35:0594(68)CA - - Air Force, Sacramento Air Logistics Center, McClellan AFB, CA and AFGE Local 1857 - - 1990 FLRAdec CA - - v35 p594

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[ v35 p594 ]
35:0594(68)CA
The decision of the Authority follows:


35 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

SACRAMENTO AIR LOGISTICS CENTER

MCCLELLAN AIR FORCE BASE, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1857, AFL-CIO

(Charging Party)

9-CA-70343

9-CA-70376

DECISION AND ORDER

April 24, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These consolidated unfair labor practice cases are before the Authority on exceptions to the attached decision of the Administrative Law Judge. The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when in each case it conducted a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute with a bargaining unit employee without providing the Charging Party (Local 1857 or the Union) an opportunity to be represented at the discussions.

In Case No. 9-CA-70343, a management representative asked a unit employee questions on the telephone. The management representative knew that the Union intended to call the employee as a witness in an upcoming arbitration hearing. The Judge found that although the telephone interview was a "discussion" within the meaning of the Statute, it was not "formal." The Judge recommended dismissal of this allegation of the complaint.

In Case No. 9-CA-70376, another management representative interviewed a different unit employee in the management representative's office. The management representative knew that the Union intended to call the employee as a witness in a separate upcoming arbitration hearing. The Judge found that the interview was a formal discussion within the meaning of the Statute and that the Respondent's failure to give the Union an opportunity to be represented at the discussion violated the Statute.

The General Counsel filed exceptions to the Judge's decision in Case No. 9-CA-70343 and the Respondent filed an opposition to the General Counsel's exceptions. The General Counsel also filed exceptions to the Judge's finding in Case No. 9-CA-70376 that the Respondent violated section 7116(a)(1) and (5) of the Statute, rather than section 7116(a)(1) and (8) as alleged in the complaint. The Respondent filed exceptions to the Judge's decision in both cases.

Pursuant to section 2423.29 of our 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. We affirm the rulings.

For the reasons stated below, we disagree with the Judge's conclusion in Case No. 9-CA-70343. We conclude that the telephone interview was a formal discussion under section 7114(a)(2)(A) of the Statute, and that the Respondent's failure to provide the Union with an opportunity to be represented at the formal discussion violated section 7116(a)(1) and (8). We agree with the Judge's conclusion in Case No. 9-CA-70376 that the interview was a formal discussion under section 7114(a)(2)(A) of the Statute, and that the Respondent's failure to provide the Union with an opportunity to be represented at the formal discussion violated the Statute.

II. Facts

The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of a nationwide consolidated unit of employees of the Air Force Logistics Command, including the Respondent's employees at the Sacramento Air Logistics Center, McClellan Air Force Base, California. Local 1857 acts as AFGE's agent for purposes of representing the McClellan Air Force Base bargaining unit employees.

A. Case No. 9-CA-70343

A unit employee was sent home and placed in "absent without leave" (AWOL) status for allegedly being intoxicated when he reported to work. The employee filed a grievance. The grievance was submitted to arbitration, and an arbitration hearing was scheduled for July 28, 1987.

On July 23, 1987, the grievant's Union representative called a management official to provide the names of the witnesses whom the Union would call to testify at the arbitration hearing. Among the names provided was that of Ricardo Slade, an employee who supposedly had seen the grievant on the day he was sent home for allegedly having been intoxicated.

Thereafter, Captain Michael Drenan, the Respondent's representative, called Slade but did not reach him. Drenan called Slade to verify that Slade would be a witness and to find out what Slade knew about the incident. On July 24, 1987, Slade called Drenan "upon receiving a message from [Slade's] supervisor directing him to do so." Judge's Decision at 3. Slade, with permission from his supervisor, returned Drenan's call in the afternoon during duty hours.

The Judge found that "Drenan informed the employee that he was an Air Force attorney who was prosecuting the case against [the grievant]. Drenan stated he had Slade's name as a potential witness at the arbitration hearing, and he wanted to ask him a few questions. Drenan told Slade that he didn't have to talk to him; that nothing would [happen] to the employee whether or not he talked to Drenan. Whereupon the Captain proceeded to ask Slade questions re [the grievant] on the phone." Judge's Decision at 3 (emphasis in original, footnote omitted).

The Judge found that "Drenan then made several inquiries of Slade" about the grievant and that "Drenan also asked if Slade was going to be a witness." Id. Slade responded that "he would not be a witness although the Union had asked him several times." Id. at 3-4 (footnote omitted).

