38:1300(103)CA - - Treasury, Customs Service, Washington, DC and NTEU - - 1991 FLRAdec CA - - v38 p1300

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[ v38 p1300 ]
38:1300(103)CA
The decision of the Authority follows:


38 FLRA No. 103

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

WASHINGTON, D.C.

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party)

8-CA-80171

DECISION AND ORDER

January 8, 1991

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 and the Charging Party filed oppositions to the exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by threatening an employee, who was also a representative of the Union, with disciplinary action if he did not provide information regarding the conduct of another unit employee, which the representative had acquired while engaged in protected activity.

The Judge concluded that the Respondent violated section 7116(a)(1) of the Statute as alleged.

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 no prejudicial error was committed. We affirm those rulings. After consideration of the Judge's decision and the entire record, and for the reasons which follow, we adopt the Judge's findings, conclusions and recommended Order, except as modified below.

II. Background

The facts, which are set out fully in the Judge's decision and are basically not in dispute, are summarized here. On October 6, 1986, unit employee Melvyn Mueller, a Senior Customs Inspector at the Los Angeles International Airport, was given a notice of proposed removal on charges of dishonest conduct, failure to account for property, and attempted theft. The alleged misconduct took place at the Los Angeles International Airport in the early morning of June 6, 1986, and, according to the two witnesses to the incident, involved the removal from the facility by Mueller of an object that looked like a white ski bag and a dark carry-on bag. The matter was investigated by Agent Paul D. Beaulieu of the Respondent's Office of Internal Affairs. At the time of his first interview with Beaulieu, Mueller claimed that he was an alcoholic subject to functional blackouts and was unable to recall anything pertinent to the two bags or his conversation with the two witnesses.

About the time of the notice of proposed removal, Mueller asked Carl Rizzo, the Union's local president, to represent him. After receiving the investigative report, Rizzo met with Mueller to discuss the events of June 5-6, 1986. While reviewing the investigative report, Mueller seemed to recall that he had taken a white canvas bag with Mylar folders from the supply room, but that he had changed his mind and returned the bag to the supply room. At the insistence of Rizzo, they went to the airport on November 24, 1986, to search the supply room to see if they could find the bag. At the airport, a supervisor accompanied them and unlocked the supply room where they found a white canvas bag with Mylar folders inside a locked cage. After some additional probing, Mueller indicated that the other bag in question might be in a locked credenza. The supervisor unlocked the credenza; inside were some dark bags that contained enforcement team supplies.

On October 28, 1987, Rizzo represented Mueller at the oral reply presentation to the notice of proposed removal. Rizzo contended, and Mueller concurred, that Mueller now remembered "some" events of June 5-6, 1986 and described them in some detail. Judge's decision at 4. Rizzo also presented the two bags they found in the supply room as the bags Mueller was carrying on June 6. Beaulieu was not present at the oral reply meeting.

Based upon the new evidence presented at the oral reply meeting and the apparent recovery of Mueller's memory, Beaulieu reopened his investigation and interviewed Mueller and the two witnesses again on November 19, 1987. Mueller was unable to recall specific details of the incident in question. The two witnesses disputed the fact that the bags found in the supply room were the ones they saw Mueller with on the day in question. Because it appeared to Beaulieu that there was a great discrepancy between what Mueller remembered when he spoke to Rizzo, based on representations made at the oral reply meeting, and what he remembered when interviewed by Beaulieu, he sought advice from the Respondent's regional counsel and labor relations staff as to the propriety of interviewing Rizzo to ascertain what Mueller had told Rizzo. Authorization was given. The interview of Rizzo took place on December 11, 1987.

At the outset of the interview, Beaulieu cautioned Rizzo that he was required to disclose any information in his possession pertaining to the investigation of Mueller and warned that Rizzo could be subject to disciplinary action for failure or refusal to answer proper questions relating to the performance of his duties as an employee and that he might also be subject to criminal prosecution for any false answer. Beaulieu stated to Rizzo that his purpose for interviewing him was to focus on what Mueller had told him with respect to the events of June 5-6, 1986, and the events of November 24, 1986, during the alleged discovery of the two bags in the supply room. Id. at 6.

