Antonio.
 
    On March 13, 1981 Foust met with Hobbs and Rogers before their
 scheduled interviews with OPR investigators.  Foust related his prior
 conversations with National Council and AFGE National representatives
 and Hobbs and Rogers, although desirous of having the matter resolved so
 they could give a statement to the OPR, nevertheless "went along" with
 the course of conduct Foust indicated he would pursue.
 
    Hobbs and Rogers met separately with OPR investigators on March 13
 and Foust and another individual acted as the Union representatives for
 the two employees.  /2/ At each meeting Foust insisted that the Union be
 allowed to make a separate tape recording of the interview.  The OPR
 investigators refused to permit the presence of a tape recorder other
 than their own.  /3/ However, they offered to make available the OPR
 tape to the Union when a transcript of the interview was produced for
 comparison or, if the Union insisted on having its own tape, after the
 interview was concluded OPR would take custody of the Union's tape, seal
 it, and return it when a copy of a transcript of the interview was later
 provided to the Union.  Foust conferred with the National Council and
 was instructed to continue to insist on taping and retaining a tape of
 the interview.  After extensive discussion with the OPR agents during
 which Foust maintained his prior position, no agreement was reached on
 the matter and the meetings were terminated with Hobbs and Rogers being
 rescheduled for interviews on March 16.  /4/
 
    Later on March 13 Foust was given a notice that he was to appear for
 an interview with OPR investigators on March 16 concerning an alleged
 altercation Foust had with another Border Patrol Agent in December 1980.
  That same day Foust telephoned AFGE National Representative Webster who
 agreed to represent Foust, Hobbs, and Rogers during their interviews on
 the 16th.
 
    On March 14, 1981 Foust appeared with Ron Evans as employee Theodore
 Nordmark's Union representatives while Nordmark was being questioned by
 OPR concerning the allegation of various Border Patrol Agents'
 misconduct towards aliens, supra.  /5/ As with the Hobbs and Rogers
 interviews, Foust insisted on taking a separate tape recording of the
 interview and the OPR agents refused, suggesting instead that the OPR
 tape be made available to the Union later when a transcript was provided
 or allowing Foust to make a tape recording but giving custody of the
 sealed tape to OPR returnable when the transcript was made available.
 However, the allegations concerning Nordmark involved sexual misconduct
 and the matter was having serious adverse consequences on his marital
 relationship.  Nordmark, during a private meeting with Evans, Foust and
 a Union attorney, strongly urged that he be allowed to proceed with the
 interview.  The Union representatives acquiesced and accepted the OPR
 sealed tape procedure and the interview proceeded accordingly.
 
    In the evening of March 15, 1981 Foust was informed by National
 Representative Webster that he would be unable to attend the interviews
 scheduled for March 16.  Therefore, on the morning of March 16 Foust
 appeared as Union representative for Hobbs and Rogers at the time of
 their scheduled interviews.  The OPR agents informed them that the
 interviews would take place simultaneously in separate rooms.  Since
 Foust was the designated Union representative for both Hobbs and Rogers
 the parties engaged in a discussion as to how the interviews could be
 conducted.  It was ultimately determined that Hobbs and Rogers would
 have their interviews postponed until March 17 when another Union
 representative would be available to represent the employees during
 their simultaneous interviews.
 
    Around noon on March 16 Foust asked Hobbs to represent him during his
 OPR interview scheduled for that afternoon.  /6/ Hobbs agreed and Foust
 advised him to contact National Council officers Bevans and Nicholson as
 to how Hobbs should conduct himself.  Taping the proceeding was not
 discussed at this time.  Hobbs then contacted Bevans and was advised he
 should insist on tape recording the interview and retain the tapes.
 Bevans informed Hobbs that OPR would probably initially refuse taping
 but eventually OPR would permit the interview to proceed and "nothing
 would become of it." Hobbs mentioned that on March 13 OPR had produced a
 copy of "a decision from the Labor Relations Board" which indicated that
 the Union couldn't use a tape recorder in an interview.  Bevans said he
 had no knowledge of any such decision and instructed Hobbs that he
 should insist on tape recording the proceedings.  Hobbs also contacted
 National Representative Webster and had a similar conversation.  Hobbs
 advised Foust of his communications with Bevans and Webster.
 