The Judge found that "Drenan did not prepare a list of questions to ask Slade; that he took no notes during the interview, and did not write anything as a report thereafter." Id. at 4 (footnote omitted). The Judge found that the meeting lasted "between 15 and 25 minutes." Id. at n.5.

On July 27, Drenan informed the Union representative that he had spoken to Slade. Management had not notified the Union of its intention to speak with Slade and did not provide the Union an opportunity to be represented when Drenan interviewed Slade. Id. at 4 and 10.

B. Case No. 9-CA-70376

In a separate matter, a unit employee was reprimanded for allegedly engaging in unsafe conduct on the job. The employee filed a grievance. The grievance was submitted for arbitration, and an arbitration hearing was scheduled for July 29, 1987.

About a week before the hearing, the grievant's Union representative called a management official to provide the names of the witnesses whom the Union would call to testify at the hearing. Among the names provided was that of Roger Riley, an employee who worked with the grievant.

On July 28, 1987, Major Norman Nivens of the Respondent's Judge Advocate's Staff telephoned Riley and requested that Riley meet with him later that day in the Judge Advocate's office. The Judge found that "Nivens decided to meet with [Riley] because it was not clear to him what conditions were like at [the grievant's] work place, and he wanted to verify instructions that were given to employees re the proper safety equipment to wear in the area." Judge's Decision at 4. Management had not notified the Union of its intention to speak with Riley and did not provide the Union an opportunity to be represented when Nivens interviewed Riley. Id. at 11.

The Judge found that "[a]t the start of the interview Nivens told Riley that [Riley] was under no obligation to confer with him; that nothing would happen to Riley whether or not he did answer questions regarding [the grievant]." Judge's Decision at 4-5 (footnote omitted). Nivens asked Riley a series of questions in a meeting that lasted nearly an hour. The Judge found that "Nivens took no notes of the meeting, nor did he write out the questions in advance of the discussion." Id. at 5.

III. Administrative Law Judge's Decision

Section 7114(a)(2)(A) of the Statute provides:

(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--

(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]

The Judge reviewed cases "dealing with situations where an agency conducted interviews of employees preparatory to an arbitration hearing." Judge's Decision at 6. The Judge noted that "the Authority has held that Congress intended the term 'discussion' [under section 7114(a)(2)(A) of the Statute] to be synonymous with 'meeting.'" Id. The Judge found that in considering whether a meeting was "formal" the Authority has held the following factors to be relevant:

(1) whether the person who held the discussion was merely a first-level supervisor or higher in the management hierarchy; (2) whether other management representatives were present; (3) where the meetings took place; (4) how long they lasted; (5) how meetings were called (advance written notice or spontaneously); (6) whether a formal agenda was established; (7) whether attendance was mandatory; (8) the manner in which meetings were conducted.

Id. at 7. The Judge noted that "the Authority has also declared that the list was not intended to be exhaustive; that other factors may be controlling, and the totality of the facts and circumstances will be considered." Id. (citation omitted).

The Judge further found that "[s]ubsequent decisions reveal no especial uniformity in reliance upon particular factors or indicia[.]" Judge's Decision at 7. The Judge noted that in a case involving the same respondent, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987) (McClellan AFB), the Authority held that "an interview of [one] employee by [the agency's] Labor Counsel was . . . a formal meeting even though it did not appear whether any of the three management officials in attendance was the employee's supervisor." Id. (footnote omitted). The Judge noted further that in Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 31 FLRA 541 (1988) (F.E. Warren AFB), the Authority found a meeting to be formal in nature, and "relied upon the factors reflecting that (1) the meeting took place in a private room in the civilian personnel office in the presence of an Air Force attorney and the Chief of labor relations; (2) the employee and the union were notified in advance." Id.

The Judge stated that "[i]n considering whether a discussion was formal or not, the [c]ourts have not embraced some of the indicia which the Authority has mentioned in its decisions." Judge's Decision at 7. The Judge noted that in National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), the court "stated that '. . . lack of notice and formal agenda, therefore, offer negligible evidence of informality . . .'" and "emphasized that [the meeting in that case] was not an impromptu gathering." Id. The Judge noted that the court "also concluded that the lack of a clear finding that the presence of the employee at the interview was mandatory was not controlling; [and] that the fact that the management's representatives were not in an employee's direct chain of supervision was not determinative." Id. at 7-8 (footnote omitted).

