25:0210(16)CA - Federal Prison System, Federal Correctional Institution, Petersburg, Virginia and AFGE, Council of Prison Locals, Local 2052 -- 1987 FLRAdec CA



[ v25 p210 ]
25:0210(16)CA
The decision of the Authority follows:


 25 FLRA No. 16
 
 FEDERAL PRISON SYSTEM, 
 FEDERAL CORRECTIONAL INSTITUTION, 
 PETERSBURG, VIRGINIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL OF PRISON LOCALS, 
 LOCAL 2052
 Charging Party
 
                                            Case Nos. 34-CA-50274 
                                                             34-CA-50311
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on an
 exception filed by the General Counsel and a cross-exception filed by
 the Respondent to the Judge's decision.  /*/
 
                   II.  Background and Judge's Decision
 
    The complaints in this consolidated case alleged that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by refusing to permit
 particular designated representatives of the Union to represent
 employees during an examination in connection with an investigation
 which the employees reasonably believed would result in disciplinary
 action.  More specifically, the complaints alleged that Respondent
 refused to permit requested representation by certain designated
 bargaining-unit representatives for the stated reason that those
 representatives were also the subject of the investigation and that the
 Respondent further refused to permit representation by an attorney,
 employed and designated by the Union, for the stated reason that it did
 not permit attorneys at such investigations.  However, as was found by
 the Judge, representation was permitted by bargaining-unit
 representatives who were not themselves subject to investigation.
 
    The Judge concluded that to preserve the integrity of the
 investigation, individuals who were to be investigated could not serve
 as representatives of other employees being investigated until their own
 investigations had been completed.  Consequently, the Judge found that
 the Respondent had violated section 7116(a)(1) and (8) only in those
 instances where the Respondent had refused to permit designated
 representatives, whose examinations had been completed, to represent
 employees to be examined.  As to the Respondent's refusal to permit an
 attorney to represent employees, the Judge concluded that there was no
 basis for the Respondent's refusal and that consequently the Respondent
 had violated section 7116(a)(1) and (8) by such refusal.  The Judge
 further found no violation of the Statute when the Respondent, after
 delaying for a reasonable period of time, began an examination prior to
 the arrival of the designated representative.  Accordingly, the Judge
 recommended that this portion of the complaint be dismissed.  To remedy
 the violations the Judge recommended that the Respondent be ordered to
 cease and desist from interfering with the right of the Union to
 designate its representative at any examination of an employee pursuant
 to section 7114(a)(2)(B) of the Statute and to take the affirmative
 action of posting a notice to that effect.
 
                      III.  Positions of the Parties
 
    In its exception the General Counsel disputes the Judge's recommended
 remedy.  He contends that the expungement of the statements taken at the
 interviews where the Respondent violated the Statute is necessary to
 fully remedy those violations.  The Respondent only excepts to the
 statement of the Judge that "as a general rule a union's right to
 designate its representative for the purpose of an examination in
 connection with an investigation is inviolate." It does not dispute the
 specific findings of violations of section 7116(a)(1) and (8) of the
 Statute.
 
                       IV.  Analysis and Conclusions
 
    We adopt the Judge's findings and conclusions.  However, we
 specifically do not adopt the Judge's comment excepted to by the
 Respondent.  We also adopt the Judge's recommended order.  In view of
 the Judge's finding that in all instances a union representative was
 permitted by the Respondent to represent the employee being examined, we
 conclude that the Judge's recommended remedy and not the remedy of
 expungement requested by the General Counsel best effectuates the
 purposes and policies of the Statute.
 
                                 V.  Order
 
    A.  Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Federal Prison System,
 Federal Correctional Institution, Petersburg, Virginia is ordered to:
 
    1.  Cease and desist from:
 
    (a) Interfering with American Federation of Government Employees,
 Council of Prison Locals, Local 2052, (the Union), lawfully designating
 its officers and stewards as its representative at any examination of an
 employee, pursuant to section 7114(a)(2)(B) of the Statute.
 
    (b) Interfering with the right of the Union to have an attorney as
 its representative at any examination of an employee pursuant to section
 7114(a)(2)(B) of the Statute.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Post at its facilities at Petersburg, Virginia, copies of the
 attached Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms, they shall be signed by the
 Warden and posted in conspicuous places, including all bulletin boards
 and other places where notices to employees are customarily posted, and
 shall be maintained for 60 consecutive days thereafter.  Reasonable
 steps shall be taken to ensure 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, Region III, Federal Labor
 Relations Authority, P.O. Box 33758, Washington, D.C. 20033-0758, in
 writing, within 30 days of the date of this Order, as to what steps have
 been taken to comply herewith.
 
    B.  Those portions of the complaints as to which no violation of the
 Statute has been found are dismissed.
 
    Issued, Washington, D.C. January 15, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT interfere with American Federation of Government
 Employees, Council of Prison Locals, Local 2052 (the Union) lawfully
 designating its officers and stewards as its representative at any
 examination of an employee, pursuant to section 7114(a)(2)(B) of the
 Statute.
 
    WE WILL NOT interfere with the right of the Union to have an attorney
 as its representative at any examination of an employee pursuant to
 section 7114(a)(2)(B) of the Statute.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
                                       (Activity)
 
    Dated:  By:
                                       (Signature) (Title)
 
    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 concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  1118 18th Street, NW., 7th Floor (P.O. Box 33758), Washington, D.C.
 20033-0758, and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                         Case Nos.: 34-CA-50274, 34-CA-50311
 
 FEDERAL PRISON SYSTEM FEDERAL CORRECTIONAL 
 INSTITUTION, PETERSBURG, VIRGINIA
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL OF
 PRISON
 LOCALS, LOCAL 2052
    Charging Party
 
    Yvonne E. Hinkson, Esquire
          For the Respondent
 
    Ira Sanderson, Esquire
          For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
 Section 7101, et seq., /1/ and the Final Rules and Regulations issued
 thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether
 Respondent violated Sections 16(a)(1) and (8) of the Statute by refusing
 to permit particular designated representatives of the Union to
 represent employees during an examination in connection with an
 investigation which the employees reasonably believed would result in
 disciplinary action.  Specifically, Respondent refused to permit
 requested representation by certain designated bargaining unit
 representatives for the stated reason that those representatives were
 also the subject of the investigation and further refused to permit
 representation by an attorney, employed and designated by the Union, for
 the stated reason that it did not permit attorneys at such
 investigations.  Representation was permitted by bargaining unit
 employees not themselves subject to investigation.  Case No. 34-CA-50274
 was initiated by a charge filed on February 7, 1985 (G.C. Exh. 1(a)) and
 the Complaint therein issued on April 29, 1985 (G.C. Exh. 1(c)) with a
 hearing set for June 4, 1985.  Case No. 34-CA-50311 was initiated by a
 charge filed on February 28, 1985 (G.C. Exh. 1(b) and the Complaint
 therein issued on May 23, 1985 (G.C. Exh. 1(c)) with a hearing set for
 June 20, 1985.  On May 16, 1985, General Counsel had filed a motion to
 postpone Case No. 34-CA-50274 (G.C. Exh. 1(f)), to the same date hearing
 was set in Case No. 34-CA-50311 and by Order dated May 17, 1985, Case
 No. 34-CA-50274 was rescheduled for June 20, 1985 (G.C. Exh. 1(h)).
 Pursuant to the Notice of Hearing in Case No. 34-CA-50311 and the Order
 Rescheduling Hearing in Case No. 34-CA-50274, a hearing was duly held on
 June 20, 1985, in Richmond, Virginia, before the undersigned.  The two
 cases were litigated together and, inasmuch as the parties are the same
 in each case and each case presents common issues of law and fact, I
 hereby consolidate the cases for purpose of decision.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to introduce evidence bearing on the issues
 involved and were afforded the opportunity to present oral argument,
 which each parties waived.  At the close of the hearing, July 22, 1985,
 was fixed as the date for mailing post-hearing briefs, which time was
 subsequently extended, upon timely motion of the General Counsel,
 supported by Respondent, for good cause shown, specifically, delay in
 receipt of the transcript, to August 5, 1985, which have been carefully
 considered.  Upon the basis of the entire record, /2/ including my
 observation of the witnesses and their demeanor, I make the following
 findings and conclusions:
 
