24:0521(59)CA - Treasury, ATF, Southeast Regional Office, Atlanta, GA and NTEU -- 1986 FLRAdec CA



[ v24 p521 ]
24:0521(59)CA
The decision of the Authority follows:


 24 FLRA No. 59
 
 DEPARTMENT OF THE TREASURY 
 BUREAU OF ALCOHOL, TOBACCO AND FIREARMS 
 SOUTHEAST REGIONAL OFFICE 
 ATLANTA, GEORGIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 4-CA-1138
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent, the Charging Party (the Union), and the General
 Counsel to the attached Decision of the Administrative Law Judge.  The
 issue is whether the Respondent violated section 7116(a)(1) of the
 Federal Service Labor-Management Relations Statute (the Statute) by (1)
 conducting an "examination" of an employee in conflict with the
 employee's right to request union representation under section
 7114(a)(2)(B) of the Statute;  and (2) requiring another employee to
 participate in the "examination." The Authority finds that the
 Respondent did not commit an unfair labor practice as alleged.
 
                   II.  Background and Judge's Decision
 
    A special agent in the Respondent's Office of Internal Affairs
 received a report that an employee, Ms. Franken, may have compromised an
 ongoing investigation concerning a firearms dealer by telling the
 dealer's wife about the investigation.  As part of the investigation
 into the allegation, the special agent contacted another employee, Ms.
 Then, who was a coworker of Franken and who had reported overhearing the
 telephone conversation during which Franken allegedly compromised the
 investigation.
 
    Then was interviewed by the special agent about the allegation.  Then
 was also asked to call Franken so that the special agent could monitor
 and tape record her answers to questions related to the internal
 investigation.  Then asked what would happen if she refused to make the
 call and she was told that she would have to explain her refusal to her
 supervisor and that the matter could ultimately reach the Director.
 Fearing that refusal could adversely affect her, Then agreed to make the
 call.
 
    The special agent supplied the questions for Then to ask Franken
 during the conversation.  Franken denied compromising the investigation
 concerning the firearms dealer.  When Franken accused Then of asking the
 questions for someone else, Then denied the accusation.
 
    The Office of Internal Affairs reported the findings of the
 investigation to the Assistant U.S. Attorney, who concluded that there
 was insufficient evidence to warrant prosecution.  The Assistant U.S.
 Attorney recommended that the Respondent proceed with the matter
 administratively.  After further internal investigation, which is not in
 dispute here, Franken was cleared of any wrongdoing.  Franken was,
 however, cautioned in writing about discussing investigative matters
 with persons outside the Agency.  The investigative materials remain on
 file with the Respondent.
 
    The Judge concluded that the telephone conversation between Then and
 Franken constituted an "examination" and that Franken's right to request
 Union representation under section 7114(a)(2)(B) of the Statute had been
 violated.  The Judge found, therefore, that the Respondent had violated
 section 7116(a)(1) as alleged.  The Judge also found that the Respondent
 violated section 7116(a)(1) when it required Then to participate in the
 telephone conversation because its actions interfered with Then's right
 under section 7102 to assist the Union, which had a right to be
 represented at the examination of Franken.  The Judge recommended an
 Order requiring the Respondent to cease and desist engaging in the
 unfair labor practices and to post a notice in Respondent's District
 Office in Jacksonville, Florida, to that effect.  The Judge denied the
 General Counsel's request for "expungement" of the investigative file.
 The Judge also found no reason to restore the status quo ante because
 the incident had caused no harm to Franken's career.
 
                      III.  Positions of the Parties
 
    The Respondent argues that the Judge erred in concluding that section
 7114(a)(2)(B) applies in a criminal investigation, and that even if that
 section applies in such an investigation, no violation occurred in this
 case because of the surreptitious nature of the investigation.  The
 Respondent also excepts to the Judge's finding that it interfered with
 Then's right under section 7102 to assist the Union.
 
    The Union and the General Counsel filed exceptions also.  They argue
 that the Respondent should be required to post the notice of the unfair
 labor practice nationwide rather than in the Jacksonville District
 Office only, and that, in addition, the investigative file should be
 expunged.
 
                       IV.  Analysis and Discussion
 
                        A.  Criminal Investigations
 
    In Department of the Treasury, Internal Revenue Service, Jacksonville
 District and Department of the Treasury, Internal Revenue Service,
 Southeast Regional Office of Inspection, 23 FLRA No. 108 (1986), we held
 that section 7114(a)(2)(B) applies to requests by an employee for union
 representation at an examination by an agency representative in
 connection with a criminal investigation.  For the reasons stated in
 Internal Revenue Service, Jacksonville District, we reach the same
 conclusion here.
 
             B.  Whether the Conversation Was an "Examination"
 
    Internal Revenue Service, Jacksonville District involved the agency's
 monitoring and taping of a telephone conversation between a taxpayer and
 an agency employee concerning possible wrongdoing on the part of the
 employee.  In view of the Congressional intent concerning section
 7114(a)(2)(B), we stated that "the presence of a union representative is
 utterly incongruous with the surreptitious nature of the agency's
 surveillance activities." Slip op. at 4.  We found in that case that:
 (1) there was no direct questioning or examination of the employee by
 agency management, (2) management's involvement was limited to
 monitoring the conversation, (3) the employee was unaware that the
 questions and his answers were monitored, (4) the employee did not feel
 compelled to answer the questions, and (5) management played a "passive
 role" in the conversation.  We concluded that the monitoring of the
 conversation did not constitute an "examination" within the meaning of
 section 7114(a)(2)(B).
 