The Judge found that in determining whether a discussion or meeting concerns a grievance under section 7114(a)(2)(A) of the Statute, "[t]he Authority has concluded that an interview by management of an employee who is scheduled to be a witness in a forthcoming arbitration hearing does concern a grievance under the Statute." Judge's Decision at 8, citing McClellan AFB. Accordingly, the Judge found that the interview in each case concerned a grievance within the meaning of the Statute.

A. Case No. 9-CA-70343

The Judge found that Captain Drenan's telephone interview of Slade was a "discussion" within the meaning of the Statute. Judge's Decision at 8. However, the Judge found that the interview of Slade was not a "formal" discussion within the meaning of the Statute.

The Judge found that "[w]hile the Authority has enumerated the factors which it deems significant in determining whether a discussion or meeting is formal, it is also clear that not all of said indicia must be present. Nevertheless, it would seem that such factors as are present must outweigh the importance of those which are absent." Judge's Decision at 9.

The Judge found that in this case "[v]ery few, if any, of the criteria are present which the Authority relied upon" in past cases. Judge's Decision at 9. The Judge stated that "[t]he discussion occurred on the telephone and not in management's office; no agenda was established although, it is true, that Captain Drenan indicated the purpose for which he planned to phone Slade; no notes or transcription was taken of the conversation; notification to the employee interviewed was not scheduled with him in advance and was initiated by an unexpected telephone call to Slade." Id.

The Judge noted that the "precise question as to whether a formal discussion under the Statute may occur in the context of a telephone conversation between management and an employee has not been decided by the Authority." Judge's Decision at 9 (footnote omitted). He found, however, that the Statute "would seem to envisage more formality than a mere telephone conversations [sic]." Id.

The Judge noted that cases in which a formal discussion was found to have taken place involved a summoning of an employee by management to a meeting which was held in a management official's office. The Judge found that in this case "Captain Drenan did not summon Slade to his office nor were any arrangements made to do so." Judge's Decision at 9-10. The Judge concluded that "[i]n view of the foregoing, and the fact that the indicia relied upon by the Authority to establish a 'formal' discussion are not present" the telephone interview was not a formal discussion. Id. at 10. Accordingly, the Judge recommended dismissal of the complaint in this case.

B. Case No. 9-CA-70376

The Judge found that Major Nivens' interview of Riley was a formal discussion within the meaning of the Statute.

The Judge first rejected the Respondent's argument that management's interview of a unit employee to prepare for an arbitration hearing cannot constitute a formal discussion. The Judge found that the Authority concluded otherwise in McClellan AFB, in which the Authority found that "management's interview of an employee scheduled to be a witness in an arbitration hearing was a formal discussion." Judge's Decision at 10.

The Judge found that "[a]lthough all of the criteria delineated by the Authority in determining whether a formal discussion exists are not present herein, I am persuaded that record facts support the conclusion that the meeting with employee Riley was formal in nature." Judge's Decision at 10. The Judge found that while Riley's supervisor did not conduct the interview and no formal agenda was prepared by Nivens, other factors showed the formality of the interview. The Judge noted, among other factors, that: (1) Nivens made plans for the meeting in advance with Riley; (2) Riley was summoned to the meeting by management; (3) the meeting was conducted by an attorney from the Judge Advocate's staff in the Judge Advocate's office; and (4) the meeting lasted nearly an hour. Id. at 11.

The Judge concluded that the meeting held by the Respondent's representative Nivens with employee Riley was a formal discussion within the meaning of the Statute, and that the Respondent's failure to provide Local 1857 with an opportunity to be present at the interview violated the Statute. Judge's Decision at 11.

IV. Positions of the Parties

A. General Counsel's Exceptions

l. Case No. 9-CA-70343

The General Counsel excepts to the Judge's finding that "[v]ery few, if any" of the criteria necessary to a finding that the interview was a formal discussion are present in Case No. 9-CA-70343. General Counsel's Exceptions at 2. The General Counsel also excepts to the Judge's finding that the Statute "would seem to envisage more formality than a mere telephone conversation" to establish a formal discussion. Id. The General Counsel contends that the Judge failed to give proper weight to the purpose of section 7114(a)(2)(A) of the Statute, and placed undue weight on the fact that the interview took place on the telephone rather than in a manager's office. General Counsel's Brief in Support of Exceptions at 4-6. The General Counsel excepts to the Judge's conclusion that the facts of this case do not support a finding that Captain Drenan's interview of Slade was a formal discussion within the meaning of the Statute.

