36:0041(6)CA - - Justice, INS, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1990 FLRAdec CA - - v36 p41

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[ v36 p41 ]
36:0041(6)CA
The decision of the Authority follows:


36 FLRA No. 6

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

BORDER PATROL

EL PASO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Charging Party)

6-CA-70451

DECISION AND ORDER

June 15, 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 Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to those exceptions.

The issue is whether, as found by the Judge, the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to comply with section 7114(a)(2)(B) of the Statute. Pursuant to section 2423.9 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings made by the Judge at the hearing and find that no prejudicial error was committed. We affirm those rulings.

For the reasons that follow, which differ somewhat from those of the Judge, we find that the Respondent violated the Statute by interfering with, restraining, or coercing a unit employee in exercising his right to have union representation at an examination in connection with an investigation which the employee reasonably believed might result in disciplinary action against him, and in which he requested representation.

II. Background

In April 1987, a building burned on the Mexican side of the border near El Paso, Texas. Mexican nationals claimed that U.S. Border Patrol agents had burned the building. As a result, the Office of Professional Responsibility (OPR) of the Department of Justice, Immigration and Naturalization Service (INS) investigated the incident.(1) As part of the investigation, OPR interviewed all Border Patrol agents assigned to the area across the border from the burned building. One of these agents was Jose Cruz, a member of the bargaining unit, who was on duty on the night of the incident.

Cruz was called at home by the Acting Chief Patrol Agent of his station and was told to report early to work because OPR wanted to talk to him. Cruz was aware of the building incident, the mission of OPR, and the possible disciplinary action or criminal proceedings that could result from an OPR investigation of employee misconduct. He contacted the local Union president to represent him at the OPR interview. When Cruz and the Union president arrived at the OPR office, they were met by the Regional Director of OPR, Lawrence Granelli, and by two other special agents.

Cruz demanded to know the names of the OPR agents, what he was going to be questioned about, and whether there were any charges against him. "Granelli raised his voice in reply and told Cruz to 'hold it right there . . . we are going to tell you what is going on.'" Judge's decision at 3. Granelli then introduced himself and the other agents. Cruz likewise identified the Union president as his Union representative and said he would be with him during the questioning. The parties stipulated that Cruz did initially request that his Union representative be present during the meeting and that Cruz reasonably believed that the interview might possibly result in some sort of discipline against him.

Granelli replied that if Cruz wanted a representative, he was entitled to one and that they would do the interview with the representative present. He then explained the nature of the investigation. He stated that Cruz was considered a suspect, not a witness, and that it was very important that Cruz understand that it was a criminal investigation and not purely an administrative investigation. Granelli then informed Cruz that he and his Union representative would not have any kind of privileged communication with respect to the criminal proceedings. He explained to Cruz that his representative would or could be subject to subpoena and/or interview by OPR, to subpoena by a grand jury, or to subpoena at trial. Cruz was informed that he was not under arrest, that he would not be arrested at the interview, and that he was free to depart at any time to seek legal counsel or obtain advice from his Union representative. When Cruz and his Union representative protested that Cruz was entitled to a Union representative, Granelli reiterated the criminal-administrative distinction and that the Union representative and Cruz did not enjoy any attorney-client privilege. Granelli "cautioned" Cruz and his Union representative that, although his Union representative could attend the interview, the representative could become a witness against Cruz and for the Government as to any communication that indicated possible culpability on the part of Cruz. Id. at 4.

Cruz was also informed that, as a Federal officer, he was expected to cooperate with the investigation, without infringing on any of his rights, and that it was his decision as to whether he would submit to the interview. Granelli explained that he could pick and choose what he wanted to answer and could terminate the interview at any time.

Cruz agreed to be interviewed without the presence of his Union representative, and his Union representative left the room with Granelli and waited outside. Cruz was questioned by the two special agents regarding the building incident. Toward the end of the interview, Cruz was apprised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The interview was eventually terminated when Cruz refused to answer any further questions and left the room.

III. Administrative Law Judge's Decision

The Judge rejected the Respondent's contentions that the interview was not an examination and that it had not been conducted by a representative of the agency.