                                 Findings
 
    1.  At all times material, the American Federation of Government
 Employees, Council of Prison Locals (AFGE) has been recognized by
 Respondent as the exclusive representative of a nationwide unit of all
 employees, Class Act, Wage Board, and Professional of the Federal Prison
 System except managerial officials, any employee engaged in federal
 personnel work in other than a purely clerical capacity, or any
 supervisor (G.C. Exhs. 1(c), Par. 5(a), 1(e)) and the parties entered
 into a collective bargaining agreement (G.C. Exh. 2) which was in force
 and effect at all times material (Tr. 17) (A new agreement became
 effective May 12, 1985, after the events involved herein, which was not
 introduced as an exhibit).  Article 29, "DISCIPLINARY ACTIONS", of
 General Counsel Exhibit 2 provided, in part, as follows:
 
          "Section b.  If at any time an employee is being questioned by
       a supervisor or management official and he/she believes that
       his/her rights are being threatened, he/she may request that
       his/her designated representative be present.  If such a request
       is made, no further questioning will take place until the
       employee's representative is present, provided, that if the
       representative is not available within a reasonable period of
       time, the questioning may proceed without the representative being
       present.  All employees are required to answer questions regarding
       the performance of their duties, even though such answers may lead
       to disciplinary action short of criminal prosecution.
 
          "Section c.  When an employee is going to be questioned on
       matters which may lead to disciplinary action, prior to the taking
       of a written or sworn statement, it is recommended that he/she be
       reminded at that time of his/her right to be represented.  If a
       representative is requested, no questioning will take place until
       the employee's representative is present.  Provided, that if the
       representative is not available within a reasonable period of the
       time, the questioning may proceed without the representative
       present.
 
          . . ." (G.C. Exh. 2, Art. 29, Sections b and c).
 
    2.  At all times material, American Federation of Government
 Employees, Council of Prison Locals, Local 2052 (hereinafter referred to
 as the "Union") has been the agent of AFGE, acting on its behalf, in
 representing unit employees at Respondent's Petersburg, Virginia
 facility (G.C. Exhs. 1(c), Par. 5(b), 1(e)).
 
    3.  The Office of Inspections (OI), a component of the Bureau of
 Prisons, is located in Washington, D.C., and has as its primary
 responsibility the investigation, or monitoring of investigations of
 allegations of staff misconduct.  Its inspectors and director are
 admitted supervisors or management officials and agents of Respondent
 (G.C. Exhs. 1(c), Par. 4, 1(e)).
 
    4.  By way of background, on Christmas Day 1982, a riot broke out at
 the Federal Correctional Institution in Petersburg, Virginia, during
 which a correctional officer was killed.  The riot was put down over the
 next few days.  After calm was restored, allegations of inmate abuse by
 staff in retaliation for the death of the officer surfaced.  OI began an
 investigation of these complaints in late December 1982, which was
 suspended when the Federal Bureau of Investigation began its own
 investigation.  Subsequently, three employees, including one bargaining
 unit employee and two management employees, were indicted, convicted and
 sectenced to prison.  In his Bench opinion regarding those convictions,
 Judge Merhige, of the United States District Court for the Eastern
 District of Virginia, indicated that perjury may have taken place in his
 courtroom and that certain individuals may have been engaged in a
 "cover-up" (Tr. 186-188).  Consequently, Mr. Patrick R. Kane, Chief, OI,
 decided to reopen his Office's investigation.  In addition to the
 "cover-up" and possible involvement of other persons in the abuse of
 inmates, theft of a telephone bugging device from a locked cabinet in
 the Warden's Office was discovered as well as possible unathorized
 removal of documents from a safe in the Warden's Office (Res. Exh. 1)
 and made the subject of the investigation.  Accordingly, the reopened OI
 investigation concerned:  1) were there others beyond the three
 convicted who were involved in abuse of prisoners;  2) were there
 employees who were involved in a coverup of what took place;  3)
 possible improper access to the files;  and 4) improper possession of a
 piece of peripheral recording equipment (bugging device) that was used
 in recording telephone conversations (Tr. 187-188).
 
    Mr. James G. Meeker, Inspector OI, was in Petersburg in November,
 1984, but did not interview any staff members at that time (Tr. 190).
 The first interviews were conducted on December 5, 1984, and there were
 no requests for representation on December 5 (-tr. 199).  The December
 interviews were conducted by Mr. Meeker and by Mr. Mark Henry, also an
 Inspector OI.
 
    5.  On December 6, the first person to be interviewed was Mr. James
 Manley Long, a steward, who requested representation (Tr. 199).  Mr.
 Meeker testified that Mr. Long requested as his representative Mr.
 Charles H. Trotman, President of the Union, and/or Mr. Nathaniel Nelson,
 Vice President and Chief Information Officer of the Union;  and/or a
 third person, whose name he did not remember, each of whom he, Meeker,
 rejected as representative because each was also a possible suspect or
 possible target of the investigation (Tr. 200).  Mr. Meeker stated that
 he rejected the representatives requested by Mr. Long to preserve the
 integrity of the investigation;  that, as targets of the investigation,
 such representative would hear everything that was said, have an
 opportunity to know all the information we had prior to being
 interviewed himself;  and, from experience makes the investigation look
 like a white-wash (Tr. 200-201).  Mr. Meeker stated that after he had
 rejected all representatives requested by Mr. Long, Mr. Long left to get
 a representative.
 
    6.  Mr. Trotman testified that a bargaining unit employee called him,
 he believed it was Mr. Robert E. Howard, Chief Steward of the Union, to
 tell him that bargaining unit employees were being denied
 representatives of their choice (Tr. 19).  Mr. Trotman talked with Mr.
 Nelson and Mr. Robert E. Howard.  Mr. Nelson testified that he was told
 that OI was interrogating employees and had disqualified the elected and
 appointed Union officials as representatives, so it was decided that the
 Union would use the law firm of Eliades and Associates, which had been
 retained by the Union about four months earlier to represent the Union
 (Tr. 99), as its designated representative (Tr. 57).  /3/ Mr. Nelson
 called the law firm and talked to Mark Esposito, Mr. Eliades being in
 court, and Mr. Esposito agreed to come right out (Tr. 58).  Although not
 specifically stated by either Mr. Nelson or Mr. Trotman, it is obvious
 from the course of events that Mr. Nelson told Mr. Trotman that Mr.
 Esposito was coming as Warden Robert J. Verdeyen testified that Mr.
 Trotman called and informed him that Mark Esposito would be representing
 the Union (Tr. 166), that he would be representative of a group (Tr.
 166) /4/ and that Mr. Esposito arrived at the institution less than
 fifteen minutes after Mr. Trotman called him (Tr. 167).  Mr. Meeker
 stated that staff -- perhaps the Warden -- called him that Mr. Esposito
 was coming into the institution (Tr. 203).
 