The General Counsel argues that this case is substantially similar to McClellan AFB, which involved the same parties. The General Counsel states that in McClellan AFB the Authority found a pre-arbitration interview of a union's witness to be a formal discussion. The interview was requested by management and was conducted in management's labor relations office in the presence of three management officials. The Authority found that the union was entitled to be present at the discussion in order to protect its representational interest in safeguarding its witness against coercion or intimidation prior to his appearance at the scheduled hearing. General Counsel's Brief at 4-7.

The General Counsel states that in this case: (1) the interview was initiated by the Respondent's labor counsel through Slade's supervisor, who directed Slade to return Drenan's call; (2) Drenan had a specific agenda in mind; and (3) Slade had to leave his work site to speak to Drenan on the phone. General Counsel's Brief at 8. The General Counsel argues that the fact that there was only one management representative involved in this case and that the interview was conducted over the telephone does not outweigh the other indicia of formality. The General Counsel contends that the Authority should find that the interview was a formal discussion at which the Union was entitled to be represented. Id.

2. Case No. 9-CA-70376

The General Counsel filed exceptions in this case only to the Judge's finding that the Respondent violated section 7116(a)(1) and (5) of the Statute, rather than section 7116(a)(1) and (8) as alleged in the complaint.

B. Respondent's Opposition to General Counsel's Exceptions in Case No. 9-CA-70343

The Respondent argues that McClellan AFB should not control the outcome of this case. The Respondent argues that McClellan AFB was different because in that case: (1) three management officials conducted the meeting; (2) there was a face-to-face meeting; and (3) notes were taken at the meeting.

The Respondent argues that each case must be considered on its own merits in determining whether discussions are formal. The Respondent contends that the Authority should reject the General Counsel's argument that interviews of union witnesses are formal discussions as a matter of law. It argues that the differences in this case support the Judge's finding that the discussion here was not formal in nature. Finally, the Respondent argues that the General Counsel's exceptions constitute nothing more than disagreement with the Judge's judgment and conclusions.

C. Respondent's Exceptions

The Respondent filed exceptions to the Judge's decision as it applies to both cases. The Respondent argues that section 7114(a)(2)(A) of the Statute should not be construed to allow a union representative to attend an interview of a unit employee held by an agency attorney in preparation for an arbitration hearing, absent a showing that the employee would otherwise be unavailable to the union or a showing of other good cause. The Respondent asserts that to construe section 7114(a)(2)(A) in this manner would improperly require an agency attorney to "waive the attorney work product privilege." Respondent's Exceptions at l. The Respondent argues that "[f]ailure to recognize the attorney work product doctrine under such circumstances is unjustified and gives the union an unfair, unearned advantage." Id. at 2.

According to the Respondent, the "attorney work product doctrine" provides that "the content of statements, opinions, and reports of witnesses obtained by an attorney in preparation for litigation are generally not discoverable except on an exceptional showing of good cause. The usual showing of good cause, when one exists, is that the witness is unavailable to the party seeking discovery of his statement." Respondent's Post-hearing Brief at 12, incorporated into Respondent's exceptions. The Respondent notes that in both of the consolidated cases, the Union had already interviewed the witness before the Respondent contacted the witness. Id.

In support of its arguments, the Respondent relies on the Authority's decision in United States Department of the Treasury, United States Customs Service, Region V, 9 FLRA 951 (1982). In that case, the Authority upheld an Administrative Law Judge's ruling that the respondent had not violated section 7114(a)(2)(A) of the Statute when its attorney interviewed unit employees in preparation for an upcoming unfair labor practice hearing without affording the union an opportunity to be represented.

V. Analysis and Conclusions

In determining whether a union's right to representation attaches under section 7114(a)(2)(A) of the Statute, all the elements of that section must be present. There must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. See, for example, U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465, 469 (1988); and Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 29 FLRA 1205, 1207 (1987).

It is undisputed that (1) the telephone interview in Case No. 9-CA-70343 and the interview in Case No. 9-CA-70376 involved one or more representatives of the Agency and one or more unit employees, and (2) each of the interviews concerned a grievance. Further, no exceptions were taken to the Judge's finding that each of the interviews constituted a discussion under section 7114(a)(2)(A). The questions presented here are whether: (1) the interviews in each case were "formal" within the meaning of the Statute, and (2) the Respondent's "attorney work product privilege" claim is a defense to any alleged violation of section 7114(a)(2)(A).

