35:0681(76)CA - - Army, HQ XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1990 FLRAdec CA - - v35 p681
[ v35 p681 ]
The decision of the Authority follows:
35 FLRA No. 76
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS XVIII AIRBORNE
CORPS AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 26, 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 Charging Party to the attached Decision of the Administrative Law Judge. The Respondent filed an opposition to the exceptions.
The Judge found that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying a unit employee's request for union representation to which the employee was entitled under section 7114(a)(2)(B) of the Statute. The Judge found also that the Respondent did not repudiate the parties' collective bargaining agreement and, thereby, violate section 7116(a)(1) and (5) of the Statute, by failing to inform the employee of his rights under section 7114(a)(2)(B). The Judge recommended that the Respondent be directed to cease and desist from violations of the Statute and to post a notice to that effect.
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. We affirm those rulings.
No exceptions were filed to the Judge's findings that the Respondent violated section 7116(a)(1) and (8) of the Statute and did not violate section 7116(a)(1) and (5). Accordingly, we will adopt those findings. For the following reasons, however, we will modify the Judge's recommended remedy.
Truman Bullard (hereinafter the employee), a Union officer, gave a document relating to new construction at Fort Bragg to a Congressman. Subsequently, the employee was interviewed by a representative of the Respondent concerning the incident. The employee requested and was denied union representation during the interview. After denying the employee's request for representation, the Respondent's representative continued with the interview. Notes made by the Respondent's representative during the interview, including an admission that the employee had provided the document to the Congressman, were later reviewed and signed by the employee.
The employee received a proposed 5-day suspension for giving the document to the Congressman. This suspension "was later reduced to a three year reprimand," which was the subject of a scheduled arbitration at the time of the unfair labor practice hearing. Judge's Decision at 5.
III. Judge's Decision
The Judge concluded that the Respondent violated section 7116(a)(1) and (8) of the Statute when it failed to afford the employee union representation, as required by section 7114(a)(2)(B) of the Statute. The Judge also concluded, however, that the Respondent did not repudiate the parties' collective bargaining agreement and, thereby, violate section 7116(a)(1) and (5) of the Statute, by failing to notify the employee that he was entitled to representation.
Finally, the Judge rejected the General Counsel's request that the Respondent be directed to expunge from the employee's personnel file any disciplinary action which resulted from the examination. The Judge found, based on the Authority's decision in Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222 (1989) (Charleston Naval Shipyard), that a make-whole remedy was not appropriate because it had not been alleged or proven that the employee was disciplined for exercising his rights under section 7114(a)(2)(B).
IV. Positions of the Parties
A. The Charging Party's Exceptions
The Charging Party excepts only to the Judge's failure to direct that the employee's personnel file be expunged of any record of discipline. The Charging Party asserts that the only "proof of misconduct was gathered by the Respondent through its illegal investigation." Exceptions at 2. The Charging Party also asserts that Bullard may not be disciplined for providing the document to the Congressman because Bullard was a "legitimate whistleblower." Id.
B. The Respondent's Opposition
The Respondent asserts that the Charging Party has not demonstrated a reason to modify the Judge's remedy.
In the absence of exceptions, we adopt the Judge's conclusions that the Respondent (1) violated the Statute by failing to afford the employee representation; and (2) did not violate the Statute by failing to comply with a contractual requirement that the Respondent inform the employee of his rights to representation.
We will, however, modify the Judge's recommended remedy. In United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA No. 56 (1990) (Bureau of Prisons), we considered what remedies are appropriate for violations of section 7114(a)(2)(B). We reaffirmed the Authority's decision in Charleston Naval Shipyard that requiring a respondent to revoke disciplinary action which has been taken for cause based solely on a failure to afford representation rights under section 7114(a)(2)(B) is not consistent with the policies and purposes of the Statute. In this case, the Judge correctly found, based on Charleston Naval Shipyard, that requiring the Respondent to revoke its disciplinary action was not appropriate. Accordingly, we reject the Charging Party's request that we modify the Judge's recommended remedy to require the Respondent to expunge the employee's personnel file of any reference to the discipline imposed in this case.
In Bureau of Prisons, we also concluded that, in some circumstances where a denial of representation rights has occurred, a traditional cease and desist order will not adequately redress the wrong incurred by the unfair labor practice. In particular, we determined that where there has been a denial of representation rights under section 7114(a)(2)(B) and discipline has ensued, the policies of the Statute are best effectuated by ordering the respondent, upon request of the union and the affected employee, to repeat the investigatory interview and to afford the employee full representation rights. After repeating the interview, the respondent will reconsider the disciplinary action taken against the employee. If on reconsideration the respondent mitigates the discipline, the employee will be made whole for any losses suffered to the extent consistent with the respondent's decision on reconsideration. After notifying the employee and the union of the results of the reconsideration, including any make-whole actions, the employee will, if relevant, be afforded any grievance or appeal rights that may exist under the parties' negotiated agreement, law, or regulation.
In this case, it is clear that the affected employee was disciplined for the incident about which he was interviewed in violation of his rights under section 7114(a)(2)(B). Consistent with Bureau of Prisons, therefore, it is necessary and appropriate that the Respondent be directed to (1) repeat the investigatory interview, upon request of the Charging Party and the employee; (2) afford the employee full representation rights in the repeated interview; (3) reconsider the disciplinary action; (4) notify the employee and the Charging Party of the decision on reconsideration; and (5) if relevant, afford the employee any and all grievance or appeal rights. We will modify the Judge's recommended remedy accordingly. We note, however, that the proposed 5-day suspension against the employee was reduced to a reprimand. It does not appear, therefore, that the employee suffered an economic loss as a result of the discipline. As such, it is not necessary to direct the Respondent to make the employee whole consistent with the decision reached by the Respondent on reconsideration. If, however, the Respondent withdraws the reprimand on reconsideration, any reference to the previous reprimand must be expunged from the employee's file.
Finally, we note the Charging Party's assertion that the employee was a "legitimate whistleblower" who may not, therefore, be disciplined for the activity involved in this case. Exceptions at 2. Nothing in the record before us indicates that this issue was encompassed within the unfair labor practice complaint in this case or was argued to or considered by the Judge. We decline, therefore, to address this issue. We note, however, that the employee may seek to raise this issue, as appropriate, as part of any grievance or appeal which may result from the Respondent's decision on reconsideration.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee of the Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 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 1770, and Mr. Truman E. Bullard, repeat the examination of Mr. Bullard that occurred on May 22, 1987, at which he was denied his right to union representation. In repeating the examination, afford Mr. Bullard his statutory right to union representation. After repeating the examination, reconsider the disciplinary action taken against Mr. Bullard. On reconsideration of the disciplinary action, as appropriate, either afford Mr. Bullard whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation, or expunge any reference to the disciplinary action from Mr. Bullard's personnel file.
(b) Post at Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 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 Commanding Officer or his designee and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and