35:1069(116)CA - - Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia FEMTC - - 1990 FLRAdec CA - - v35 p1069

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35:1069(116)CA
The decision of the Authority follows:


35 FLRA No. 116

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Respondent)

and

TIDEWATER VIRGINIA FEDERAL EMPLOYEES

METAL TRADES COUNCIL, AFL-CIO

(Charging Party)

34-CA-80213

DECISION AND ORDER

May 10, 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 Administrative Law Judge's Decision. No opposition was filed to the exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying a bargaining unit employee's request for union representation at an examination in connection with an investigation under section 7114(a)(2)(B) of the Statute. The Judge found that the Respondent did not violate section 7116(a)(1) and (8) because the employee did not request union representation.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings 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, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with our decision.

For the following reasons, we conclude, in agreement with the Judge, that the Respondent did not fail to comply with section 7114(a)(2)(B) and, therefore, did not violate section 7116(a)(1) and (8) of the Statute.

II. Facts

The facts, which are set out fully in the Judge's decision, are summarized here. We note that the Judge's findings of fact, which were based in part on credibility determinations, were not excepted to by the parties.

On November 4, 1987, two supervisors found Mr. Donnell Parker, a bargaining unit employee, "to be sleeping while on duty time following his lunch period." Judge's Decision at 2. The supervisors took Parker to the office of the General Foreman, who was not there when they arrived. While they waited for the General Foreman to arrive, one supervisor asked the other, in Parker's presence, to go and get Union Steward Rodgers. The supervisor returned to the General Foreman's office with the Steward.

When the General Foreman arrived, one of the supervisors explained that they had found Parker asleep during duty hours. The General Foreman "asked [the Steward] what he was doing there." Id. The Steward replied that a supervisor asked him to come and stated "'[i]f this is going to result in disciplinary action he (Parker) needs to be represented.'" Id. at 2-3. The General Foreman told the Steward, "'We don't need you. Go back to work.'" Id. at 3. The General Foreman told the supervisor "not to issue [the Steward] any more Union time that week." Id.

After the Steward left, the General Foreman asked Parker if it was true that he was sleeping on the job. Parker replied, "'Yes, sir.'" Id. The General Foreman told Parker that he would be put on leave without pay for an hour. No disciplinary action had resulted from the incident as of the date of the unfair labor practice hearing.

III. Administrative Law Judge's Decision

The Judge noted that section 7114(a)(2)(B) of the Statute applied if (1) Parker requested representation, or (2) "action by the Respondent obviated the need for such a request[.]" Id. at 4. The Judge found "that Parker did not make a request for representation either prior to or during the examination." Id. The Judge stated that the remaining issue was "whether Respondent's request to the Union steward that he attend the meeting and the steward's subsequent attendance obviated the need for such a request." Id.

The Judge noted that "[n]onverbal conduct" may constitute a valid request for union representation. Id. at 5 (citation omitted). However, the Judge concluded that "no conduct, verbal or otherwise, put the Respondent on notice of the employee's desire for representation." Id. at 6. The Judge also noted that there was no indication in the record that the General Foreman's "statements, tone of voice, or demeanor towards [the Steward] were coercive or tended to interfere with employee rights." Id. Finally, the Judge noted that, in the absence of a request for representation from Parker, the Respondent was not obligated to allow the Steward to remain at the meeting.

The Judge also noted that "Parker had requested Union representation in the past and was fully aware that [the Steward] was a Union representative and could have assisted him." Id. The Judge noted that 2 months prior to the incident in this case, Parker was taken to the General Foreman's office on 2 consecutive days for suspected intoxication on the job. On the first day, Parker did not ask for Union representation at the meeting, but did request, and was granted, Union representation after he was taken to the police station. On the second day, a supervisor asked a Union Steward to accompany them and, although Parker did not request Union representation, the Steward was permitted to stay at the meeting in the General Foreman's office and at the police station. The Judge found that Respondent's action, on the second day, in obtaining a Union representative for Parker and permitting him to remain did not establish "a practice of Respondent requesting representation for Parker" because the record also showed that, on the previous day, "Parker himself verbally requested Union representation." Id. at 6.