    Later on March 16, 1981 Foust, Hobbs, and a second Union
 representative, William Bruenell, met with OPR investigators Patrick
 Comey and Paul Villanueva for Foust's interview.  According to the
 transcript of this meeting, /7/ after being advised that the object of
 the interview was to take his sworn statement regarding the alleged
 altercation Foust had with another Border Patrol agent, Foust was
 advised of his right under the parties' collective bargaining agreement
 to be represented by the Union or any other person of his choice.  Foust
 identified Hobbs as his Union representative and Bruenell as a concerned
 third party.  Comey noticed Hobbs was tape recording the proceeding and
 asked Foust if he would agree to give the tape to OPR at the conclusion
 of the interview, after which the tape would be sealed and subsequently
 returned with a copy of his statement at some future date.  Foust
 replied that control of the tape recorder rested with Union
 representative Hobbs.  Asked if he would prefer that his Union
 representative remove the tape recorder, Foust replied in the
 affirmative.  Comey then asked Hobbs to remove the tape recorder and
 Hobbs refused contending that he required the tape recorder in order to
 fulfill his functions as a Union representative.  The transcript of the
 interview reveals the following colloquy:  /8/
 
          "(COMEY):  . . . I don't believe that . . . we can allow you to
       tape record the proceeding if the subject of the investigation
       desires that it be removed.  You're here at his request.  I'm sure
       that if he wants the tape recorder removed he can request that.
 
          (REPRESENTATIVE):  He cannot compel me to turn it off as a
       Union representative.  I have my function to perform.
 
          (COMEY):  Would you prefer that your Union representative leave
       the room?
 
          A. No sir.  I really wouldn't.  I want Union representation . .
       .
 
          (COMEY):  Well I think you guys should have worked this out
       before you entered this proceeding, I, I wouldn't, I don't see how
       it can possibly be fair to you that your Union representative is
       tape recording it and you've requested that he turn it off.
 
          A. Well the only reason I requested to turn it off is because
       you want me to, you asked me to request that.
 
          (COMEY):  No I didn't.  I said, would you like him to turn it
       off.
 
          A. Well I would like a copy, I would like to have the tape
       recorder going, but . . .
 
          (COMEY):  Well, are you agreeing, will you agree as we pre-- ,
       previously discussed when you were a representative for another
       individual, to seal the tape and turn it over to us until your
       statement is furnished to you?
 
          A. I really can't do that.  I would like to be able to do that,
       but it's the Union's tape recorder and tapes.  At that time when I
       agreed I was functioning as a Union representative and at this
       time, all I want
 
 to do is give my statement in front of you sir."
 
    Comey continued to demand that Hobbs desist from taping the interview
 and Hobbs continued to decline, indicating that he had been instructed
 by his Union to use the tape recorder.  Comey commented that INS
 "reserves the right to file an unfair labor practice allegation against
 the Union" and reminded Hobbs of the "National Labor Relations Board"
 decision dealing with taping interviews.  /9/ Comey then addressed
 Foust:
 
          "(COMEY):  Okay.  Mr. Foust, do you understand that if you
       decline to give your statement at the present time that you will
       be compelled to give your statement by your supervisor and--
 
          A. I want to give my statement now sir.  Would you please go
       forward with it sir.
 
          (COMEY):  We are not, we are not going to go forward with this
       statement if the Union is tape recording this proceeding?
 
          A. Gosh, all I want to do is just give my statement sir.
 
          (COMEY):  Okay.  Would you ask your Union representative to
       turn off his tape recorder?
 
          A. Would you go ahead and turn it off there Curt?
 
          (REPRESENTATIVE):  Marv I, I can't turn it off as, as your
       Union representative I feel that it's my obligation to tape this
       interview for your own protection?
 
          A. I'm sorry I can't compel him to, it's his job I guess.
 
          (COMEY):  Okay.  You can take this however you want it.  I'm
       advising you that if you will not, if you will not or cannot make
       your Union representative turn off this tape recorder, this
       proceeding will be terminated at the present time as we will have
       your supervisor serve you with a compelling notice to testify?
 
          A. I just want to give your statement sir.  That's all I want
       to do.
 
          (COMEY):  We're not going to play any games.  If this is what's
       going to happen, your supervisor will compel you and if you will
       again not give your statement without the tape recorder, if you
       will not make sure your Union representative turns the tape
       recorder off, then you will will be subject to disciplinary
       proceedings, disciplinary proceedings up to and including removal,
       do you understand that?
 
