41:0154(16)CA - - Justice, INS, Border Patrol, Washington, DC and AFGE, National Border Patrol Council - - 1991 FLRAdec CA - - v41 p154

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[ v41 p154 ]
41:0154(16)CA
The decision of the Authority follows:


41 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

U.S. IMMIGRATION AND NATURALIZATION SERVICE

U.S. BORDER PATROL, WASHINGTON, D.C.

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL, AFL-CIO

(Charging Party/Union)

4-CA-90547

DECISION AND ORDER

June 12, 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, the Union, and the Respondent to the attached decision of the Administrative Law Judge. The General Counsel and the Union filed oppositions to the Respondent's exceptions, and the Respondent filed an opposition to the General Counsel's and the Union's 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 failing to comply with section 7114(a)(2)(B) of the Statute in connection with its conduct of certain examinations and proceedings before a Special Probationary Board. The complaint also alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by repudiating the parties' collective bargaining agreement.

The Judge found that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to provide Union representation to one employee who requested representation during an examination. The Judge also found that the Respondent did not violate section 7116(a)(1) and (8) by denying employees' requests to be represented by the Union at the Special Probationary Board (Board) hearing because the Union waived its right to be present at the hearing. The Judge concluded that although the Respondent did not repudiate the parties' collective bargaining agreement by failing to advise four employees of their right to be represented by the Union prior to conducting certain examinations, the Respondent did repudiate the agreement by failing to provide the employees with an extension of time to obtain representation before appearing before the Board.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. For reasons set forth below, we affirm those rulings. On consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order only to the extent consistent with this decision.

II. Background

The facts in this case, which are more fully set forth in the Judge's decision, are summarized here.

The Union is the exclusive representative of a unit of all nonsupervisory, nonprofessional Border Patrol employees of the Respondent. At all times relevant to this case, the Respondent and the Union were governed by a collective bargaining agreement negotiated in 1976.

The Respondent operates the Border Patrol Academy (the Academy), a training facility for Border Patrol Agents in Glynco, Georgia. When an employee is first hired as an agent, the Respondent details the employee to the Academy for 18 weeks' training. The Border Patrol Agent trainees at the Academy are all probationary employees. While at the Academy, trainees are under the supervision and control of Academy instructors, all of whom are supervisors. There are no permanent bargaining unit employees or Union stewards at the Academy.

On March 4, 1989, six Academy trainees engaged in off-duty conduct which subsequently was reported to the Academy by one of the trainees involved in the incident. On March 6, the Respondent initiated an investigation into the incident and Academy supervisors removed five trainees from their classes. As relevant here, four of the trainees were interrogated and were required to prepare written statements concerning the incident.(1) Prior to the interrogations and the taking of statements, the four trainees were not advised of a right to be represented by the Union under Article 31A of the parties' collective bargaining agreement.(2)

One of the trainees, William C., requested "to speak to a lawyer or somebody to advise him" prior to his interrogations. Judge's Decision at 3. No representative was provided to William C. by the Respondent. Instead, the Respondent's representative advised William C. that "it was just an administrative proceeding and they were simply trying to get the facts." Id. (footnote omitted). The Respondent required William C. to prepare three separate written statements concerning his involvement in the incident.

The other three trainees, Timothy M., Robert M., and Frank P., did not request Union representation. These trainees also prepared written statements concerning the incident.

By letter dated March 6, 1989, the Assistant Chief of the Academy notified the four trainees that they were required to appear before the Board on March 9. The letter informed the trainees that, pursuant to Article 31A of the parties' agreement, they had the right to be represented by a Union representative or any other person when they appeared before the Board. Upon receipt of the letters, the four trainees informed the Assistant Chief that they desired Union representation. The Assistant Chief responded by giving the trainees a photocopy of a business card from John Claydon, the Union's National Vice President, who was located in Jacksonville, Florida.

The trainees made numerous unsuccessful attempts to contact Claydon by telephone on March 6, and March 7. On March 7, the trainees advised the Assistant Chief that they had been unable to contact the Union representative. The Assistant Chief told the trainees that if they wished a postponement of the Board hearing, they should make such a request in writing.