    As in Internal Revenue Service, Jacksonville District, we conclude
 here that a finding of a violation would necessitate an expansion of
 employee rights that is inconsistent with section 7114(a)(2)(B) and with
 the Agency's right under section 7106(a)(1) to determine the internal
 security practices which it will use to investigate alleged wrongdoing
 by its employees.  In fact, it would effectively eliminate the use of
 surveillance involving questioning of employees as an investigative
 technique.  We do not believe that such a result would be inconsistent
 with Congressional intent.
 
    Although the Agency supplied the questions for Then to ask Franken
 during the conversation, its involvement in the conversation itself was
 limited to monitoring.  Also, Franken was unaware that the conversation
 was monitored and did not feel compelled to answer the questions.  In
 essence, the only differences between this case and Internal Revenue
 Service, Jacksonville District are that (1) the Agency here actually
 supplied the questions to be asked during the conversation and (2) the
 questions were asked by an employee rather than by a member of the
 public.  These are insufficient bases upon which to distinguish the two
 cases.  Consistent with Internal Revenue Service, Jacksonville District,
 therefore, we conclude that the surreptitious monitoring of the
 conversation between Franken and Then was not an examination within the
 meaning of section 7114(a)(2)(B).
 
                 C.  Interference with Section 7102 Rights
 
    As discussed above, the Union had no right under the Statute to be
 represented during the monitored conversation.  Accordingly, Then's
 right under section 7102 to assist the Union was not violated.
 
    The Agency placed Ms. Then in a very awkward situation in order to
 obtain her cooperation in the investigation of Ms. Franken.  Although
 the Agency's actions did not violate the Statute, we encourage the
 Agency and others in like circumstances to seek other means, whenever
 possible, to accomplish their internal security and law enforcement
 functions in the future.  It is our view that actions which foster
 employee management relations based on trust and cooperation are
 preferred for the most effective and efficient conduct of the Agency's
 business.
 
                              V.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's regulations, we have
 reviewed the rulings of the Judge made at the hearing, find that no
 prejudicial error was committed, and affirm those rulings.  We have
 considered the Judge's decision, the exceptions to that Decision, and
 the entire record.  We adopt the Judge's findings and conclusions only
 to the extent that they are consistent with this decision.
 
    We conclude that in the circumstances of this case Respondent did not
 interfere with, restrain, or coerce employees Franken or Then in the
 exercise of their rights under section 7114(a)(2)(B) of the Statute.  We
 will, therefore, dismiss the complaint.  In view of our conclusion, we
 do not pass upon the merits of the Judge's recommended remedial order.
 
                                   ORDER
 
    The complaint in Case No. 4-CA-1138 is dismissed in its entirety.
 
    Issued, Washington, D.C., December 17, 1986.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 4-CA-1138
 
 DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, 
 TOBACCO, AND FIREARMS, SOUTHEAST REGIONAL 
 OFFICE, ATLANTA, GEORGIA
    Respondent
 
                                    and
 
 NATIONAL TREASURY EMPLOYEES UNION
    Charging Party
 
 
    Michael Sitcov, Esq.
    For the Respondent
 
    Steven P. Flig, Esq.
    For the Charging Party
 
    Linda J. Norwood, Esq.
    For the General Counsel
 
    Before:  JOHN H. FENTON
    Chief Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arises under the Federal Service Labor-Management
 Relations Statute (5 U.S.C. Section 7101 et seq.) and the Final Rules
 and Regulations issued thereunder (5 C.F.R. Section 2423.14 et seq.).
 It is based on a complaint issued by the Regional Director of Region IV,
 Federal Labor Relations Authority, alleging that Respondent violated
 Section 7116(a)(1) of the Statute by conducting a covert telephone
 examination of an employee which precluded her from exercising her
 Section 7114(a)(2)(B) right to request the presence of a union
 representative.  The complaint alleges further that Respondent violated
 Section 7116(a)(1) by requiring another employee to participate in the
 covert examination, in which she questioned her colleague in what is
 termed a consensually monitored telephone call, i.e., one in which a
 party has consented to government eavesdropping.
 
    A formal hearing was held in Jacksonville, Florida on March 15, 1983.
  All parties were afforded full opportunity to examine witnesses, to
 introduce evidence and file briefs.  On the basis of the entire record,
 including my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions and recommendations.
 
                             Findings of Fact
 
    The National Treasury Employees Union (the Union) is the exclusive
 bargaining representative for a unit which includes Respondent's
 professional, general schedule, and wage grade employees located in its
 Southeast Region.
 
