35:0431(56)CA - - Justice, Bureau of Prisons, Safford, AZ and AFGE Local 2313 - - 1990 FLRAdec CA - - v35 p431

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[ v35 p431 ]
35:0431(56)CA
The decision of the Authority follows:


35 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES DEPARTMENT OF JUSTICE

BUREAU OF PRISONS, SAFFORD, ARIZONA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2313

AFL-CIO

(Charging Party)

8-CA-70470

DECISION AND ORDER

April 6, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions.

The unfair labor practice complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by conducting an examination of an employee within the meaning of section 7114(a)(2)(B) at which the exclusive representative was denied the opportunity to participate in a representative capacity on behalf of the employee.

The Judge found that the Respondent violated section 7116(a)(1) and (8) as alleged. The Judge recommended that the Respondent be required to rescind the disciplinary action taken against the employee and make the employee whole for any losses of pay, rights or privileges suffered as a consequence of the disciplinary action.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. After consideration of the Judge's Decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings, conclusions and recommended Order only to the extent consistent with the following discussion.

II. Facts

On or about January 17, 1987, Susan Brannock, a Correctional Officer employed at the Respondent's Safford, Arizona, facility, was injured in an automobile accident while off-duty. On the advice of Physician Assistant Richard E. Donnelly, who was associated with physician Ernest Forgach, M.D., Ms. Brannock was placed on leave status.

When Ms. Brannock returned to work on January 29, 1987, she submitted a memorandum in which she stated that the post she was working aggravated an injury to her chest and requested that she be assigned to a stationary post. In response to her request, she was placed on sick leave for January 30 and 31 and assigned to training for the period February 2 through February 6. She was informed that she would be excused from "firearms" and "that she would need a doctor[']s slip excusing her from self defense training." G.C. Exh. No. 3. Ms. Brannock obtained a note dated January 30, 1987, signed by Dr. Forgach, which stated: "Patient should not participate in firearms and self defense until new notice." G.C. Exh. No. 20. Subsequently, she obtained a note dated February 5, 1987, signed by Physician Assistant Donnelly, which stated: "Pt. has costrochondritis. Will need to remain on light duty for 10 more days." G.C. Exh. No. 22.

On February 15, 1987, an exchange occurred between Ms. Brannock and Lieutenant Neff, a shift supervisor at the Safford facility, concerning Ms. Brannock's work status and whether she could work the "Outside Patrol Post." G.C. Exh. No. 4. On February 19, 1987, a similar exchange occurred between Ms. Brannock and Lieutenant Soto, another supervisor at the Safford facility. These two exchanges became the subject of the investigatory interview that is the focus of the complaint in this case.

After the discussion between Ms. Brannock and Lieutenant Soto on February 19, Ms. Brannock was called to the office of Captain Johnson, supervisor of a staff complement of Lieutenants, correctional officers and counselors at the Safford facility, and questioned about her medical status. At the meeting, Ms. Brannock was requested and refused to sign a medical release. As an alternative, it was agreed that she would submit questions concerning her medical status prepared by the Agency to her doctor. Later that same day, at Capt. Johnson's instruction, Lieutenant Eaton called Ms. Brannock at her home to direct her to report back to "the institution on overtime at 2:00 p.m. for an Administrative Interview." G.C. Exh. No. 10. (Ms. Brannock was assigned to the night shift.) Ms. Brannock, however, had no car available and was unable to report at that time. By letter dated February 19, Ms. Brannock was provided a list of questions to give to her physician and required to supply the requested information by 2:00 p.m. on February 20.

By letter dated February 20, 1987, Physician Assistant Donnelly stated that Ms. Brannock was suffering from costrochondritis (inflammation of the cartilage) of the sternal area and tendinitis (inflammation of the tendon) of the right leg. Donnelly also stated, "It is imperative under the present conditions of costrochondritis and tendinitis, that the patient remain on lite [sic] duty in order for these injuries to heal without strenuous stress or exercise to these areas." G.C. Exh. No. 14.

When Ms. Brannock returned to the facility at approximately 11:00 a.m. on February 20 with the letter, she was called into Captain Johnson's office. At the interview that ensued, Ms. Brannock was accompanied by Union representative Jackie White. At the outset, Ms. Brannock was informed that the investigation pertained to "making false statements to supervisors." G.C. Exh. Nos. 15 and 23.

