19:0748(93)CA - SSA, Baltimore, MD and AFGE Local 1501 -- 1985 FLRAdec CA
[ v19 p748 ]
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 respect to credibility unless a clear preponderance of all the relevant evidence demonstrates such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. /1/ Effective as of January 1, 1984 the local was designated as Local 3937. Prior thereto and during the material event herein, and at the time the charge was filed, it was local 1501. /2/ Unless otherwise indicated, all dates hereinafter mentioned occur in 1983. /3/ The incident which occurred in February was introduced as background by General Counsel. It is contended this evidence demonstrated that Teefy had reasonable fear of discipline at the later meeting with supervisor Bob Dunphy in October. /4/ General Counsel's brief adverts to the fact that on February 24 Dunphy gave repeated assurances to Teefy that the latter would not be disciplined. The record does not disclose that, during their conversation, any such assurances were given to Teefy. /5/ O'Malley was employed at the South Seattle Social Security Office as a claims representative. She also held the position of local Union representative and handled first and second stage grievances. /6/ Regional Vice President time of eight hours per week is accorded Teefy, as regional vice-president of the Union, to work on regional Union issues. /7/ Record facts reflect Bob Dunphy was present during an ensuing discussion between Teefy and Morris. Another employee, Michael Walsh, was present for part of the discussion. /8/ While there are some discrepancies apparent from the different accounts of the meeting, most of the material facts which are determinative do not require a resolution of credibility. To the extent that such disparity calls for a credibility resolution and a determination as to whether the facts demonstrate a request for, and denial of, Union representation on Teefy's behalf, such resolution and determinations will be set forth in the conclusions, infra. /9/ Teefy further testified he did not consider O'Malley to be his representative; that he was reluctant to get into an argument with Morris as to whether a union representative, as himself, could have a representative. /10/ Respondent takes the position that, in reality, Teefy had a union representative in the presence of O'Malley who was a union official. However, in view of Teefy's request that O'Malley remain as a "witness" and the lack of any participation by her at the examination, I do not conclude that she attended as Teefy's representative. /11/ Since it has been heretofore concluded that there was no clear request for, and denial of, a union representative at the October 5 interview, the issue as to whether Teefy reasonably believed thereat he would be disciplined need not be resolved. Nevertheless, in view of the emphasis placed thereon by Respondent, as well as the circumstances herein, consideration is given this issue by the undersigned and a determination reached in connection therewith. /12/ Note is also taken that the Authority has made it clear that the reasonableness of any belief, by the employee, of disciplinary action must be founded on objective criteria. Where management has given assurances that no discipline is contemplated, the employee's belief to the contrary is deemed subjective in nature and therefore unreasonable. See Department of the Navy, Norfolk Naval Base, Norfolk, Va., supra.