    The Respondent, the Bureau of Alcohol, Tobacco and Firearms (ATF), is
 the branch of the Department of the Treasury responsible for the
 enforcement of Federal Statutes regulating the alcohol, tobacco and
 firearms industries.  The Office of Regulatory Enforcement at ATF
 investigates and inspects members of the industry for compliance with
 federal regulation.  The Office of Criminal Enforcement tries to prevent
 illegal traffic in alcohol, firearms and tobacco.  The Bureau maintains
 its internal integrity by means of the Office of Internal Affairs, an
 "in-house" branch which is charged with investigating misconduct and
 criminal violations by ATF employees.  Bargaining unit employees Colleen
 Then and Sania Franken worked in the Jacksonville, Florida, Regulatory
 Enforcement Division of ATF in March and April of 1981.
 
    Christopher Columbus Hilton, a firearms dealer, had been under
 investigation for several years by Criminal Enforcement when, on April
 8, 1981, Special Agent for Internal Affairs Gary Mugridge received a
 report that Sania Franken told Hilton's wife that he was under
 investigation.  If the allegation was true, Franken was guilty of the
 crime of compromising an ongoing investigation.
 
    On April 9, 1981, Agent Mugridge traveled from Atlanta to
 Jacksonville where he interviewed Ron Mitchell, Special Agent assigned
 to the Criminal Enforcement office in Jacksonville, and Robert Griffith,
 the Resident Agent in charge of ATF's Criminal Enforcement office in
 Jacksonville.  In the interview with Mitchell, Mugridge learned that on
 March 18, 1981, Colleen Then, a friend and co-worker of Franken's had
 reported to Mitchell that she had overheard a telephone conversation
 between Franken and a friend in which Franken had discussed the criminal
 investigation of Hilton's firearms activities.  /1/ Mitchell had
 reported this allegation to Resident Agent Griffith who, in turn, had
 reported it to his supervisor.  Griffith's supervisor reported the
 allegation to the Office of Internal Affairs.
 
    In the afternoon of April 9th, Mugridge called Then at home and tried
 to arrange to interview her that night.  She refused due to health
 problems, but agreed to meet with him the next day.  On April 10, Then
 met with Griffith and Mugridge in Griffith's office.  She was told the
 purpose of the interview was to discuss the allegation that an ongoing
 investigation had been compromised and that she, although not the
 subject of the investigation, was a witness and had to answer
 job-related questions under oath, as required by the ATF Manual 8600.
 Mugridge took a dry run through the questions he intended to ask Then
 about Franken's alleged compromise of the investigation.  He then
 questioned her under oath with the tape recorder on.
 
    Mugridge next asked Then to call Franken so that he could monitor and
 tape record her answers to questions related to the internal
 investigation.  Then balked at the request and asked what would happen
 if she refused to make the call.  She was told that she would have to
 explain her refusal to her supervisor and that this could ultimately
 reach the Director.  She was given 10 to 15 minutes to think over the
 request.  Fearing that her refusal to cooperate could cost her her job,
 Then agreed to make the phone call.
 
    Mugridge wrote out questions for Then to ask Franken.  She was told
 to keep constant eye contact with Mugridge during the taping of the
 conversation.  She reached Franken by phone on the job at the Castleton
 Beverage Corporation.  The conversation began with a friendly exchange
 about what was going on at work.  Eventually, Then asked Franken about a
 recent phone call she had overheard while at Franken's house.  Franken
 revealed that it had been Ruth Monger who had called her.  (Monger was
 in Franken's LaMaze class and was married to a gun dealer).  Franken
 told Then that Monger had mentioned that Christopher Hilton had been
 arrested by local authorities in a precious metal scheme.  While Franken
 admitted saying to Monger that if Hilton knew the metal was stolen, he
 deserved whatever trouble he got, she denied discussing the matter any
 further with Monger.  Franken expressed dismay at the questions Then was
 posing, and accused her of asking them for someone else.  Then assured
 Franken that no one was telling her to ask the questions, explaining
 that she was wondering about them because Criminal Enforcement personnel
 had questioned her about the regulatory investigations of Hilton.
 
    Internal Affairs viewed the investigation as a criminal one up to
 this point, but the information derived from the phone call would have
 been used in connection with any disciplinary action against Franken.
 When Internal Affairs reported the findings of the investigation, the
 Assistant U.S. Attorney concluded that there was insufficient evidence
 to warrant prosecution and recommended that ATF proceed with the matter
 administratively.
 
    More than a week later, Mugridge called Franken from Atlanta to
 arrange for an interview in Jacksonville to discuss the allegations made
 against her.  The interview was scheduled for April 20, 1981.  Franken
 tried to arrange to have a union representative accompany her.  However,
 the representative could not attend, and she agreed to the interview
 without him.  Mugridge informed Franken of the nature of the interview,
 placed her under oath and recorded her responses.  He asked questions
 similar to those Then had asked during the phone call on April 10.
 Franken's answers corresponded with those she had given during the
 surreptitiously monitored phone conversation and corroborated her
 previous statements that she had not disclosed to Monger or to anyone
 else anything pertaining to the investigation of Christopher Hilton.
 