The official transcript of the February 20 interview is set forth in the Judge's decision. As noted, Jackie White, the Union representative, was informed by Capt. Johnson that she was not "at liberty to ask questions, just to be present during this interview."

Subsequent to the interview, a suspension of Ms. Brannock for 10 days was proposed for: (1) making false statements to supervisors; and (2) falsification, misstatement or concealment of material facts in connection with an official investigation. As the basis for the discipline the proposing official, Capt. Johnson, stated:

(1) Specifically, on February 15, 1987, you told Lt. Neff that you were able to perform your duties as perimeter patrol officer as your light duty status was over as of February 14, 1987. At approximately 4:26 a.m. on February 19, 1987, you told Lt. Soto that your doctor had not released you to full duty status.

(2) Specifically, at approximately 11:35 a.m. on February 20, 1987, during an official investigation, you provided false information, misstatements and inconsistent answers to the following questions as indicated:

QUESTION: Did you tell him (Lt. Soto) that the doctor had not released you from light duty status?

ANSWER: No, I told him about not being able to use firearms.

QUESTION: Asked Ms. Brannock to read a memo from Lt. Soto. Did you make a statement to Lt. Soto about not qualifying for firearms?

ANSWER: Yes, and that the doctor didn't release me and referred to the doctor's slip.

QUESTION: Do you remember making a specific statement to Lt. Neff that your light duty status was over on 2-14-87?

ANSWER: I don't remember.

QUESTION: Where would Lt. Soto come up with the statement that the doctor had not released you to full duty status?

ANSWER: I don't know. Maybe he misunderstood me.

QUESTION: On the morning of February 15th you had a conversation with Lt. Neff regarding perimeter patrol. You made reference to qualification with weapons and medical reference, and began specifically with medical reference. What did he ask you?

ANSWER: I don't remember.

QUESTION: In going over Lt. Neff's memo, did he on February 15th interview you in reference to your ability to work?

ANSWER: He didn't interview me, he asked me.

QUESTION: Did he ask you about your medical condition?

ANSWER: I don't remember.

QUESTION: Did you tell him that your request for light duty status ended on 2-14-87?

ANSWER: I don't know.

QUESTION: Did you say that you couldn't use firearms so you could not work that post?

ANSWER: I guess so.

QUESTION: Did you make a statement to Mr. Soto that you had not been released to full duty status?

ANSWER: I don't remember saying that.

G.C. Exh. No. 16.

The deciding official, Warden Roger F. Scott, found the "stated reasons for proposing [Ms. Brannock's] suspension fully supported by the evidence." He concurred with the proposal that Ms. Brannock be suspended but reduced the suspension to 5 days. G.C. Exh. No. 19.

III. Administrative Law Judge's Decision

The Judge, noting that it was undisputed that the interview conducted on February 20, 1987, constituted an examination within the meaning of section 7114(a)(2)(B) of the Statute, found that the Union had the right to participate and assist the employee involved. The Judge further found that there was no basis for concluding that Union representative White engaged in "disruptive, confrontational or argumentative conduct . . . which would require Respondent to place any limitation on White's participation during the interview." Judge's Decision at 20. The Judge concluded that the Respondent violated section 7116(a)(1) and (8) by preventing Ms. White from actively participating in the interview.

In his decision the Judge found that Capt. Johnson's investigation "failed to address [Ms.] Brannock's defense that she had informed management via her January 30, l987, doctor's note that she was unable to shoot firearms until further notice." Judge's Decision at 18. The Judge also found that Capt. Johnson acknowledged that, had he been aware of this defense, no action would have been taken against Ms. Brannock. Additionally the Judge found that, when viewed in the context of that January 30 doctor's note, Ms. Brannock's answers to the Respondent's questions at the February 20 interview were responsive, but that the Respondent did not, or chose not to, understand her answers. The Judge concluded that "had White been allowed to assist [in the interview] it is totally possible that no discipline would have resulted from this meeting or otherwise." Judge's Decision at 21.

As remedy, the Judge recommends: (1) a cease and desist order; and (2) that the disciplinary action against Ms. Brannock be rescinded and that she be made whole for any loss of pay, rights or privileges which resulted from the disciplinary action. As the basis for the latter recommendation the Judge relies on the Authority's decision in Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222 (1988) (Charleston Naval Shipyard), which addresses the appropriateness of a make-whole remedy where there has been a violation of section 7114(a)(2)(B) of the Statute. The Judge interprets Charleston Naval Shipyard as permitting a make-whole remedy where a "disciplinary action . . . flow[ed] from the examination itself[.]" Judge's Decision at 22.

