38:1552(125)CA - - Air Force, Griffiss AFB, Rome, NY and AFGE Local 2612 - - 1991 FLRAdec CA - - v38 p1552
[ v38 p1552 ]
The decision of the Authority follows:
38 FLRA No. 125
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
GRIFFISS AIR FORCE BASE
ROME, NEW YORK
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 17, 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 General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition 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 attempting to force two Union officials to answer questions concerning an unfair labor practice complaint that was scheduled for hearing.
The Judge concluded that the Respondent did not violate the Statute as alleged and recommended that the complaint be dismissed.
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. We find, however, contrary to the Judge, that the Respondent's conduct violated section 7116(a)(1) of the Statute. Accordingly, we will order the Respondent to cease and desist from its unlawful conduct.
The facts, which are set out fully in the Judge's decision and are not in dispute, are summarized here. An unfair labor practice charge was filed by the Union regarding the relocation of the Union's office; a complaint issued in the matter and a hearing was scheduled for the last week of March 1988. The Respondent's counsel, in preparation for the litigation, decided it would be helpful to interview the Union's chief steward, who had earlier been interviewed by an Authority lawyer. On Friday, March 25, 1988, the Respondent's labor relations officer telephoned the chief steward to inform him that the Respondent's counsel would like to meet with him to discuss the Union office relocation on the following Monday. The labor relations officer told the chief steward that he could bring the Union president as his Union representative. The meeting was set for 7:30 a.m. on Monday, March 28.
On March 28, after an inquiry by his supervisor, the chief steward told his supervisor that he had changed his mind about attending the meeting. Thereafter, the Union president telephoned the labor relations officer and informed him that the chief steward would not attend the meeting or answer any questions concerning the Union office move. The chief steward then got on the telephone and stated that he had changed his mind about being interviewed by the Respondent's counsel. The labor relations officer replied that the chief steward did not have the discretion not to come to the meeting. The chief steward then stated that if he came to the interview he would not answer any questions. The labor relations officer's response "indicated that what [the chief steward] did when he came to the conference room was another matter, but he had no choice as to whether he reported for the interview." Judge's decision at 3. The chief steward again stated he was not going. The labor relations officer then contacted the chief steward's supervisor and asked him to give the chief steward a direct order to report for the interview. Thereafter, the supervisor told the chief steward to report for the interview or face possible adverse action.
Shortly thereafter, the chief steward and the Union president, as his representative, reported to the interview, which was also attended by the labor relations officer and the Respondent's counsel. The Union president indicated that he did not believe management had the right to call them to the interview to question them about actions taken as Union officials, especially requiring their presence under threat of discipline. The Respondent's counsel then told the chief steward that he wished to ask him some questions about the Union office move that was pending hearing, stating that any answer the chief steward wished to give would be strictly voluntary and he did not have to answer any questions if he did not want to. He stated that he hoped the chief steward would cooperate. The chief steward responded that he did not wish to answer any of the counsel's questions. The counsel reiterated that the chief steward did not have to answer any of his questions but if the steward would cooperate and answer his questions it might help get the matter resolved. The chief steward again indicated he would not answer any of the counsel's questions. After a short pause, the chief steward asked "is that it" and Respondent's counsel replied "yes, you can go." Id. at 4.
Later that morning, the Respondent's counsel decided he would attempt to interview the Union president about the office relocation. The labor relations officer reached the Union president by telephone at the Union office and told him that the Respondent's counsel wished to interview him. The Union president stated he didn't want to be interviewed or answer any questions. The labor relations officer then told the Union president that "look Joe, we can do this the easy way or the hard way." Id. at 5. The Union president insisted he was not going to be interviewed. The parties hung up and no further action was taken on the matter.
III. Judge's Decision
The General Counsel contended before the Judge that Respondent engaged in unlawful coercion and intimidation in violation of section 7116(a)(1) of the Statute by attempting to force the two Union officials to answer questions when Respondent knew at the time that neither employee wanted to participate in the interview.
The Respondent denied that any violation of the Statute had occurred, contending that the interview with the chief steward was not coercive but permissible under the Authority's holdings in Internal Revenue Service and Brookhaven Service Center, 9 FLRA 930 (1982) (Brookhaven) and Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 31 FLRA 541 (1988) (F.E. Warren).