The Judge concluded that the questioning of Cruz was an examination within the meaning of section 7114(a)(2)(B) of the Statute. He found that Cruz was interviewed by OPR agents, who requested that he supply information in connection with their investigation of alleged involvement of Border Patrol agents in an arson incident. The Judge held that, consistent with Authority precedent, section 7114(a)(2)(B) is applicable to all examinations of employees in connection with all investigations, including examinations of employees in connection with criminal investigations.

The Judge also concluded that the OPR agents were acting as representatives of the agency within the meaning of section 7114(a)(2)(B). He found that OPR is an organization within the Department of Justice, and INS, the same agency and subdivision that employed Cruz, and that the purpose of the interview was to secure information concerning possible misconduct on the part of the employee in connection with his work. The Judge also found that the record established that the information secured by OPR may be used for disciplinary action by the U.S. Border Patrol where the collective bargaining unit is located. The Judge supported his finding by citing to Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988) (DCIS).

The Judge further found that "the OPR agents did not expressly deny Cruz [u]nion representation." Id. at 7. According to the Judge, Cruz was advised that union representation would be allowed if he desired and that it was his decision whether to submit to or terminate the interview. However, the Judge found that the record reflected that Cruz withdrew his request for union representation after the OPR agent repeatedly presented him with reasons why union representation would not be to his or his representative's advantage. The Judge noted the following reasons presented to Cruz: because the interview concerned a criminal, rather than an administrative, investigation there would be no attorney-client privilege between Cruz and his representative; the Union representative would be subject to interview by OPR, subpoena by the grand jury, or subpoena at trial regarding their private conversations; and the Union representative would be a witness against Cruz and for the Government if Cruz made any admissions in the Union representative's presence. Consequently, the Judge framed the issue presented by the complaint as follows: "[W]hether in light of these statements Cruz knowingly and voluntarily waived his right to Union representation." Judge's decision at 7.

The Judge stated that when the statutory conditions are met, the employee has an absolute right to have a union representative present and that representatives of the agency may not proceed to interfere with, restrain, or coerce the employee to secure a waiver of that right. The Judge noted that once an employee makes such a request for union representation, the Authority, applying NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), has held that the employer is permitted one of three options: (1) grant the request; (2) discontinue the examination; or (3) offer the employee the option of continuing the examination without representation or having no examination at all. The Judge stated that when employees are given such a choice, their continued presence must be viewed as voluntary.

In this case, the Judge found that the OPR agents did not offer Cruz the option of continuing the interview without his union representative, or having no interview at all. Instead, the Judge found that Granelli proceeded to repeatedly present reasons why union representation was not to Cruz' or his representative's advantage and thereby secured Cruz' waiver of the right. The Judge found that Granelli's statement conveyed the erroneous impression that Cruz was not entitled to his full statutory right to a union representative at the examination because the interview was in connection with a criminal investigation.

Therefore, the Judge concluded that Cruz' waiver was not made knowingly and voluntarily; that he properly invoked his right to union representation and did not waive that right; that the Respondent interfered with, restrained, or coerced the employee in the exercise by the employee of the right to a union representative under section 7114(a)(2)(B) in violation of section 7116(a)(1); that the Respondent thereby constructively denied Cruz' request for a union representative to which he was entitled pursuant to section 7114(a)(2)(B); and that by such acts the Respondent failed to comply with section 7114(a)(2)(B) of the Statute in violation of section 7116(a)(1) and (8) of the Statute, as alleged.

IV. Positions of the Parties

A. The Respondent

The Respondent contends that Cruz did not have a right to a union representative under section 7114(a)(2)(B). The Respondent maintains that while the OPR investigators who questioned Cruz in this case were employees of the INS, they were not acting as representatives of the agency within the meaning of section 7114(a)(2)(B) because they were questioning Cruz in connection with a criminal investigation in which Cruz did not have to respond to their questions.