A. Were the Interviews "Formal" Within the Meaning of the Statute?

1. Case No. 9-CA-70343

The Judge noted that "[t]he discussion occurred on the telephone and not in management's office; no agenda was established although, it is true, that Captain Drenan indicated the purpose for which he planned to phone Slade; no notes or transcription was taken of the conversation; [and] notification to the employee interviewed was not scheduled with him in advance and was initiated by an unexpected telephone call to Slade." Judge's Decision at 9. The Judge concluded that although the telephone interview of Slade by Captain Drenan was a "discussion," it was not "formal" within the meaning of the Statute.

We disagree with the Judge's conclusion that the interview was not "formal." The interview was not a casual conversation or a conversation that followed from an impromptu meeting. Drenan was management's attorney for the grievance proceeding. After being notified that the Union intended to call Slade to testify at the arbitration hearing, Drenan called Slade. Slade returned Drenan's call after being directed to do so by his (Slade's) supervisor. Drenan had a specific purpose in seeking to talk with Slade--to find out if Slade would be a witness and what he knew about the incident--and asked questions designed to elicit that information. The telephone interview lasted a significant length of time--between 15 and 25 minutes. We find that these circumstances demonstrate that the discussion was "formal" within the meaning of the Statute.

The Judge found that this case differs from cases where an employee is summoned by management to a meeting in a management office. The Judge found that the Statute "would seem to envisage more formality than a mere telephone conversations [sic]." Judge's Decision at 9. We agree that in some instances a telephone conversation will not constitute a "formal discussion" under the Statute. However, an interview is not removed from the scope of section 7114(a)(2)(A) of the Statute simply because it is conducted over the telephone instead of in person. See National Treasury Employees Union v. FLRA, 835 F.2d 1446, 1450-51 (D.C. Cir. 1987) (an examination conducted by telephone instead of in person is nonetheless an "examination" within the meaning of section 7114(a)(2)(B) of the Statute). As the court stated in that case, "'[e]xamination' involves questioning to secure information; obviously, it can be done in a number of different ways by a variety of different people." Id. at 1450. Similarly, whether an interview conducted by telephone to ascertain information constitutes a formal discussion is determined by considering the same facts that would be relevant to a determination as to whether an interview conducted for this purpose in person in an office is a formal discussion.

Agency management had been informed that Slade was a witness whom the Union would call to testify at the arbitration hearing. As noted by the court in NTEU v. FLRA, 774 F.2d at 1192, "[w]hen an employer interviews an adverse witness rather than his own or even a neutral witness, common sense suggests that the situation carries a greater potential for intimidation or coercion." Citing that decision, the Authority found in McClellan AFB that when the interview in that case was "considered in light of the overall purpose of section 7114(a)(2)(A), it is readily apparent that the Union had a representational interest to safeguard in any discussion occurring at this meeting--the assurance that its witness was not coerced or intimidated prior to his appearance at the scheduled arbitration hearing. . . . [A union's] presence at such meetings will assist in providing that assurance." McClellan AFB, 29 FLRA at 598-99.

If Drenan had called Slade and requested that he come to Drenan's office to answer questions about the upcoming arbitration hearing, the resulting discussion would have presented facts substantially similar to those in Case No. 9-CA-70376 and other cases in which the Authority has found interviews to be formal discussions. See, for example, McClellan AFB, 29 FLRA at 603. We do not find that, in the circumstances of this case, the Respondent's use of the telephone to conduct the interview removed the interview from the scope of a "formal discussion." We conclude that Drenan's interview of Slade was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute at which the Union had a right to be represented.

In light of this finding and our finding below that the attorney work product privilege does not provide the Respondent with a defense to its actions, we conclude that the failure of the Respondent to provide Local 1857 with an opportunity to be represented at the discussion with Slade violated section 7116(a)(1) and (8) of the Statute. We will modify the Judge's recommended order to reflect our findings and conclusions.

2. Case No. 9-CA-70376

The Judge reviewed the facts in this case in light of the factors discussed by the Authority and concluded that the interview of employee Riley by management's representative was a formal discussion. The Judge found, accordingly, that the Respondent violated the Statute by failing to provide Local 1857 with an opportunity to be present at the interview.

The Respondent excepts in this case only to the Judge's failure to discuss the Respondent's "attorney work product privilege" claim. We consider the Respondent's claim below and find it to be without merit. The General Counsel excepts to the Judge's finding that the Respondent violated section 7116(a)(1) and (5) of the Statute, rather than section 7116(a)(1) and (8). We have reviewed the Judge's decision and the entire record in Case No. 9-CA-70376. We adopt the Judge's conclusions. We modify the Judge's findings to correct the inadvertent reference to section 7116(a)(1) and (5) rather than section 7116(a)(1) and (8).