Both Rizzo and his representative protested the interview and stated that Rizzo was not there voluntarily.

III. Administrative Law Judge's Decision

The Judge framed the issue in the case as "whether the designated union representative of an employee in an actual or potential disciplinary action can be examined by management concerning statements made by the employee to his, or her, representative." Id. at 7.

The Judge rejected the Respondent's assertion that the appropriate standard to be applied to interviews of union officials is whether the agency has a "reasonable belief" that the union official has information about employee misconduct which could result in disciplinary action or criminal charges. The Judge found that such a standard would virtually assure immunity for all coerced disclosures by union representatives and "would be largely an empty and futile gesture when applied after the fact to an interview." Id.

The Judge analyzed sections 7102 and 7114 of the Statute and concluded that those sections prescribe the right and duty of a union to represent employees in disciplinary proceedings, and the correlative right of each employee to be represented. Id. at 8-11. The Judge then found "[t]he right and duty of a Union to represent employees in disciplinary proceedings, and the correlative right of each employee to be represented, demand that the employee be free to make full and frank disclosures to his, or her, representative in order that the employee have adequate advice and a proper defense." Id. at 11. The Judge continued:

The subjection of an employee's representative to interrogation concerning statements made by the employee to the representative violates § [71]16(a)(1) because it directly interferes with, restrains, or coerces the employee in the exercise of rights under the Statute. It further violates § [71]16(a)(1) by interfering with, restraining, or coercing employee representatives both by inhibiting them from obtaining needed information from employees and by interfering with the employee representative's exercise of his protected right to engage in union activity, "freely and without fear of penalty or reprisal . . . ."

Id.

The Judge quoted from a "similar case" in which the National Labor Relation Board (NLRB) found a violation of the National Labor Relations Act (NLRA) based on a respondent's questioning of a union steward about the substance of conversations with a unit employee. Cook Paint and Varnish Company, 258 NLRB 1230 (1981) (Supplemental Decision and Order) (Cook Paint). Although the Judge noted that Cook Paint may be distinguishable from the facts here, he found that the principle applied by the NLRB is no different than that which should be applied under the Statute. He further noted that "[n]or does the difference in derivation of the right, in the NLRA, through construction of words in § 7 [of the NLRA], and the specific statutory grant in the Statute, matter in the slightest." Id. at 12, n. 8.

Having found a violation, the Judge ordered the Respondent to cease and desist from such activity. The Judge ordered a nationwide posting of the Notice to be signed by the Commissioner of Customs.

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent first disputes the Judge's statement of the issue because it fails to take into account "the peculiar factual setting" which led to Respondent's actions. Brief in Support of Exceptions at 4. The Respondent argues that although communication between a union representative and an employee is entitled to some level of privilege, the only issue is whether, under the unique circumstances of this case, the Respondent violated section 7116(a)(1) by questioning Rizzo about what Mueller had told him regarding matters for which Mueller was under investigation.

The Respondent also takes exception to the Judge's conclusion that all interrogations of employees' representatives concerning statements made to them by employees violate section 7116(a)(1). Respondent argues that where, as here, the agency has a reasonable belief that the union representative has information about employee misconduct which could result in disciplinary action or criminal charges, it must be permitted to question the union representative, as long as the questioning is done in good faith and limited to the employee misconduct being investigated. It maintains that a thorough review of the record reveals that the Respondent has met this standard. It contends that this provides a reasonable, clearly stated test which accords proper recognition to the union and employee interest in confidentiality while still enabling an agency to pursue legitimate investigatory purposes.

The Respondent argues that if the Authority does not adopt this position, the Judge's conclusion is still in error because even if there is a privilege that protects communications between an employee and a union representative, that privilege was waived in this case. The Respondent claims that the interrogation took place in the context of new evidence presented by Rizzo and Mueller that warranted reopening of the investigation. Further, it argues, Rizzo had been a witness to the discovery of new physical evidence. The Respondent claims that during the oral reply proceeding "Rizzo volunteered that Mueller had told him about the events in question, and then proceeded to tell Respondent's representatives what Mueller had told him." Id. at 11 (Emphasis in original).

