15:0360(78)CA - Treasury, IRS and NTEU -- 1984 FLRAdec CA
[ v15 p360 ]
The decision of the Authority follows:
15 FLRA No. 78 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-20285 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party filed exceptions to the Judge's Decision and the Respondent filed an opposition to the Charging Party's exceptions. The Respondent filed cross-exceptions and the Charging Party filed an opposition to the Respondent's cross-exceptions. 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 adopts the Judge's findings, conclusions and recommended order to the extent consistent herewith. The complaint alleges that the Department of the Treasury, Internal Revenue Service (the Respondent) violated section 7116(a)(1) and (8) of the Statute /1/ by failing to grant a request by an employee, Tatum, for representation by the National Treasury Employees Union (the Union) as required by section 7114(a)(2)(B) of the Statute /2/ during a meeting with two inspectors concerning Tatum's threats against other employees. In agreement with the Judge, the Authority concludes that the meeting at issue was not an "examination" of Tatum within the meaning of section 7114(a)(2)(B) of the Statute. Thus, as found by the Judge, the meeting was to warn Tatum about threats he had made. Management found the warning necessary to protect other unit personnel while action was going forward to discipline or remove Tatum. As further found by the Judge, it was not designed "to ask questions, elicit additional information, have the employee admit his alleged wrongdoing, or explain his conduct." Thus, Tatum was told before the meeting that the purpose was "to talk to him for about two minutes . . . to warn him about threats," and at the start of the meeting he was again told that the purpose of the meeting was to advise him he had committed a crime by making threats and to warn him about making threats. Further, it is noted that when Tatum began to respond to the warning, he was advised not to say anything but that he should just listen and acknowledge that he understood what was being said. In all the circumstances, the Authority finds that there was no "examination" and that the complaint must be dismissed. /3/ ORDER IT IS ORDERED that the complaint in Case No. 3-CA-20285 be, and it hereby is, dismissed. Issued, Washington, D.C., July 24, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- David E. Pryor, Esquire For the Respondent Patricia Armstrong, Esquire For the Charging Party Patricia Eanet Dratch, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C. against the Department of the Treasury, Internal Revenue Service (the Respondent). The complaint alleged, in substance, that Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by failing to comply with section 7114(a)(2)(B) when employee Craig Tatum requested to be represented by the Union during a conversation he had with two inspectors concerning threats he had allegedly made against fellow employees. Respondent's answer admitted to the meeting at which Tatum requested to be represented by the Union, but denied that a conversation occurred or that Respondent had violated the Statute. A hearing was held in this matter in Washington, D.C. The Respondent, Charging Party, and the General Counsel, FLRA were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Based on the entire record herein, including my observation of the witnesses and their demeanor, the exhibits, other relevant evidence adduced at the hearing, and the briefs filed by the Respondent and the Charging Party, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact Craig Tatum was employed as a clerk-typist for Respondent for approximately three years until April 19, 1982 (Tr. 9). He was a member of an appropriate unit of Respondent's employees represented exclusively by the National Treasury Employees Union. When Tatum was initially employed by Respondent, a background investigation conducted by Respondent disclosed that he had falsified a portion of his employment application. Tatum was interviewed concerning this matter by inspectors of Respondent's Internal Security Division, IRS Inspection Service, /4/ and disciplinary action involving a suspension for a period of time was subsequently taken against him. (Tr. 11, 15, 119-120). Beginning in September 1981, the Employee Plans Technical Branch, which assists management in areas of disciplinary action and labor relations, began receiving complaints about Tatum's behavior. (Tr. 106, 116-117). A file was established concerning these complaints. (Tr. 118). The Internal Security Division also began receiving reports about