On March 8, after the four trainees again advised the Assistant Chief that they had been unable to contact Union Representative Claydon, the Assistant Chief spoke with Claydon by telephone. According to the Assistant Chief, Claydon advised him that he would not be able to come to the Board hearing. Subsequently, an Academy supervisor and a temporary supervisor contacted Robert Porras, a Union Steward at the Freer, Texas Border Patrol Station, to determine whether he could represent the trainees.

Union Steward Porras spoke with each of the trainees and told them that he would attempt to attend the Board hearing or locate another Union representative to do so. Union Steward Porras also instructed each trainee to make a written request for a postponement of the hearing. Each of the trainees submitted a written request for a postponement of the Board hearing. The requests "generally indicated the [t]rainees desired but were having difficulty in obtaining Union representation for March 9." Id. at 7 n.9.

On March 8, the Assistant Chief again spoke with Claydon by telephone and, during that conversation, Claydon stated that "Porras would have to handle the Academy matter . . . ." Id. at 7. Later that day, the Assistant Chief spoke to Porras, who stated that "he would not be able to attend the Board proceeding . . . and the Union had no objection to the Board proceeding without a Union representative being present." Id. (footnote omitted).

The Board was notified that the trainees had requested Union representation but that the Union was unable to provide it. Accordingly, "the Board decided that to be fair to the [t]rainees and in order not to violate Article 31 of the negotiated agreement, . . . the Board would merely require 'operational memoranda' from the [t]rainees and would not interrogate them." Id. at 8.

On March 9, the trainees were introduced as a group to the two-member Board. The trainees were told that the statements they had written earlier in the week would not be used and they were asked to prepare new memoranda explaining the incident. The trainees were told that after they prepared their statements, they would be permitted to appear before the Board, individually, and that the Board would not question them. William C. and Robert M. asked the Board for Union representation and were told that "representation could not be made available in time for the proceedings." Id. After the trainees prepared their statements, each trainee appeared before the Board and "spoke without being questioned by the Board." Id.

The Board reviewed the trainees' statements and "found no nexus between what occurred on the night in question and the trainees' official position." Id. at 9. However, the Board Chairman informed the Academy Chief that the Board was "unable to make a determination on the misrepresentation issue and asked if there was any other evidence available to assist the Board." Id. The Academy Chief then provided the Board with the trainees' March 6 memoranda. Based on its review of the memoranda, the Board "concluded [that] two [t]rainees had lied when first providing statements on the incident[]" and recommended to the Academy Chief that they be terminated. Id. The two trainees, Robert M. and Frank P., were terminated on March 10, 1989.

III. Administrative Law Judge's Decision

The Judge found that the interrogations of the four trainees by the Respondent on March 6 were examinations, within the meaning of section 7114(a)(2)(B) of the Statute. The Judge determined that as three of the trainees did not request Union representation during the examinations, the Respondent did not violate the Statute with respect to them. The Judge also determined, however, that William C's statement "that he wanted to speak to a lawyer or somebody to advise him[]" constituted "a valid request for a Union representative." Id. at 11. The Judge found that the Respondent failed to comply with section 7114(a)(2)(B) of the Statute, thereby violating section 7116(a)(1) and (8), by failing to provide Union representation to William C. before interrogating him on March 6.

The Judge rejected the General Counsel's contention that the Respondent repudiated Article 31A by failing to advise the four trainees of a contractual right to Union representation before the March 6 examinations. The Judge stated, in this regard, that Article 31A "clearly requires that employees be advised of their right to representation prior to the agency taking a written or sworn statement which may lead to disciplinary action and such language appears to be clear and unambiguous and not susceptible to various interpretations." Id.