The Respondent also contends that Cook Paint is clearly distinguishable, in that the interrogation of the union steward in that case was held after a decision to remove the employee had been made. Further, the Respondent contends that in Cook Paint the NLRB recognized that not all discussions between employees and stewards are confidential and protected, and that stewards are not, in all instances, insulated from employer interrogation.

The Respondent further takes exception to the Judge's conclusion, at note 8 of his decision, that there is no distinction between the NLRA and the Statute in terms of the substance of the right at issue. In this regard, it argues, the Statute must be interpreted in a manner consistent with the requirement of an effective and efficient government, one with a high standard of integrity and public trust, whereas the private sector does not have that requirement. The Respondent also excepts to the Judge's finding, at page 4 of his decision, that Rizzo had said at the oral reply meeting that Mueller now remembered "some" of the events of June 5 and 6, 1986. In this regard, the Respondent argues that Beaulieu reasonably relied on Rizzo's unqualified statement in the oral reply summary that "Mueller now remembers the events of the evening" to reopen the investigation and eventually interview Rizzo.

Finally, the Respondent takes exception to the Judge's order mandating a nationwide posting signed by the Commissioner of Customs as "totally inappropriate and out of proportion to the violation alleged." Id. at 16. It argues that, at most, there was a single violation which took place at a single location involving a single employee, with no evidence that the Respondent's actions were undertaken in bad faith, or in an arbitrary and capricious manner. Respondent requests that if the Authority concludes that there was a violation, the ruling should be given prospective application only, and if a posting is required, it should be limited to the single location where the violation occurred and should be signed by the appropriate local management official at that location.

B. General Counsel's Opposition

The General Counsel contends that the Respondent's exceptions are without merit. The General Counsel asserts that the issue as framed by the Judge was appropriate, and the conclusions are fully warranted by the facts in the case. The General Counsel agrees with the Judge that the "reasonable belief" standard proposed by the Respondent would be impossible to enforce.

The General Counsel argues that although there is no dispute regarding the high standards for integrity in the Federal Government and the importance of public trust, Congress decided in drafting section 7101 that "labor unions are in the public interest, and, therefore, the union's statutory right to represent an employee facing disciplinary action must include the right to speak confidentially with employees." General Counsel's Opposition at 6.

The General Counsel concedes that there will be times when the interrogation of a union steward may be appropriate, as, for example, when a steward acting in that capacity is a witness to employee misconduct or when a steward engages in flagrant misconduct. However, it stresses that these situations are the exceptions, and not the rule. Under ordinary circumstances, it argues, the subjection of a union steward to interrogation concerning what an employee told the union steward violates section 7116(a)(1) by directly interfering with the employee's right to seek union assistance. Moreover, it argues, it also interferes with the rights of the union representative. The General Counsel agrees with the Judge that the NLRB's holding in Cook Paint is applicable under the Statute.

Further, the General Counsel asserts that because the chilling effect that results from an interrogation of a union steward will interfere with both the employee who seeks union assistance and the employees who represent the union, a posting commensurate with the bargaining unit is justified. In particular, it notes that the complaint was issued against United States Customs Service, Washington, D.C.; the Internal Affairs Officer who questioned the union steward is not an employee of the local facility; and the Internal Affairs Officer proceeded with the interview only after seeking advice from Respondent's regional counsel and labor relations staff. It contends, therefore, that under the circumstances, the allegations of the complaint are based on actions of higher management than the supervisory staff at the Los Angeles International Airport or even the District Director, and that a broader scope for the posting is entirely appropriate.