          A. I understand sir.  All I want to do is give my statement."
 
    Comey provided Hobbs and Foust time to consider the matter off the
 record.  During a private discussion /10/ Foust told Hobbs he "hoped the
 thing would work out" so he could give his statement since the charge
 could easily be rebutted and asked Hobbs if he thought he was doing the
 "right thing." Hobbs responded that he didn't know if it was right or
 wrong but he had been advised to tape the interview, that was what he
 was going to do.  Foust replied, "If you've got to do it, you've got to
 do it.
 
    After 10 minutes Hobbs and Foust returned to the interview and Comey
 asked Foust if he was prepared to proceed with a statement.  Foust
 indicated he was but but couldn't speak for Hobbs again declined to turn
 off the tape recorder, explaining that he was under instruction from the
 National Council as to how to fulfill his function as Foust's
 representative.  Comey indicated he assumed that the Nordmark
 arrangement, supra, would be followed and Foust replied:
 
          "A.  Yes, when I was acting as representative.  I was all for
       that sir.  As my function as a Union representative, I felt that
       those conditions could very easily be met and today I just wish to
       give my statement."
 
 However, Hobbs stated he felt compelled to hold his position on the
 matter.  /11/ Foust was "reminded" that as an INS employee he had a duty
 to answer specific questions relating to matters of official concern and
 his failure to answer could be grounds for disciplinary action.  /12/
 Foust responded that he wanted to answer Comey's questions.  Comey
 stated that it was the position of the INS to construe Hobb's refusal to
 turn off the tape recorder as a refusal by Foust to comply with the
 conditions set forth for the interview and his supervisor would serve
 him with a "compelling notice" to that effect.  /13/ Foust responded
 that perhaps he should change Union representatives and Comey replied it
 might be a good idea, but that was Foust's decision.  Foust indicated
 that he'd try his best to lay the groundwork so he could give his
 statement which was his desire.  Comey again stated his position on the
 presence of the Union's tape recorder and Foust replied:  "I only wish I
 had control over it, so I could give my statement." The parties then
 adjourned.
 
    During the adjournment, which lasted approximately 1 hour and 15
 minutes, Foust was served with a "compelling notice." Hobbs, Bruenell
 and Foust discussed whether Hobbs should continue with his position on
 tape recording.  Foust indicated he wished the problem could be "worked
 out" and he could give a statement, and expressed concern over the
 possibility of his being disciplined for not cooperating with OPR and
 Hobbs replied that he was doing what Union officials instructed him to
 do, and they assured him that no disciplinary action would be taken.  In
 any event, Hobbs telephoned National Representative Webster again and
 was instructed to continue to insist on taping the interview.  With
 regard to the "compelling notice", Webster told Hobbs to have Foust
 state on the notice:  "My Union representative is making a conditional
 refusal to turn off his tape recorder."
 
    When the interview resumed Foust inserted the statement suggested by
 Webster and added, "I am not being insubordinate" when signing the
 "compelling notice." When asked by Comey if he had convinced his Union
 representative to turn off the tape recorder, Foust replied that he
 asked Hobbs to turn off the recorder so he could give his statement but
 Hobbs would not comply, indicating he was making a "conditional
 refusal." /14/ When Hobbs was asked what the condition was, he replied,
 ". . . if you turn your tape recorder off, I'll turn mine off." Comey
 stated the condition was "utterly ridiculous" and told Foust that IRS ".
 . . interprets your inability to convince your Union representative to
 turn off his tape recorder as a refusal by you to answer the questions."
 Foust again asked if OPR would allow him to give his statement, Comey
 again stated that the IRS position on taking his statement and,
 interpreting Foust's position in these circumstances to be a refusal to
 give a sworn statement and after Foust restated his position that he did
 not feel he was insubordinate since he was prepared to give a statement,
 the interview was closed.
 
    It is clear from the testimony, and I find, that while Foust and his
 Union representative Hobbs did not intend to completely prevent
 Respondent from interviewing Foust, they were convinced that Respondent
 would ultimately acquiesce in the Union's position of allowing the Union
 to tape the interview or provide an immediate transcription of the
 statement.  Although Foust frequently indicated to the OPR agents that
 he wished to give his statement and at one point asked Hobbs to turn off
 the recorder, he acknowledged in his testimony that he agreed with
 Hobbs' position.  Thus, Foust testified that if he was acting as his own
 Union representative when being interviewed and had received the same
 advice Hobbs received from Union officials, he would have taken the same
 position Hobbs took.
 