    Franken was ultimately cleared of any wrong-doing.  On September 18,
 1981, Dee Flynn, her third level supervisor, wrote a letter to Franken
 informing her that the integrity investigation was complete.  But, while
 "clearing" her, Flynn cautioned Franken against discussing ATF matters
 with persons outside of the agency.  The investigative materials remain
 on file with Respondent.
 
                        Discussion and Conclusions
 
    Section 7114(a)(2)(B) grants unit employees the right to union
 representation during investigative interviews where they have
 reasonable cause to fear discipline and request such representation.
 /2/ This case presents the following questions with respect to the
 application of that Section:
 
          (1) Does it apply at all to criminal investigations?
 
          (2) Does it apply to investigations into matters affecting an
       agency's internal security, as opposed to mere misconduct?
 
          (3) Does it apply where the employee fails to request
       representation because the surreptitious nature of the inquiry
       concealed the fact that an agency investigation was in progress?
       (Put another way, may the otherwise legal investigative technique
       of the consensually monitored telephone call be lawfully used
       where the subject employee is in a collective bargaining unit?)
 
    In addition, the question is posed whether it is violative of Section
 7116(a)(1) to require an employee to engage in a management-monitored
 interrogation of a fellow employee, disguised as a personal
 conversation, so as to deprive the latter of her Section 7114(a)(2)(B)
 rights?
 
    Respondent contends that Section 7114(a)(2)(B) protections should not
 apply to criminal investigations.  Noting the lack of any reference to
 the matter in the legislative history, it argues that Congress' silence
 on the matter indicates that it did not intend to interfere with
 effective criminal law enforcement, and certainly did not intend to
 delegitimitize certain investigative techniques solely for employees who
 happen to be represented by unions.
 
    The short answer to this is that the FLRA has already ruled that
 Section 7114(a)(2)(B) applies to criminal investigations which may
 result in administrative disciplinary action.  In Lackland Air Force
 Base Exchange, Lackland Air Force Base, Texas and American Federation of
 Government Employees, Local 2911, AFL-CIO, (5 FLRA 473), the Authority
 held that when an agent of an employer participates in the investigation
 of a bargaining unit employee accused of a crime, he cannot deny the
 employee union representation if it is requested.  5 FLRA 473, 485
 (1981).  In that case, not only did the employer's agents question one
 employee accused of cash register manipulation, but they also remained
 present while independent investigative agents interrogated the employee
 and used the work product of the criminal investigation for their own
 administrative purposes.  While the Authority did not explicitly address
 whether or not Section 7114(a)(2)(B) protections apply to criminal
 investigations, the ruling makes it clear that employees subject to
 administrative action based on evidence acquired in criminal
 investigations are entitled to union representation if they request it.
 /3/
 
    A convincing rationale for such a holding has, in my view, been
 elaborately articulated by the National Labor Relations Board.  In U.S.
 Postal Service and Eddie J. Jenkins, 241 NLRB 141, it considered whether
 the Weingarten rights of employees should be recognized in a criminal
 investigation.  /4/ The Board there rejected the contention that an
 employee's waiver of his Miranda /5/ right to counsel in a criminal
 investigation constituted a waiver of the Weingarten right to union
 representation in context where the investigation led to discipline.  In
 doing so the Board noted the significant differences in foundation and
 scope of the two rights, and concluded that the employee's Weingarten
 rights were "unaffected by any rights he may also have possessed or been
 accorded under Miranda." Among the differences it observed were that,
 while an attorney's Miranda role calls for whole-hearted advocacy of his
 client, whose interests may not be subordinated to the general interests
 of bargaining unit employees, the Union representative's Weingarten role
 is far less adversarial and involves the rights of the union as well as
 the employee.  Thus, while the representative's function is to assist
 the employee who may be "too fearful or inarticulate to relate
 accurately the incident being investigated, or too ignorant to raise
 extenuating factors," /6/ unlike a lawyer he may not thwart the
 investigation, and he may properly elicit facts favorable to the
 employer.  Moreover, he may subordinate the interests of the individual
 to those of the group, for example by using information gathered in the
 interview to discourage a nonmeritorious grievance.  In terms of
 effectiveness, the Board noted that while an attorney would be skilled
 in criminal law, the union representative should be more conversant with
 contract and other employment rights and relevant grievance or
 arbitration decisions -- in short with the law of the shop.  As I read
 it, the Board essentially concluded that the right to counsel in a
 criminal investigation is not the equivalent of, and therefore cannot be
 a substitute for, the right to union representation.
 
    The Board concluded that exclusion of a union representative from a
 criminal investigation, coupled with the potential for use of the fruits
 of such investigation in the imposition of discipline, would effectively
 nullify rights recognized in Weingarten and Section 7114(a)(2)(B).  I
 perceive no reason (except in circumstances where union officialdom is
 implicated in criminal conduct), why the Board's approach is not wholly
 fitting in the federal sector.  Accordingly, I conclude that
 management's right to so conduct criminal investigations must yield to
 representation rights set forth in Section 7114.
 
    Respondent presses another, very similar argument, but one which
 presents considerations which are absent in the private sector.  It
 asserts that any holding that Section 7114 precludes the use of
 consensually monitored conversations is an unwarranted interference with
 management rights recognized in Section 7106.  That section provides
 that ". . . nothing in this chapter shall affect the authority of . . .
 (management) . . . to determine . . . (its) internal security
 practices."
 