Tatum's behavior in September 1981. He had reportedly torn some curtains down. Secretaries in his office also reportedly felt threatened on one or two occasions. (Tr. 79-80). Tatum's supervisor, Charles Logan, had reprimanded Tatum for his conduct. Logan advised Tatum in a series of memoranda that, if he continued to disrupt the office, it could result in more severe disciplinary action. (Tr. 16, 42). In early November 1981, Logan telephoned Inspector C. A. Barg of the Internal Security Division. Logan advised Inspector Barg that Tatum had caused office disruptions and verbally abused or threatened Logan and other employees in a series of incidents. Logan also remarked that Tatum had recently been treated in a mental hospital. Logan stated that the office incidents warranted attention by Internal Security, although he knew that personnel was taking some action against Tatum. Inspector Barg stated he would contact personnel to ascertain the status of such action, but so long as Tatum's actions involved no destruction of government property or bodily injury, Internal Security would not intervene in the matter. (Tr. 33-34, 43-44, 75; Respondent's Exh. 1). On December 2, 1981, Grant Jones, a co-worker of Tatum, threw a bottle of typewriter fluid into Tatum's trash basket. Tatum reacted violently. He took up a fighting stance, accused Jones of narrowly missing his head, and threatened Jones with bodily harm. Supervisor Logan separated the two individuals, spent ten to fifteen minutes trying to calm Tatum down, and, later on in the day, separately interviewed both employees. (Tr. 34). Meanwhile, Jones submitted a memorandum to the employees relations office concerning Tatum's threat. (Tr. 112). Supervisor Logan subsequently contacted the employee relations office and suggested that, in view of Tatum's constant abuse and disruption, the latest incident should be reported to the Inspection Service. The employee relations office agreed. The Internal Security Division, Inspection Service was subsequently contacted by Logan and employee relations personnel. It was decided that, since Logan had not been able to stop Tatum's threats, Internal Security Division inspectors would warn Tatum about making threats, in hopes of having the necessary effect of stopping or curtailing such activity and protecting other employees. It was agreed that no questions would be asked about the threats during such warning. They determined that a warning of this nature would not jeopardize other personnel action being taken against Tatum, since the facts concerning such matters were already in management's possession. (Tr. 34-35, 44-45, 61, 106-108, 113-115). Although a record was being made of the contacts concerning the threats by Tatum, the Internal Security Division did not open an investigation of Tatum. The latest threat was not considered serious enough to warrant criminal prosecution, since no physical assault or bodily harm was involved, and the indication that Tatum had been treated for mental instability also made prosecution unlikely. Internal Security was also aware that management was taking personnel action against Tatum. It preferred that management handle the problem in this manner. (Tr. 52, 57, 75, 81, 85). On December 8, 1981 two inspectors of the Internal Security Division, Inspector C. A. Barg and Special Investigator Albert Anderson, arrived in Mr. Tatum's work area. They advised supervisor Logan that they were there to warn Tatum against making threats. Thereafter, they approached Tatum at his desk. (Tr. 36). They identified themselves, and Inspector Barg stated that they wanted to talk to him for about two minutes in private to warn him about threats. /5/ Inspector Barg asked Tatum to go with the inspectors to the back office or hallway. (Tr. 46, 89, 97). Tatum said he did not want to leave and wanted to have his union representative present. /6/ (Tr. 11, 22-23; General Counsel's Exhibit 1(i)). At this point, Irving Porter, a tax law specialist who had a desk next to Tatum's, intervened. Porter identified himself as the area vice president of the Union. (Tr. 23). One of the inspectors told Porter that it was not a Union matter. (Tr. 23, 30). Tatum said he was calling his Union representative, and he placed a call to Joseph Bothwell, the Union's chief steward. (Tr. 12, 30, 46, 90). Porter remarked to the inspectors that Tatum "wants a representative and he has the right to have a steward present." (Tr. 30). After Tatum indicated that he was unable to reach the chief steward, Inspector Barg again asked to talk to him in private in the back office or hallway. (Tr. 46). Porter advised Tatum not to go anywhere