The Respondent argues that the OPR investigators were much more than simply representatives of the agency. They were questioning Cruz under the "direction" and "oversight" of a U.S. Attorney. Respondent's Exceptions at 18. They were not questioning Cruz in furtherance of an internal administrative investigation designed to gather evidence to support a disciplinary action. Rather, they were seeking to obtain information that could be used against him in a criminal prosecution. The Respondent suggests that their actions as interrogators were no different than in cases where the employee suspected of committing a criminal offense was employed by another Federal agency. The Respondent maintains that it was critical that Cruz fully understood that he was under no compulsion to answer any questions so as to avoid any Fifth Amendment problems of self incrimination. In this regard, the Respondent emphasizes that Cruz was not granted "use" immunity under Garrity v. New Jersey, 385 U.S. 493 (1967).(2)

The Respondent further argues that because Cruz was not compelled to answer any questions, the examination was not an examination to which a right to union representation attaches under section 7114(a)(2)(B). In the Respondent's view, the essential precondition for triggering a right to union representation, in the private or Federal sector, is that the employee must be under a compulsion to answer. The Respondent maintains that the question is not whether the employee has reasonable cause to believe that he would be disciplined if he answered the questions management could be expected to pose to him. Rather, it is whether the employee had reasonable cause to believe that he would be subject to discipline if he declined to be questioned; that is, whether he had been given a warning under Garrity v. New Jersey and told he would not be criminally prosecuted if he answered truthfully. Therefore, the Respondent claims that the questioning of Cruz was not the type of examination Congress intended to be encompassed by section 7114(a)(2)(B), because Cruz could have chosen not to be examined at all.

The Respondent claims that the decision in AFGE, Local 1941 v. FLRA, 837 F.2d 495 (D.C. Cir. 1988) (AFGE, Local 1941), which found that a credentials review hearing was an examination even though the employee was not required to attend, is distinguishable and that, moreover, the dissenting opinion represents a more correct reading of the law. The Respondent also claims that because Cruz did not have a statutory right to representation, the decision in DCIS, 855 F.2d 93, in which the interrogators were found to be representatives of the agency, is not dispositive.

The Respondent also contends that the Judge's finding of a violation on the basis that Cruz did not knowingly and voluntarily waive his right to union representation is not based on the complaint and should be reversed.

Finally, the Respondent disputes the Judge's finding that Cruz was intimidated into surrendering his right to union representation. The Respondent maintains that the investigators could tell Cruz the truth regarding the possibility that his union representative could be called as a witness against him in criminal matters without interfering with Cruz' right to union representation. The Respondent also disputes that the Authority has held that management is obligated to say nothing to the employee called in for questioning except to advise him of the three options set forth in Weingarten. The Respondent notes, for example, that a Miranda warning may be appropriate and goes beyond the options outlined by the Judge. The Respondent also argues that Granelli's advice to Cruz could not reasonably create the impression that he was not entitled to union representation. Rather, it created the correct impression that there were at least two important distinctions between administrative interrogations and the criminal investigation authorized by the U.S. Attorney in this case: the union representative could be called as a witness in the criminal matter and a non-attorney union representative could not invoke an attorney-client privilege. The Respondent further claims that the Judge's statement that Granelli "repeatedly reiterated 'the criminal-administrative distinction'" is misleading and is not supported by the record.

The Respondent, in sum, contends that it advised Cruz of his right to union representation and appropriately advised him of his right under the circumstances to decline to be questioned at all even with union representation. Therefore, the Respondent maintains that the requirements of section 7114(a)(2)(B) were met and exceeded.

B. The General Counsel

The General Counsel disputes the Respondent's contention that an essential precondition to the right to union representation is that the employee must be under a compulsion to answer. The General Counsel cites the decision in AFGE, Local 1941, as holding that a credentials review hearing was an examination under section 7114(a)(2)(B) even though the employee was not required to attend. Therefore, the General Counsel argues that the Judge correctly concluded that the questioning of Cruz was an examination. The General Counsel also argues that on the basis of Authority precedent and the decision in DCIS, 855 F.2d 93, the Respondent's contention that the interrogators were not representatives of the Agency within the meaning of section 7114(a)(2)(B) should be rejected.

The General Counsel also disputes the Respondent's contention that the Judge's theory of the violation is not derived from the complaint. The General Counsel maintains that the Respondent's primary defense at the hearing and in its post-hearing brief was its position that Cruz knowingly and voluntarily waived his right to union representation. Moreover, the General Counsel maintains that the Judge correctly concluded to the contrary. In the view of the General Counsel, the Respondent badgered and pressured Cruz until he gave in and relinquished his right.