    As in the case of suspected crimes, I conclude that the right to use
 this particular investigative technique must yield to the employee/union
 rights recognized in Section 7114.  Section 7106 clearly renders the
 substance and scope of internal security practices nonbargainable.  /7/
 It is, perhaps, arguable that the techniques used in investigating
 suspected internal security violations are, like the rules themselves,
 under the umbrella which leaves them unaffected by other provisions "of
 this chapter." But to do so is to read by implication into Section 7106
 an intention by Congress to remove such investigative procedures from
 the reach of another provision of the Act which expressly recognizes the
 right of employees to union representation at investigatory interviews
 in which the risk of discipline reasonably inheres.
 
    In the effort to square, or balance, the rights recognized in Section
 7106 with those recognized in Section 7114, as well as this law with
 criminal laws, it must be acknowledged that this recommended resolution
 will, on occasion, significantly impair management's right to protect
 its mission, its property, and its personnel against crimes, and
 internal security breaches which fall short of crimes.  A grant of
 immunity from discipline, which might in other circumstances justify a
 refusal to accord union representation, is of course, foreclosed in the
 case of a consensually monitored conversation.  /8/ Where this ruse is
 deemed vital to a successful investigation, its use would appear to be
 limited to those cases where other law enforcement of internal security
 agents (who are not "representatives of the agency" subject to Section
 7114), are available and authorized to make the investigation.  Where
 the agency is alone charged with such investigative powers, and the
 criminal and administrative aspects of misconduct are inseparable, the
 use of the technique would be precluded absent the possibility of some
 acceptable arrangement for observing a use immunity which is not
 disclosed to the suspect.  To permit an agency to operate without such
 restrictions would, as the Labor Board noted, effectively nullify rights
 explicitly set forth in Section 7114.  Although I conclude that such
 rights attach in internal security investigations as well as criminal
 investigations, I do so in the belief it is by no means certain that
 Congress intended such a result or that the enforcement of other laws
 should be subordinated to the apparent commands of this one.  Having
 given the matter some thought, I think it is useful to set forth those
 reservations.
 
    First, this result appears anomalous in the light of the early
 legislative history.  It was the House which first addressed this
 question, on which the Senate was silent in its original bill.  HR 3793
 provided that an employee could not be required to answer questions
 during an investigation of misconduct which could lead to suspension,
 removal or reduction in rank or grade unless first advised in writing of
 the fact of the investigation, the nature of the alleged misconduct, and
 the right to a representative of his choice.  (Legislative History of
 the Federal Service Labor-Management Relations Statute, Title VII of the
 Civil Service Reform Act of 1978, 96th Congress, 1st Sess., Committee on
 Post Office and Civil Service, Committee Print No. 96-7, p. 230).
 Should such rights be violated, Section 7171(c) provided its own
 sanction:  "(a)ny statement made by or evidence obtained during
 questioning of an employee . . . may not be used as evidence in the
 course of any action for suspension, removal or reduction in rank or pay
 subsequently taken against the employee" (Legislative History, supra, p.
 231).  In the Committee's Report (Legislative History, supra, pp.
 647-648) it was noted that the sanction set forth in Section 7171(c):
 
          is similar to the exclusionary rule in criminal law, although
       certain differences should be noted.  First, the phrase "statement
       made or evidence obtained during questioning" (emphasis supplied)
       reflects the Committee's intention that only evidence obtained (1)
       at the time of the questioning and (2) from the employee, may not
       be used in a subsequent adverse action.  Evidence obtained other
       than through the questioning of the employee, even if such
       evidence was uncovered due to a lead developed during the
       questioning, could be used provided, of course, that it was
       otherwise competent.
 
    Thus the only reference to criminal law went to the fruits of the
 questioning, in a way which conflicts with criminal law concepts barring
 the use of the fruits of the "poisoned tree." And, of course, the very
 notion of requiring the represented employee to answer questions is
 inconsistent with the privilege against self-incrimination.  In
 conference all these matters were eliminated.  The word "discipline" was
 substituted for misconduct with certain specific and serious
 consequences;  the references to the requirement that questions be
 answered and to the inadmissibility of evidence gathered in the absence
 of representation were dropped;  the requirement that the employee be
 informed of the nature of the investigation and his right to
 representation was removed;  and "investigation" was modified so as to
 encompass "any examination . . . in connection with an investigation . .
 ." (Legislative History, supra pp. 823 and 824).  There is no hint of
 Congress's intention with respect to the interface of criminal and
 administrative investigations.
 
    Thus, the House demonstrated its concern for employee rights during
 investigations, whereas the Senate did not.  But the House proposed to
 do so in a manner which did not fully recognized the rights of a
 criminal suspect.  /9/ After meeting with the Senate, which initially
 showed no such concerns, a statute was fashioned which literally applies
 to any examination in connection with an investigation aimed at a unit
 employee.
 
