21:0240(33)CA - INS, San Diego, Cal. And AFGE, Local 2544 -- 1986 FLRAdec CA



[ v21 p240 ]
21:0240(33)CA
The decision of the Authority follows:


 21 FLRA No. 33
 
 U.S. IMMIGRATION AND NATURALIZATION 
 SERVICE, SAN DIEGO, CALIFORNIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2544
 Charging Party
 
                                            Case No. 8-CA-1195
                                             (15 FLRA 383)
 
                       DECISION AND ORDER ON REMAND
 
    I.  Statement of the Case
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit,
 which directs the Authority to issue an appropriate order directing the
 Respondent agency to cease and desist from certain unfair labor
 practices.
 
    II.  History of the Case
 
    A. The Authority's Decision
 
    On July 24, 1984, the Authority issued its Decision and Order in U.S.
 Immigration and Naturalization Service, San Diego, California, 15 FLRA
 383 (1984), adopting the Decision of its administrative Law Judge that
 the respondent had not violated the Stature by denying the request of
 Gregory Reed, a unit employee, for union representation at an
 investigatory interview, or by conducting the interview despite the
 denial of Reed's request.  As stated by the Judge, and adopted by the
 Authority, the grant of immunity to Reed by the respondent was
 sufficient to dispel any reasonable fear of disciplinary action.
 
    B. The Court's Opinion
 
    On December 24, 1985, the Court issued its opinion in American
 Federation of Government Employees, Local 2544 v. FLRA, 79 F.2d 719
 (Judge Starr dissenting).  The Court, while accepting the Authority's
 standard for determining "reasonable belief," found that the record
 evidence failed to support the conclusion adopted by the Authority that
 the employee could not reasonably have believed that disciplinary action
 might result from the interview.  Thus, the Court, reversed the
 Authority's conclusion and remanded the case for the issuance of an
 appropriate order.
 
    III.  Conclusion
 
    The Authority accepts the Court's opinion as the law of the case and,
 consistent with that opinion, finds that the Respondent, by denying the
 request of unit employee Gregory Reed for union representation at an
 investigatory interview of the employee on April 9, 1981, and by
 conducting the interview despite the denial of employee Reed's request,
 failed to comply with section 7114(a)(2)(B) of the Statute and thus
 violated section 7116(a)(1) and (8) of the Statute.  Accordingly, we now
 issue the following order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the U.S. Immigration and Naturalization Service, San Diego,
 California, shall:
 
    1. Cease and desist from:
 
    (a) Requiring any bargaining unit employee to take part in an
 examination in connection with an investigation (investigatory
 interview) or conducting such an examination or interview, without
 representation by the employee's exclusive bargaining representative, if
 such representation has been requested by the employee, and if the
 employee reasonably believes that the examination or investigatory
 interview may result in disciplinary action against such employee.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2. Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Post at all facilities of the U.S. Immigration and Naturalization
 Service, San Diego, California, copies of the attached Notice on forms
 to be furnished by the Federal Labor Relations Authority.  Upon receipt
 of such forms, they shall be signed by the Regional Commissioner
 responsible for such facilities, or a designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VIII, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C. April 7, 1986
 
                                       (s)---
                                       Jerry L. Calhoun, Chairman
                                       (s)---
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
                                PURSUANT TO
 
                        A DECISION AND ORDER OF THE
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                AND IN ORDER TO EFFECTUATE THE POLICIES OF
 
                       CHAPTER 71 OF TITLE 5 OF THE
 
                            UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT require any bargaining unit employee to ta