The Judge found that because the disciplinary action against Ms. Brannock was based, in part, on her conduct at the investigatory interview, a make-whole remedy is appropriate. He further stated that, "If the Respondent decides that disciplinary action against Brannock is warranted for the charge of providing false statements, a new proceeding must be instituted in which no consideration is given to the employee's conduct at the February 20 meeting." Id.

IV. Positions of the Parties

A. The Respondent

The Respondent does not contest the Judge's conclusions that Captain Johnson's instruction to Union representative White constituted a violation of section 7114(a)(2)(B) and, consequently, of section 7116(a)(1) and (8).

The Respondent excepts to those portions of the Judge's decision in which the Judge makes findings and conclusions on the merits of the disciplinary action taken against Ms. Brannock and in which he recommends a make-whole remedy.

The Respondent argues that the Judge erred in considering and ruling on evidence concerning whether Ms. Brannock was guilty of the alleged infractions for which disciplinary action was brought against her rather than confining himself to determining whether Ms. Brannock was denied the representation to which she was entitled under section 7114(a)(2)(B). The Respondent contends that the Judge's findings and conclusions that Ms. Brannock was not guilty of the charges underlying the disciplinary action are irrelevant, prejudicial and not reasonably supported in the record.

The Respondent further contends that the Judge's recommended remedy is inconsistent with the Authority's decision in Charleston Naval Shipyard and is inappropriate. The Respondent asserts that while the disciplinary action taken against Ms. Brannock was based, in part, on her conduct during the investigatory interview, it was not taken because she had engaged in protected activity. The Respondent contends that it has not been alleged, nor does the record support a conclusion, that the second charge involved in the disciplinary action--that is, Ms. Brannock's conduct during the investigatory interview--constituted independent interference with her rights under section 7114(a)(2)(B). The Respondent asserts that if the issue of whether the second charge constituted an independent violation of the Statute were properly before the Judge, the Judge should have applied the Wright Line test(1) in arriving at his conclusion and recommended remedy.

B. The General Counsel

The General Counsel argues that the Judge's findings and conclusions are correct and supported by the evidence. The General Counsel argues that under Charleston Naval Shipyard, make-whole remedies are appropriate where disciplinary action "flowed from the examination itself." General Counsel's Brief at 3. In this case, the General Counsel contends that the Judge's recommended remedy is consistent with Charleston Naval Shipyard in view of the fact that at least part of the decision to discipline Ms. Brannock was directly based on her conduct during the examination.

The General Counsel contends that although there was a second basis for the suspension--Ms. Brannock's allegedly false statements to supervisors--it is reasonable to assume that those charges would have been dropped if the Union representative had not been improperly denied the right to participate in the examination. In support of this last contention, the General Counsel cites the Judge's finding that the employee had a reasonable defense to the charges that she had made false statements to supervisors prior to the examination. Additionally, the General Counsel contends that the Respondent did not submit any evidence to show how much of Ms. Brannock's suspension was based on misconduct independent of the interview.

V. Discussion

A. A Violation of Section 7114(a)(2)(B) Occurred

Section 7114(a)(2)(B) provides that an exclusive representative of an appropriate unit shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action and the employee requests representation. The purpose of section 7114(a)(2)(B) is to create representational rights for Federal employees similar to the rights provided by the National Labor Relations Board (NLRB) in interpreting the National Labor Relations Act (NLRA). See 124 Cong. Rec. 29184 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, H.R. Comm. Print No. 7, 96th Cong., 1st Sess. 926 (1979) (Legislative History), where Congressman Udall explained that the purpose of the House bill provisions which led to enactment of section 7114(a)(2)(B) was to reflect the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten).