V. Analysis and Conclusions

For the following reasons, we agree with the Judge that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to comply with section 7114(a)(2)(B).

A. The investigation was an examination by representatives of the agency within the meaning of section 7114(a)(2)(B).

Under section 7114(a)(2)(B), in any examination of a unit employee by a representative of the agency in connection with an investigation, the employee has the right to have a union representative present, if the employee reasonably believes that the examination might result in disciplinary action and the employee requests representation. Department of the Treasury, Internal Revenue Service, Jacksonville District and Internal Revenue Service, Southeast Regional Office of Inspection, 23 FLRA 876 (1986) (IRS, Jacksonville District). The parties stipulated that Cruz reasonably believed that the interview might result in disciplinary action and that he initially requested representation.

We agree with the Judge that the questioning of Cruz was an examination within the meaning of the Statute. In IRS, Jacksonville District, the Authority concluded that section 7114(a)(2)(B) applies to examinations arising out of criminal investigations. 23 FLRA at 878-79. The Authority held that Congress intended section 7114(a)(2)(B) to apply to all examinations in connection with all investigations, not just to examinations of employees in connection with non-criminal matters. The Authority found that this result (1) comports with the language of section 7114(a)(2)(B) and the intent of Congress; (2) is consistent with the Supreme Court's explanation of the parameters of the right to representation in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975); and (3) does not conflict with management's legitimate prerogatives or its right to determine its internal security practices.

The Respondent fails to persuade us that Congress did not intend section 7114(a)(2)(B) to apply to criminal investigations when the employee has not been granted use immunity under Garrity v. New Jersey and, consequently, is under no compulsion to answer any questions. Accordingly, we reject the Respondent's contention that a necessary precondition for a right to union representation is a compulsion to answer. We agree with the court in AFGE, Local 1491 that the decisive consideration governing the right to union representation is not whether employees are formally required to respond to an investigation of their conduct, but whether they wanted union support and reasonably believed they faced disciplinary sanctions. 837 F.2d at 500. As stipulated, both of those factors are present here. We disagree with the Respondent that the fact that the employee in AFGE, Local 1491 was under some compulsion to attend distinguishes that case from this one or that the dissenting opinion in AFGE, Local 1491 should govern this case.

We also agree with the Judge that the OPR agents were acting as representatives of the agency within the meaning of the Statute. We find that consistent with the decisions of the Authority and the court in Department of Defense, Defense Criminal Investigative Service, 28 FLRA 1145 (1987), aff'd sub nom. DCIS, 855 F.2d 93, the Judge correctly determined that the OPR agents were acting as representatives of the agency within the meaning of section 7114(a)(2)(B). In DCIS, the court found that the degree of supervision exercised by agency management over the investigators is irrelevant when the investigators are employees of the same agency and their purpose when conducting interviews is to solicit information concerning possible misconduct on the part of agency employees in connection with their work. Because the OPR investigators are employed by the INS, as is Cruz, and were questioning Cruz regarding possible misconduct on the part of agency employees in connection with their work, the fact that they were questioning Cruz under the direction and oversight of a U.S. Attorney does not affect our determination that they were acting as representatives of the Agency within the meaning of the Statute.

B. The Respondent interfered with Cruz' right to union representation.

We conclude that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing and refusing to comply with section 7114(a)(2)(B) of the Statute. We find that the repeated statements by Granelli interfered with, restrained, and coerced Cruz in the exercise of his right to a union representative, pursuant to section 7114(a)(2)(B). In the atmosphere engendered before the OPR interview, the Respondent's statements precluded Cruz from making an uncoerced decision as to whether to have his union representative present at the interview.