The Judge also stated, however, that the parties disagreed over the interpretation of Article 31A. In particular, although the General Counsel and the Union argued that the article applied to the March 6 examinations, the Respondent argued that "a past practice" existed whereby Article 31A "was not construed to cover pre-Probationary Board statements . . . at the Academy." Id. at 11-12. The Judge found, based on "unrefuted testimony," that over the previous 2 years, "12 to 15 and perhaps more incidents have openly occurred at the Academy wherein investigations of incidents involving [t]rainees proceeded without providing [t]rainees with Article 31A notification." Id. at 11. The Judge noted, in this regard, that credited testimony established also that the Union "never objected to the . . . practice." Id. at 9.(3)

In the Judge's view, resolution of the dispute required "an interpretation of the collective bargaining agreement as to what effect the current practice at the Academy had upon Article 31A of the Agreement." Id. at 12.  The Judge concluded that "since [the] dispute present[ed] different but arguable interpretations of Article 31A of the contract," the proper forum in which to resolve the dispute was the negotiated grievance procedure. Id. Accordingly, the Judge recommended dismissal of the portion of the complaint alleging that the Respondent repudiated the parties' agreement by failing to advise the four trainees of a contractual right to Union representation before interrogating them on March 6.

Next, the Judge found that the Respondent did not fail to comply with section 7114(a)(2)(B) of the Statute by conducting the Board hearing without providing the trainees with Union representation. Based on the credited testimony of the Assistant Chief, the Judge concluded that Union Representative Claydon "authorized Union steward Porras to be the Union's representative for the Probationary Board hearing and Porras told [the Assistant Chief] the Union had no objection to the Board proceeding without a Union representative being present." Id. The Judge concluded that "an authorized Union representative waived the Union's right to be represented at the proceeding." Id. at 12-13.

The Judge found, however, that the trainees had a contractual right to a postponement of the Board hearing. The Judge noted, in this regard, that Article 31A provides that "'a reasonable extension of time will be granted when a representative cannot be present.'" Id. at 13 (quoting Article 31A). The Judge concluded that this portion of Article 31A was "unambiguous" and that the record disclosed "no reliable evidence . . . which might vary or modify it as stated . . . ." Id. Accordingly, the Judge found that the Respondent's failure to grant the trainees a reasonable postponement to obtain a Union representative constituted a repudiation of the parties' agreement and, thereby, violated section 7116(a)(1) and (5) of the Statute.

The Judge rejected the General Counsel's request that the two terminated trainees, Robert M. and Frank P., be reinstated. The Judge noted that the Respondent's only violation of the Statute affecting the two trainees was the failure to grant them, under Article 31A, an extension of time to obtain Union representation before the Board. The Judge also noted that the terminations were based on the trainees' March 6 statements, not the statements made at the Board hearing. The Judge concluded that the Respondent's repudiation of Article 31A was not "causally related" to the employees' discharges and denied the General Counsel's request for reinstatement of the two trainees. Id. at 14.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel filed two exceptions to the Judge's decision. First, the General Counsel excepts to the Judge's finding that the Respondent's failure to notify the four trainees of their right to Union representation did not constitute a repudiation of the parties' agreement. Second, the General Counsel argues that the Judge should have ordered the reinstatement of the two terminated employees.

With respect to its first exception, the General Counsel argues that, based on Rolla Research Center, U.S. Bureau of Mines, Rolla Missouri, 29 FLRA 107 (1987) (Rolla Research), the following requirements for finding a repudiation have been satisfied: (1) "clear and unambiguous contract language" and (2) "repeated and intentional failure to follow that language." General Counsel's Exceptions at 7. The General Counsel contends that the Judge incorrectly found that the Respondent's interpretation of Article 31A was arguable. The General Counsel points out that "by the Judge's own determination, the plain language of the contract is clear, unambiguous and susceptible to no other interpretation." Id. at 8.

The General Counsel also contends that the Judge erred "by determining the clear and unambiguous language had somehow been altered by what he found to be a contrary past practice." Id. at 9. The General Counsel argues that "a practice does not become binding unless the party being bound knowingly acquiesces to it." Id. (emphasis in original). The General Counsel asserts that the Union did not know of or acquiesce in the alleged past practice.

