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

 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