    On March 17, 1981, National Representative Webster, accompanied by
 Foust and Bruenell, met with OPR investigators for the purpose of
 representing Hobbs and Rogers during their scheduled interviews.
 Webster insisted on representing both Hobbs and Rogers and using a tape
 recorder. OPR resisted and, unable to resolve the problem, the
 interviews were cancelled.
 
    Later that day Foust, concerned that discipline might result from the
 Union's insistence on tape recording, called AFGE General Counsel James
 Rosa and discussed the situation.  Rosa advised Foust to meet OPR's
 conditions for conducting employee interviews.  Thereafter, at least
 three employee interviews were conducted without Union insistence on
 retaining tapes of the proceedings.  However, on April 9, 1981 when
 Foust requested of Howard Dodd, head of OPR, San Diego, that Hobbs,
 Rogers and he be permitted to give statements under the same procedure,
 Dodd refused.
 
    By letter dated November 27, 1981, Respondent notified Foust that it
 was proposing to suspend him, alleging he engaged in improper conduct
 during his altercation with a Border Patrol Agent in December 1980,
 supra, and his refusal to cooperate on March 16, 1981 during an official
 government inquiry.  The allegation of Foust's refusal to cooperate in
 the inquiry recited, inter alia, that Hobbs refused to turn off his tape
 recorder;  Foust had a responsibility to give a statement;  Hobbs was
 present "merely" as his representative and Foust did not attempt to
 obtain Hobbs' cooperation;  and Foust was served with a "compelling
 notice" and continued to make no effort to cooperate thereby disrupting
 the proceeding.  The letter further recited the following provisions of
 the Border Patrol Handbook, supra:
 
          "When conducting personnel investigations, it is the general
       practice of the Service to record the testimony of the persons
       involved and of all witnesses in the form of sworn question and
       answer statements.  The purpose of each investigation is to
       determine the facts fairly, without any preconceived intention of
       finding either for or against the subject of the investigation.
       When such an inquiry is conducted, it is the duty and
       responsibility of each and every officer interrogated to answer
       freely and frankly, without reservation, or equivocation.
 
          "All employees of the Service are expected to testify regarding
       matters relating to the performance of official duties or any
       other matter pertinent to the situation under investigation.  When
       the employee refuses to testify, a determination of culpability or
       innocence will be made through logical inference, examination or
       witnesses, and review of other available evidence.  Officers must
       keep in mind that refusal to testify may be grounds for a charge
       of insubordination."
 
    Foust denied the allegations of improper conduct and failure to
 cooperate in the investigation.  In its final determination, Respondent
 sustained only the allegation contained in the letter of November 27
 concerning Foust's refusal to cooperate during the inquiry and Foust was
 suspended from duty without pay for five days in March 1982.
 
    Discussion
 
    The General Counsel alleges that Foust was disciplined for Hobbs'
 insisting on tape recording the interview.  The General Counsel contends
 that if the Union representative's conduct exceeded the bounds of
 protected activity, the appropriate recourse would be to "confront" the
 Union representative and not the employee being represented.
 
    Respondent essentially contends that Foust and Hobbs were engaged in
 a conspiracy to frustrate and block the OPR in its attempt to carry out
 its legitimate function of interviewing employees during investigations.
  Thus, Respondent reasons, because of his complicity in this attempt,
 Foust should not be permitted to escape discipline by "hiding behind his
 Union representative's activities."
 
    The Complaint alleges and Respondent admits that the March 16, 1981
 interview of Foust was an examination within the meaning of section
 7114(a)(2)(B) of the Statute.  /15/ However, it is not contested, and I
 so conclude, that OPR's interview of Foust was a part of Respondent's
 internal security practice.  Indeed, the Authority in deciding the
 negotiability of a union proposal in American Federation of Government
 Employees, AFL-CIO, National Immigration & Naturalization Service
 Council and U.S. Department of Justice, Immigration & Naturalization
 Service, 8 FLRA 347, 363-364 (April 6, 1982), held a proposal which
 would allow an employee's representative to record proceedings when the
 agency recorded an interview of the employee to be nonnegotiable.  In
 deciding the matter the Authority considered the agency's claim, as
 herein, that the practice of restricting the access to witnesses'
 testimony obtained during investigations, including the testimony of
 employees suspected of violations of law or regulation, was followed, ".
 . . to prevent premature disclosure of information which might impede
 its investigative goals, and to protect the privacy rights of employee
 suspects from disclosure of unsupported allegations." The Authority
 ultimately concluded that the proposal ". . . would deny the Agency's
 authority under section 7106(a)(1) of the Statute to prevent
 unauthorized disclosure of investigative material, i.e. determine its
 internal security practices, and thus is outside the duty to bargain."
 /16/
 