    7.  Mr. Trotman went to the Parole Hearing Room and arrived shortly
 before Mr. Esposito /5/ and testified that he introduced himself to Mr.
 Henry and Mr. Henry introduced himself and Mr. Meeker;  that Mr Henry
 said they were there to continue an investigation of the Christmas Day
 riot of '82;  that he, Trotman, asked what was the problem in terms of
 people having representation of their choice;  that Mr. Henry replied
 that there were certain people that they had to question and those
 people couldn't serve as representatives;  that Mr. Henry said he,
 Trotman, was one of the people he was going to question and I couldn't
 be a representative of any member of the bargaining unit;  that he asked
 if Nelson or Howard could be a representative and Henry said no;  that
 he, Trotman, asked for a list of people that he wanted to talk with so
 the Union could select someone that he wasn't going to talk with to
 serve as representative and Henry said he couldn't provide a list;  that
 he, Trotman, then asked if it was okay if the Union had an attorney and
 Henry said ". . . no we couldn't have an attorney sit in either" (Tr.
 20-21 ).  While Mr. Trotman was talking to Messrs. Henry and Meeker, Mr.
 Esposito arrived and was taken to a room "off to the side" of the Parole
 Hearing Room where Mr. Nelson and Mr. Long were waiting (Tr. 100).  Mr.
 Nelson introduced Mr. Esposito to Mr. Long and Mr. Esposito, then talked
 to Mr. Long (Tr. 101).  Messrs. Nelson, Long and Esposito, a few minutes
 later, were summoned to the Hearing Room.  Mr. Meeker stated that there
 were about a half dozen people there at the doorway to the Hearing Room,
 including Mr. Trotman or Mr. Nelson, or both (Tr. 205).  Mr. Meeker
 stated that Mr. Long returned with Attorney Esposito who he wanted as
 his representative (Tr. 202);  Mr. Esposito very credibly testified that
 he identified himself as a local attorney and stated that he was there
 as the Union's representative (Tr. 101-102) whereupon, Mr. Meeker told
 him, Esposito, that he was not permitted to participate in any of the
 interrogations as a representative or in any other capacity;  (Tr. 102)
 and Mr. Meeker stated that he, ". . . tried to explain to him
 (Esposito), as best I could, not being an attorney . . . that this was
 an administrative matter, that there was no foreseeable criminal
 prosecution.  That if in fact we took statements from people without
 benefit of counsel, that we were very clearly precluded from using them
 in a future criminal prosecution.  And that . . . the policy of the
 Agency, was that staff members in investigations where there was no
 foreseeable criminal prosecution were not entitled to be represented by
 attorneys." (Tr. 203-204) (Emphasis supplied).  Mr. Meeker asserted that
 after Mr. Esposito had been unsuccessful in convincing Meeker and Henry
 that employees had a constitutional right to be represented by an
 attorney, Esposito then said he was the Union's attorney, (Tr. 204);
 however, Mr. Meeker admitted on cross-examination, that some Union
 official, either Trotman or Nelson, had also said Mr. Esposito was the
 Union's designated representative (Tr. 229-230) and that he denied Mr.
 Esposito the representation after he was told by Mr. Esposito and the
 Union official that Mr. Esposito was the Union's designated
 representative (Tr. 230).  Mr. Esposito was then asked to go to the
 Warden's Office and Warden Verdeyen testified that he told Mr. Esposito
 that it was his understanding from OI that he would not be permitted to
 represent employees and therefore his presence in the institution could
 not be continued (Tr. 168), whereupon, Mr. Esposito left the prison
 premises.
 
    8.  After Mr. Esposito left the Hearing Room, Mr. Nelson remained in
 the Hearing Room with Mr. Long (Tr. 62, 120) but after Long signed a
 form stating they read him his rights as an employee (Tr. 120-121), the
 Inspectors told Mr. Nelson he could not represent Mr. Long and would
 have to leave (Tr. 62. 121-122).  Mr. Long stated that he asked for
 another representative and, when Mr. Trotman was denied, he selected Mr.
 Gene Miller (Tr. 124).  After Miller arrived, Mr. Long was questioned
 for about three hours (Tr. 126).  Mr. Long testified that Mr. Meeker
 told him that the investigation could result in discipline ranging from
 ". . . a letter of reprimand to suspension or firing or dismissal from
 job" (Tr. 130).  Mr. Meeker stated that Mr. Long subsequently, in
 February and/or March, 1985, represented a number of people (Tr. 207).
 
    9.  Mr. Esposito obtained a temporary restraining order from Judge
 Merhige prohibiting further interrogations (Tr. 107).  Subsequently, the
 TRO was dissolved and interviews were resumed in February, 1985 (Tr.
 208).
 
    10.  Early on the morning of February 21, 1985, Mr. Trotman was
 informed that Mr. Patrick R. Kane, Chief OI, and Mr. Meeker were at the
 prison to resume interviews and Mr. Trotman went to the Parole Hearing
 Room to speak to Mr. Kane, whom Mr. Trotman had known when Mr. Kane was
 a case manager (Tr. 32).  Mr. Meeker was also present in the Hearing
 Room and Mr. Trotman asked to speak to Mr. Kane.  The two of them then
 went to the training room which was on the same floor (Tr. 33).  Mr.
 Trotman testified that he, ". . . told Mr. Kane that we wanted Mr.
 Esposito to serve as a Union representative.  Mr. Kane advised me, at
 that time, that the Bureau took a position that they did not want to get
 involved with having an attorney represent members of the Bargaining
 Unit in an administrative investigation." (Tr. 34).  Mr. Trotman further
 testified, "I pointed out to Mr. Kane that the Union definitely took a
 stance that they wanted an attorney because something may develop out of
 this investigation . . . Mr. Kane, again, said, no he could not allow an
 attorney to represent members of the Bargaining Unit in their
 investigation." (Tr. 34).  Mr. Kane, who was a very credible witness,
 neither denied this conversation nor was he examined about it.
 Accordingly, Accordingly, as I also found Mr. Trotman's testimony in
 this regard wholly credible and entirely uncontroverted, I fully credit
 Mr. Trotman's testimony concerning this conversation.
 
    11.  Mr. Nelson was interviewed initially in the morning of February
 21, 1985 and again on March 7, 1985 (The second interview is discussed
 later).  On February 21, he requested Mr. Trotman as his representative,
 which was denied (Tr. 68-69);  then Mark Esposito, which was denied (Tr.
 69;  G.C. Exh. 9);  and then Mr. Jack Womeldorf who was accepted (Mr.
 Nelson stated that prior to requesting Mr. Esposito he had asked for Mr.
 Robert Howard, whose name does not appear on G.C. Exh. 9, ". . . because
 he did not work that day . . ." but Mr. Meeker said he was disqualified
 ". . . because they may want to talk to him later." (Tr. 69).  Mr.
 Trotman was interviewed during the afternoon of February 21 and, having
 been denied Mr. Esposito, Mr. Trotman requested Mr. Long to represent
 him which was approved (Tr. 35;  G.C. Exh. 5).
 
