19:0748(93)CA - SSA, Baltimore, MD and AFGE Local 1501 -- 1985 FLRAdec CA



[ v19 p748 ]
19:0748(93)CA
The decision of the Authority follows:


 19 FLRA No. 93
 
 SOCIAL SECURITY ADMINISTRATION
 BALTIMORE, MARYLAND
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1501, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-40028
 
                            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
 General Counsel and the Respondent filed exceptions to the Judge's
 Decision.
 
    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 as modified below.
 
    In agreement with the conclusion of the Judge, the Authority finds
 that, under the circumstances herein, the General Counsel failed to
 prove by a preponderance of the evidence that there was a request by an
 employee for a Union representative and a denial thereof by management
 in violation of section 7114(a)(2)(B) of the Statute.  In this regard
 the Authority notes particularly that, when the employee indicated that,
 if the inquiry concerning his use of official time continued, he would
 wish to have a Union representative present, the Respondent's official
 ceased this line of inquiry.  In view of the above determination, the
 Authority does not find it necessary to address or adopt the other
 findings and conclusions of the Judge with regard to whether there was
 an "examination," whether the employee being questioned could have
 "reasonably believed" that the examination might have resulted in
 disciplinary action, and whether a Union official present as a "witness"
 also constituted a representative within the meaning of the Statute.
 /1A/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 9-CA-40028 be, and it
 hereby is, dismissed in its entirety.  
 
 Issued, Washington, D.C., August 15, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 9-CA-40028
 
    Wilson Schuerholz
       For the Respondent
 
    Patricia Jeanne Howze
       For the General Counsel
 
    John Mack
       For the Charging Party
 
    Before:  WILLIAM NAIMARK
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on December 28,
 1983, by the Regional Director for the Federal Labor Relations
 Authority, San Francisco, California, a hearing was held before the
 undersigned on March 20, 1984 at Seattle, Washington.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).  It is based
 on a charge filed on October 27, 1983, by American Federation of
 Government Employees, AFL-CIO (herein called the Union) against Social
 Security Administration, Baltimore, Maryland (herein called Respondent).
 
    The Complaint alleged, in substance, that on or about October 5, 1983
 Respondent conducted an examination of employee Michael Teefy;  that
 during such an examination, and at a time when Teefy had reason to
 believe the examination would result in disciplinary action against him,
 the said employee requested the presence of a Union representative;
 that Respondent denied said request and proceeded with the examination--
 all in contravention of Section 7114(a)(2)(B) of the Statute and in
 violation of Section 7116(a)(1) and (8) thereof.
 
    Respondent's Answer, dated January 23, 1984, denied that an
 examination took place as alleged and that employee Teefy requested the
 presence of a Union representative.  It also denied the commission of
 any unfair labor practice.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed which have been
 duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the American Federation of
 Government Employees, AFL-CIO, has been the exclusive bargaining
 representative of a nationwide consolidated unit of Respondent's
 employees, including certain employees of Respondent's Port Angeles,
 Washington facility with specified exclusions thereat.
 
    2.  At all times material herein American Federation of Government
 Employees, Local 1501, AFL-CIO, was the designated agent, on behalf of
 the Union herein, to represent the unit employees of Respondent,
 Seattle, Washington District.  /1/
 
    3.  At all times material herein Michael A. Teefy has been employed
 as a Union representative assigned to Respondent's Port Angeles,
 Washington office.  Since November, 1981 Teefy has been Regional
 vice-president of the Union's National Council of Social Security
 Administration Field Operations locals.  Teefy's duties as Union
 representative include handling grievances, taking part in arbitration
 hearings, and participating in collective bargaining sessions on behalf
 of the Union.
 
    4.  Respondent's Seattle Region consists of the states of Washington,
 Oregon, Idaho and Alaska.  There are 57 field offices.  There are also
 three area directors in the Region who report to the assistant regional
 commissioner for field operations.  Each field office has a manager, as
 well as supervisors who report to the area directors.
 
    5.  Since Teefy could not obtain data needed for the February 24
 meeting, he did not show up and meet with Morris.  Prior to the
 arbitration hearing, Pam Smith, chief of Labor-Management Relations
 Division, told Teefy that he was going to be suspended for not meeting
 with Morris.
 