Under Weingarten, the right to representation at an examination is intended to benefit an employee who is called into a meeting with his or her employer in connection with an investigation as well as to benefit the employer and the union. See Wireman, Union Representation at Investigatory Interviews: The Subsequent Development of Weingarten, 28 Cleveland State L. Rev. 127, 129-31 (1979). In particular, representation at an investigatory interview promotes a more equitable balance of power between labor and management. See Weingarten, 420 U.S. at 261-62, where the Court noted that "[r]equiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the [National Labor Relations] Act was designed to eliminate[.]" Such representation also contributes to preventing unjust discipline and unwarranted grievances. In Weingarten the Court noted that "[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors." Id. at 262-63. In such circumstances, the Court concluded that "[a] knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview." Id. at 263. In support of its conclusion that representation could be beneficial to the employer as well as the employee, the Court quoted from an arbitrator's award that described the representation process as contemplating "that the steward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified." Id. at 262-63 n.7.

In view of the legislative history underlying section 7114(a)(2)(B), cited above, we conclude that the purposes underlying the Weingarten right in the private sector--promoting a more equitable balance of power and preventing unjust disciplinary actions and unwarranted grievances--also apply to the right to representation created by section 7114(a)(2)(B). These purposes are consistent with the overall purposes and policies of the Statute set forth in section 7101. That is, they effectuate "the right of employees to organize, . . . and participate through labor organizations . . . in decisions which affect them . . . [which] safeguards the public interest, . . . contributes to the effective conduct of public business, and . . . facilitates and encourages the amicable settlements of disputes[.]" Insofar as representation at examinations promotes a more equitable balance of power between management and labor, we believe that this is consistent with the intent of Congress in passing the Civil Service Reform Act (CSRA), Pub. L. 95-454, of which the Statute constitutes title VII. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 107 (1983) in which the Court noted, "[i]n passing the Civil Service Reform Act, Congress unquestionably intended to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest[.]"

The purposes underlying section 7114(a)(2)(B) and the benefits intended for the various parties cannot be achieved if the union representative is prohibited from taking an active role in assisting an employee in presenting facts at an examination. Consequently, under section 7114(a)(2)(B) representation includes the right of the union representative to take an "active part" in the defense of the employee. Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678, 678-79, n.2 (1981); NLRB v. Texaco, Inc., 659 F.2d 124 (9th Cir. 1981).

It is undisputed that Respondent's interview with Ms. Brannock on February 20, 1987, constituted an examination within the meaning of section 7114(a)(2)(B). Furthermore, Respondent does not contest the Judge's conclusion that by directing Ms. Brannock's Union representative to remain silent, Respondent violated section 7116(a)(1) and (8) of the Statute. Respondent's Brief at 20-21. Because under section 7114(a)(2)(B) an exclusive representative is entitled to take an active part in defending an employee at an examination, we agree with the Judge that Respondent violated section 7116(a)(1) and (8) by directing Union representative White to remain silent.

B. The Remedy

1. The Judge's Application of Charleston Naval Shipyard

We find that in recommending a traditional make-whole remedy encompassing rescission of the disciplinary action, backpay, and restoration of any lost rights and privileges the Judge has misapplied the Authority's decision in Charleston Naval Shipyard. In Charleston Naval Shipyard, the Authority discussed the circumstances under which such a make-whole remedy is appropriate where a violation of section 7114(a)(2)(B) has occurred. The Authority adopted the conclusions and analysis that were applied by the NLRB in Taracorp Industries, 273 NLRB 221, 221-23 (1984) (Taracorp).

In Taracorp, an employee was denied the right to union representation during the investigatory examination that preceded his termination for insubordination. The NLRB refused to remedy the violation of the employee's right to union representation by reinstating the employee.

The NLRB held that "a make-whole remedy of reinstatement and backpay is appropriate . . . where an employee is discharged or disciplined for engaging in union or other protected concerted activities." Taracorp, 273 NLRB at 222. The NLRB held also that reinstatement is an appropriate remedy "where an employee is discharged or disciplined for what appears to be a legitimate reason, but further examination reveals that the discharge or discipline was the result of an act that was, itself, an unfair labor practice." Id. The NLRB discussed remedies for violations of an employee's right to union representation as follows:

By contrast, in Weingarten cases, the reason for the discharge is not an unfair labor practice, but some type of employee misconduct. In short, there simply is not a sufficient nexus between the unfair labor practice committed (denial of representation at an investigatory interview) and the reasons for the discharge (perceived misconduct) to justify a make-whole remedy.

Id. at 223 (footnote omitted). The NLRB concluded that such a remedy "can be appropriate in a Weingarten setting if, but only if, an employee is discharged or disciplined for asserting the right to representation." Id. at 223 n.12. The NLRB stated that if an employee is disciplined for asserting the right to representation, "the employee's employment status is adversely affected because the employee engaged in protected concerted activity." Id. (Emphasis in original.)

