15:0360(78)CA - Treasury, IRS and NTEU -- 1984 FLRAdec CA



[ v15 p360 ]
15:0360(78)CA
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 tha