As its second exception, the General Counsel asserts that the proper remedy for the Respondent's repudiation of Article 31A in connection with the failure to advise the trainees of their contractual right to Union representation before the March 6 interrogations is the reinstatement of the two terminated trainees.(4) The General Counsel maintains that the alleged violation is a repudiation of the agreement, not a violation of section 7114(a)(2)(B), the remedy is not governed by the Authority's decision in United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431 (1990) (Safford). The General Counsel argues that "since the violation here is the Respondent's failure to bargain in good faith," the Authority should order that "the Respondent return to the status quo ante and the injured parties be made whole[.]" General Counsel's Exceptions at 15-16. The General Counsel asserts that reinstatement of the two trainees is consistent with the Authority's recent decision in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford Connecticut, 37 FLRA 278 (1990) (SSA, Hartford), because "there is a clear causal nexus between the Respondent's repudiation of Article 31A of the collective bargaining agreement and the termination of [the two trainees]." General Counsel's Exceptions at 18.

B. Union's Exceptions

The Union contends that the Judge erred by: (1) failing to conclude that the Respondent repudiated the parties' agreement by failing to advise the trainees of a contractual right to Union representation on March 6; (2) refusing to reinstate the two terminated employees; and (3) finding that the Union waived its right under section 7114(a)(2)(B) to attend the Board hearing.

The Union argues first that the evidence "demonstrates that a clear and patent breach" of the parties' agreement occurred. Union's Exceptions at 3. The Union claims that it did not acquiesce in the past practice alleged by the Respondent and that it could not have discovered violations of Article 31A at the Academy because: (1) there are no Union officers at the facility; (2) all the instructors are supervisors; and (3) the trainees are probationary employees detailed there for a short period of time. The Union also argues that as Article 31A is part of a national agreement, "knowledge on the part of national Union officers would have to be established in order to prove the existence of a past practice." Id. at 2-3 (footnote omitted).

As its second exception, the Union asserts that the two affected trainees should be reinstated. The Union argues that "any lesser remedy would lend encouragement to the Respondent's illegal actions, and would frustrate the purposes of the Statute." Id. at 3.

Third, the Union contends that the Union did not waive its right to be represented at the Board hearing. The Union asserts that "[w]aivers of rights must be clear and unmistakable." Id. (footnote omitted). The Union argues that:

it cannot reasonably be concluded that a local Union officer contacted by the Respondent could possibly waive the Union's right to be represented at an investigative interview 1,600 miles away, particularly when the Respondent . . . did not[] authorize or even offer travel and per diem expenses or official time for the Union officer to attend the interviews.

Id. at 4 (footnote omitted).

C. Respondent's Opposition

The Respondent argues that the Judge correctly concluded that: (1) the Respondent's failure to advise the trainees of their right to representation on March 6 did not constitute a repudiation of the agreement, and (2) the Union waived its right to be represented at the Board hearing. The Respondent also contends that reinstatement of the two terminated trainees is not appropriate here.

With respect to the first issue, the Respondent argues that its failure to advise the trainees of a right to Union representation prior to taking investigative statements was consistent with an arguable interpretation of Article 31A. The Respondent also contends that its action was consistent with the parties' past practice and that national Union officers were aware of the past practice.

As for the appropriate remedy, the Respondent contends that the Authority's decision in Safford applies "whether or not the origin of the alleged right to representation was contractual or statutory." Respondent's Opposition at 15. The Respondent argues that although, under Safford, the Authority may order an agency to conduct a new examination and reconsider its decision, "[i]n the instant case, such a reconsideration would be unnecessary since the Union was provided with an opportunity to present defenses at the March 9, 1989, proceeding." Id. at 16. The Respondent also contends that the Authority may not order an agency to reinstate an employee who was removed during the employee's probationary period.

D. Respondent's Exceptions

The Respondent filed three exceptions to the Judge's decision.

First, the Respondent contends that the Judge erred in finding that William C. requested Union representation before the March 6 interrogation. The Respondent argues that the trainee's request was not sufficient to put the Respondent's supervisor on notice that the employee was requesting union representation under section 7114(a)(2)(B). The Respondent asserts that the supervisor believed that the trainee was asking for "somebody like a personal attorney to advise him as to his individual rights as a criminal suspect under criminal law[.]" Respondent's Exceptions at 23.