The NLRB applied its Taracorp holding in Greyhound Lines, 273 NLRB 1443 (1985), where an employee was discharged for alleged insubordination. During the Weingarten interview preceding the termination, the employee's union representative was directed "to remain silent[.]" Id. at 1445. The NLRB found that the employer committed an unfair labor practice by preventing the employee's union representative from "participating in an investigatory interview[.]" Id. at 1443. Citing its decision in Taracorp, the NLRB refused to reinstate the employee. The NLRB held:

Since it is clear in the present case that [the] employee . . . was not disciplined for asserting his right to union representation in the investigatory interview, but for alleged insubordination . . . a make-whole remedy is therefore precluded.

Greyhound, 273 NLRB at 1443 n.4.

As noted above, in Charleston Naval Shipyard, the Authority adopted the NLRB's analysis and conclusions in Taracorp. The Authority indicated that in cases involving violations of section 7114(a)(2)(B), traditional make-whole remedies would not be ordered where the "only violation is the denial of an employee's request for representation at an investigatory interview." 32 FLRA at 233.

In this case the Respondent improperly limited the Union's participation during the investigatory interview of Ms. Brannock on February 20, 1987. The Respondent's action in limiting the Union's participation violated the Statute. Ms. Brannock was not disciplined for requesting union representation during the interview, however. Ms. Brannock was disciplined for her alleged false statements to her supervisors as well as for alleged falsification, misstatement, or concealment of facts during the interview. As in Charleston Naval Shipyard, there is not a sufficient nexus between the unfair labor practice committed (violation of the union's right to participate in the examination) and the reasons for the discipline (alleged misconduct).

The Judge found that if the union representative had been allowed to participate in the interview, "it is totally possible that no discipline would have resulted from this meeting or otherwise." Judge's Decision at 21. This finding does not provide a basis for reinstatement of Ms. Brannock. In Greyhound, the Administrative Law Judge found that a make-whole remedy was appropriate because the employer improperly directed the employee's union representative to remain silent during the investigatory interview which preceded the discipline, and the Judge was not "persuaded that the information elicited from [the employee] during the interview did not play a part in the final decision to discharge him." 273 NLRB at 1449. The NLRB reversed the Judge's findings, however, because "the reason for the discipline was not, itself, an unfair labor practice." Id. at 1443 n.4.

As in Greyhound, the reason for the discipline of the affected employee here is not an unfair labor practice. Ms. Brannock was not disciplined for requesting union representation; she was disciplined for alleged misconduct. Because there is not a sufficient nexus between the unfair labor practice violation and the reasons for the discipline of Ms. Brannock, we will modify the Judge's recommended order to delete the requirement that the Respondent make Ms. Brannock whole for the 5-day suspension.

In rejecting the Judge's recommendation that a traditional make-whole remedy be granted, we reaffirm the Authority's decision in Charleston Naval Shipyard concerning the appropriateness of such remedies in Weingarten cases. As noted by the Authority in that decision, the Statute does not contain a specific provision similar to section 10(c) of the NLRA on which the NLRB's rationale in Taracorp and its progeny were largely based. However, we believe that the position adopted by the Authority with respect to providing traditional make-whole remedies for Weingarten violations is consistent with the purposes and policies underlying the CSRA and the Statute. Specifically, in addition to strengthening the position of unions, the CSRA and the Statute "carefully preserv[ed] the ability of federal managers to maintain 'an effective and efficient Government.'" Bureau of Alcohol, Tobacco and Firearms, 464 U.S. at 92. "In order to achieve this purpose, one of the 'central tasks' of the [CSRA] was to '[a]llow civil servants to be able to be hired and fired more easily, but for the right reasons.'" Cornelius v. Nutt, 472 U.S. 648, 662 (1985) (citation omitted). Requiring an agency to make whole an employee who has been disciplined for cause based solely on a failure to afford representation rights under section 7114(a)(2)(B) is not consistent with this purpose.