or say anything. (Tr. 90). Obviously irritated at the continuing intrusions of Porter, one of the inspectors then showed Porter his badge, asked him for his name, room, and telephone number, and indicated that he should not interfere in the matter. When Tatum still refused to accompany the inspectors, the inspectors requested Logan to order Porter and the other two employees to leave the area for a break. (Tr. 24, 36, 90). Before Porter left the area, he advised Tatum not to answer any questions and stated that he would be back with a Union representative. (Tr. 13, 37). At no time did Tatum specifically request Porter to represent him, nor did Porter specifically request to stay and act as Tatum's representative. (Tr. 91). After all the other employees left the office, Inspector Barg advised Tatum that the inspectors were there at the direction of their supervisor and the U.S. Attorney's Office to talk to him for about two minutes to advise him that he had committed a crime under Title 18, United States Code, by making a threat toward an IRS employee, and to warn him about making threats. Tatum stood up, yelled, cursed, and demanded to know whom he had threatened, when, and whether the inspectors were referring to Jones. (Tr. 47-48, 64, 72-73, 102-103). Inspector Barg replied that they were referring to any threat he had made; that he had threatened numerous IRS employees in the past; specifically Mr. Logan, who was worried for his personal safety; and that's why they were there to advise him. (Tr. 64, 102). Tatum replied that he had threatened Grant Jones because Jones had thrown something at him. Tatum also said that Logan was harrasing him because of typing errors. (Tr. 64, Respondent's Exhibit 1). The inspectors advised Tatum not to say anything; that, just as Porter had advised him, he should not say anything; that he should just listen and acknowledge that he understood what they were saying. (Tr. 51, 90-91). Inspector Barg continued to advise Tatum that no matter who threw what, it was still against the law; that he had committed a crime by making a threat toward an IRS employee; that he could be arrested; that they were there to warn him not to do it again; that, if he made another threat or assault against an IRS employee, they would open an investigation, and he could be arrested and subject to criminal prosecution. (Tr. 47, 66, 73, 90, 100). The inspectors did not request any information about the threats. (Tr. 51, 69-70, 93). Tatum stated he had a complaint to make against supervisor Logan and proceeded to make loud and abusive remarks concerning Logan. Inspector Barg opened up his notebook at this point, but after listening awhile, advised Tatum to consolidate his complaint into a written report and forward it to them. No notes were taken during the meeting. (Tr. 49, 91-92, 95). The meeting with Tatum lasted about ten minutes. (Tr. 48). As the meeting concluded, Porter returned with the acting Union steward for the area. (Tr. 25). The inspectors subsequently advised supervisor Logan and Ms. Lehrkinder, labor relations specialist, that they had warned Tatum. (Tr. 38, 109). Once the inspectors returned to their office, Inspector Barg wrote a contact memorandum concerning the meeting. (Tr. 52). The memorandum stated, in part, as follows: On 12/8/81, Inspectors Barg and Anderson contacted Tatum and informed him of the threat and assault statutes regarding IRS employees. Tatum appeared to be excited and acted abnormal. Tatum acknowledged that he threatened Jones, but stated Jones threw something at him. Tatum also stated that he was harrassed by his supervisor for his typing errors. (Respondent's Exhibit 1). The memorandum was not disseminated outside the Internal Security Division. (Tr. 54). The purpose of the memorandum was to maintain a chronology of events in the reference file. If Tatum made another threat, Internal Security would present the memorandum to the U.S. Attorney showing that he had made a threat on a previous occasion and had, in fact, acknowledged making a prior threat. The memorandum would be a vital part of the background discussion with the U.S. Attorney concerning criminal prosecution of any subsequent threat. (Tr. 59, 73-74). Mr. Tatum was removed from his position on April 19, 1982. (Tr. 10). One of the reasons given for his removal was the incident with Grant Jones on December 2, 1981. (Tr. 114). No information from the December 8, 1981 meeting was considered in making the decision to remove Mr. Tatum. (Tr. 109). Discussion, Conclusions, and Recommendation Section 7114(a)(2)(B) of the Statute provides: 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. Thus, for