    Second, it is difficult to see, as noted above, how the discrete
 interests of criminal law enforcement and the maintenance of
 administrative discipline and controls can be harmonized.  Often the two
 aspects of misconduct are inseparable.  There is of course no problem
 where the law enforcement or internal security agents are not employed
 by the agency, but are nevertheless empowered to conduct the
 investigation.  Such agents would not be hobbled by Section 7114, which
 applies to "representatives of the agency." The same may be true of
 agents employed by a "wholly autonomous" investigative arm of a
 Department, over which the agency has no control.  /10/ But where the
 agency is required to make the investigation, in a bargaining unit, the
 use of a consensually monitored conversation would appear to be
 precluded, absent recognition of self-imposed constraints or isolation
 of the agency's investigative arm.  It will serve no useful purpose to
 speculate further about such matters.  Suffice it to say that
 elimination of an otherwise lawful investigative technique will have a
 harmful effect on the process of protecting property and preventing
 corruption in government, and that acknowledgement of such consequences
 is a necessary ingredient in the effort to determine what Congress
 intended and how Section 7114 should be interpreted in the light of
 other Sections of this Statute as well as other laws.
 
    In sum, I find no real guidance in the legislative history, and find
 confusing in the Statute itself the combination of a free hand for
 management respecting internal security practices and a clearly stated
 right to representation in any investigation which may reasonably lead
 to discipline.  I am persuaded by the explicit treatment accorded the
 latter that it must prevail.
 
    Having addressed the two threshold questions, I now consider whether
 Respondent violated Franken's rights based on Section 7114(a)(2)(B) and
 Section 7116(a)(1) of the Statute.  To establish non-compliance with
 Section 7114(a)(2)(B), the General Counsel must show that the
 examination was investigatory in nature, that the employee reasonably
 believed he was subject to disciplinary action, and that the employee
 requested union representation.
 
    As for the first criterion, even though Then, not Mugridge,
 questioned Franken, I conclude that the conversation between Then and
 Franken was an "examination . . . in connection with an investigation."
 The questions Mugridge told Then to ask were designed to elicit
 information from Franken which could cast light on the allegations made
 against her.  It is irrelevant that these questions were not asked by
 Mugridge directly.  Reluctantly, Then served as an undercover agent or
 mouthpiece for Mugridge.  The information elicited from Franken could
 have been used against her in a disciplinary action just as surely as if
 Mugridge had arranged to interview her at the District office.
 
    With respect to the second and third criteria, Franken was precluded
 from forming any beliefs about the possibility of disciplinary action
 because of the covert nature of the interrogation.  Had she known what
 was underway, she would have certainly confronted the prospect of
 disciplinary action.  But the need for this was concealed.  She could
 not reasonably be expected to assert her rights in the circumstances.
 For this reason, as well, it cannot be said that she waived her rights.
 The concealment of the examination constituted a deprivation of
 Franken's right to seek the Union's assistance.  By depriving Franken of
 her Section 7114(a)(2)(B) rights, ATF interfered with her exercise of a
 "right under this chapter" in violation of Section 7116(a)(1).  /11/
 
    Finally, the Complaint alleges that Mugridge "ordered, directed and
 forcefully adjured" Then to interrogate Franken in his behalf, thus
 intefering with, restraining and coercing her in the exercise of her
 Section 7102 rights in violation of Section 7116(a)(1).  More
 particularly, General Counsel argues that Respondent thereby interfered
 with Then's right to refrain from conduct which violated Franken's
 Section 7114(a)(2)(B) right to request Union representation.
 Respondent, picking up on the language of Section 7102, contends that
 its requirement that Then assist it in ascertaining the facts about a
 possibly compromised criminal investigation did not affect her right to
 "form, join or assist any labor organization" or to bargain collectively
 through the Union.
 
    Respondent's argument, of course, misses the General Counsel's point,
 and appears to be based on the fact that the interrogation did not focus
 on the Union activities of Franken.  /12/ No party advances a case in
 point respecting the proposition that an employee enjoys a protected
 right to avoid participation in an unfair labor practice.  The dearth of
 such precedent, from a half-century of labor law litigation, for what
 would appear to be an obvious infringement of rights, gives one pause
 respecting whether a tenable theory exists, or whether it has been
 deemed pointless to fashion one because an employee in Then's
 circumstances would, in any event, be fully protected as an incident to
 the protection of Franken's rights.  /13/
 
    General Counsel relies on a line of Labor Board cases where that
 agency has "protected" supervisors who were discharged for refusing to
 carry out orders to violate the rights of employees.  /14/ General
 Counsel asserts that the Court there held that the company "attempted to
 force a supervisor to participate in the commission of an unfair labor
 practice, in violation of Section 8(a)(1)," and argues that if an
 individual not protected by the Statute cannot legally be forced to
 commit an illegal act, a fortiori a protected employee cannot legally be
 required to do so.
 
    I regard that line of cases as wholly inapposite.  They involve no
 allegation or finding that the supervisors' rights were infringed.
 Rather, they involve reinstatement of supervisors who did not obey such
 orders, as a necessary incident of the Board's power to fashion
 effective remedies.  The rights protected were those of the employees
 (the Frankens there involved), and truly effective vindication of those
 rights required that the supervisors' insistence or respecting them be
 itself respected.  Then, as Respondent's agent, would be entitled to the
 same kind of protection, even if she is viewed as not being engaged in
 protected activity in such circumstances.
 
