35:0645(73)CA - - FAA, New England Region, Burlington, MA and National Association of Air Traffic Specialists - - 1990 FLRAdec CA - - v35 p645
[ v35 p645 ]
The decision of the Authority follows:
35 FLRA No. 73
FEDERAL LABOR RELATIONS AUTHORITY
FEDERAL AVIATION ADMINISTRATION
NEW ENGLAND REGION
NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS
DECISION AND ORDER
April 25, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Chief Administrative Law Judge. The Charging Party adopts and joins in the General Counsel's exceptions. The Respondent filed an opposition to the General Counsel's exceptions and cross-exceptions to the decision.
The complaint alleged that the Respondent failed to comply with section 7114(b)(4) of the Federal Service Labor-Management Relations Statute (the Statute) and violated section 7116(a)(1), (5), and (8) by refusing to furnish the Union with information that it had requested in connection with impending investigatory examinations of unit employees. The complaint also alleged that the Respondent's refusal to furnish the requested information violated section 7116(a)(1) and (8) because the refusal denied the Union an opportunity to fully participate in the investigatory examinations and, thereby, deprived employees of the effective representation to which they were entitled under section 7114(a)(2)(B) of the Statute.
The Judge found that the Respondent was under no obligation to furnish the requested information. He recommended that the complaint be dismissed.
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 made at the hearing. For the reasons stated below, we agree with the Judge that the Respondent did not violate the Statute by refusing to furnish the requested information.
In 1984, a number of unit employees were reassigned from the Respondent's Boston Station to the Bridgeport Flight Service Station. In connection with this reassignment, the employees submitted travel vouchers. In 1985, Special Agent Fogerty of the Agency's Civil Aviation Security division investigated the possible falsification of some of these travel vouchers. As part of the investigation, the employees who had been reassigned were interviewed. The employees were represented at these interviews by the Union's General Counsel.
In September 1986, the employees were notified by the U.S. Attorney's Office that no criminal actions would be instituted but that the Respondent was not precluded from taking administrative action. The Respondent then notified the Union that further interviews of the reassigned employees would be conducted on October 29, 1986.
The Union agreed to represent the employees at the October 29 interviews and requested that the Respondent furnish "data collected by Fogerty and maintained in a 'working file.'" Judge's Decision at 2. Specifically, the Union requested the following data for the purpose of adequately representing the reassigned employees:(*)
(1) A copy of any and all Reports of Investigation prepared on each of the above-named individuals by S/A Fogerty to the present date.
(2) A copy of any and all school attendance records subpoenaed by S/A Fogerty on the children of any and all of the above-named individuals to the present date.
(3) A copy of any and all employment records subpoenaed by S/A Fogerty on the spouses of any and all of the above-named individuals to the present date.
(4) A copy of any and all hotel/motel receipts subpoenaed or given to S/A Fogerty on any and all of the above-named individuals to the present date.
(5) A copy of any and all statements given by anyone interviewed by S/A Fogerty who gave information on any and all of the above-named individuals concerning the ongoing voucher investigation to the present date.
Id. at 2-3.
The Respondent denied the request in a letter which stated:
Since these interviews are simply investigatory in nature, your request appears to be premature. If action is to be proposed at a later date, we will provide you with the information you requested as permitted by law. At the moment, we must deny your request for this information.
Id. at 3.
After the request was denied, representatives of the Respondent interviewed eight of the reassigned employees. The Union's General Counsel was at each interview and participated as an advisor. The employees' requests to review documents during the interview were denied. After the interviews, the Respondent proposed disciplinary action against certain employees and, in conjunction with the proposed discipline, provided the Union with all the information that it had originally requested.
III. Judge's Decision
The Judge concluded that the Respondent was not obligated to furnish the Union with the requested information prior to the investigatory examinations of employees pursuant to section 7114(a)(2)(B) of the Statute. The Judge relied on NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The Judge noted that, under Weingarten, an employer has no duty to bargain with the union representative during the examination of an employee. The Judge determined that "as the duty to supply relevant information derives from the bargaining obligation, or the corresponding duty of the union to represent, it is difficult to see how information can be relevant and necessary in circumstances where the Supreme Court says there is no bargaining obligation." Judge's Decision at 10. The Judge also determined that "[t]he union then, is the individual's advocate and is not entitled to that data which it could call for when functioning as collective bargaining agent. Only when discipline is imposed, apparently, are the terms and conditions of employment for the entire unit implicated, so as to give rise to a bargaining obligation and the attendant right of the union to such information as is relevant and necessary to its task." Id. at 11.
Because the Judge found that the Respondent was not obligated to furnish the requested information, the Judge recommended dismissal of the complaint in its entirety.