    Mr. Steven Weser, Shop Steward, was interviewed on the morning of
 March 5, 1985.  He first requested Mr. Trotman as his representative,
 which request was denied (Tr. 139);  then for the Union's counsel who
 had been retained, Mr. Mark Esposito, which request was denied (Tr.
 139);  then Nelson and Tim Boyle, a Shop Steward, and both requests were
 denied (Tr. 139-140;  G.C. Exh. 11);  then Mr. Bob Howard, Chief
 Steward, which request was denied ". . . and he (Meeker (Tr. 140))
 didn't even write that down on the sheet (G.C. Exh. 11) that Mr. Howard
 was denied or that I requested him" (Tr. 141).  Finally, Mr. Weser
 picked Mr. Michneack who was approved (Tr. 142).
 
    Mr. Howard was interviewed on the morning of March 6, 1985 (Tr.
 158-159).  He testified that he requested that attorney Margaret Pena or
 attorney Joe Goldberg represent him (Tr. 159;  G.C. Exh. 13);  that he
 told them they were staff attorneys from the American Federation of
 Government Employees and ". . . they are my Union representative." (Tr.
 160).  Mr. Howard stated that Mr. Meeker said, ". . . it is our position
 that attorneys are not allowed." Mr. Meeker confirmed that Mr. Howard
 had asked for two attorneys which request he denied, ". . . following
 the Agency policy that since this was an administrative matter, that
 they were not entitled to have an attorney there representing them" (Tr.
 212).  Finally, Mr. Howard requested Mr. Long to represent him and this
 request was granted (Tr. 160;  G.C. Exh. 13).
 
    12.  Mr. Nelson is interviewed a second time on the morning of March
 7, 1985.  Mr. Nelson testified that on this occasion he requested Mr.
 Trotman, then Howard, and then Esposito which requests were denied (Tr.
 77).  Mr. Meeker testified that on this occasion Mr. Nelson requested
 Trotman, Weser, or Boyle all of whom he denied because they were
 possible targets of the investigation (Tr. 216-217).  I find it
 unnecessary to resolve this conflict since, in any event, Mr. Nelson was
 denied three representatives of his choice.  After Mr. Nelson was denied
 his chosen representatives, he picked Mr. Steve Michneack who was
 approved and arrived some 20-25 minutes later (Tr. 81).
 
    The only new dimension presented by Mr. Nelson's second interview is
 whether the interrogation began before Mr. Nelson's representative
 arrived.  Mr. Nelson credibly testified that he strongly objected to
 proceeding without any represntative being present (Tr. 77).  Mr. Nelson
 stated that, "Mr. Meeker insisted and demanded that the investigation
 start and he did start without a Union rep being present." (Tr. 77).
 Mr. Nelson said he was asked the same questions with more
 intensification on the alleged missing items from the Warden's office,
 this electronic bugging device, about the Union meeting in November,
 about the sensitive CIM material (Tr. 77-78) and that Steve Michneack
 came in about 20 to 25 minutes after the interview began (Tr. 81, 93).
 Mr. Nelson testified that, "What Mr. Meeker said -- his exact words --
 'we are going to start your investigation without your rep because I
 believe that you have had ample time' . . . I had ample time to have a
 man there so that is why he started the investigation without the rep
 being present." (Tr. 93).  Mr. Nelson stated that he, ". . . explained
 to Mr. Meeker that he gave me short notice and I certainly was not going
 to look for a representative on my own time, when I am away from the
 institution." (Tr. 95).  Mr. Nelson stated that Mr. Meeker had called
 him at 3:30 on March 6 (Mr. Nelson's regular hours are 7:00 a.m. - 4:00
 p.m.) and told him he wanted him upstairs for the investigation the
 following morning around 7:30 or 8:00 (Tr. 76-77).  Mr. Nelson further
 stated that he called Mr. Michneack prior to going into the interview
 room and told him I was going to be interviewed by OI again and he had
 to go through this procedure getting permission from his supervisor to
 report to the hearing room to represent Mr. Nelson (Tr. 82;  see also
 Tr. 95-96).
 
    Mr. Meeker testified that Mr. Nelson arrived without a
 representative, that ". . . we sat there engaging in the American
 pass-time of shooting the breeze, talking about the weather or whatever,
 for a period of twenty minutes, and with no Bargaining Unit
 representative showed up.  So, after twenty minutes had gone by, and no
 representative had come, I felt that Mr. Nelson was playing a game with
 me, so I felt that twenty minutes was a reasonable period of time . . .
 So, I started the continuation of the interview.  After about three
 minutes later, Mr. Michneack arrived. . . ." (Tr. 217).  Although Mr.
 Meeker testified that he had not completed the first question before Mr.
 Michneack arrived (Tr. 218-219), I do not credit his testimony in this
 regard.  Rather, I credit Mr. Nelson's testimony that the interview did
 begin before his representative, Mr. Michneack, arrived, which was
 confirmed by Mr. Meeker's earlier statement that he started the
 interview at least three minutes before Mr. Michneack arrived.  I also
 do not credit Mr. Nelson's testimony, if, indeed, he intended such
 inference, that he was questioned for 20 to 25 minutes before Mr.
 Michneack arrived.  To the contrary, I credit Mr. Meeker's testimony
 that he waited 20 minutes before beginning the interview during which
 time they "shot the breeze".  Accordingly, I conclude that Mr. Nelson
 was interrogated for about three to five minutes, under protest, before
 his representative arrived.
 
                                Conclusions
 
          Section 14(a) provides, in relevant part, as follows:
 
          "(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) Each agency shall annually inform its employees of their
       rights under paragraph (2)(B) of this subsection." (5 U.S.C.
       Section 7114(a)(2) and (3)).
 
    Other quite different proposals were considered, e.g. H.R. 3793,
 Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978, Subcommitte
 on Postal Personnel and Modernization of the Committee on Post Office
 and Civil Service, House of Representatives, Ninety-Sixth Congress,
 First Session, Committee Print No. 96-7 (hereinafter referred to as
 "Legislative History" followed by the page number of the Committee
 Print) p. 229, Report No. 95-920, Legislative History, pp. 643, 647, had
 provided that if the investigation could lead suspension, removal or
 reduction in rank or pay, A) the employee must be given notice in
 writing of the fact that he/she is under investigation;  B) the specific
 nature of the alleged misconduct;  and C) the right of the employee to
 have reasonable time, not to exceed 5 working days, to obtain a
 representative of his choice and to have such representative present
 during questioning.  This, of course, was not adopted;  and the present
 provision underwent significant modification before enactment, e.g.
 notice before any investigative interview, Legislative History, p. 914,
 became the annual notice, and "investigative interview", Legislative
 History, p. 914, became the broader "examination".  The Sectional
 Analysis of the Udall substitute (H.R. 11280 as passed by the House,
 September 13, 1978, pp. 967, 973) stated, in part, as follows:
 
          The substitute's provisions concerning investigatory interviews
       reflect the U.S. Supreme Court's holding in National Labor
       Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975).  In
       Weingarten, the Court upheld the Board's determination that the
       National Labor Relations Act provides a statutory 'right of union
       representation at investigatory interviews which the employee
       reasonably believes may result in disciplinary action against
       him.' 420 U.S. 251, at 267.
 
                    . . .
 
 
          "The Weingarten right, of course, is tied to the National Labor
       Relations Act's 'guarantee of the right of employees to act in
       concert for mutual aid and protection.' Other than this difference
       in derivation, the substitute's provisions differ from Weingarten
       only in providing that the employee must be informed of the right
       of representation prior to the commencement of any investigatory
       interview concerning misconduct which could reasonably lead to
       suspension, reduction in grade or pay, or removal." (Legislative
       History, p. 926) (Actually, the Udall substitute had extended the
       right to any disciplinary action, not merely suspension, reduction
       in grade or pay, or removal).
 
