38:0732(64)CA - - Air Force, Sacramento Air Logistics Command, McClellan AFB, CA and AFGE Local 1857 - - 1990 FLRAdec CA - - v38 p732
[ v38 p732 ]
The decision of the Authority follows:
38 FLRA No. 64
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE
SACRAMENTO AIR LOGISTICS COMMAND
MCCLELLAN AIR FORCE BASE, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1857, AFL-CIO
December 6, 1990
Before Chairman McKee and Members Talkin and Armendariz.
The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to give the Union notice and an opportunity to be represented at formal discussions within the meaning of section 7114(a)(2)(A) of the Statute.
The Respondent filed exceptions to the Judge's decision. The General Counsel filed an opposition to the Respondent's exceptions.
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. The rulings are hereby affirmed. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.
We agree with the Judge that the interviews with a unit employee concerning an upcoming arbitration hearing were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute, at which the Union was entitled to be given prior notice and an opportunity to be represented. The Respondent's failure to notify the Union and afford it an opportunity to be represented violated section 7116(a)(1) and (8) of the Statute.
The two exceptions raised by the Respondent to the Judge's decision were considered and rejected by the Authority in prior unfair labor practice proceedings involving the same parties. These exceptions are that: (1) the presence of the Union at the interviews in question would require the Respondent to waive the attorney work product privilege; and (2) the employee was interviewed on the basis of her role as an alternate supervisor.
With regard to the Respondent's first exception, the Authority found in Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 594 (1990) (McClellan AFB 1), that the Union's presence at a formal discussion, involving an interview of a unit employee, did not require waiver of the work product privilege inasmuch as the Union's attendance at the interview did not preclude the Respondent's attorney from creating documents reflecting the attorney's thoughts or impressions resulting from the interview or otherwise require the attorney to disclose those thoughts or impressions to the Union. The same conclusion was reached by the administrative law judge and adopted by the Authority in Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 1230 (1990) (McClellan AFB 2). We add here that there was no attempt by the Union to secure any notes, records or documents prepared by or for the Respondent's attorney in preparation for the third-party hearing or to prevent the Respondent from creating such material.
The Respondent's reliance on United States Department of the Treasury, United States Customs Service, Region V, 9 FLRA 951 (1982) to support its argument concerning the work product privilege is misplaced. In that case, the Authority found that the failure of the respondent to afford the union an opportunity to be represented at an interview of a unit employee in preparation for an unfair labor practice hearing did not violate the Statute. The Authority has since rejected the holding in that case. See McClellan AFB 1 at 607, citing Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987).
With regard to the Respondent's second exception, there was uncontroverted testimony at the unfair labor practice hearing, as noted by the Judge, that alternate supervisors are considered bargaining unit employees. That is, they continue to be covered by the parties' collective bargaining agreement during the time they perform as alternate supervisors, and they continue to be subject to dues withholding. Consequently, we find that although designated an alternate supervisor, the employee who was interviewed was a bargaining unit employee. See also McClellan AFB 2, in which the Authority adopted the administrative law judge's finding, to which no exception had been filed by the Respondent, that the interview of an alternate supervisor in connection with an arbitration hearing was a formal discussion at which the Union was entitled to be represented.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, shall:
1. Cease and desist from:
(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by the American Federation of Government Employees, Local 1857, AFL-CIO, concerning any grievance or any personnel policy or practices or other general condition of employment, including interviews conducted in preparation for arbitration hearings, without affording the American Federation of Government Employees, Local 1857, AFL-CIO, prior notice of and the opportunity to be represented at the formal discussions.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Post at its Sacramento, California facility where employees in the bargaining unit are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and shall be posted and maintained for 60 consecutive days thereafter, in conspicu