union representation to be applicable to a meeting, /7/ there must be (1) an examination, (2) of an employee in the unit, (3) by a representative of the agency, (4) in connection with an investigation, (5) the employee reasonably believes that the examination may result in disciplinary action against the employee, and (6) the employee requests representation. Starting with the last element first, it has been found above that the employee requested representation. The penultimate element is whether the employee reasonably believed that the examination may result in disciplinary action against him. Tatum had previously been warned, in effect, that the next incident of misconduct would bring severe disciplinary action. He had engaged in such alleged misconduct. Now he was confronted by two inspectors from the Inspection Service. He knew from personal experience that the Inspection Service investigated employee misconduct. He also knew from personal experience that disciplinary action could result or follow from an investigative interview by the Inspection Service. I conclude that Tatum reasonably believed that his meeting with the two inspectors might result in disciplinary action against him. However, in the absence of a finding that the meeting, etc., is an examination in connection with an investigation, the fact that the employee might fear discipline is of no import. /8/ Absent such an examination, the protective role of a union representative, which is to attempt to clarify the facts, suggest other employees who may have knowledge of them, and make sure the employer does not initiate or impose punishment unjustly, /9/ is inapplicable. The next element is whether the meeting was "in connection with an investigation" to determine whether or not disciplinary action was warranted. Here the inspectors themselves were not investigating whether Tatum should be disciplined for his misconduct. This was being determined by the personnel office. The Inspection Service had already ruled out prosecution. However, their meeting with Tatum was, nevertheless, a part of an agreed upon agency approach to the misconduct. The inspectors were to try to stop any further misconduct by issuing a warning to Tatum, while, at the same time, the personnel office would continue to process the agency's disciplinary action. Under all the circumstances, I find that the meeting was "in connection with an investigation" to determine whether disciplinary action was warranted. There is now no dispute as to the next element, that the inspectors were "representative(s) of the agency" within the meaning of section 7114(a)(2)(B). /10/ The last, and most critical element being considered here in reverse order, is whether the meeting was "an examination." An employee who is advised that he has committed a crime, and warned that he will be prosecuted for any further threat, could reasonably be expected to respond by making statements denying, admitting, or explaining his actions, just as the employee did here. It is reasonable in such circumstances to envision a discussion of an employee's conduct which could lead to discipline. Therefore, it has been held that, in such circumstances, the employee's right to union representation attaches. /11/ I would find that principle applicable here if the record also showed that the warning procedure was designed and used by the agency as part of an investigative effort to obtain information which could lead to discipline, or was otherwise an "examination." A preponderance of the evidence, however, does not show this. While personnel action was going forward to discipline or remove Tatum, some action was believed to be necessary in the interim to protect other unit personnel. Therefore, it was decided to have the Inspection Service issue Tatum a warning-- to inform him plainly and in the strongest possible terms that another threat on his part would bring the swift reprisal of a criminal investigation and possible prosecution. This meeting was designed to issue a warning, and not to ask questions, elicit additional information, have the employee admit his alleged wrongdoing, or explain his conduct. This is unlike the usual concept of an examination, which is an orderly attempt to obtain information by asking questions or otherwise attempting to gain or elicit responses from an employee. /12/ A meeting to issue a warning of this type was remedial rather than investigatory in nature. It was more closely analogous to either a counseling session /13/ or a meeting held for the sole purpose of imposing discipline /14/ that to an examination. /15/ The fact that the employee voluntarily responded