    In Conference, "investigative interview" became "examination" and
 annual notice was substituted for notice prior to each interview.  The
 Conference Report states, in part, as follows:
 
          "The conference agreed to adopt the wording in the House bill
       with an amendment deleting the House provision requiring the
       agency to inform employees before certain investigatory interviews
       of the right to representation, and substituting a requirement
       that each agency inform its employees annually of the right to
       representation.  The conferees further amended that provision so
       as to give the labor representative the right to be present at any
       examination of an employee by a representative of the agency in
       connection with an investigation if the employee reasonably
       believes that the examination may result in disciplinary action
       against the employee.  The conferees recognize that the right to
       representation in examinations may evolve differently in the
       private and Federal sectors, and specifically intend that future
       court decisions interpreting the right in the private sector will
       not necessarily be determinative for the Federal sector.
       (Legislative History, pp. 823-824).
 
    Respondent is quite correct that the Union has no independent right
 to have a representative present at an examination of an employee in
 connection with an investigation;  but, to the contrary, the Union's
 right is derivative in that it is entitled to be represented at such
 examination only if the employee reasonably believes that the
 examination may result in disciplinary action and if the employee
 requests representation.  Department of Health and Human Services,
 Social Security Administration, 18 FLRA No. 7, 18 FLRA 42, 46 (1985)
 (Respondent's Brief, p.4).  Of course, here there is no dispute that:
 a) the employees reasonably believed that the examination might result
 in disciplinary action against them /6/ and that employees requested
 representation which was denied.
 
    Although the right of the exclusive representative to be represented
 at such examination is derivative, it is the exclusive representative's
 right to be represented at an examination when, as here, the two
 conditions of Section 14(a)(2)(B) are met;  indeed, by virtue of Section
 14(a)(1), it is not only the Union's right but becomes its duty to
 provide representation, i.e. "An exclusive representative is responsible
 for representing the interests of all employees in the unit it
 represents. . . ." (Section 14(a)(1)) (Emphasis supplied).  Literally,
 only the exclusive representative can select who will represent it at
 such examination, not the employee.
 
          1.  Respondents's rejection of bargaining unit employees as
       representatives
 
          As General Counsel states in his Brief,
 
          "As a general proposition, it is well established that a Union
       is free to designate representatives of its own choosing in
       labor-management relations.  Thus, in American Federation of
       Government Employees, AFL-CIO (U.S. Air Force, Air Force Logistics
       Command, Wright-Patterson Air Force Base, Ohio), (4 FLRA No. 39) 4
       FLRA 272 (1980), the Authority stated that 'it is within the
       discretion of both agency management and labor organizations
       holding exclusive recognition to designate their respective
       representatives when fulfilling their responsibilities under the
       Statute.' (at p. 274) . . . ." (G.C. Brief, p. 25).
 
    While generally stated with respect to negotiations, I perceive no
 distinction in the union's right, ordinarily, to designate its
 representative under Sections 14(a)(2)(B) and 14(b)(2), and I fully
 agree with the statement of Judge Chaitovitz, in Department of Health
 and Human Services, Social Security Administration, Great Lakes Program
 Service Center, Chicago, Illinois and American Federation of Government
 Employees, Local 1395, AFL-CIO, Case No. 5-CA-1204 (September 16, 1982),
 Administrative Law Judge Decisions Report No. 22, March 10, 1983, that,
 
          ". . .By advising the employees . . . that Williams could not
       act as the employees' Union representative at the interviews,
       Respondent interferred with the Union's right, provided in Section
       7114(a)(2)(B) of the Statute, to be represented at the interviews.
        It It is well established that in such a situation the Union was
       entitled to choose and designate its own representative, and that
       when Respondent interferred with this right of choice it violated
       Sections 7116(a)(5) and (1) of the Statute." (Case No. 5-CA-1204
       at p. 6).
 
    While, ordinarily, a union has complete discretion to designate its
 representatives for the purpose of Section 14(a)(2)(B), here I find that
 the Union's designated representatives within the meaning of Article 29,
 Sections b and c, were, inter alia its Officers and Stewards, /7/ its
 discretion is not absolute and I conclude that Respondent properly
 refused to permit Union designated representatives who were themselves
 subjects of the investigation to serve as representatives.  I agree with
 the position of Respondent, as stated by Mr. Meeker (see, also,
 Respondent's Brief, pp. 11-12), that to preserve the integrity of the
 investigation individuals who are targets of the investigation may not
 serve as representatives, pursuant to Section 14(a)(2)(B), until their
 own examination has been completed.  On March 5, 1985, Mr. Weser
 requested as his representative bargaining unit members Trotman, Nelson,
 Boyle, and Howard, each of whom was rejected by Respondent's agents
 Meeker and Kane.  Each of these requested representatives was a target
 of the investigation.  Mr. Nelson had been interviewed on February 21,
 but his examination had not been completed and he was further examined
 on March 7, 1985;  Mr. Howard was not examined until March 6, 1985;  and
 the date of Mr. Boyle's examination was not shown.  Mr. Trotman had been
 examined on February 21, 1985;  his examination had been completed (G.C.
 Exh. 5 and 6) and, therefore, Respondent's rejection of Mr. Trotman as
 Mr. Weser's designated Union representative on March 5, 1985, and as Mr.
 Nelson's designated Union representative on March 7, 1985, violated
 Sections 16(a)(1) and (8) of the Statute.
 
    Specifically, I conclude that as a general rule a union's right to
 designate its representative for the purpose of an examination in
 connection with an investigation is inviolate;  however, the right of a
 union to choose and designate its own representative is not absolute and
 a designated representative may be rejected when that representative is
 himself the target of the investigation and his serving as
 representative would violate the integrity of the investigation.  The
 exception is narrow and must be limited to preservation of the integrity
 of the investigation.  Once the examination of a target of the
 investigation has been completed, that individual must, as a designated
 union representative, be permitted to represent employees as the
 justification for refusing to permit his serving as a representative,
 namely to preserve the integrity of the investigation, no longer exists.
  Here, Mr. Trotman's examination had been completed on February 21,
 1985, and Respondent's refusal thereafter, on March 5, 1985, /8/ to
 permit Mr. Trotman to represent Mr. Weser violated Sections 16(a)(1) and
 (8).  On the other hand, I find that Respondent properly rejected Mr.
 Weser's request that Messrs. Nelson and/or Howard represent him and I
 find it unnecessary to determine whether Respondent did or did not
 violate the Statute by the rejection of Mr. Boyle inasmuch as, even if
 it did, such violation was merely cumulative and would not affect the
 remedy.
 
    Accordingly, I find that Respondent failed and refused to comply with
 Section 14(a)(2)(B) of the Statute on March 5 and 7, 1985, by refusing
 to permit President Trotman, whose own examination had been completed,
 to represent employees at examination of employees and Respondent
 thereby violated Sections 16(a)(1) and (8) of the Statute.
 