C. Union's Opposition

The Union contends that the Judge's decision should be adopted. It argues that employees must be free to make full and frank disclosures to their union representatives regarding potential or actual disciplinary action, without fear that those conversations may be divulged to an agency. Without such a privilege of confidentiality, it argues, the right to representation guaranteed by the Statute would be rendered meaningless. The Union agrees with the Judge's finding that the existence of the privilege is an integral part of an employee's statutory right to representation and the exclusive representative's statutory right and duty to provide representation pursuant to section 7114(1), (2) and (5) of the Statute. It further argues that the Judge properly found that the standard adopted by the NLRB in Cook Paint should apply in the Federal sector.

The Union argues against the Respondent's claim that a "reasonable belief" standard should be adopted. That standard, the Union claims, would allow an agency to question, under threat of discipline, a union representative about conversations with another employee regarding a potential or actual disciplinary matter any time the agency is able to articulate a "reasonable" and "good faith" basis for its belief that the union representative had knowledge of employee improper or criminal conduct. It contends that the Respondent has provided no justification whatsoever for applying a lesser standard to communications with union representatives than to communications with attorneys. The Union also argues that the Respondent's "reasonable belief" standard would undermine the public interest because it would inhibit the communication between employees and their union representative. The Union further contends that even if the "reasonable belief" standard were adopted, the Respondent failed to meet the standard here.

Further, the Union argues that the standard adopted by the Judge is not absolute. The Judge, it contends, implicitly recognized that there are circumstances in which information acquired by union representatives while engaged in protected activity could be subject to disclosure, such as where a union representative was a witness to employee misconduct.

The Union further contends that the remedy ordered by the Judge should be upheld. In this regard, it argues that the employees in this case belong to a nationwide unit, regional and national officials of the Respondent were consulted regarding the interrogation of Rizzo, and the case involves the question of what type of privilege shall be accorded to communications between all bargaining unit employees and their union representatives. Therefore, it claims, the nature of the case compels a nationwide posting.

V. Analysis and Conclusions

We agree with the Judge that the Respondent violated section 7116(a)(1) of the Statute by requiring a representative of the Union, to disclose, under threat of disciplinary action, the content or substance of statements made by an employee to that Union representative in the course of representing the employee in a disciplinary proceeding.

This is a case of first impression for the Authority. The Statute sets out certain rights and duties that are involved in this matter: Section 7102 protects the right of every employee "to form, join, or assist any labor organization," including the right "to act for a labor organization in the capacity of a representative" and to do so "freely and without fear of penalty or reprisal[;]" Section 7114(a)(1) prescribes that "[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents[;]" and section 7114(a)(2)(B) requires that an exclusive representative shall be given the opportunity to be represented at "... any examination of an employee in the unit by a representative of the agency in connection with an investigation if ... the employee reasonably believes that the examination may result in disciplinary action against the employee; and ... the employee requests representation."

Thus, the Statute clearly assures the right and duty of a union to represent employees in disciplinary proceedings, and the correlative right of each employee to be represented. Therefore, it follows, as found by the Judge, that such rights and duties demand that the employee be free to make full and frank disclosure to his or her representative in order that the employee have adequate advice and a proper defense.

The conversations between Union representative Rizzo and employee Mueller occurred while Rizzo was representing Mueller in a disciplinary proceeding and was assessing Mueller's case, Mueller's version of what happened, and the defense they would employ at the oral reply meeting. Accordingly, we conclude that those conversations constituted protected activity. Cook Paint, 258 NLRB at 1232 ("consultation between an employee potentially subject to discipline and his union steward constitutes protected activity in one of its purest forms.").(1) Any interference with that protected activity violated the Statute unless, as contended by Respondent, the right to maintain the confidentiality of the conversations had been waived or some overriding need for the information was established.(2)

We find that Rizzo did not waive the privilege to retain the confidentiality of these conversations. Rizzo clearly objected to being interrogated concerning his conversations with Mueller. Further, the record evidence does not support the Respondent's contention that during the oral reply proceeding "Rizzo volunteered that Mueller had told him about the events in question, and then proceeded to tell Respondent's representatives what Mueller had told him." Exceptions at 11. Rather, the evidence shows that Rizzo simply stated the facts from Mueller's standpoint and that he did not refer to the actual content of his conversations with Mueller. See Respondent's Exhibits 2 and 3.