The Judge found that Granelli repeatedly cautioned Cruz that union representation would not be to his or his Union representative's advantage and that, thereby, Granelli secured Cruz' waiver of his right to union representation. We find, contrary to the Respondent's contention, that this finding is supported by the record. Special Agent Suitt, one of the other two agents present, testified at the hearing that Granelli "also told them [Cruz and Neira], or cautioned them, that there was no attorney/client privilege between a Union representative and Mr. Cruz." Transcript at 82. He further testified that "I believed that was went over several times." Id. Special Agent Escobedo, the third agent present, testified that Granelli "cautioned both Neira and Cruz regarding attorney/client privileges." Id. at 107. Escobedo testified that the discussion continued when they went from one room to another, and that when they entered the interview room, Granelli "again informed them about the attorney/client privileges." Id. at 108. Granelli testified that "I think I explained that in some detail." Id. at 97.

We also disagree with the Respondent's assertions that the legality of its conduct turns on the truthfulness of the statements made by Granelli. Whether Granelli's statements were true or permitted under section 7114(a)(2)(B) in response to a request for union representation is not determinative of our conclusion that the Respondent violated the Statute.(3) Rather, it was the manner, nature, and repetition of Granelli's statements to Cruz, when Cruz asserted his right to union representation, that intimidated Cruz to give up his expressed desire for, and right to, union representation. With regard to the tone of the conversation, Suitt testified that "He [Cruz] was quite upset when he entered the room," and that "they [Cruz and Granelli] were talking in a higher tone but they were not yelling at one another, so to speak." Id. at 86. Escobedo testified that Granelli "raised his voice, you might say." Id. at 111. Both Cruz and Neira testified that the tone of the voices used were yelling and shouting. Cruz testified that "it was very heated . . . a lot of tension there." Id. at 25.

Based on objective factors, we find that Granelli's actions would cause a reasonable person in such circumstances to waive his or her right. If the Respondent's only purpose, as claimed, was to advise the employee of certain facts and to protect the integrity of the investigation, cautioning Cruz once would have been sufficient to achieve that purpose. Instead, Granelli cautioned Cruz at least twice, and appeared that he would be persistent and unrelenting until Cruz agreed to proceed with the interview without his Union representative. In this regard, the Judge found that when "Cruz and Neira protested that Cruz was entitled to a Union representation, Granelli reiterated the criminal-administrative distinction several times and that Neira and Cruz did not enjoy the attorney-client privilege." Judge's decision at 4. In our view, Granelli discouraged and dissuaded Cruz from remaining firm in his request and resolve for union representation, and he coerced Cruz' surrender of that protection.(4)

As noted by the Judge, in view of the mischief to be corrected and the end to be attained in union representation at these interviews, the National Labor Relations Board (the Board) carefully scrutinizes any claim that employees have waived their guaranteed Weingarten right. Southwestern Bell Telephone Co., 227 NLRB 1223 (1977). Because the right is designed to prevent intimidation by the employer, the Board has stated that "[i]t would be incongruous to infer a waiver without a clear indication that the very tactics the right is meant to prevent were not used to coerce a surrender of protection." Id., 227 NLRB at 1223. On the record presented, and in view of the Judge's findings of intimidation, we are persuaded that there is no clear indication "that the very tactics the right is meant to prevent were not used to coerce a surrender of protection." Id. Therefore, we conclude that the Respondent interfered with, restrained, and coerced an employee in the exercise of his right under section 7114(a)(2)(B), in violation of section 7116(a)(1) and (8) of the Statute.

We also conclude that the breadth and clarity of the complaint is sufficient to constitute a basis for finding such a violation. The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing and refusing to comply with section 7114(a)(2)(B) of the Statute by denying an employee's request for Union representation. This is precisely our finding and that of the Judge: that by interfering with, restraining, and coercing an employee in the exercise of his right under section 7114(a)(2)(B), the Respondent violated section 7116(a)(1) and (8) of the Statute.

VI. Remedy

In United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431 (1990) (Bureau of Prisons), we considered in depth what remedy is appropriate where a violation of section 7114(a)(2)(B) of the Statute has occurred. We concluded that, in some circumstances 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. Accordingly, 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 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. Id. at 447-48.

In this case, the record is silent as to whether discipline of Cruz ensued as a result of the interview with OPR in which he was denied representation rights. The record indicates that Cruz was subsequently subpoenaed to testify before a grand jury and that the U.S. Attorney, on November 30, 1987, advised OPR that he would not pursue the criminal matter any further, would decline prosecution, and the matter would be handled administratively. However, there is no indication in the record as to whether any adverse effects flowed from the investigation that are remediable under our decision in Bureau of Prisons.