    6.  Record facts show that Teefy was scheduled to represent a unit
 employee at an arbitration hearing on February 8, 1983 /2/ at Seattle,
 Washington.  /3/ The hearing ran four days and was adjourned till
 February 25.  A meeting was scheduled between Teefy and Richard Morris,
 management analyst for Respondent in the Seattle Human Resources
 Management Branch (HRMB) to be held on February 24.  Official time was
 granted Teefy, and he was authorized to travel to Seattle from Port
 Angeles in the morning of that date, as well as meet with Morris in the
 afternoon to discuss the grievance which led to the arbitration
 proceeding.
 
    7.  Upon Teefy's return to Port Angeles after the arbitration
 hearing, supervisor Bob Dunphy called Teefy into the manager's office.
 Dunphy told the employee he could if he wanted, get a Union
 representative.  Teefy called Jeffrey Saul, vice president of Local
 1501, and asked the latter to be his representative.  Since Saul was
 attempting to obtain official time therefor, Teefy asked Dunphy to
 postpone the meeting.  The supervisor refused, saying the employee was
 being afforded a representative as a courtesy and had no absolute right
 to such representative.  Whereupon Dunphy started asking Teefy re his
 whereabouts on February 24 and what he had done that day.  The employee
 then asked a local Union representative, Rita Erdmann, to be his
 representative at the discussion.  The meeting continued and lasted
 30-45 minutes.  It resulted in a written reprimand being given to Teefy
 and the latter's being placed on AWOL for four days.  /4/
 
    8.  On October 3 Teefy attended a bargaining session as chief Union
 negotiator in Seattle to discuss a review policy for the Seattle
 district.  The meeting lasted from 9:00 a.m. till 4:00 p.m. but
 negotiations were not completed.  Since the mediator, Douglas Hammond,
 could not resume until two days later, October 5, it was proposed that
 they reconvene at that time.  Teefy told Hammond that he is authorized
 four hours travel to and from Seattle, and thus he could not attend on
 the 5th of October until 12 or 1 o'clock.  He told Hammond that if it
 could be arranged with management for him to stay in Seattle, they could
 commence negotiations at 9:00 a.m. on October 5.  The mediator agreed to
 talk to management.  He returned shortly and said "Okay, I'll see you at
 nine o'clock in the morning on the fifth."
 
    9.  On October 4 Teefy spent the day working on Union proposals for
 the next negotiation session set for the following day.  During the
 morning of October 4 Teefy spoke to his supervisor, Bob Dunphy, who
 asked where he was and what he was doing.  Teefy explained he was
 preparing Union proposals at the home of Mary O'Malley /5/ for the next
 session.  Dunphy asked if the employee would be returning to Port
 Angeles.  When Teefy stated it would be ridiculous to drive to Port
 Angeles and turn around to return back to Seattle, the supervisor asked
 if Teefy would be using his RVP /6/ time.  The employee replied in the
 negative, and Dunphy commented that Teefy was on travel time.  The
 employee stated that if Dunphy is ordering his return to Port Angeles
 he'll do so, otherwise he'll stay in Seattle.  The supervisor asked
 Teefy what he would be doing, and the latter replied he'd be working on
 the proposals.
 
    10.  The negotiations resumed on October 5 and concluded at 3:30 when
 the parties reached an impasse.  Whereupon Teefy went up to the third
 floor to speak with Morris in the Labor Management Relations Section to
 ascertain whether a travel request he had submitted for future duties
 would be approved.  Earlier that day Teefy had dropped off a request for
 travel and official time to spend four days in the following week
 preparing and presenting a case involving the termination of Frank
 Lingelback.  Teefy also gave Morris a memo from Saul authorizing him to
 negotiate on behalf of Local 1501 and appoint its representatives.
 O'Malley was with Teefy when the latter walked in the office.  /7/ Teefy
 asked Morris if there was any problem re the request concerning travel
 and official time for the Lingelback case.  Morris told him it was
 satisfactory.
 