In conclusion, the Judge stated:

It is clear that Parker never made a request for representation, and when he could have requested that [the Steward] stay he remained silent. He did not in any manner put Respondent on notice that he desired Union representation. Parker thereby acquiesced in the Union representatives's leaving and thereby waived his right to representation at the meeting.

Id. (citations omitted). Noting that "a request for representation is a prerequisite to any obligation under [section 7114(a)(2)(B),]" the Judge found that the Respondent did not violate section 7116(a)(1) and (8) of the Statute. Id. at 7.

IV. The General Counsel's Exceptions

The General Counsel excepts to the Administrative Law Judge's conclusions that: (1) Parker did not request representation prior to the examination, and (2) Parker waived his right to union representation by remaining silent when the Respondent ordered the Steward to leave the examination.

The General Counsel asserts that "Parker's conduct was sufficient to put Respondent on notice of his desire to be represented" and, accordingly, constituted a valid request for representation. Exceptions at 3. The General Counsel notes that the Judge found that Parker was aware of the supervisor's request that another supervisor go and get the Steward, and argues that there is "no contention or evidence that Mr. Parker repudiated or rejected" the supervisor's request. Id. Thus, the General Counsel argues that Parker "effectively adopted" the supervisor's request as "his request for representation." Id. (emphasis in original).

The General Counsel also asserts that "as long as one of Respondent's officials at the . . . interview was aware of Parker's desire for Union representation, it was not necessary for Parker to reiterate his desire for representation" after the General Foreman and the Steward arrived. Id. at 4 (emphasis in original). According to the General Counsel, both of the supervisors were aware of Parker's desire for representation. The General Counsel asserts that it was incumbent on the supervisors to ensure that the subsequent examination of Parker was consistent with Parker's desire for representation.

The General Counsel also argues that the Judge erred in finding that Parker waived his right to Union representation by remaining silent when the General Foreman ordered the Steward to leave the meeting. The General Counsel asserts that "[a] waiver of a statutory right must be 'clear and unmistakable.'" Id. at 5. The General Counsel notes that the General Foreman never asked Parker if he desired representation and argues that a waiver cannot be found absent such a question from the Respondent and a clear response from Parker.

Finally, the General Counsel asserts that the Judge's finding that the employee's silence constituted a waiver of his right to representation is erroneous. The General Counsel argues that the employee faced two supervisors and the General Foreman alone and that, according to the Judge, the General Foreman "appeared 'somewhat angry and spoke louder than usual[.]'" Id. at 6. The General Counsel asks "[w]hy would Parker, or any other WG-8 employee, risk raising the ire of the boss (who was already angry) by assuming a confrontational pose and affirmatively protesting the exclusion of [the] Union Steward . . . from the meeting?" Id. at 6-7.

V. Analysis

For the following reasons, we conclude, in agreement with the Judge, that Parker did not request representation either prior to or during the examination. Consequently, we find that the Respondent did not fail to comply with section 7114(a)(2)(B) of the Statute and, therefore, did not violate section 7116(a)(1) and (8) of the Statute.

A. Parker Did Not Request Representation

Section 7114(a)(2)(B) of the Statute provides that an exclusive representative shall be given the opportunity to be represented at any examination of a unit employee in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action and requests representation. This section creates representational rights for Federal employees similar to 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), 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). See also United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 438-40 (1990), for a discussion of the purposes and policies underlying section 7114(a)(2)(B).

Consistent with the plain wording of section 7114(a)(2)(B), the right to Union representation attaches only if an employee makes a valid request for union representation. See, for example, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 602 (1987) ("This . . . right under section 7114(a)(2)(B) only exists if all of the conditions are met, including a valid request for representation."). See also, for example, Climax Molybdenum Co. v. NLRB, 584 F.2d 360, 363 (10th Cir. 1978) ("[T]he right recognized in Weingarten . . . arises only upon request by the employees.").