Second, the Respondent contends that the Judge erred in finding that the Respondent repudiated the parties' agreement by failing to provide the trainees with a postponement of the Board hearing under Article 31A. The Respondent argues that, as argued and construed by the General Counsel, the complaint in this case does not encompass the violation found by the Judge. The Respondent asserts that it was prejudiced by the Judge's consideration of this issue.

With respect to the merits of the Judge's finding, the Respondent makes numerous arguments. First, the Respondent contends that its refusal to postpone the Board hearing involves the parties' differing and arguable interpretations as to when a request for an extension of time must be made under Article 31A to be timely. The Respondent notes that although the trainees received 60 hours' notice that the Board would convene, the trainees "waited to make such requests until . . . some 44 or 45 hours after they had first been notified." Id. at 30. The Respondent also contends that Article 31A did not apply to the Board hearing because a decision was made that the trainees would not be interrogated by the Board. Moreover, the Respondent argues that even if it breached Article 31A, a single breach does not constitute a repudiation of the agreement.

The Respondent also claims that the Judge should have found that the Union waived "the [t]rainees' contractual as well as statutory right to representation" at the Board hearing. Id. at 37. The Respondent argues that the waiver "should be construed as applying to any separate contractual rights flowing from Article 31A as well as to section 7114(a)(2)(B)." Id. at 39. The Respondent also states, in this regard, that it "assume[s]" that the Judge "was merely being unartful in referring to the waiver . . . in such a manner as to leave the impression that section 7114(a)(2)(B) gave the Union a separately waivable right to be represented during an examination and that it was only this union right which Porras waived." Id. at 37 (emphasis in original).

As its third exception, the Respondent asserts that the Judge erred by considering the General Counsel's request that the terminated trainees be reinstated. According to the Respondent, the Judge's consideration of the remedy was based on the erroneous "presumption that if the Board had relied upon the statements submitted by the [t]rainees on March 9th, reinstatement would have been within the Authority's remedial powers." Id. at 41. The Respondent argues that the Judge improperly denied its oral motion that the General Counsel's request for reinstatement be rejected because the complaint did not allege that the Respondent's separation of the two trainees constituted a violation of the Statute. The Respondent also argues that the Authority may not order the reinstatement of a probationary employee.

E. General Counsel's Opposition

With respect to the Respondent's first exception, the General Counsel argues that the Judge's determination that William C. requested Union representation is a factual determination that should be upheld by the Authority. As to the Respondent's second exception, the General Counsel contends that the Judge did not err by finding that the Respondent repudiated Article 31A of the parties' collective bargaining agreement by refusing to postpone the Board hearing. The General Counsel asserts that this issue was fully litigated at the hearing.

With respect to the Respondent's third exception, the General Counsel asserts that the Authority's Rules and Regulations do not require that a complaint include a requested remedy. The General Counsel notes that the alleged violation is a repudiation of the contract, not a Weingarten violation, and argues that the proper remedy for the repudiation of the contract "is to restore the status quo ante and make whole those injured by the Respondent's conduct." General Counsel's Opposition at 6.

F. Union's Opposition

The Union argues that William C. effectively requested Union representation before the March 6 interrogation. The Union asserts that as the Respondent never advised William C. of his right to representation, "the ambiguity of the request can be laid directly on the Respondent's doorstep." Union's Opposition at 2-3.

As for the Respondent's second exception, the Union asserts that the issue of whether the Respondent repudiated the parties' agreement by failing to grant the trainees' request for a postponement of the Board hearing was clearly raised by the General Counsel and the Union. The Union rejects the Respondent's assertion that it did not repudiate the agreement because the dispute involves differing and arguable interpretations of the agreement. According to the Union, "'arguable' interpretations . . . are those interpretations supported by fact and reason, not merely those susceptible to nitpicking." Id. at 5.

Finally, the Union contends that the Authority properly may order the Respondent to reinstate the two terminated trainees. The Union states that the Authority consistently has provided status quo ante remedies in repudiation cases.