B. Is the Respondent's "attorney work product privilege" claim a defense to any alleged violation of section 7114(a)(2)(A)?

The Respondent contends that to allow an employee to have union representation during a management attorney's interview before an upcoming arbitration hearing requires the Respondent to waive its "attorney work product privilege." The "work product" referred to by the Respondent is "the content of statements, opinions, and reports of witnesses obtained by an attorney in preparation for litigation." Respondent's Post-hearing Brief at 12. The Respondent relies on U.S. Customs Service, 9 FLRA 95l, in which the Authority held that the agency did not violate the Statute when its attorney interviewed bargaining unit employees in preparation for an unfair labor practice hearing without affording the union an opportunity to be represented at the interviews. Id. at 12-16. In U.S. Customs Service, the Authority adopted an Administrative Law Judge's rationale, which was based in part on the protection of the attorney work product. See id.

We find no merit in the Respondent's argument and we reject the Respondent's exception. The question before us is whether the Respondent was required under section 7114(a)(2)(A) of the Statute to afford the Union an opportunity to be represented at interviews of bargaining unit employees known to be Union witnesses in a scheduled arbitration hearing. In McClellan AFB, the Authority rejected the holding of earlier cases such as U.S. Customs Service and found that unions must be afforded an opportunity to be represented at interviews of unit employees in preparation for third-party proceedings where the "formal discussion" criteria of section 7114(a)(2)(A) are met. McClellan AFB, 29 FLRA at 598-603. Citing the court's discussion in NTEU v. FLRA, 774 F.2d 118l, the Authority noted that a union has a representational interest to safeguard in such interviews--to make sure "that its witness was not coerced or intimidated prior to his appearance at the scheduled arbitration hearing." McClellan AFB, 29 FLRA at 598.

The Respondent has not cited any provision of the Statute or its legislative history which demonstrates that Congress intended to exclude from the coverage of section 7114(a)(2)(A) formal discussions which involve interviews by agency attorneys of unit employees who are known to be scheduled to testify for the union in upcoming third-party proceedings. The Respondent also has not shown how its position would be consistent with the purpose of section 7114(a)(2)(A), as recognized by the court in NTEU v. FLRA and by the Authority in McClellan AFB, to allow a union to safeguard its representational interest by making sure that its witness is not coerced or intimidated prior to appearing at a scheduled arbitration hearing. In the absence of any demonstration that the Respondent's contention is supported by the terms, the legislative history or the purpose of section 7114(a)(2)(A), we reject the contention.

We note that we are finding only that the Union has a right to have an opportunity to be represented during a management attorney's interview of an employee where, as here, the interview meets the test of a formal discussion under section 7114(a)(2)(A) of the Statute. Our decision does not preclude an agency attorney from: (1) interviewing unit employees in preparation for upcoming arbitration or other third-party hearings; or (2) creating documents for the agency's use which reflect the attorney's thoughts or impressions resulting from the interview. Moreover, nothing in our decision requires an agency attorney to disclose to a union his or her thoughts or impressions, whether written or otherwise, resulting from the interview.

In short, contrary to the Respondent's contention, nothing in our decision would "effectively destroy management's right to prepare its defense and thus destroy its right to a fair hearing." Respondent's Post-hearing Brief at 15-16. Rather, our decision effectuates the intent of section 7114(a)(2)(A) of the Statute to allow a union to safeguard its representational interest by making sure that its witness is not coerced or intimidated prior to appearing at a scheduled arbitration hearing.

Accordingly, we find that the Respondent's "attorney work product privilege" claim is not a valid defense to the alleged violation of section 7114(a)(2)(A) of the Statute.

C. Summary

Both interviews in this consolidated case were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. Accordingly, the Respondent's failure to provide Local 1857 with an opportunity to be represented at those discussions violated section 7116(a)(1) and (8) of the Statute. The Order is modified to conform with our decision and with orders issued in similar cases.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, shall:

1. Cease and desist from:

(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by the American Federation of Government Employees, Local 1857, AFL-CIO (AFGE) concerning any grievance or any personnel policy or practices or other general condition of employment, including interviews conducted in preparation for third-party hearings, and including interviews conducted by telephone, without affording AFGE prior notice of and the opportunity to be represented at the formal discussions.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its Sacramento, California facility where employees in the bargaining unit are located 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 Commanding Officer of the Center, 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 ensure that such 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 IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.



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

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