Therefore, we will require the following in order to carry out our intention, as stated in Bureau of Prisons, "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." Id. at 447. In determining whether there has been compliance with this decision, the Respondent shall be given an opportunity to show that no discipline to Cruz has occurred or will occur in the future based on information obtained from the unlawful investigative interview and that nothing has been retained in Cruz' personnel records as a result of the interview that could adversely effect him. If the Respondent cannot make this showing, we will order that, upon the request of the Union and Cruz, the Respondent will repeat the investigatory interview and afford Cruz full rights to Union representation. After repeating the investigatory interview, the Respondent will reconsider the disciplinary action taken against Cruz and/or the retention in Cruz' personnel records of information obtained during the April 1987 interview. If, on reconsideration, the Respondent concludes that the disciplinary action was unwarranted or that a mitigation of any penalty imposed is warranted, Cruz will be made whole for any losses suffered to the extent consistent with the Respondent's decision on reconsideration. The Respondent will notify Cruz of the results of the reconsideration, including whatever make-whole actions are to be afforded and, if relevant, afford Cruz 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.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, shall:

1. Cease and desist from:

(a) Discouraging or intimidating any employee from requesting union representation during an examination in connection with an investigation if the employee reasonably believes that the examination might result in disciplinary action against the employee and the employee requests such representation.

(b) Requiring any bargaining unit employee of the Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, to take part in an examination in connection with an investigation without the assistance of his or her union representative when such representation has been requested by the employee and the employee reasonably believes that the examination might result in disciplinary action against him or her.

(c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of the rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Establish that no discipline to Jose Cruz has occurred as a result of the investigative interview that occurred in April 1987 with regard to the burned building and that the information from the investigative interview will not be relied on so as to adversely affect Mr. Cruz in the future; and that nothing has been retained in Mr. Cruz' personnel records as a result of the interview that could adversely affect him. If this cannot be shown, repeat the examination of Mr. Cruz at which he was denied his right to union representation, if requested by the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, and Mr. Cruz. In repeating the examination, afford Mr. Cruz his statutory right to union representation. After repeating the examination, reconsider any disciplinary action taken against Mr. Cruz and/or the retention in Mr. Cruz' personnel records of information obtained during the April 1987 interview. On reconsideration of the disciplinary action, as appropriate, make Mr. Cruz whole for any losses suffered to the extent consistent with the decision upon reconsideration and, if relevant, afford him whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation.

(b) Post at its facilities, 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 District Director, Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, 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 VI, Federal Labor Relations Authority, Dallas, Texas, 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

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT discourage or intimidate any employee from requesting union representation during an examination in connection with an investigation if the employee reasonably believes that the examination might result in disciplinary action against the employee and the employee requests such representation.

WE WILL NOT require any bargaining unit employee of the Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, to take part in an examination in connection with an investigation without the assistance of his or her union representative when such representation has been requested by the employee and the employee reasonably believes that the examination might 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 establish that no discipline to Jose Cruz has occurred as a result of the investigative interview that occurred in April 1987 with regard to a burned building and that the information from the investigative interview will not be relied on so as to adversely affect Mr. Cruz in the future; and that nothing has been retained in Mr. Cruz' personnel records as a result of the interview that could adversely affect him. If this cannot be shown, we will, on the request of the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, and Mr. Cruz, repeat the examination of Mr. Cruz at which he was denied his right to union representation. In repeating the examination, we will afford Mr. Cruz his statutory right to union representation. After repeating the examination, we will reconsider any disciplinary action taken against Mr. Cruz and/or the retention in Mr. Cruz' personnel records of information obtained during the April 1987 interview.

WE WILL, as appropriate, make Mr. Cruz whole for any losses suffered to the extent consistent with the decision upon reconsideration and we will afford him whatever grievance and appeal rights are due 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 VI, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas, and whose telephone number is: (214) 767-4996.




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

1. The OPR investigates allegations of misconduct by INS employees, including employees of the U.S. Border Patrol.