We grant the Respondent's exceptions insofar as they address the appropriateness of the Judge's recommendation that a traditional make-whole remedy be granted. However, we deny the Respondent's other exceptions.(2)

2. The Appropriate Remedy for Section 7114(a)(2)(B) Violations

While we reject the Judge's recommendation that a traditional make-whole remedy be granted in this case and we reaffirm the decision in Charleston Naval Shipyard, we conclude that the circumstances of this case highlight the need for a remedy, in addition to the traditional cease and desist order, in cases where a denial of representation rights has occurred. A remedy limited to a cease and desist order will not adequately redress the wrong incurred by the unfair labor practice in cases where an employee has been denied the representation right established by section 7114(a)(2)(B).

Sections 7105(g) and 7118(a)(7) of the Statute vest the Authority with broad discretion in framing appropriate remedies for unfair labor practices. See, for example, Professional Air Traffic Controllers Organization v. FLRA, 685 F.2d 547 (D.C. Cir. 1982). In addition to cease and desist orders, the Statute specifically authorizes the Authority to order "any remedial action . . . appropriate to carry out the policies of [the Statute]." 5 U.S.C. § 7105(g)(3). We believe that remedies for unfair labor practices under the Statute should, like those under the NLRA, be "designed to recreate the conditions and relationships that would have been had there been no unfair labor practice." Local 60, United Brotherhood of Carpenters & Joiners v. NLRB, 365 U.S. 651, 657 (1961) (Harlan, J., concurring). Remedies should be designed to "restore, so far as possible, the status quo that would have obtained but for the wrongful act." NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 265 (1969) citing Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Although not in itself a sufficiently justifying effect, deterrence is also certainly a desirable effect of a remedy. Carpenters v. NLRB, 365 U.S. at 659. However, remedies should not be punitive. Id. at 655. Of course, remedies must effectuate the policies of the Statute. American Federation of Government Employees v. FLRA, 785 F.2d 333, 338 (D.C. Cir. 1986); compare Virginia Electric and Power Co. v. NLRB, 319 U.S. 533 (1943).

In view of this last point, we begin with further discussion of the purposes and policies underlying the Statute as a whole and, in particular, section 7114(a)(2)(B). As set forth in Section 7101 of the Statute, Congress found that labor organizations and collective bargaining in the civil service are in the public interest because providing statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations in decisions which affect them: (1) safeguards the public interest, (2) contributes to the effective conduct of public business, and (3) facilitates and encourages the amicable settlement of disputes between employees and their employers involving conditions of employment. The Congress further found that the highest standards of employee performance and the development and implementation of modern and progressive work practices to promote employee performance and the efficient accomplishment of Government operations were in the public interest. To effectuate these policies Congress prescribed the rights, obligations and procedures set forth in the Statute. Congress added the stipulation that the provisions of the Statute should be interpreted in a manner consistent with "the requirement of an effective and efficient Government." 5 U.S.C. § 7101.

Among the rights, obligations and procedures prescribed are those contained in section 7114(a)(2)(B) pertaining to representation of employees at examinations conducted in conjunction with investigations. As discussed earlier, the right to representation under section 7114(a)(2)(B) is intended to benefit all parties. The denial of that representation right deprives some or all of the parties of the benefits intended to accrue from the right and, by extension, defeats the purposes and policies set forth in section 7101. For example, denying an employee who is the subject of an examination the representation rights afforded by section 7114(a)(2)(B) deprives the employee of assistance in articulating any available defense and thereby diminishes the possibility of avoiding an unjustified disciplinary action. This, in turn, deprives the employer of the benefit to be gained by preventing unnecessary loss of production time and the "hard feelings" that unjustified disciplinary actions engender among employees. See Weingarten, 420 U.S. at 261-64. In other circumstances, denial of representation rights could deprive the union and the employer of the benefits afforded by having the union in a position to "discourage grievances where the action on the part of management appears to be justified." Id. at n.7. Additionally, denying the rights established by section 7114(a)(2)(B) perpetuates the inequality inherent in requiring a lone employee to attend an investigatory interview. It follows that such a denial deprives all parties and the public interest of the benefits accruing from the statutory protection of employee rights to organize and participate through labor organizations in decisions affecting the employees.