V. Analysis and Conclusion

We will first address the allegations that the Respondent failed to comply with section 7114(a)(2)(B) of the Statute. We will then address the alleged repudiations of the parties' agreement.

A. Section 7114(a)(2)(B)

1. The March 6 Examination of William C. (5)  

We reject the Respondent's exception that the Judge erred in concluding that William C. effectively requested Union representation during the March 6 examination. (6)

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 by an agency representative in connection with an investigation if the employee (1) reasonably believes that discipline may result from the examination; and (2) the employee requests representation. Section 7114(a)(2)(B) creates rights for Federal employees similar to the right of private sector employees set forth by the Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). See, for example, Safford, 35 FLRA at 438-439.

Although the right to Union representation under section 7114(a)(2)(B) attaches only if an employee makes a valid request for representation, a request need not be made in any specific form to be valid. Instead, a request must be sufficient to put the respondent on notice of the employee's desire for representation. See generally Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1073-74 (1990) (Norfolk Naval Shipyard) and cases cited therein.

We agree with the Judge, for the reasons stated by the Judge, that William C.'s statement that "he would like to speak to a lawyer or somebody to advise him[,]" was sufficient to put the Respondent on notice that the employee desired Union representation. Judge's Decision at 3. See, for example, Southwestern Bell Telephone Company, 227 NLRB 1223 (1977) (employee's statement that he "would like to have someone there that could explain . . . what was happening" constituted a valid request for union representation). Therefore, we conclude, in agreement with the Judge, that William C. effectively requested Union representation under section 7114(a)(2)(B).(7)

There is no dispute that, after William C. requested representation, the Respondent denied the request and continued with the examination. Accordingly, in agreement with the Judge, it is clear that the Respondent failed to comply with section 7114(a)(2)(B) and, thereby, violated section 7116(a)(1) and (8) of the Statute. For example, Department of Defense, Defense Criminal Investigative Service, Defense Logistics Agency and Defense Contract Administration Services Region, New York, 28 FLRA 1145, 1149 (1987), enf'd sub nom. Defense Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93 (3d Cir. 1988).

2. The March 9 Board Hearing

The Judge concluded that the Respondent did not fail to comply with section 7114(a)(2)(B) of the Statute by its actions in connection with the Board hearing because "an authorized Union representative waived the Union's right to be represented at the proceeding." Judge's Decision at 12-13.(8) The Union asserts that "the evidence does not support the conclusion that a clear and unmistakable waiver occurred." Union's Exceptions at 3-4.(9)

We agree with the Union that a waiver of rights under section 7114(a)(2)(B) must be clear and unmistakable. See  generally, Internal Revenue Service, Washington D.C., 39 FLRA 1568, 1573-74 (1991), petition for review filed sub nom. Internal Revenue Service v. FLRA, No. 91-1247 (D.C. Cir. May 24, 1991); Norfolk Naval Shipyard, 35 FLRA at 1070. See also Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983) (Court held that a waiver of statutory rights must be "clear and unmistakable."). We find, in this regard, no indication in the Judge's decision that he applied a different standard. However, we disagree with the Union's assertion that a clear and unmistakable waiver was not established here.

The Judge concluded, based on credited testimony, that Union Representative Claydon authorized Union Steward Porras to represent the trainees at the Board hearing. Judge's Decision at 12 n.12. On the same basis, the Judge concluded that Porras told the Assistant Chief that "the Union had no objection to the Board proceeding without a Union representative being present." Judge's Decision at 12. The Union does not dispute the Judge's credibility determination. Moreover, the testimony credited by the Judge was undisputed at the hearing.(10) Although the Union now asserts that it cannot "reasonably be concluded that a local Union officer . . . could possibly waive the Union's right," the Union offers no argument or evidence that Claydon's statement did not constitute authorization for Porras to represent the trainees or that such authorization was otherwise improper. Union's Exceptions at 4.

In these circumstances, we find, in agreement with the Judge, that a clear and unmistakable waiver has been established. As such, we agree with the Judge that the Respondent did not fail to comply with section 7114(a)(2)(B) in connection with the March 9 Board hearing.