    Whatever my doubts concerning the usefulness of creating two discrete
 violations where the identical remedy would flow from one (not to use
 employees -- or anyone else -- to so disguise an investigative interview
 and thus circumvent Section 7114(a)(2)(B) protections), I find that
 Then's rights were violated.  Section 7102 gives her the right to assist
 unions.  Section 7114(a)(2)(B) grants unions the "opportunity to be
 represented at . . . any examination . . . in connection with an
 investigation" in circumstances present here, and gives Franken the
 right to Union representation.  Respondent, by requiring Then to
 participate in conduct which precluded the exercise of such rights and
 which was thus destructive of them, interfered with Then's Section 7102
 right to assist the Union.  Since the effect of Respondent's conduct was
 deprivation of such rights, it is irrelevant that such purpose never
 entered her mind.
 
    Accordingly, I conclude that Respondent, by failing to observe the
 rights set forth in Section 7114(a)(2)(B) interfered with, restrained
 and coerced Then in violation of Section 7116(a)(1).
 
                                The Remedy
 
    The General Counsel requests a nationwide posting on the ground that
 the employees involved were relocated to Miami, Florida and California,
 and that the violation "reaches to the very essence of employees'
 guaranteed rights." While, clearly, neither of these is a recognized
 reason for nationwide posting, I briefly considered the possibility that
 such an approach was justified because the offending investigation
 technique was one authorized by headquarters of the Office of Internal
 Affairs as a national policy.  However, the Authority has limited
 posting to the location of the unfair labor practice, even where it was
 committed pursuant to a nationwide policy promulgated by the respondent
 union's president, noting the absence of any reason to conclude that
 such policy would be continued after issuance of the Decision finding it
 unlawful.  /15/
 
    General Counsel also requests "expungement of the voluminous file of
 the investigation of Sania Franken, which was based on Respondent's
 illegal actions occurring on the second day of Respondent's
 investigation." /16/ If this request is limited to that part of the
 investigation which was affected by the illegal interview, it would
 involve only the tapes of the consensually monitored call to Franken,
 the direct interview of her in which her Weingarten rights were
 belatedly respected, and pages 10 and 12 of the investigative report,
 which recaps those interviews.  I have no authority to strike from such
 record the earlier evidence, derived from other agents of the Bureau
 (all of which originated with Then) which established that Then was
 present during a telephone call in which Franken might have compromised
 a criminal investigation.  The illegal interrogation elicited Franken's
 version:  that the outsider to whom she spoke asked what she thought of
 the arrest or conviction by County authorities, of a firearms dealer who
 allegedly was trading in stolen gold.  That was not a federal matter, so
 that the conversation could have been perfectly innocent.  But it was
 also redolent with the suggestion that Franken and the outsider (who was
 married to a man in the firearms industry) talked too much about the
 former's employment.  In the presence of such possibility, the Bureau
 determined that a word of caution was in order.  In the circumstances, I
 conclude that I have the authority to order the letter of caution and
 the three matters described above removed from Franken's file and
 destroyed.  However, I doubt that the efficacy of such a course, given
 the fact that the early investigation indicated very serious misconduct,
 and that the illegal interrogation and what followed it in the main
 vindicated Franken.  Were I to order expunged evidence tending to
 exculpate her we would be left with a record strongly suggesting that
 she had compromised an investigation by informing the suspect's wife.
 The record, as it now stands, indicates that Then misunderstood the half
 of a conversation she overheard, and that it was concernced with trading
 in gold, a nonfederal matter.  In my judgement, expungement of the
 exculpatory matters disclosed in the illegal interrogation and its
 aftermath would not serve a remedial purpose.
 
    Accordingly, I recommend that the following order be entered:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, the
 Authority hereby orders that Department of the Treasury, Bureau of
 Alcohol, Tobacco and Firearms, Southeast Regional Office, Atlanta,
 Georgia, shall:
 
    1.  Cease and desist from:
 
          (a) Engaging in investigatory interviews of bargaining unit
       employees, which may lead to disciplinary action, by means of
       consensually monitored telephone calls which conceal the fact that
       an investigation is underway, and thus operate to deprive
       employees of the right to request and receive representation by
       the National Treasury Employees Union, their exclusive collective
       bargaining representative.
 
          (b) Requiring any employee to place a telephone call to a
       bargaining unit employee, and, in behalf of management to engage
       in a covert investigatory interview designed to elicit information
       which could lead to discipline, thus interfering with, restraining
       and coercing the employee required to make the call in the
       exercise of the right to assist the National Treasury Employees
       Union in the exercise of its right, upon request, to be
       represented at such examination.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Post at its facilities at the Bureau of Alcohol, Tobacco
       and Firearms, District Office, Jacksonville, Florida, copies of
       the attached notice marked "Appendix" on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such forms
       they shall be signed by authorized representatives, 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 insure that said 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 for Region IV, in
       writing, within 30 days from the date of this order, as to what
       steps have been taken by comply herewith.
 