IV. Positions of the Parties
A. The General Counsel
The General Counsel contends that the Judge erred by concluding that the Union's role at the investigatory examinations did not involve representational rights and duties. The General Counsel maintains that, in contrast to the private sector, where the right under Weingarten is an employee right, a Federal sector union has a statutory right, under section 7114(a)(2)(B) of the Statute, to be represented at an investigatory examination once the requirements of that section are met. Therefore, the General Counsel argues that the Judge's reliance on Weingarten was misplaced. The General Counsel notes that Congress recognized that the right to representation may evolve differently in the private sector and the Federal sector and that decisions in the private sector would not necessarily be determinative of the right in the Federal sector. Exceptions at 4 (citing H.R. Rep. No. 1717, 95th Cong., 2d Sess. 155-56). Because a union in the Federal sector has a right to be represented at an investigatory examination when the requirements of section 7114(a)(2)(B) are met, the General Counsel claims that the role of a union at an investigatory examination falls within the ambit of collective bargaining and permits a request for information under section 7114(b)(4).
The General Counsel maintains that access to the requested information was vital to the Union's ability to effectively represent the examined employees. In view of the Union's role in representing the employees in this case--as that of an exclusive representative exercising its representational rights and discharging its representational duties--the General Counsel contends that the Respondent had a statutory duty to furnish the requested information. The General Counsel also states that it is not apparent that furnishing the requested information would have interfered with the conduct of the investigation and contends that the refusal to provide the requested information denied the Union the right to fully participate in the investigation, in violation of section 7116(a)(1) and (8) of the Statute.
B. The Charging Party
The Union joined in and adopted the exceptions filed by the General Counsel.
C. The Respondent
In its opposition to the General Counsel's exceptions, the Respondent maintains that the Judge correctly concluded that during an examination of an employee in connection with an investigation under section 7114(a)(2)(B), the union is the employee's advocate and is not entitled to information it could request when functioning as a collective bargaining agent. The Respondent asserts that section 7114(a)(2)(B) provides Federal employees and unions with representational rights that are similar to those provided for private sector employees under Weingarten. The Respondent also argues that although Congress recognized that the right may evolve differently in the private sector and the Federal sector, the role of the union at the examination is not different in the Federal sector. The Respondent also maintains that the release of the requested information would have interfered with the investigation.
The Respondent also filed cross-exceptions that would result in the dismissal of the complaint if the Authority rejects the Judge's reasoning. The Respondent contends that the Judge erred by not finding that: (1) the information requested was not data maintained in the normal course of business within the meaning of section 7114(b)(4) of the Statute; (2) some of the information requested did not exist; (3) the information requested was not necessary within the meaning of section 7114(b)(4); (4) the Union was given the opportunity to be fully represented at the examinations in accordance with section 7114(a)(2)(B); and (5) disclosure of the information requested is prohibited by the Privacy Act.
This case concerns the relationship between two provisions of section 7114 of the Statute. As discussed in greater detail below, under section 7114(a)(2)(B), a union, when requested to do so by a unit employee, has the right and duty to effectively represent the employee at an investigatory examination. Under section 7114(b)(4), an agency has a duty to provide information to a union, upon request, which information is, among other criteria, "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]"
Data relevant to "full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" is not limited to information relevant to negotiate a collective bargaining agreement. American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1363 (D.C. Cir. 1986) (and cases cited in the decision). The relevance of the data must be considered in the context of the full range of an exclusive representative's representational functions and responsibilities. See id. at 1364; Internal Revenue Service, Washington, D.C., 32 FLRA 920, 924 (1988). Information that is relevant to an exclusive representative's functions and responsibilities under the Statute is covered by section 7114(b)(4). See IRS, Washington, D.C., 32 FLRA at 924.
In our view, an exclusive representative's function of representing an employee to be examined in connection with an investigation under section 7114(a)(2)(B) is as much a representational function under the Statute as are the representative's activities in negotiating and administering the collective bargaining agreement and determining whether to file an unfair labor practice charge. See Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127, 142 (1987) (section 7114(b)(4) covers information that is relevant to a union's determination of whether to file an unfair labor practice charge).
The right to representation at an examination is designed to protect employees during meetings with their employers in connection with an investigation that the employee reasonably believes may result in disciplinary action. United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA No. 56, slip op. at 9 (1990). In Weingarten, the Supreme Court discussed an employee's right to have "the assistance of his union representative [in] a confrontation with his employer." 420 U.S. at 260. In the Court's view, "[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. The Court concluded that in such circumstances, "[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.
The Court defined the following role for the union representative:
The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them.
Id. at 260 (quoting from the brief of the National Labor Relations Board (NLRB)).
The representational rights of the union under section 7114(a)(2)(B) include the right 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). The union representative must be granted a full opportunity to assist the examined employees and to fully participate in the investigatory examination. See U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA 297 (1981).
Inasmuch as effective representation at such an investigatory examination often would be difficult or impossible in the absence of necessary information, we conclude that information requested in connection with a union's representation of an employee at such an investigation is relevant to the representational function of the union under the Statute. Consequently, contrary to the Judge, we find that such information must be furnished by an agency when a union's request satisfies the requirements of section 7114(b)(4).