          2.  Respondent's rejection of Union's attorney as its
       representative
 
    There is no dispute that on December 6, 1984, Mr. Esposito was
 present at the prison and that Mr. Meeker refused to permit him to be
 present, as the Representative of the Union, during the examination of
 Mr. Long.  Mr. Meeker admitted that Mr. Esposito told him he was the
 Union's attorney (Tr. 204) but asserted that this was after Mr. Esposito
 had been unsuccessful in convincing Meeker and Henry that Mr. Long had a
 constitutional right to be represented by an attorney.  I am not
 convinced that it matters whether, at the outset, Mr. Long returned with
 an attorney (Mr. Esposito) who he wanted as his representative (Tr. 202)
 and only later did Mr. Esposito tell him he was the Union's attorney
 since, in any event, Mr. Meeker refused to permit Mr. Esposito to be
 present at the examination of Mr. Long with full knowledge that he was
 the representative of the Union.  Nevertheless, the record shows, and I
 find, that Respondent had full knowledge that Mr. Esposito was the
 representative of the Union.  After Mr. Long's requests first that Mr.
 Trotman, second that Mr. Nelson, and apparently a third person, possibly
 Mr. Howard, represent him had been denied by Respondent, Mr. Long had
 left the hearing room to get a representative.  Chief Steward Howard was
 informed and he notified President Trotman who, after talking to Mr.
 Howard and Mr. Nelson, decided that as OI had disqualified the elected
 and appointed Union officials as representatives, they should use the
 law firm of Eliades and Associates, which was already on retainer, as
 the Union's designated representative.  Mr. Nelson called the law firm
 and spoke to Mark Esposito who agreed to come right out.  Mr. Trotman
 called Warden Verdeyen and told him that "Mark Esposito . . . would be
 representing the Union" (Tr. 166).  Indeed, Warden Verdeyen stated that
 Mr. Esposito was at the institution in less than fifteen minutes after
 Mr. Trotman called him (Tr. 167).  That Warden Verdeyen was informed by
 Mr. Trotman that Mr. Esposito was coming to the institution is borne out
 by Mr. Esposito's wholly credible testimony that, "Mr. Nelson informed
 me that . . . the Warden had been told that our firm was representing
 the Union and that he knew I was on my way. . . .  I went past the
 tower, they waived me through.  I went through the check point there,
 entered the institution, where I was escorted up to the parole
 revocation room. . . ." (Tr. 99-100).  In the absence of advance notice,
 it is obvious that this sequence of events would scarcely have been
 possible.  Moreover, this is corroborated by Mr. Meeker's testimony
 that, ". . . someone from the institution staff, it may have been the
 Warden, called . . . and . . . They told us that he was coming into the
 institution at this time. . . ." (Tr. 202-203).  Accordingly, I
 specifically do not credit Warden Verdeyen's later testimony that Mr.
 Esposito was already on the premises when Mr. Trotman called him.
 Rather, I conclude, as Warden Verdeyen initially testified, and as the
 record otherwise shows, Mr. Trotman called Warden Verdeyen and told him
 that Mr. Esposito would be representing the Union and was on his way to
 the prison.  Finally, Mr. Trotman very credibly testified that he had
 gone to the hearing room and had had a conversation with Messrs. Meeker
 and Henry immediately prior to Mr. Esposito's arrival during which Mr.
 Henry told him that there were certain people, including Mr. Trotman,
 Mr. Nelson and Mr. Howard, who could not serve as representatives
 because they (0I) had to question them.  Mr. Trotman asked if it were
 okay if the Union had an attorney and Mr. Henry responded that an
 attorney wouldn't be permitted.
 
    Mr. Meeker refused to permit Mr. Esposito to serve as the Union's
 representative at the examination of Mr. Long on December 6, 1984, for
 the reason that ". . . the policy of the Agency, was that staff members
 in investigations where there was no foreseeable criminal prosecution
 were not entitled to be represented by attorneys." (Tr. 203-204).
 
    Nor is there any dispute, Mr. Trotman's wholly credible testimony
 being neither denied nor controverted, that on February 21, 1985, when
 interviews resumed after having been enjoined, that Mr. Trotman, in a
 private conversation with Mr. Kane, Chief of OI, before the commencement
 of interviews, told Mr. Kane that that, ". . . we wanted Mr. Esposito to
 serve as a Union representative" to which Mr. Kane responded that, ". .
 . the Bureau took a position that they did not want to get involved with
 having an attorney represent members of the Bargaining Unit in an
 administrative investigation." (Tr. 34).  Mr. Nelson, on February 21,
 1985;  Mr. Trotman on February 21, 1985;  Mr. Weser on March 5, 1985;
 and Mr. Nelson, again, on March 7, 1985, each requested representation
 by Mr. Esposito which was denied.  /9/
 
    The fact that OI does not want to be bothered with attorneys in
 administrative investigations constitutes no justification whatever for
 rejection of the Union's designated representative.  As noted above, as
 a general rule, a union has complete discretion to designate its
 representative for the purpose of Section 14(a)(2)(B), although I have
 found that, where necessary to preserve the integrity of the
 investigation, particular representatives may be rejected when they
 themselves are targets of the investigation.  Nothing in the Statute, or
 in its legislative history, indicates, or even suggests, that a union
 may not designate as its representative an attorney.  Indeed, in
 negotiations unions quite frequently are represented by attorneys and
 the right of the union to have an attorney as its representative in
 examinations pursuant to Section 14(a)(2)(B) has consistently been
 recognized by Administrative Law Judges, although the Authority has not
 had occassion to address the matter.  See, for example, Department of
 Health and Human Services, Social Security Administration, Great Lakes
 Program Service Center, Chicago, Illinois and American Federation of
 Government Employees, Local 1395, AFL-CIO, Case No. 5-CA-1204 (September
 16, 1982), Administrative Law Judge Decisions Report No. 22, March 10,
 1983;  U.S. Library of Congress and Congressional Research Employees
 Association, Case No. 3-CA-20698 (February 22, 1983), Administrative Law
 Judge Decisions Report No. 26, May 13, 1983, Department of Justice,
 Federal Prison System, Washington, D.C. and Department of Justice,
 Federal Prison Systems, Bureau of Prisons, U.S. Medical Center for
 Federal Prisoners, Springfield, Missouri and American Federation of
 Government Employees, Local 1612, AFL-CIO, Case No. 7-CA-50228,
 OALJ-85-122 (August 22, 1985).
 
    It is the union which designates its representative under Section
 14(a)(2)(B), not the employee subject to the examination, although the
 employee must, inter alia, request representation.  Section 14(a)(2)(B)
 accords the employee subject to the examination no right to have his own
 representative present at his examination, be he an attorney or
 non-attorney.  Similarly, while Section 14(a)(5)(A) permits an employee
 to be represented by an attorney or other representative of the
 employee's own choosing in any grievance or appeal action not pursuant
 to a negotiated grievance or appeal procedure, the Authority has held,
 in National Federation of Federal Employees, Local 1001, 15 FLRA No.
 154, 15 FLRA 804 (1984), that,
 
          ". . . By its terms, this section (Section 21(b)(3)) limits
       unit employees bringing grievances under the negotiated grievance
       procedure either to representing themselves or to being
       represented by the exclusive representative.  Again, it is clear
       that unit employees may not have other representation." (15 FLRA
       at 808).
 
