24:0521(59)CA - Treasury, ATF, Southeast Regional Office, Atlanta, GA and NTEU -- 1986 FLRAdec CA
[ v24 p521 ]
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 the Bureau concerning any inspection or investigation which deals with ATF matters." In my judgement this constituted a mild form of discipline, potentially harmful to her career prospects, because it suggests she was guilty of using poor judgement which could have adversely affected the Bureau's law enforcement activities. APPENDIX 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT interfere with, restrain, or coerce any bargaining unit employee in the exercise of the Statutory right to be represented by the National Treasury Employees Union during an investigatory interview which may reasonably lead to discipline, by conducting a monitored examination through another employee who is an undisclosed agent of management, thus concealing the nature and purpose of the interrogation and precluding the opportunity for Union representation. WE WILL NOT interfere with, restrain, or coerce any employee in the exercise of the right to assist the Union in the representation at an investigatory interview of another employee, by requiring that employee to act as an agent of management and by means of a covertly monitored telephone call to elicit from the employee called information which could be used in a disciplinary action against him or her. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employees in the exercise of their rights assured by the Statute. This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerniny this Notice of compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region IV, whose address is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Georgia 30309, and whose telephone number is: (404) 881-2324.