The next question we must decide is what constitutes information that is "necessary" for a union to effectively represent an employee in an investigatory examination pursuant to section 7114(a)(2)(B) of the Statute. That section creates, for Federal employees and unions, representational rights that are similar to those provided for private sector employees under the National Labor Relations Act (NLRA). Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222 (1988); 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) (Congressman Udall explained that the purpose of the House bill provisions which led to the enactment of section 7114(a)(2)(B) was to reflect the U.S. Supreme Court's decision in Weingarten); see also H.R. Rep. No. 1717, 95th Cong., 2d Sess. 156, reprinted in Legislative History at 824 (conference committee recognized that the right may evolve differently in the Federal sector and intended that court decisions in the private sector would not necessarily be determinative for the Federal sector).
In Weingarten, the Court outlined the "contours and limits" of the right to union representation and noted, among other things, that the "exercise of the right may not interfere with legitimate employer prerogatives." 420 U.S. at 256, 258. Thus, under Weingarten, an employer has a legitimate interest and prerogative in achieving the objective of the examination and preserving the integrity of the investigation. See Weingarten, 420 U.S. at 258. Accordingly, a union's representational rights under section 7114(a)(2)(B) may not compromise that integrity. Federal Prison System, Federal Correctional Institution, Petersburg, Virginia, 25 FLRA 210 (1987) (adopting the Judge's finding that a representative designated for an investigatory examination may be rejected by management in order to preserve the integrity of the investigation).
In construing the NLRA and applying Weingarten, the NLRB has held that in order for the representation to be effective, the employee and the union representative are entitled to consult before the interview and to be informed of the nature of the prospective interview. Pacific Telephone & Telegraph Co., 262 NLRB 1048 (1982), enforced in part, 711 F.2d 134 (9th Cir. 1983) (enforcement denied as to other matters) (Pacific Telephone & Telegraph). Consistent with the Supreme Court's decision in Weingarten, the NLRB stated that the "consultation need be nothing more than that which provides the representative an opportunity to become familiar with the employee's circumstances." Id. at 1049. The NLRB noted that the requirement to inform the employee and the union representative of the subject matter of the interview "does not dictate anything resembling 'discovery.'" Id. The NLRB defined the obligation of the employer as follows:
The employer does not have to reveal its case, the information it has obtained, or even the specifics of the misconduct to be discussed. A general statement as to the subject matter of the interview, which identifies to the employee and his representative the misconduct for which discipline may be imposed, will suffice.
Id. (emphasis in original; footnote omitted).
The NLRB has stated that the construction of the NLRA affirmed by the Supreme Court in Weingarten represents a balance between employer prerogatives in investigating and disciplining misconduct and the right of employees to a union representative when their terms and conditions of employment are threatened by those prerogatives. The proper balance must be struck "in light of the mischief to be corrected and the end to be attained." Pacific Telephone & Telegraph, 262 NLRB at 1049 (quoting Weingarten, 420 U.S. at 262).
We agree with the NLRB's approach and adopt it for the Federal sector as an analytical tool in determining when requested information is necessary under section 7114(a)(2)(B). Consequently, we find that the right of a union, under the Statute, to obtain relevant information for an investigatory examination must be balanced against the interests of an agency employer in investigating and disciplining misconduct.
Balancing the parties' respective rights and prerogatives in this case, we note that the Union representative was familiar with the employees' circumstances and the misconduct being investigated because the representative had represented the employees when they were initially interviewed in 1985. Therefore, we find that: (1) the Union did not need the information that it requested to be able to effectively represent the employees in the investigatory examination; and (2) the Respondent's refusal to furnish the requested information did not deny the Union an opportunity to assist the examined employees or to participate fully in the investigatory examinations. In our view, adoption of the General Counsel's position, that the requested information was necessary for the Union to fulfill its statutory obligations under section 7114(a)(2)(B), would interfere with the Respondent's legitimate interests and prerogatives, recognized by the Court in Weingarten, in achieving the objective of the examination, preserving the integrity of the investigation, and avoiding an adversarial contest. We agree with the NLRB that the representation rights at investigatory examinations do not include the right to have the employer "reveal its case" or "the information [the employer] has obtained" and do not "dictate anything resembling 'discovery.'" Pacific Telephone & Telegraph, 262 NLRB at 1049. We find nothing in section 7114(a)(2)(B) to persuade us otherwise. Therefore, we conclude that the Union's right to represent the examined employees in the present case did not encompass the right to be furnished the requested information.
Finally, we note that after the Respondent proposed discipline against the unit employees who were represented by the Union, the Respondent furnished the Union with all of the requested information. The Union was, therefore, furnished with the information after the Respondent's investigation was complete and the parties' dispute became "adversarial." Compare Internal Revenue Service, National Office, 21 FLRA 646, 648-49 (1986) (an agency has the duty to furnish information under section 7114(b)(4) that is necessary to enable a union to fulfill its representational responsibility of effectively evaluating whether to file a grievance over a matter in dispute). At the time the request was denied, however, we find that the Respondent's important interests in safeguarding its investigation clearly outweighed the Union's in