to the explanation of the reasons for the warning with an admission of one of the threats did not convert the meeting to an examination. /16/ The nature and focus of the meeting did not change. The inspectors adhered to the original design and purpose of the meeting. Although the inspectors did subsequently make a note of Tatum's admission in their files, the information was not provided to the officials involved, or used in the subsequent disciplinary action. Under all the circumstances, I conclude that no "examination" was conducted. The record demonstrates that the warning was issued as part of the agency's remedial and supervisory response to the employee's conduct. It was issued to protect other employees until disciplinary action could be taken. It was not part of an investigative effort calculated to form a basis for taking disciplinary or other job-affecting actions against the employee. For the foregoing reasons, I conclude that the meeting in question did not fall within the purview of section 7114(a)(2)(B) of the Statute and that a preponderance of the evidence does not establish a violation of section 7116(a)(1) and (8) as alleged. Based on the foregoing findings and conclusions, I recommend that the Authority adopt the following order: ORDER IT IS HEREBY ORDERED that the Complaint in Case No. 3-CA-20285 be, and it hereby is, dismissed. GARVIN LEE OLIVER Administrative Law Judge Dated: July 21, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (8) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (8) to otherwise fail or refuse to comply with any provision of this chapter. /2/ Section 7114(a)(2)(B) provides: Sec. 7114. Representation rights and duties . . . . (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- . . . . (B) 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. /3/ See United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 10 FLRA 97 (1982). /4/ The Internal Security Division, IRS Inspection Service is a professional investigative service for all IRS offices. It investigates charges of employee misconduct, including alleged threats, assaults, embezzlement, and bribery, and alleged breaches of the employee integrity regulations, the IRS Code of Conduct. (Tr. 87-88). /5/ Tatum and a co-worker, Irving Porter, testified that the inspectors said they wanted to ask Tatum some questions. Based on the entire record, I credit the contrary testimony of the inspectors in this respect. /6/ The inspectors testified that Tatum did not specifically ask for a representative. However, Respondent's answer admitted that Tatum requested to be represented by the Union. Although the admission is conclusive evidence, I also credit Tatum's testimony in this respect, based on the entire record and, particularly, the ensuing events, and find that he did request Union representation. /7/ The titling of the meeting is irrelevant to whether statutory rights attach. Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA No. 116 (1981). /8/ Internal Revenue Service and Internal Revenue Service, Detroit District, 5-CA-719, 5-CA-729, OALJ-81-137, decision of Judge Burton S. Sternburg (July 21, 1981). /9/ NLRB v. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689, 2692-2693 (1975). /10/ Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980), rev. denied; enforcement granted, D.C. Cir. No. 80-2423 (Feb. 12, 1982). /11/ Cf. Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA No. 116, 6 FLRA 678 (1981). /12/ Cf. Department of Treasury, Internal Revenue Service, 8 FLRA No. 72, 8 FLRA 327 (1982). /13/ See, e.g., Internal Revenue Service, Detroit, Michigan, 5 FLRA No. 53 (1981); U.S. Department of the Treasury, Internal Revenue Service, 8 FLRA No. 72 (1982); Library of Congress, Case No. 3-CA-741, OALJ-82-96, decision of Judge Samuel A. Chaitovitz (June 21, 1982). Contra Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA No. 116 (1981). /14/ See, e.g., United States Air Force, Wright-Patterson Air Force Base, Ohio, 3-CA-736, 737, 738, 805, OALJ-81-135, decision of Judge Isabelle R. Cappello, pp. 8-9 (July 15, 1981). /15/ See, e.g., Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980), rev. denied; enforcement granted, D.C. Cir. No. 80-2423 (Feb. 12, 1982); U.S. Department of the Navy, U.S. Marine Corps, Marine Corps Logistics Base, Albany, Georgia, 4 FLRA No. 54 (1980); U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA No. 41 (1981); Lackland Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA No. 53 (1981). /16/ Cf. United States Air Force, Wright-Patterson Air Force Base, Ohio, Case No. 5-CA-715, OALJ-81-081, decision of Judge Alan W. Heifetz (April 6, 1981) at pp. 9-11.