    Clearly, OPR, when interviewing Foust, was carrying out its
 legitimate function in investigating a matter which involved an
 allegation that Foust had engaged in improper conduct.  Foust was
 required by the Border Patrol Handbook, supra, to cooperate with the
 investigation by participating in the interview and failure to cooperate
 could constitute insubordination.  Nevertheless, Foust had a statutory
 right to Union representation during the interview.  However, while the
 Union was privileged under the Statute to represent Foust during the
 interview, Hobbs was not privileged to insist upon tape recording the
 interview and thereby obstruct OPR in its conduct of the investigation.
 Thus, if Foust so aligned himself with Hobbs' improper conduct in order
 to prevent and deter OPR from taking his statement unless its acceded to
 Hobbs' impermissible demand to tape record the proceedings then, in my
 opinion, Foust would have participated in conduct unprotected by the
 Statute and his disciplinary suspension would not have constituted a
 violation of the Statute.
 
    It is not infrequent in labor relations that the resolution of a
 issue such as herein requires balancing or "working out an adjustment"
 between the statutory rights of employees "and the equally undisputed
 right of employers to maintain discipline in their establishments." /17/
 In a situation not totally dissimilar to that presented herein, the
 Authority held that ". . . flagrant misconduct by an employee, even
 though occurring during the course of protected activity, may justify
 disciplinary action by the employer.  On the other hand, not every
 impropriety committed during such activity is beyond the ambit of
 protected activity." Department of the Navy, Puget Sound Naval Shipyard,
 Bremerton, Washington, 2 FLRA 54(1979).  /18/ Thus, the Authority has
 utilized a "balanced approach" relative to the rights of employees,
 employers, and unions when considering conduct which occurred at
 meetings or interviews.  Such approach, while respecting the Statutory
 rights of employees and unions, nevertheless recognizes that such rights
 must be viewed in the context of employer's rights and responsibilities.
  /19/ However, it is clear from the cases cited herein that before
 denying the protection accorded to such rights by the Statute, the
 improper conduct which is alleged to negate Statutory protection must be
 substantial when considering the employer's rights in the circumstances
 of the situation.  This is particularly true where the employee's right
 to be protected is that of having a union representative present during
 an interview where, as in Foust's case, disciplinary action may result
 from the interview.  Union representation during such a confrontation,
 in my view, is one of the most important, essential, and valued rights
 which are accorded an employee.  /20/
 
    Turning now to the particular facts under consideration herein, Foust
 was President of the Local Union and from personal knowledge was well
 aware of the National Council's policy in attempting to have Respondent
 accede to allowing Union taping of OPR interviews.  He was informed of
 this policy at the February 1981 National Council convention and in
 telephonic conversations with higher Union officials.  Foust in fact
 carried out this policy when OPR attempted to interview Hobbs and Rogers
 on March 13.  /21/
 
    When Foust was being interviewed on March 16 he knew in advance what
 his Union representative Hobbs' position would be on taping.  Indeed,
 Foust acknowledged that he privately agreed with this policy and the
 record reveals he did little to dissuade Hobbs from his course of
 conduct.  Granted, Foust on two occasions during his aborted interview
 asked Hobbs to turn off the Union's recorder, but at neither of the two
 private discussions Foust had with Hobbs during his March 16 interview
 breaks did Foust ask Hobbs to cease taping the interview.  Rather, he
 merely indicated to Hobbs, as he did during the recorded interview, that
 he wished to give a statement and have the matter disposed of.  Foust
 could hardly be described as eagerly pressing his Union representative
 to desist from taping.  Indeed, the frequency of Foust's "pleas" to give
 his statement while knowing what OPR's position was on the subject and
 the notable lack of enthusiasm which Foust demonstrated in urging Hobbs
 to discontinue taping, and an evaluation of the evidence as a whole,
 portrays a certain disingenuousness on Foust's part.  No doubt Foust was
 anxious to give a statement, but only on the Union's terms.
 