This case illustrates the danger of depriving an employee of the benefits intended by the right to representation. That is, because the employee's union representative was denied the ability to assist the employee in presenting a defense to the charges being investigated, the employee may have suffered an unjustified disciplinary action. In this particular case, the Judge found that it is "totally possible" that, had Union representative White been allowed to take an active part in the interview, no disciplinary action would have been taken against Ms. Brannock. Judge's Decision at 21. This finding is supported by the fact that Ms. Brannock's defense--that based on the January 30 doctor's note she was under a continuing medical restriction on use of firearms--was never fully explored at the interview. Taken in the context of that doctor's note, Ms. Brannock's statements to her supervisors that preceded the interview and her responses at the interview are less susceptible to being interpreted as "misstatements" and "concealments." If her union representative had been allowed to assist her at the interview, the representative might have helped her to clarify the status of her medical condition and its impact on her ability to perform her duties; consequently, management might have arrived at a different interpretation of the facts and circumstances involved. While not dispositive, it is significant that Capt. Johnson, the official who conducted the interview and proposed the disciplinary action, conceded under cross-examination that no action would been taken against Ms. Brannock had he been aware of her defense concerning the January 30 doctor's note. Tr. 128-29; Judge's Decision at 18.

If, in fact, the disciplinary action was unjustified, valuable work time was unnecessarily lost as a consequence of Ms. Brannock's suspension and the litigation that ensued. It is also reasonable to assume that "hard feelings" may have been engendered in Ms. Brannock and her fellow employees. Additionally, by depriving the Union of the opportunity to perform its statutory function of assisting a bargaining unit employee, the Agency has devalued the Union and the right to representation. We recognize that requiring a cease and desist order will contribute to restoring the status of the Union and statutory rights in the eyes of the Agency and employees. However, in our view, it will not adequately "recreate the conditions and relationships that would have been had there been no unfair labor practice." Carpenters, 365 U.S. at 657. Specifically, a remedy limited to a cease and desist order offers meager consolation to the employee who, deprived of the right to union assistance, suffered a 5-day suspension. It offers other employees who were privy to those actions no reassurance that in similar circumstances they will receive meaningful redress if they pursue a denial of their statutory right to representation through unfair labor practice procedures. Consequently, they may be less inclined to exercise the rights that the Statute provides for them. Such a limited remedy does not do enough to restore "the status quo that would have obtained but for the wrongful act," Rutter-Rex, 396 U.S. at 265, and to promote employee confidence in the rights and procedures established by the Statute.

Accordingly, in this case where there has been a denial of representation rights under section 7114(a)(2)(B) and discipline has ensued, we believe that the policies of the Statute will be best effectuated by ordering the Respondent, upon request of the union and the employee, to repeat the investigatory interview and to afford the employee full rights to union representation. After repeating the investigatory interview, the Respondent will reconsider the disciplinary action taken against the employee. If on reconsideration the Respondent concludes that the disciplinary action was unwarranted or that a mitigation of the penalty is warranted, the employee will be made whole for any losses suffered to the extent consistent with the Respondent's decision on reconsideration. The Respondent will notify the employee of the results of the reconsideration, including whatever make-whole actions are to be afforded the employee and, if relevant, afford the employee any grievance or appeal rights that may exist under the parties' negotiated agreement, law or regulation with respect to the Respondent's action in reconsidering the disciplinary action.(3)

Requiring a respondent to repeat the examination and to reconsider a disciplinary action taken against an employee will effectuate the purposes of the Statute. This remedy will "recreate the conditions and relationships that would have been had there been no unfair labor practice," Carpenters, 365 U.S. at 657, by (1) affording that employee the protections that section 7114(a)(2)(B) is intended to provide--the assistance of a knowledgeable union representative in the interview and, as appropriate, in any subsequent proceedings; (2) providing the employee with the opportunity for redress for any tangible harm, such as an unjust disciplinary action, that the employee may have suffered as a consequence of the original denial of rights under section 7114(a)(2)(B); and (3) promoting employee confidence in the rights and procedures established by the Statute.

Additionally, this remedy will deter violations of section 7114(a)(2)(B). By making the right to representation ultimately inescapable, this remedy will provide an additional incentive to agencies to afford representation rights and diminish any advantage to denying the right at the outset. By affording effective enforcement of the rights bestowed on employees by section 7114(a)(2)(B) and safeguarding the interests that all parties have in observing the requirements of the Statute, this remedy will vindicate: (1) the policies of the Statute and (2) the public interest in providing employees with statutory protection of the right to organize and participate through labor organizations of their own choosing in decisions which affect them. In sum, this remedy will protect employee rights and promote the efficiency of government--matters that Congress clearly has determined to be in the public interest. See American Federation of Government Employees v. FLRA, 716 F.2d 47, 51 (D.C. Cir. 1983).(4)