The Judge noted that Brookhaven dealt with management interviewing employees in preparation for an unfair labor practice hearing and an arbitration proceeding. In that case, the Authority found no violation had occurred when employees were interviewed, holding that such interviews were permissible if certain safeguards were met. The Judge stated, quoting from Brookhaven, that those safeguards are:
(1) management must inform the employee who is to be questioned of the purpose of the questioning, assure the employee that no reprisal will take place if he or she refuses, and obtain the employee's participation on a voluntary basis; (2) the questioning must occur in a context which is not coercive in nature; and (3) the questions must not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with the employee's statutory rights.
Id. at 7.
The Judge further noted that the Authority's stated safeguards were based upon private sector law under the National Labor Relations Act and that the Authority had reviewed the background of the approach set forth in Brookhaven in F.E. Warren. The Judge noted that in F.E. Warren the Authority held that it would not require that the assurances set forth in Brookhaven routinely be given in every instance where an employer interrogates employees in preparation for a hearing but, rather, it would examine the circumstances in which interviews occur in determining whether the interview is coercive and therefore violative of the Statute.
The Judge then made the following findings: 1) the chief steward knew the purpose of the interview; 2) the statement made by the Respondent's labor relations officer, that the chief steward had no discretion in reporting for the interview, did not suggest that the chief steward would not be free to decline answering questions during the interview; 3) the chief steward attended the meeting with his Union representative; 4) nothing was said or done by management's representatives to compel the chief steward to answer any questions and indeed no questions were asked; 5) the Respondent attempted to interview the two Union officials for the purpose of satisfying its legitimate need to adequately prepare for the pending unfair labor practice hearing; 6) the Respondent was exercising its management authority when it forced or attempted to force the two employees to meet with the Respondent's counsel; and 7) there was no evidence by words or conduct to convey coercion to participate in an interview. Id. at 8-9.
As to the subsequent telephone call to the Union president, the Judge found that the labor relations officer's comment that they could proceed either the easy way or the hard way "clearly conveyed an attempt to coerce [the Union president] to attend the interview[.]" Id. at 8. However, he found that as the Union president never "attended the interview . . . no questions were asked him by management." Id.
Based on those findings, the Judge concluded that the General Counsel failed to prove by a preponderance of the evidence that the Respondent's actions in requiring the chief steward to attend the meeting with the Respondent's counsel under threat of discipline, the conduct of the meeting or the telephone conversation with the Union president, either separately or when taken as a whole, violated section 7116(a)(1).
IV. Positions of the Parties
A. General Counsel
The General Counsel contends that the Judge erred as a matter of law by finding that the Respondent's actions were not coercive and did not violate section 7116(a)(1).
The General Counsel argues that the Judge erred in his application of F.E. Warren and, as a result, he failed to recognize the coercive effect of the Respondent's conduct on employees' rights. The General Counsel contends that by misconstruing the issue, the Judge reached a decision which has serious implications for employees who have been identified by the General Counsel as prospective witnesses in an unfair labor practice proceeding.
More specifically, the General Counsel argues that although F.E. Warren upholds the right of an agency to question employees concerning matters involving their protected rights as a means of gathering information necessary for its defense in an unfair labor practice hearing, that decision also upholds the right of employees to refuse to answer questions concerning matters involving their protected rights, even if the information is necessary to the agency's defense. In this case, the General Counsel notes that both employees invoked this right on the telephone. The General Counsel argues that once the employees declared that they did not want to answer any questions, the Respondent's right to question them was extinguished. In the General Counsel's view, the Respondent had no legitimate interest in meeting with the two Union officials, and the Respondent's conduct could have no other reasonable consequence than interference with their exercise of section 7102 rights.