    To like effect, see, also, Sheet Metal Workers International
 Association, Local 97, 7 FLRA No. 138, 7 FLRA 799 (1982).  The National
 Labor Relations Board has held that an employee's request for the
 presence of his personal attorney does not raise Weingarten rights.
 Consolidated Casinos Corporation, 266 NLRB 988, 1008 (1983).  Of course,
 neither the Authority's decisions with respect to representation in
 processing grievances nor the National Labor Relations Board decision
 with respect to the employee's right to personal representation at an
 investigative interview addressed or considered the union's choice of
 representative and I find nothing in these decisions, or in the cases
 cited and relied upon by Respondent in its Brief (Respondent's Brief,
 pp. 9-11), that suggests that a union's right, pursuant to Section
 14(a)(2)(B) of the Statute, to designate its representative, whether or
 not such representative is a member of the bargaining unit or whether
 such representative is an attorney or a non-attorney, is not left to the
 discretion of the union, except where such designation would compromise
 the integrity of the investigation.
 
    An investigation pursuant to Section 14(a)(2)(B) differs from
 negotiations pursuant to Section 14(b) in many ways, of course.  One
 significant difference is that, pursuant to Section 14(b)(3), the
 parties must meet to negotiate at reasonable times, whereas, an
 investigation, pursuant to Section 14(a)(2)(B), is left to the control
 of the agency.  The union is entitled to "the opportunity to be
 represented at . . . (B) any examination of an employee . . . in
 connection with an investigation" if, but only if, the two specific
 conditions of Section 14(a)(2)(B) are met;  however, opportunity to be
 represented at the examination necessarily means that the examination
 will proceed subject only to "the opportunity" of the union to be
 represented.  While the union may designate any representative it
 chooses, including an attorney, it may not delay the examination beyond
 satisfaction of having the opportunity to be represented at the
 examination.  of course, here, the Agreement of the parties specifically
 provides, in relevant part, that,
 
          ". . . if the representative is not available within a
       reasonable period of time, the questioning may proceed without the
       representative being present . . . ." (G.C.
 
 Exh. 2, Art. 29, Section b and c).
 
    Here, Mr. Esposito was the designated representative of the Union and
 Respondent was well aware when it denied Mr. Esposito the right to be
 present at the examination of Mr. Long on December 6, 1984, that Mr.
 Esposito was the representative of the Union.  It is equally clear that
 on February 21, 1985, Mr. Kane was told that Mr. Esposito was the
 representative of the Union and, again Respondent denied the right of
 Mr. Esposito to represent employees in examinations pursuant to Section
 14(a)(2)(B).
 
    In its Brief, Respondent argues, inter alia, that attorneys in
 private practice, like Mr. Esposito, would be "less readily available
 than other employee representatives located at the facilities."
 (Respondent's Brief, p. 8).  I have no doubt that this might frequently
 be true;  but it is a wholly factitious argument in this case, inasmuch
 as Mr. Esposito on December 6, 1984, was present at the hearing room
 and, while he was not on the premises on February 21, 1985, Mr. Kane,
 prior to the commencement of interviews, refused to permit Mr. Esposito
 to represent the Union in the examination of employees.  Not only is
 there no basis in the record to infer that Mr. Esposito would not have
 been readily available on February 21, but if he were not available
 within a reasonable period of time, pursuant to the parties Agreement,
 questioning could have proceeded without his presence.
 
    To be sure, the Authority has held that management may place
 reasonable limitations on the union's participation during a Section
 14(a)(2)(B) investigation in order to prevent an adversarial
 confrontation with that representative and to achieve the objective of
 the examination, Norfolk Naval Shipyard, 9 FLRA No. 55, 9 FLRA 458
 (1982) and in U.S. Library of Congress, supra, limitations on scope of
 examinations by an attorney was held not in violation of the Statute.
 Finally, as well stated by Judge Dowd, in Department of the Treasury,
 Internal Revenue Service, Southeast Region, Atlanta, Georgia;
 Department of the Treasury Internal Revenue Service, Southeast Regional
 Office of Inspection, Atlanta, Georgia;  Department of the Treasury,
 Internal Revenue Service, Jacksonville, Florida and National Treasury
 Employees Union, Case No. 4-CA-893 (July 29, 1982), Administrative Law
 Judge Decisions Report No. 19 (January 21, 1983),
 
          "In Weingarten, the Supreme Court approved the Board's view
       that
 
          '. . . exercise of the right (to representation) may not
       interfere with legitimate employer prerogatives.  The employer has
       no obligation to justify his refusal to allow union
       representation, and despite refusal, the employer is free to carry
       on his inquiry without interviewing the employee, and thus leave
       to the employee the choice between having an interview
       unaccompanied by his representative, or having no interview and
       foregoing any benefits that might be derived from one.'
 
          "What the Supreme Court is saying is that the employer and the
       employee both have choices.  The employer's choice is to conduct
       the interview with the employee accompanied by his or her
       representative, or to not conduct the interview at all, with no
       obligation to explain or justify its election.  The employee, on
       the other hand, has a choice of insisting on the presence of his
       or her representative, or relinguishing this right." (Case No.
       4-CA-893) at pages 14-15).
 
    Moreover, in Department of Justice, Federal Prison System,
 Washington, D.C., et al., supra, Judge Cappello, in a case which also
 involved the Federal Prison System and which presented the same issue,
 namely the right of the union to designate an attorney as its
 representative at an examination pursuant to Section 14(a)(2)(B), held
 that the agency violated Sections 16(a)(1) and (8) of the Statute when
 it denied the right of the attorney to represent the Union.  I agree
 fully with her conclusions which I hereby incorporate by reference in
 further support of my conclusion that Respondent violated Section
 16(a)(1) and (8) by refusing to permit the Union's designated
 representative, Attorney Mark Esposito, to represent employees in
 examinations pursuant to Section 14(a)(2)(B).
 
    Nor did the Union waive or withdraw its request that Mr. Esposito (or
 that its officers and stewards) represent it in examinations of
 employees notwithstanding that, when its designated representatives were
 rejected by Respondent, each employee after rejection of the designated
 Union representative was represented.
 
    Accordingly, Respondent failed and refused to comply with the
 provisions of Section 14(a)(2)(B), as alleged in Case No. 34-CA-50274
 and as alleged in Case No. 34-CA-50311, by its rejection of Attorney
 Mark Esposito as the designated representative of the Union in the
 examination of employees and thereby violated Section 16(a)(1) and (8)
 of the Statute.
 
          3.  Respondent's examination of employee Nelson prior to the
       arrival of the employee's union representative
 
    On March 7, 1985, in his second examination, after Respondent had
 rejected his requests that he be represented by Union designated
 representatives Trotman, Howard and Esposito, according to Mr. Nelson,
 or for Trotman, Weser and Boyle, according to Mr. Meeker, Mr. Nelson
 then requested Mr. Michneack which request was granted.  Actually, in
 anticipation that the Union's designated representatives would be
 rejected, as they had been on prior occasions, Mr. Nelson had called Mr.
 Michneack before he had gone to the interview room.  Contrary to the
 assertion of Mr. Nelson, I have found from the testimony of Mr. Meeker,
 which I credit in this regard, that Respondent waited 20 minutes after
 Mr. Nelson announced the selection of Mr. Michneack and, when the
 representative had not arrived, began questioning Mr. Nelson.  I have
 further found that Mr. Nelson was questioned for about three to five
 minutes prior to the arrival of Mr. Michneack.  The record shows that
 Mr. Nelson did not inform Meeker and Kane that he had called Mr.
 Michneack nor did he ask Meeker to call to have his representative,
 Michneack, relieved from his post (Tr. 218).  As noted previously, the
 Agreement of the parties specifically provides, ". . . that if the
 representative is not available within a reasonable period of time, the
 questioning may proceed without the representative being present" (G.C.
 Exh. 2, Art. 29, Sections b and c).  Mr. Michneack did not testify and
 there is nothing in the record that explains the reason for his arrival
 not less than 30 minutes after Mr. Nelson called him.  Under the
 circumstances, Respondent's delay of the beginning of questioning for 20
 minutes was a reasonable period of time, pursuant to the Agreement of
 the parties, and, accordingly, Respondent did not violate the Statute by
 beginning the questioning of Mr. Nelson prior to the arrival of his
 representative.  Therefore, I shall recommend that Paragraph 9 of the
 Complaint in Case No. 34-CA-50311, as amended at the hearing, be
 dismissed.
 