    On the other hand, I find that Foust was willing to give a statement
 regardless of whether Hobbs taped the interview and would have given a
 statement if OPR decided to proceed.  Foust did not actively encourage
 Hobbs to persist in taping the interview and was not in control of
 Hobbs' conduct.  Although Foust was the Local Union President, Hobbs
 looked to higher Union officials for advice.  Further, I do not find
 that a conspiracy existed between Foust and Hobbs to frustrate OPR's
 investigations.  There is no record evidence of an actual agreement
 between Foust and Hobbs as to what procedure should be followed during
 the interview and it is apparent that Hobbs was free to decide a course
 of action on behalf of the Union based upon his evaluation of the
 circumstances as Foust did during the Nordmark interview when Foust was
 acting as a Union representative.
 
    As stated above, the right of an employee to union representation
 during an interview as herein is a substantial Statutory right.  If it
 is permissible to punish an employee for the impropriety of his
 representative during an interview, the chilling effect on the employee
 could virtually extinguish the right.  Holding an employee responsible
 for the misconduct of his representative would have an enormous adverse
 effect in deterring or dissuading an employee from utilizing a Union
 representative.  Few employees would risk representation knowing that
 excesses or poor judgment on the part of a union representative might
 well result in discipline of the employee.  Therefore, balancing the
 importance of the employee's right to representation against the
 employer's rights and responsibilities in these circumstances, /22/ I
 conclude that an insufficient nexus has been established to identify
 Foust with the arguably improper conduct of his Union representative.
 Given the nature of the Statutory right at issue herein, improper
 conduct negating that right should not be lightly inferred.  On the
 state of the record in this case I conclude that insufficient evidence
 exists that on March 16, 1981 Foust failed to cooperate during the
 interview or otherwise engaged in improper conduct warranting
 discipline.  Rather, I find and conclude that Hobbs was disciplined for
 the conduct of his Union representative during the interview of March
 16.
 
    Accordingly, in these circumstances I conclude that Respondent, by
 suspending Foust for five days without pay, violated section 7116(a)(1)
 and (2) of the Statute.  I therefore recommend the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to section 2430.20 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the United States Immigration and Naturalization
 Service, San Diego, California, shall:
 
    1.  Cease and desist from:
 
          (a) Suspending from employment or otherwise disciplining Marvin
       Foust, or any employee represented by the American Federation of
       Government Employees, National Border Patrol Council, the
       employees' exclusive collective bargaining representative, because
       of the collective bargaining representative during an examination
       of a unit employee by a representative of the agency in connection
       with an investigation where the employee reasonably believes that
       the examination may result in disciplinary action against the
       employee and the employee requests representation.
 
          (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
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Rescind the March 1982 five day disciplinary suspension of
       Marvin Foust, expunge any reference to such suspension from his
       personnel records, reimburse him for the loss of pay he suffered
       by reason of the suspension, and restore to him any right or
       privilege he may have lost by such disciplinary action.
 
          (b) Post at its Tuscon Border Patrol Sector facilities 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 Border Patrol Regional
       Commissioner and 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 Regional Commissioner shall take
       reasonable steps to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to section 2423.30 of the Federal Labor Relations
       Authority's Rules and Regulations, notify the Regional Director of
       Region 8, Federal Labor Relations Authority, 350 Figueroa Street,
       10th Floor,
 
 Los Angeles, California 90071 in writing, within 30 days from the date
 of this Order, as to what steps have been taken to comply herewith.
 
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  January 21, 1983
    Washington, DC
 
 
 
 
 
  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 suspend from employment or otherwise discipline Marvin
 Foust, or any employee represented by the American Federation of
 Government Employees, National Border Patrol Council, the employees'
 exclusive collective bargaining representative, because of the conduct
 of the collective bargaining representative during an examination of a
 unit employee by a representative of the agency in connection with an
 investigation where the employee reasonably believes that the
 examination may result in disciplinary action against the employee and
 the employee requests representation.
 
    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
 Federal Service Labor-Management Relations Statute.
 