The General Counsel also disputes the Judge's view that the Respondent's disciplinary power in this situation is comparable to the routine exercise of supervisory authority. The General Counsel argues that this case does not involve the right to assign work, and, unlike cases cited by the Judge, it "arises from the exercise of protected activity, and the unavoidable implications of the use of discipline in this particular context." General Counsel's Brief at 5. Further, the General Counsel maintains that the fundamental distinction between interrogations in connection with an investigation and interrogations in connection with an agency's preparation of a defense in an unfair labor practice hearing is that in the latter case, the agency may not interrogate a union official against his will no matter what assurances it offers. In the General Counsel's view, "any reasonable employee in the [chief steward's] position would hesitate and reconsider his role in the union, his involvement as a witness, and his choice not to assist the Respondent in its pretrial preparation." Id. at 7. The General Counsel further contends that "Respondent's assertion of its managerial prerogative to punish necessarily renders the [Union's] representatives as less than equal to the Respondent's counsel, and that can only prejudice the employees' exercise of the statutory right to participate in the unfair labor practice proceeding on behalf of the Union." Id. at 11.
The General Counsel also disagrees with the Judge's conclusion that the meeting between the chief steward and the Respondent's representatives was not intimidating.
B. The Respondent
The Respondent contends that it did not interfere with, restrain, or coerce the two bargaining unit employees in the exercise of their protected rights by attempting to force them to answer questions about the matters at issue in an unfair labor practice hearing. In this regard, it argues that it had a legitimate purpose in wanting to question the two employees and it complied with the safeguards outlined in Authority case law. Also, the Respondent notes that no one in either employee's chain of command was present and no threats of discipline were ever communicated to either employee by the labor relations officer or the Respondent's counsel. It further argues that "[m]anagement may always order an employee to a certain place since it is paying his salary." Respondent's Opposition at 7.
Accordingly, the Respondent maintains that the Judge's conclusions were properly drawn and that the Respondent's conduct had no coercive effect on employee rights.
V. Analysis and Conclusions
We find that by forcing or attempting to force the two Union representatives to attend interviews with Respondent's counsel through the threat of discipline, the Respondent violated section 7116(a)(1) of the Statute.
In Brookhaven, the Authority concluded that certain safeguards were necessary to protect employee rights under section 7102 of the Statute when management interviews those employees "to ascertain necessary facts" in its preparation for third-party proceedings. 9 FLRA at 933. The Authority stated that (1) management must inform the employee of the purpose of the questioning, assure that there will be no reprisal for a refusal to participate, and obtain that participation voluntarily; (2) the questioning must not occur in a coercive context; and (3) the questions must not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with the employee's protected rights. Id.
In F.E. Warren, the Authority traced the origins of the Brookhaven requirements to private sector law and held that any failure to provide the Brookhaven warnings would not be a per se violation. Instead, the Authority stated that the purposes of the Statute are better served by determining whether the circumstances in which interviews occur are coercive instead of simply determining whether Brookhaven assurances were stated. 31 FLRA at 549.
In this case, we note, as did the Judge, that no questions ultimately were asked of either the chief steward or the Union president. Nonetheless, we disagree with the Judge that no violation occurred in the circumstances of this case. The protections established in Brookhaven are an attempt to prevent improper coercion within the meaning of section 7116(a)(1) of the Statute when an agency wishes to question an employee concerning matters involving protected rights. The actual content of the questions is only one aspect of those protections. Other aspects are whether the employee's participation was obtained on a voluntary basis and whether the context surrounding the questioning was coercive. Brookhaven, 9 FLRA at 933. Thus, we disagree with the Judge that the focus of our analysis should be centered only on the actual interview. Rather, we find it necessary to enlarge the inquiry to determine whether the two Union officials were subjected to coercive measures in an attempt to assure their participation.
The standard for determining whether management's conduct violates section 7116(a)(1) of the Statute is an objective one. The question is whether, under the circumstances, the conduct would reasonably tend to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 956, 962 (1990). The standard is not based on the subjective perceptions of the employee or on the intent of the employer. Id.
In the circumstances of this case, we conclude that the Respondent's conduct, including its statements in telephone conversations with both the chief steward and the Union president, reasonably tended to coerce those employees and thereby interfered with their protected rights. The chief steward clearly informed the Respondent's labor relations officer during the telephone call preceding the interview that he did not wish to attend the interview and would not answer any questions regarding the subject matter of the interview. Respondent nonetheless forced the chief steward to attend the meeting under the threat of discipline. It was not until he got to the interview that the chief steward was given the specific assurance that his further participation was voluntary. In these circumstances, we conclude that the chief steward's presence at the interview was not voluntary and, thus, was coercive under Brookhaven.
With regard to the Union president, the Judge specifically found that the telephone conver