    11.  A discussion then ensued re the whereabouts of Teefy on October
 4.  The record reflects three principal versions of what transpired.
 The testimonies with respect to each such version are as follows:  /8/
 
                           (a) Teefy's Testimony
 
    Morris told Teefy he wanted to talk to the employee re yesterday
 (October 4)-- that he wanted to know what Teefy was doing and where he
 was that day.  Teefy stated he was at O'Malley's house preparing
 proposals for the negotiating session scheduled for October 5.  Morris
 commented that Teefy should be accountable for his time, and he asked
 the employee whether it was right for the latter to do as he pleased.
 Morris mentioned that Teefy could have gone to the movies, been hiking,
 or at the Space Center.  The employee denied being at said places, and
 repeated that he was working on proposals for negotiations.  Teefy said
 "This is beginning to sound like a Weingarten discussion, and I want my
 representative." Morris replied it was not an investigation;  that he
 was just asking what Teefy had been doing on the previous day, that
 nothing was going to happen.  He also stated that the employee should
 either have been on leave without pay or annual leave or RVP time.
 Morris asked Teefy if he were on travel status and the latter said he
 was taking constructive leave, that it was ridiculous to drive back to
 Port Angeles and turn around and return to Seattle.
 
    During the initial discussion between the two individuals O'Malley
 approached Teefy and asked for her car keys.  She asked Teefy if he was
 all right, and the latter replied that he did not know.  He then asked
 O'Malley to stay and be a witness to the discussion.  Whereupon O'Malley
 remained for the rest of the conversation.  /9/
 
    Morris remarked that he didn't understand "constructive travel" and
 asked Teefy for citations and regulations.  At that point Teefy stated
 it was getting to be an investigation and he wanted his representative.
 Morris denied that it was an investigation, saying he was just asking
 questions.  The conversation continued with Teefy explaining his idea of
 "constructive travel." Morris said that when the employee traveled in
 such a manner he must either use his own time or else not be reimbursed
 for such time.  After both individuals repeated some of the same
 comments to each other, Teefy asked "Am I being charged with something?
 If I'm being charged with something, I want my representative."
 Whereupon Morris said, "We're not charging you with anything.  You still
 have your RVP time this week, but if this problem should come up in the
 future, there could be a different change." At that point Teefy again
 asked if he was being charged with anything, and Morris said no charge
 was made against the employee.
 
                         (b) O'Malley's Testimony
 
    This witness confirmed the fact that she accompanied Teefy to the
 regional office on October 5;  that she heard Morris Ask Teefy where he
 had been the previous day and what he had been doing.  Teefy explained
 he had been preparing Union proposals;  that it would have been stupid
 to drive back to Port Angeles, turn around and drive back to Seattle.
 Morris commented that the employee could have been in the mountains,
 gone fishing, or been at the Seattle Center.  Both Morris and Teefy
 discussed their versions of "constructive leave" which Teefy believed he
 could use for the time taken.  Morris again stated he needed to know
 where Teefy was on October 4, and the latter then said "we're getting
 into a Weingarten."
 
    O'Malley confirms the fact that Teefy thereafter asked her to stay
 and be a witness;  that Morris remarked he had not yet been told where
 Teefy was yesterday or what he had been doing.  Teefy then said, "Now
 we're talking Weingarten.  Now we're talking union rep." Whereupon
 Morris replied, "We're not talking about AWOL or discipline just now.
 We just want to ask you a few questions-- where you were and what you
 were doing yesterday?" Also, Morris stated we're not talking about AWOL
 or discipline just now." Teefy then stated "This is Weingarten." He
 commented that management did this to him before in February.  The
 conversation switched to the applicability of "constructive travel," and
 Teefy stated these were references and practices supporting his use
 thereof.  He also agreed to obtain them for Morris.
 