To be valid, a request need not be made in a specific form. Instead, a request for union representation must be sufficient to put the respondent on notice of the employee's desire for representation. See United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA 874, 880 (1987) (Bureau of Prisons) (the Authority found that an employee met the requirement when he stated, "maybe I need to see a union rep."). See also Montgomery Ward & Co., 269 NLRB 904, 905 n.3 (1984) ("The Board does not require that the request be in a particular form, so long as it is sufficient to place the employer on notice that representation is desired.").

It is uncontroverted that Parker did not request representation before the supervisors brought the Steward to the meeting. In addition, after the supervisors brought the Steward to the meeting, Parker did not state that he wished the Steward to remain and did not object to the General Foreman's order that the Steward leave the meeting. The question remains, however, whether Parker put the Respondent on notice of his desire for representation in some other way.

The General Counsel maintains that "Parker's conduct was sufficient to put Respondent on notice of his desire" for representation. Exceptions at 3. In particular, the General Counsel asserts that as it is clear that Parker did not repudiate or reject the supervisor's request that the Steward be brought to the meeting, "the only logical assumption" is that Parker "effectively adopted" the supervisor's request as "his request for representation." Id. (emphasis in original).

The issue of whether, under section 7114(a)(2)(B), an employee's failure to repudiate or reject a supervisor's request for a union representative can constitute a request for representation has not been considered previously by the Authority. It is useful and appropriate, therefore, to examine private-sector precedent. Although the parties do not cite, and our research fails to disclose, a private-sector case resolving an issue identical to the one here, a similar issue has been considered by the NLRB.

In Appalachian Power Company, 253 NLRB 931 (1980), an employee was summoned to his second-line supervisor's office to discuss the employee's refusal to perform certain work. Prior to reporting to the supervisor's office, the employee paged a union representative on a public address system and asked the representative to join him in the meeting. The supervisor did not hear the page. The union representative arrived after the meeting began and, when asked by the supervisor what he was doing there, responded "'I'm here for the meeting.'" Id. at 932. The supervisor told the union representative that he was not needed and ordered him to return to work. The meeting continued and, when the employee persisted in his refusal to perform certain duties, the employee was suspended.

The NLRB found that the employee had not communicated his desire for representation to the employer. The NLRB noted first that there was no basis on which to conclude that the employee's silence after the union representative was directed to leave the meeting indicated a "sense of futility" in making a request. The Board concluded that it was equally reasonable to conclude that the employee did not desire representation.

The Board also rejected the contention that the union representative's presence "was sufficient invocation of Weingarten's protections even without a specific request" from the employee. Id. at 933. The Board found that Weingarten rights must be invoked by the affected employee. The Board held that as the employee "did not renew his request or insist that [the union representative] remain when he had the opportunity of communicating that desire directly" to the supervisor, the employee had not requested representation. Id. The Board noted that the employee previously had requested and been granted representation and that, therefore, there was no reason to assume that the employee was "unaware of his right to seek union representation or that he harbored a belief that a renewed request would be denied." Id. at 934.

We find no basis on which to conclude that we should apply a different analysis here than the one applied by the NLRB in Appalachian Power Company. Applying that analysis, we conclude that Parker did not request representation.

First, there is no evidence that, after the Steward was directed to leave the meeting, a request by Parker for representation would have been futile. The General Counsel asserts, in this regard, that Parker's silence was "understandable and a predictable result" of Parker's situation. Exceptions at 6. We acknowledge that, for many employees, investigatory interviews are inherently intimidating. As the Court noted in Weingarten, "[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 circumstances." 420 U.S. at 262-63.

We find nothing in the facts of this case, however, which would excuse Parker's failure to request representation, especially in view of the Judge's finding that there was no indication in the record that the General Foreman's "statements, tone of voice, or demeanor toward [the Steward] were coercive or tended to interfere with employee rights." Judge's Decision at 6. See Montgomery Ward & Co., 269 NLRB 904, 905 (1984) ("Simply stated, employees are accorded requested representation, in large part, because they are frightened and confused. It simply does not follow, however, that the existence of fear and confusion obviates the requirement that the employee request representation before the Weingarten protections come into play.").