Accordingly, we specifically adopt the Judge's conclusions that the Respondent violated section 7116(a)(1) of the Statute by interfering with, restraining, or coercing Mueller in the exercise of rights under the Statute and that it further violated section 7116(a)(1) by interfering with, restraining, or coercing Rizzo both by inhibiting him from obtaining needed information from employees and by interfering with Rizzo's protected right to engage in union activity.

In so finding, we reject the Respondent's proposed "reasonable belief" standard. Such a standard would be difficult to enforce and would permit agencies to coerce information from union representatives merely by raising evidence of misconduct by employees known to have sought assistance from their representatives. Moreover, as noted by the Judge, such a standard would be largely empty and futile when applied after an interview had already occurred. Therefore, such a standard would undermine the clear, established statutory right and duty of a union to represent employees in disciplinary proceedings, and the correlative right of each employee to be represented.(3)

VI. Remedy

We adopt the Judge's proposed remedy. First, although the violation concerns only one incident, the significance of that incident has broader implications. Indeed the violation involves basic employee rights under the Statute, the violation of which tends to have a chilling effect throughout the unit on both employees seeking union assistance and employees who serve in a representational capacity. Second, the complaint was issued against the United States Customs Service, Washington, D.C., the level of unit recognition. Additionally, the Internal Affairs Officer who questioned the union representative received advice and authorization from Respondent's regional counsel and labor relations staff to proceed with the interrogation. Therefore, we find that requiring a unit-wide national posting signed by the Commissioner of Customs will effectuate the purposes and policies of the Statute. See Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, 32 FLRA 277 (1988) and Office of the General Counsel, National Labor Relations Board, 22 FLRA 259 (1986).

Accordingly, we will order a unit-wide national posting signed by the Commissioner of Customs.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the United States Customs Service, Washington, D.C., shall:

1. Cease and desist from:

(a) Requiring an employee, who is a representative of the National Treasury Employees Union, the exclusive representative of its employees, to disclose, under threat of disciplinary action, the content or substance of any statement made by an employee to such designated Union representative in the course of an actual or potential disciplinary proceeding.

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

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

(a) Post at all its facilities throughout the United States, including, but not limited to, its facilities at the Los Angeles International Airport, Los Angeles, California, 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 Commissioner of Customs 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 ensure that such notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, 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 require an employee, who is a representative of the National Treasury Employees Union, the exclusive representative of our employees, to disclose, under threat of disciplinary action, the content or substance of any statement made by an employee to such designated Union representative in the course of an actual or potential disciplinary proceeding.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

_______________________
(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, Region VIII, Federal Labor Relations Authority, whose address is: 350 South Figueroa Street, Room 370, Los Angeles, California 90071 and whose telephone number is: (213) 894-6202.




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

1. We reject Respondent's argument that cases such as this, which arise under the Statute and involve allegations of theft of property entrusted to the care of the Government, are fundamentally different from Cook Paint, which arose in the private sector. Although we agree with Respondent that we must not be party to any violation of the public trust, we fail to see the breach of that trust in according employees and their representatives the rights to engage in confidential communications without fear of disclosure. Rather, we emphasize that section 7101 of the Statute states that the "effective conduct of public business" is enhanced by the participation of employees in representational activities. As discussed above and in Cook Paint, the rights of employees to be represented by their labor organizations in disciplinary proceedings would be seriously weakened if the confidentiality of their conversations with union representatives could easily be violated.

2. In the absence of any showing herein of an extraordinary need for the information, we need not reach the issue of what circumstances would permit the questioning of a union representative about employee misconduct.

3. In rejecting the Respondent's "reasonable belief" standard argument, we find it unnecessary to address the Respondent's exception disputing the Judge's factual finding that Rizzo had said that Mueller remembered only "some" of the events of June 5 and 6. In view of our disposition of this case, which makes the reasonableness of Respondent's interrogation of Rizzo's irrelevant, it is not material whether Rizzo's statement was so qualified.