                           (c) Morris' Testimony
 
    This management official confirms the appearance on October 5 of both
 Teefy and O'Malley in the regional office;  that there was a preliminary
 discussion re Teefy's request for leave and official time to represent
 Lingelback the following week which request was approved.  Morris then
 asked Teefy where he had been yesterday and what he was doing;  that the
 employee was accountable for his time;  that Teefy replied it was none
 of Morris' business.  Teefy asked if Morris expected him to drive to
 Port Angeles and then turn around and return.  Morris replied in the
 negative.  The parties discussed the applicability of constructive
 travel.  Morris remarked that Teefy could have been at the Seattle
 Center or skiing.  At some point the employee said, "This is getting
 dangerously close to being a Weingarten meeting." Morris stated "No it's
 not.  Nothing is going to happen here." Dunphy also said that nothing is
 going to happen.  Morris also suggested Teefy use RVP time for yesterday
 but the employee refused to do so.  Teefy again asked whether management
 expected him to return to Port Angeles and drive back to Seattle.
 Morris replied he did not expect him to do so.  Whereupon Teefy stated
 "if you keep going on like this, I want somebody here." The parties then
 changed the topic and discussed Teefy's plans re the following week as
 union representative at the planned adverse action hearing.
 
    The record reveals that Morris wanted the information as to Teefy's
 whereabouts on October 4 so as to make arrangements in the future for
 Teefy to work under similar circumstances.  Morris testified Teefy could
 take claims in the Seattle office;  that it was a situation to be
 discussed.
 
                          (d) Dunphy's Testimony
 
    This management official confirms the fact that he spoke to Teefy on
 October 4 re his whereabouts on that day.  He asked the employee about
 his status on October 4 and whether Teefy was going to take leave or RBP
 time.  The latter told Dunphy he was on constructive travel and
 explained how it worked in the east.  He said it was ridiculous to drive
 back to Port Angeles and then return again to Seattle.  Dunphy agreed,
 but no resolution was made as to the employee's status.
 
    Dunphy recalls being in the office on October 5 and hearing Morris
 ask Teefy what he was doing the previous day.  When Teefy asked why he
 was being questioned, Morris replied that they were trying to find out
 what Teefy considered his duty status to be on that day.  Teefy said
 that it was getting close to a Weingarten situation.  Morris said it was
 not so;  they just wanted to discuss Teefy's duty status.  Whereupon
 Teefy remarked, "if this is going to continue, I think I want a
 representative here." Morris then said, "Okay, we'll quit talking about
 yesterday." The discussion then centered around Teefy's request for
 travel and official time re his representational duties in Spokane the
 following week.  The meeting ended at 4:35 and all agreed upon the
 scheduled plans for the presentation in Spokane.
 
    11.  Record facts show, and I find, that Teefy was not thereafter
 charged with abuse of leave or any other misdeed, nor was any
 disciplinary action taken against him based on his failing to return to
 Port Angeles on October 4.
 
                                Conclusions
 
    General Counsel contends that Respondent conducted an investigation
 of employee Teefy on October 5 in contravention of Section 7114(a)(2)(B)
 of the Statute.  It is asserted that management's labor relations
 specialist, Rick Morris, examined Teefy in connection with the
 investigation of the employee's use (or misuse) of official time on
 October 4.  Further, that Respondent denied Teefy's request for a union
 representative therat, at a time when the employee reasonably believed
 such examination could result in disciplinary action against him-- all
 in violation of Section 7116(a)(1, and (8) of the Statute.
 
    The predicate of the aforementioned contentions is found in Section
 7114(a)(2)(B) of the Statute, and it provides as follows:
 
          "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 actions against the employee;  and
 
          (ii) the employee requests representation.
 
    There are two primary issues posed for determination herein:  (1)
 whether an "examination" of Teefy took place at which the employee
 requested, and was denied union representation;  (2) if so, whether
 Teefy could have reasonably believed that such examination might result
 in disciplinary action being taken against him.
 