    WE WILL rescind the March 1982 five day disciplinary suspension of
 Marvin Foust, expunge any reference to such suspension from his
 personnel records, and reimburse him for the loss of pay he suffered by
 reason of the suspension, and restore to him any right or privilege he
 may have lost by such disciplinary action.
                                       (Agency/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 its provisions, they may communicate with the Regional Director,
 Region 8, Federal Labor Relations Authority, 350 South Figueroa Street,
 10th Floor, Los Angeles, California 90071, and whose telephone number is
 (213) 688-3805.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Such interviews are typically taken under oath and tape recorded
 by OPR.  At some time thereafter a transcript is made of the tape and
 provided to the interviewee.
 
 
    /2/ The Union's procedure was to have two representatives present at
 such interviews.  Foust was the principle representative at those
 interviews.
 
 
    /3/ Testimony by an OPR Criminal Investigator disclosed that OPR's
 aversion to permitting the presence of a Union tape recorder was based
 upon a "decision" by the Authority in the matter (see footnote 4), to
 minimize the possibility of witness collusion or pressure to conform
 testimony, to maintain the integrity of OPR's own recording, and to
 avoid Privacy Act problems of disclosure.
 
 
    /4/ Sometime on March 13 OPR provided Foust with a copy of a letter
 from the Regional Director of the Authority's Region 3, dated July 1980,
 and a letter from Richard A. Schwarz, Assistant General Counsel for
 Appeals, dated February 27, 1981.  Essentially the correspondence
 indicated that the Regional Director and Office of the General Counsel
 agreed that an unfair labor practice charge filed by the Union against
 Respondent had been investigated and it was determined that Respondent's
 conduct in issuing directives pertaining to forbidding employees or
 Union representatives to use recording devices during investigative
 interviews concerning job related or criminal conduct by employees did
 not violate the Statute.
 
 
    /5/ Ron Evans was the Union's principle representative at this
 interview.
 
 
    /6/ Hobbs was the local Union President prior to Foust taking office.
 
 
    /7/ A verbatim transcript of the proceeding was received in evidence
 as General Counsel Exhibit No. 2.
 
 
    /8/ "A" indicates Foust's responses.
 
 
    /9/ Comey obviously meant the matter covered by the correspondence
 referred to in footnote 4, supra, and Hobbs understood the remark in
 that context.
 
 
    /10/ The findings concerning the off the record conversations
 described herein are made from a synthesis of the credited testimony of
 Hobbs and Foust.
 
 
    /11/ Hobbs was aware of the procedure ultimately agreed to for taking
 Nordmark's statement, supra.
 
 
    /12/ The Border Patrol Handbook, infra, governing the conduct of
 employees during personnel investigations states ". . . it is the duty
 and responsibility of each and every officer interrogated to answer
 freely and frankly, without reservation or equivocation."
 
 
    /13/ A "compelling notice" is a memorandum from a supervisor to an
 employee which, in effect, notifies the employee that cooperation with
 an investigation is required and willful failure to cooperate in the
 investigation can result in disciplinary action for insubordination.
 
 
    /14/ Actually Foust did not make a specific request to Hobbs to turn
 off the recorder during the break.
 
 
    /15/ 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 . . . 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."
 
 
    /16/ Section 7106(a)(1) provides:
 
    "(a) Subject to subsection (b) of this section, nothing in this
 chapter shall affect the authority of any management official of any
 agency - (1) to determine the mission, budget, organization, number of
 employees, and internal security practices of the agency . . ."
 
 
    /17/ Republic Aviation Corporation v. NLRB, 324 U.S. 793, 797-798, 65
 S.Ct. 982, 985(1945).  Accord, U.S. Postal Service v. NLRB, 652 F.2d 409
 (5th Cir. 1981), and cases cited therein.
 
 
    /18/ This rationale accords with that followed in cases arising under
 the National Labor Relations Act.  See Union Carbide Corporation, 171
 NLRB 1651(1968), in which the National Labor Relations Board in
 
 
 footnote 1 held:
 
    "Where, as here, the conduct in issue is closely intertwined with
 protected activity, the protection is not lost unless the conduct is
 egregious."
 
 
    /19/ See Norfolk Naval Shipyard, 9 FLRA 458(1982), and U.S. Customs
 Service, Region VII, Los Angeles California, 5 FLRA No. 41 (1981).
 
 
    /20/ See NLRB v. J. Weingarten, Inc., 420 U.S. 251(1975), 95 S.Ct.
 959.
 
 
    /21/ Respondent's