In addition, like the affected employee in Appalachian Power Company, Parker previously had requested and been granted representation. It is reasonable to assume, therefore, that Parker was familiar with his rights under section 7114(a)(2)(B) and the means of exercising them. We note, as did the Judge, that on one occasion, the Agency had provided representation to Parker without request. We agree with the Judge, however, that this one incident does not support a conclusion that Parker believed that it was not necessary to request representation, especially as the General Counsel does not argue to the contrary.

Parker did not request the Respondent to provide him with a representative and, when the Steward was directed to leave the interview, Parker did not indicate in any manner that he opposed the direction. In these circumstances, we conclude that Parker did not request representation, as required by section 7114(a)(2)(B). Accordingly, the Respondent did not violate section 7116(a)(1) and (8) of the Statute when it conducted the investigatory interview without providing Parker with representation.

B. As Parker Did Not Request Representation, An Issue as to Whether Parker Waived His Right to Representation Does Not Arise

An employee may decide to participate in an investigatory interview without requesting representation. See Weingarten, 420 U.S. at 257 ("[T]he employee may forego his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative."). If an employee makes a valid request for representation, however, an agency has three options: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview without representation or having no interview. See, for example, Bureau of Prisons, 27 FLRA at 880.

If, after having been given the option of continuing an interview without representation or having no interview at all, an employee elects to continue without representation, the employee has waived his rights under section 7114(a)(2)(B). See id. See also United States Postal Service, 241 NLRB 141 (1979) (as employer failed to offer employee option of continuing interview without representation after employee had requested representation, employee did not waive his Weingarten rights). As such, the waiver must be clear and unmistakable. See id. See also Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981) (waiver of right to bargain will be found only if waiver is clear and unmistakable.). Compare Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983) (Court held that union may waive employee's Weingarten rights, provided waiver is "clear and unmistakable.").

We reject the Judge's conclusion that Parker "acquiesced in the Union representative's leaving [the meeting with the General Foreman] and thereby waived his right to representation at the meeting." Judge's Decision at 6. At the outset, we express reservations about a finding that silence alone could constitute a clear and unmistakable waiver. In this case, however, we conclude that a question as to whether Parker waived his rights does not arise.

As discussed above, the right to representation under section 7114(a)(2)(B) attaches only, as relevant here, upon a valid request by the affected employee. Parker did not make a valid request for representation. Accordingly, the right to representation did not attach. See, for example, Climax Molybdenum Co. v. NLRB, 584 F.2d 360, 365 (10th Cir. 1978) ("[T]he right of union representation at the investigatory interview ripens only if the employee involved in the investigation has made his own prior request for such representation.") (emphasis in original). See also, for example, Lennox Industries Inc., 244 NLRB 607, 609 (1979), aff'd, Lennox Industries, Inc. v. NLRB, 637 F.2d 340 (5th Cir. 1981) ("[T]he right to have assistance at an interview where discipline is reasonably feared is triggered only upon a request for such representation[.]").

As Parker did not request representation, the question of whether Parker clearly and unmistakably waived his right to representation by, for example, agreeing to participate in the interview without representation after having been given the option of doing so or of not having an interview at all, does not arise. See, for example, Bethel Home, Inc., 275 NLRB 154, 155 (1985) ("If [the affected employee] did not request a union representative during the interview, there was no violation of her . . . right to representation, and it is unnecessary to consider such issues as whether or not the protections accorded to employees under Weingarten were otherwise applicable in this case [.]"). See also, for example, Roadway Express, Inc., 246 NLRB 1127, 1130 n.13 (1979) ("While the employer has the burden of offering the employee the choice of a meeting without his union steward or no meeting at all, that burden does not come into effect unless and until an employee makes a valid request for union representation.") (citation omitted).

VI. Conclusion

Parker did not request representation. Accordingly, the right to representation under section 7114(a)(2)(B) of the Statute did not attach and the Respondent did not violate section 7116(a)(1) and (8) of the Statute when it conducted the interview without affording Parker representation. As the right to representation did not attach, an issue of whether Parker waived his right to representation does