    Having found that Respondent violated Sections 16(a)(1) and (8) of
 the Statute, 5 U.S.C. Sections 7116(a)(1) and (8), I recommend that the
 Authority adopt the following:
 
                                   ORDER
 
    Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
 Section 2423.29 of the Regulations, 5 C.F.R. Section 2423.29, the
 Authority hereby orders that the Federal Prison System, Federal
 Correctional Institution, Petersburg, Virginia, shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with American Federation of Government
       Employees, Council of Prison Locals, Local 2052, (hereinafter also
       referred to as the "Union"), lawfully designating its officers and
       stewards as its representative at any examination of an employee,
       pursuant to Section 14(a)(2)(B) of the Statute.
 
          (b) Interfering with the right of the Union to have an attorney
       as its representative at any examination of an employee pursuant
       to Section 14(a)(2)(B) of the Statute.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of rights
       assured by the Statute.
 
    2.  Take the following affirmative action:
 
          (a) Post at its facilities at Petersburg, Virginia, copies of
       the attached Notice on forms to be furnished by the Federal Labor
       Relations Authority.  Upon receipt of such forms, they shall be
       signed by an appropriate official of Respondent and shall be
       posted and maintained by him 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 assure 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 of Region 3, Federal
       Labor Relations Authority, 1111 - 18th Street, Room 700, P.O. Box
       33758, Washington, D.C. 20033-0758, in writing, within 30 days of
       this Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that Paragraph 9 of the Complaint in Case No.
 34-CA-50311, as amended at the hearing, be, and the same is hereby,
 dismissed.
                                       /s/ WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  September 6, 1985
    Washington, DC
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) The General Counsel filed a motion to strike the Respondent's
 cross exception because it exceeds the scope of the General Counsel's
 exception.  We find under section 2423.28 of the Authority's Rules and
 Regulations that the Respondent's timely filed cross exception was not
 limited by the scope of the General Counsel's exception.  Accordingly,
 we deny the General Counsel's motion.
 
    (1) For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 statutory reference, e.g., Section 7116(a)(1) and (8) of the Statute
 will be referred to, simply, as "Section 16(a)(1) and (8)."
 
    (2) General Counsel filed with his brief a Motion to Correct
 Transcript, to which no opposition was filed, which I find proper, and
 said Motion is granted except the requested change on page 80, line 4,
 of the transcript which is denied for the reason that the transcript is
 correct as it appears.  The transcript is hereby corrected as follows:
 
       Page    Line    From                         To
        11      14    "and"                        "an"
        27      23    "of"                         "for"
        27      24    "officers"                   "officer"
        36       6    "fussy"                      "fuzzy
        63     19     "order                       "orders"
        72     22     "anything"                   "everything"
        74     17     "indefinite"                 "indefinitely"
        75     24     "an"                         "and"
        76      2     "satisfactory"               "satisfied"
        76      2     "infomred"                   "informed:"
        76     24     "invetigation"               "investigation"
        83     13     Insert "employee's" before "Union"
       117      5     Insert "representatives of" after "as"
       119      5     "specific"                   "specify"
       135      9     "and"                        "said"
       168     16     Insert "in" after "doing"
       199     21     "targets"                    "target"
       230      2     "Union"                      "Union's"
 
 
    (3) This sequence of events is a composite, based in large part on
 Mr. Meeker's testimony which, for the most part, I found more complete
 in its detail while Mr. Long's initial recollection of events was poor;
 Mr. Trotman's recollection, while wholly credible as to all material
 facts appears, questionable as to the sequence of events.  Thus, while I
 fully credit his testimony as to his conversation with Messrs. Meeker
 and Henry, I conclude that he did not upon receiving the call from Mr.
 Howard go immediately to the Parole Hearing Room, but talked to Messrs.
 Howard and Nelson at which time they decided to use an attorney, and
 that he, Trotman did not talk to Messrs. Meeker and Henry until
 immediately prior to the arrival of Mr. Esposito.  In the meantime, as
 noted hereinafter, Mr. Trotman called Warden Robert J. Verdeyen.
 
    (4) Mr. Trotman prepared a memorandum (G.C. Exh. 3) which Mr.
 Verdeyen denied having seen prior to the hearing.  Since Warden Verdeyen
 admitted that Mr. Trotman called and told him that Mr. Esposito would be
 representing the Union, I find it unnecessary to decide whether G.C.
 Exh. 3 had, or had not, been seen by Warden Verdeyen as the memorandum
 merely restated, to the extent material, what Warden Verdeyen admitted
 he was told by telephone.
 
    (5) See n.3, supra.
 
    (6) Indeed, the employees were told that the investigation could
 result in disciplinary action including dismissal (see, e.g. Tr. 130);
 the forms each employee was instructed to sign so stated (see, e.g.,
 G.C. Exh. 5);  and the nature and objects of the investigation, alone,
 would have given reasonable belief that the examination might result in
 disciplinary action.
 
    (7) The Union did not submit a list of its representatives for
 examinations in connection with investigations, nor was it ever the
 practice to do so (Tr. 258).  While it may be done, I am not aware of
 any case in which it was done separate and apart from notification of
 the names of officers, chief steward and stewards.  Generally, the
 request is for the employee's steward or, perhaps, for a particular
 steward or officer, as here.  Indeed, the Collective Bargaining
 Agreement uses the term "designated representative" which would include
 the Union's officers and Stewards and yet broad enough to include any
 other representative designated by the Union.  The practice of
 Respondent's OI Inspectors to permit the employee to select his
 representative accords with the provisions of the Statute and the
 Collective Bargaining Agreement only to the extent that the employee's
 choice is a Union designated representative or the Union acquiesces in
 the employee's choice.  But, as previously noted, the right of
 representation is the Union's, not the employee's.
 
    (8) Also on March 7, 1985, to represent Mr. Nelson;  however, as this
 further violation is cumulative, I find it unnecessary to further
 address Respondent's additional violation.
 
    (9) On March 6, 1985, Mr. Howard requested representation by AFGE
 staff attorneys Margaret Pena or Joe Golberg (Tr. 159, G.C. Exh. 13)
 which was denied.  Although I am fully aware of this request, I do not
 further address it for the reasons:  a) the record does not show that
 either was present in the area and was reasonably available (See G.C.
 Exh. 2, Article 29, Section b and c);  and b) such request was, at most,
 cumulative since the same issue is already fully encompassed by the
 Union's designation of attorney Esposito.
 
 
 
 
 
                          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 American Federation of Government
 Employees, Council of Prison Locals, Local 2052 (hereinafter referred to
 as the "Union") lawfully designating its officers and stewards as its
 representative at any examination of an employee, pursuant to Section
 7114(a)(2)(B) of the Statute.
 
    WE WILL NOT interfere with the right of the Union to have an attorney
 as its representative at any examination of an employee pursuant to
 Section 7114(a)(2)(B) of the Statute.
 
    WE WILL NOT