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the United States Department of Justice, Bureau of Prisons, Safford, Arizona, shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee of the Bureau of Prisons, Safford, Arizona, to take part in an examination in connection with an investigation without the assistance of his or her union representative where such representation has been requested by the employee, and if the employee reasonably believes that the examination may result in disciplinary action against him or her.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of the 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 Federal Service Labor-Management Relations Statute:

(a) On request of American Federation of Government Employees, Local 2313, AFL-CIO, and Ms. Susan Brannock, repeat the examination of Ms. Brannock that occurred on February 20, 1987, at which she was denied her right to union representation. In repeating the examination, afford Ms. Brannock her statutory right to union representation. After repeating the examination, reconsider the disciplinary action taken against Ms. Brannock. On reconsideration of the disciplinary action, as appropriate, make Ms. Brannock whole for any losses suffered to the extent consistent with the decision upon reconsideration and/or afford her whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation.

(b) Post at the Bureau of Prisons, Safford, Arizona, copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden of the Safford, Arizona, Prison 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 these Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region 8, Federal Labor Relations Authority, 350 S. Figueroa Street, Room 370, Los Angeles, CA 90071, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.



NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT require any bargaining unit employee of the Bureau of Prisons, Safford, Arizona, to take part in an examination in connection with an investigation without the assistance of his or her union representative where such representation has been requested by the employee, and if the employee reasonably believes that the examination may result in disciplinary action against him or her.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request of the American Federation of Government Employees, Local 2313, AFL-CIO, and Ms. Susan Brannock, repeat the examination of Ms. Brannock, which occurred on February 20, 1987, at which she was denied her right to union representation. In repeating the examination we will afford Ms. Brannock her statutory right to union representation. After repeating the examination, we will reconsider the disciplinary action taken against Ms. Brannock.

WE WILL, as appropriate, make Ms. Brannock whole for any losses suffered to the extent consistent with our decision on reconsideration; and/or we will afford her whatever grievance and appeal rights may exist under any relevant collective bargaining agreement, law or regulation.

_______________________
(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 of the Federal Labor Relations Authority, Region VIII, whose address is: 350 S. Figueroa Street, Room 370, Los Angeles, CA 90071, and whose telephone number is: (213) 894-3805.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. In Wright Line, 251 NLRB 1083 (1980), enf'd sub nom. NLRB v. Wright Line, A Division of Wright Line, Inc., 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), the NLRB held, in pertinent part, that, in cases alleging unlawful discrimination, the NLRB General Counsel must initially establish a prima facie case that protected conduct was a motivating factor in an employer's decision to take action against an employee. The employer is then given the opportunity to demonstrate that the decision would have been the same even in the absence of protected activity.

2. Because the primary purpose of the hearing conducted in this case was not to determine the merits of the disciplinary action taken against Ms. Brannock, we recognize that litigation for the purpose of fully examining and determining the merits of that disciplinary action might produce a record that supports different findings and conclusions than those reached by the Judge. In any event, the Respondent's claim that the Judge's findings and conclusions relating to the merits of the disciplinary action taken against Ms. Brannock are prejudicial is based on the Respondent's anticipation that the Judge's findings and conclusions will be introduced into subsequent arbitration proceedings on the merits of Ms. Brannock's disciplinary action. The Respondent's claims of "prejudice" should be reserved for that event and that forum; they are not relevant here.

3. Of course, where a disciplinary action has been taken because the employee engaged in concerted activity, we will continue to provide a traditional make-whole remedy as discussed in Charleston Naval Shipyard. 32 FLRA at 233-34.

4. In American Federation of Government Employees v. FLRA, 716 F.2d at 50, the court held that requiring an agency to rerun a selection proceeding, when it had already been demonstrated that the employee who would be the focus of the rerun would not be selected, would be "wasteful and unnecessary." The circumstances presented by failing to properly conduct an examination under section 7114(a)(2)(B) are distinguishable. In such cases it is not clear that requiring the Respondent to lawfully conduct the interview and reconsider the disciplinary action would not produce a different outcome. Indeed, in this case, a rerun of the interview could cause the Respondent to reconsider its discipline against Ms. Brannock. Moreover, even if, upon reconsideration, the Respondent sustains its original action, a different outcome could still result from subsequent resort to available grievance and appeals procedures. Thus, in contrast to American Federation of Government Employees, a rerun of the interview