    (1) Where an agency interrogates an employee during an investigation
 concerning such individual, and also denies his request for union
 representation when the employee may well fear disciplinary action
 toward him, the Authority has not hesitated to find that such conduct
 violated the Statute.  See Internal Revenue Service, Los Angeles
 District Office, 15 FLRA No. 133;  Department of the Navy, Norfolk Naval
 Base, Norfolk, Virginia, 14 FLRA No. 97.  In such instances questions
 directed to the employee concerning his duties or employment are deemed
 to constitute an examination in connection with an investigation
 conducted by management.  In the case at bar it is quite clear that the
 interrogation by Morris of Teefy on October 5, which dealt with the
 latter's whereabouts on the previous day and his activities-- all in
 conjunction with an investigation as to the employee's misuse of
 official time-- may properly be described as an "examination" under the
 Statute.  I reject any contention by Respondent that since the
 discussion ensued as a result of Teefy's visiting the regional office
 himself, it was not formalistic in nature and thus may not be termed an
 "examination." An agency may examine an employee irrespective of how it
 is initiated and whether or not it was planned.  Further, no formalities
 are required, as I view the statutory language, in order to construe
 such investigation as an examination within the meaning of the Statute.
 
    It is also quite clear that there must be a request by the employee
 for union representation, and a denial thereof by management, before an
 agency runs afoul of Section 7114(a)(2)(B).  In those cases where the
 employer has flouted the Statute it has been quite clear that the
 employee has asked for such representation, which request has been
 denied by management.  Lackland Air Force Base Exchange, Lackland Air
 Force Base, Texas, 5 FLRA No. 60;  Internal Revenue Service, Washington,
 D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA No.
 37.
 
    Turning to the instant case, I am not persuaded that Teefy made an
 unqualified request for union representation on October 5, which was
 denied by Morris during the examination.  While Teefy testified he
 stated, during the initial discussion, that the investigation sounded
 like "Weingarten," and he wanted a union representative, none of the
 other witnesses corroborated such a request.  O'Malley, who as a union
 representative accompanied Teefy to the office, testified that the
 latter said, "Now we're talking union rep." Both Morris and Dunphy
 testified that Teefy stated, at the end of the conversation that if
 Morris was going to continue the questioning, the employee wanted a
 union representative.  Further, Teefy also testified that he asked
 management if they were charging him with anything;  that Morris assured
 him no charge was being leveled against the employee;  and Teefy
 remarked that if he is being charged, he wanted a union representative.
 
    Based on the foregoing, I am unable to conclude that Teefy made an
 unqualified request for a union representative.  This employee, who is
 experienced and well versed as a union agent, is familiar with
 labor-management activities.  Such familiarity with labor relations
 matters justifies the expectation that any insistence by him for a union
 representative would not be couched in contingencies or be vague in
 nature.  The record reflect, and I find, that Teefy's demand for such
 representation was contingent upon Respondent's charging him officially
 with some misconduct;  that in such event, or if Morris continued the
 investigation, Teefy would demand the presence of a union
 representative.  This conclusion is reinforced by the fact that Teefy,
 after he mentioned that the questioning sounded like "Weingarten,"
 explained his whereabouts on October 4 and what duties he was performing
 that day.  The employee continued to discuss the type of leave
 (constructive) which he believed was applicable, and he repeatedly
 attempted to justify his remaining in Seattle an extra day.  At no time
 did Teefy refuse to continue the discussion or investigation on the
 ground that he did not have union representation.  Moreover, Morris
 assured the employee that he was not being charged with anything;  and,
 further, Respondent's official did not continue with the examination as
 to Teefy's whereabouts on the previous day.  It is true that Morris
 denied the meeting was a "Weingarten" situation but conceded management
 wanted to interrogate Teefy re his leave.  However, in the absence of an
 unmistakable and clear request or demand for a union representative /10/
 by Teefy, I am constrained to conclude that Respondent did not deny the
 employee an opportunity to be represented by his union.
 
    (2) Affording an employee the opportunity to have a union
 representative present during the investigative examination is not
 absolute.  The Statute specifically delimits the right so accorded the
 employee to instances where he reasonably believes said examination will
 result in disciplinary action against him.  /11/
 
    The Supreme Court set the stage in the private sector for granting
 union representation to an employee who undergoes an investigatory
 interview.  In NLRB v. Weingarten, Inc., 420 U.S. 251, 955 Ct. 959
 (1975) it was concluded that the right of an employee to such
 representation was based on Section 7 of the National Labor Relations
 Act which guaranteed the right of employees to act in concert for
 'mutual aid and protection'.  The court was concerned that the employee,
 being fearful of consequences or inarticulate, would not be able to
 raise extenuating factors on his behalf during an investigation as to
 whether the employee's conduct warranted discipline.  Hence, it was held
 in the cited case that requiring an employee to attend such interview,
 which he reasonably believes may result in the imposition of discipline,
 infringes his protected rights under said Act.
 