                                       JOHN H. FENTON
                                       Chief Administrative Law Judge
 
    Dated:  October 21, 1983
    Washington, D.C.
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) It is not clear whether Then alleged Franken had spoken to
 Hilton's wife or to someone else.  Nevertheless, it is clear that
 Mitchell and Trestik, a Regulatory Inspector, believed Franken had
 spoken to Hilton's wife.
 
    (2) Section 7114(a)(2)(B) provides that:
 
          (2) 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 action against the employee;  and
 
          (ii) the employee requests representation.
 
    (3) Cf. U.S. Immigration and Naturalization Service, San Diego,
 California, QALJ-82-123, where Judge William Naimark held that no
 Section 7114(a)(2)(B) right attaches in an examination where the
 employee has received a grant of immunity from discipline and therefore
 cannot reasonably fear it.
 
    (4) In Weingarten v. NLRB, 420 U.S. 251, which involved theft, the
 Supreme Court sustained the NLRB's holding that employees have the right
 to union representation during investigatory interviews which they
 reasonably believe will result in discipline.  The doctrine was
 legislated for federal employees in Section 7114(a)(2)(B).  While that
 legislative history indicates that future private sector decisions
 interpreting Weingarten were not to be "determinative for the Federal
 Sector" (H.R. Rep. No. 95-1717, 95th Cong. 2d Sess. 155-156), the
 Board's application of the doctrine (and review thereof by U.S. Courts
 of Appeals) is a ready resource which ought not be ignored.  Such
 decisions provide a reasoned discourse, in a closely analogous area,
 where hiyhly similar if not identical considerations of public policy
 are involved.  See Library of Congress v. FLRA, 112 LRRM 2897, 2901
 (CADC).
 
    (5) Miranda v. State of Arizona, 384 U.S. 436.
 
    (6) Weingarten v. NLRB, 420 U.S. 251, 263.
 
    (7) Mare Island Naval Shipyard, 12 FLRA No. 78.
 
    (8) The same is, of course, true of any assurance that the answers
 and their fruits would not be used in any criminal case, under the
 holding of Kalkines v. U.S., 473 F.2d 1391 (Ct. Cl. 1973).
 
    (9) Note that a federal employee can be discharged for not answering
 a question if adequately informed that he is subject to discharge for
 that reason and is granted a "use immunity," i.e., assurance that his
 replies and their fruits will not be used against him in a criminal
 case.  Kalkines v. U.S., 473 F.2d 391 (Ct. Cl. 1973).
 
    (10) See Department of the Treasury, Bureau of the Mint,
 Administrative Law Judge Decisions Report No. 9.  There Judge William
 Devaney held that Section 7114 did to apply to Secret Service agents
 investigating the theft of coins at the Mint.
 
    (11) Respondent argues that even if Franken's Section 7114(a)(2)(B)
 protections were circumvented during the monitored call, she was given
 the opportunity to participate at the second interview with the aid of a
 Union representative.  Respondent argues further that since Franken
 consented to be interviewed alone, this shows that no significant harm
 occurred (in violation of the Statute) during the monitored phone call.
 But Respondent's argument misses the point.  It was too late for the
 Union to provide Franken with effective representation.  Franken had
 already disclosed information to Mugridge which could have been used
 against her in a disciplinary proceeding had it provided grounds for
 such action.  The horse was already out of the barn.
 
    (12) I would agree with Respondent were we here concerned with
 imposition of a requirement that Then participate in a fact-gathering
 technique -- such as bugging, wire tapping, video or plain old-fashioned
 surveillance of Franken -- designed to determine whether Franken was
 compromising investigations.  Such circumstances would not involve "an
 examination," in the sense of an interview in which the risk of
 discipline lies in the mouth of the suspect, and hence would not bring
 into play the protections afforded by Weingarten.
 
    (13) Labor Board cases exist finding unlawful efforts to enlist
 employees in surveillance of the union activites of other employees,
 although it is not made clear beyond doubt that the violation is
 predicated on an infringement of the rights of the employees who were
 asked to spy as opposed to those who were to be spied upon.  See
 Elder-Burman Stores Corp., 415 F.2d 1375 (C.A. 6);  Sarkes Tarzian, Inc.
 v. NLRB, 374 F.2d 734, 736 (C.A. 7).
 
    (14) See, for example, Howard Johnson Co., v. NLRB, 112 LRRM 2904
 (C.A. 1).
 
    (15) National Treasury Employees Union, et al., 10 FLRA 519, 521.
 Cf. VA Medical Center, Bath, NY, 12 FLRA 560, where posting was ordered
 at headquarters and Bath.
 
    (16) There is, of course, no occasion for restoration of the status
 quo ante in the absence of damage to Franken's career.  Arguably, she
 suffered no discipline, as she was cleared of the "charge," or
 suspicion, that she had divulged information concerning an active
 investigation to the wife of the firearms dealer who was the subject of
 the investigation.  The letter from her superior announced that the
 investigation did not "prove the allegations," and then added that
 "there was apparent idle conversation concerning ATF which could have
 been construed as important information concerning a possible
 investigation.  You are cautioned not to be guilty of any conversation
 to persons outside t