    In the public sector the same qualification was adopted, as set forth
 under 7114(a)(2)(B), which conditions such representation on the
 employee reasonably believing the examination may result in disciplinary
 action against him.  To this extent, such statutory provision tracks the
 limitation imposed by the Weingarten decision.  Moreover, the Authority
 has refused to find that an agency ran afoul of said section of the
 Statute where a grant of immunity was accorded the employee.  Thus, in
 U.S. Immigration and Naturalization Service, San Diego, California, 15
 FLRA No. 80 the agency interviewed an employee in the course of an
 investigation concerning certain improper conduct by the employee's
 fellow patrol agents.  The employer assured said employee that no
 administrative proceedings would be instituted against him based on any
 statement made by him during the interview.  It was held that such
 assurance by the agency was sufficient to dispel any fear by the
 employee of discipline.  Accordingly, the latter was disentitled to
 union representation during the interviews.  In those instances where
 the Authority has found an infringement by an agency of the right to
 union representation, the employee received no firm assurance that his
 statements during the interview would not lead to disciplinary action
 being taken against him.  See Department of the Navy, Norfolk Naval
 Base, Norfolk, Va., supra;  Internal Revenue Service, Washington, D.C.,
 and Internal Revenue Service, Hartford District Office, supra.
 
    Turning to the case at bar, General Counsel insists that Teefy had a
 reasonable basis for fearing disciplinary action against him despite the
 assurance by Morris that no such action would be taken.  This contention
 is predicated upon the former interview of Teefy by supervisor Dunphy in
 February, 1983 and the resultant discipline thereafter of Teefy for
 failure to attend a meeting with Morris.
 
    Several factors, however, make it clear to the undersigned that the
 previous interview did not afford a reasonable basis for Teefy's fearing
 discipline at the examination on October 5.  It does not appear that
 Teefy was given any assurance during the February interview that no
 disciplinary action would be taken against him.  The failure to give
 such grant of immunity contrasts with the interview on October 5.  Both
 Teefy and O'Malley, as well as Morris, testified that at the meeting on
 October 5, Teefy was told that nothing was going to happen to him by
 reason of the examination.  While it may be maintained that the
 assurance of immunity could have been more explicit, I am convinced that
 Morris did express to Teefy that the latter would not be disciplined or
 receive a reprimand based on the statements made by the employee at the
 interview.  Further, that such a declaration was sufficient to dispel
 any reasonable fear of future discipline by reason of the interview.
 /12/
 
    It is also noted that, at the February interview, Teefy did in fact
 have union representation.  The record reflects that the employee asked
 union representative Rita Erdmann to represent him thereat, and that the
 discussion then continued for about 30-45 minutes.  Since there is no
 evidence to the contrary, and based on the testimony of Teefy in said
 respect, it is concluded that union agent Erdmann acted as Teefy's
 representative during the entire examination.
 
    Accordingly, I am persuaded that the February examination of Teefy
 did not afford him a reasonable belief on October 5 that he would be
 disciplined or reprimanded officially as a result of statements made at
 ,the interview on the latter date.  Moreover, I concluded that Morris
 did give sufficient assurance to Teefy at said interview that the
 employee would not be disciplined based on statements made by him
 thereat.
 
    In view of the foregoing findings and determination, the undersigned
 concludes that Respondent did not transgress Section 7114(a)(2)(B) of
 the Statute.  Accordingly, it is recommended that the Complaint, which
 alleges a violation by Respondent of Section 7116(a)(1) and (5), be
 dismissed in its entirety.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
 Dated:  January 9, 1985
         Washington, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1A/ During the hearing the Judge was confronted with conflicting
 testimony with regard to what was said during the October 5, 1983
 meeting.  The General Counsel excepted to certain credibility findings
 made by the Judge.  The demeanor of witnesses is a factor of consequence
 in resolving issues of credibility, and the Judge has had the advantage
 of observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with