B. Repudiation of the Parties' Agreement

In Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA No. 106 (1991) (Warner Robins), we set forth the Authority's framework for determining whether a respondent has repudiated a collective bargaining agreement. We stated, as relevant here:

We find that the nature and scope of the failure or refusal to honor an agreement must be considered, in the circumstances of each case, in order to determine whether the Statute has been violated. Because the breach of an agreement may only be a single instance, it does not necessarily follow that the breach does not violate the Statute . . . . Rather, it is the nature and scope of the breach that are relevant. Where the nature and scope of the breach amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute.

Id., slip op. at 8-9. See also American Federation of Government Employees, AFL-CIO, Local 1909, Fort Jackson, South Carolina, 41 FLRA No. 2 (1991) (AFGE, Local 1909) (Authority held that union's breach of parties' agreement by its failure to pay the fee of one arbitrator did not constitute a repudiation of the agreement).

For the following reasons, we find, consistent with the foregoing principles, that the Respondent did not repudiate the parties' agreement in connection with the March 6 examinations. We will address separately the alleged repudiation with respect to the March 9 Board hearing.

1. The March 6 Examinations

Unlike Warner Robins and AFGE, Local 1909, where breaches of the parties' agreement were not disputed, it is not clear from the record in this case that the Respondent breached Article 31A. It is well established, in this regard, that parties may, by practice, alter or modify the terms of a collective bargaining agreement. See, for example, Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA 567, 570 (1990) (Naval Avionic Center) ("The fact that the negotiated agreement addressed the matter is not conclusive, if it is shown, in fact, that over a period of time the parties had engaged in a practice . . . that differed from the contractual procedure.").

The Judge found, based on credited and undisputed testimony, that over the previous 2 years, 12 to 15 incidents of trainee misconduct had been investigated at the Academy, using the same techniques used by the Respondent on March 6, without providing the affected trainees with notice under Article 31A. Instead, in these incidents, the Respondent provided notice under Article 31A only when it was determined that a proceeding before the Board was necessary. The Judge found also, based on this testimony, that the Union "never objected to the above practice." Judge's Decision at 9.

With respect to the latter point, the Union argues that it could not have known of violations of Article 31A at the Academy because, among other things, there were no Union stewards located at the facility. It is not disputed, however, that in at least some of the 12 to 15 incidents discussed by the Judge, Union Representative Claydon represented the affected trainees before the Board. It is reasonable to assume, therefore, that Claydon was aware of the procedures by which interrogations previous to the Board hearings were conducted.

Based on the Judge's findings of fact, it is not clear that the Respondent breached Article 31 by failing to provide the affected trainees with notice of a right to Union representation on March 6. We find it unnecessary, in this regard, to determine whether, in fact, the Respondent breached Article 31A or has established a binding past practice with respect to the application of Article 31A in situations such as those occurring on March 6. See generally U.S. Department of Labor, Washington D.C., 38 FLRA 899, 907-10 (1990) (discussing the establishment of conditions of employment through past practice). We find only that, although the Respondent may have breached Article 31A by its actions, that breach is not clear from the record before us.

Moreover, as relevant to the March 6 examinations, Article 31A requires the Agency to notify employees that, in certain circumstances, they are entitled to Union representation. Article 31A does not, in this regard, restate the right to representation set forth in section 7114(a)(2)(B) of the Statute.(11)1 Similarly, there is no contention that Article 31A affects that statutory right. That is, there is no dispute that unit employees retain the right to request representation under section 7114(a)(2)(B) even if they are not informed of their contractual right under Article 31A. Although the notification portion of Article 31A facilitates an important Union representational responsibility, it does not, in our view, go "to the core of the contractual relationship[.]" AFGE, Local 1909, 41 FLRA No. 2, slip op. at 2. Compare Warner Robins, 40 FLRA No. 106, slip op. at 9 (the breach interfered "with the rights of all employees . . . and with the Union's right to choose its representatives . . . .").

In these circumstances, we are unable to conclude that, even if the Respondent's failure to advise the trainees of a right to Union representation before the March 6 examinations breached Article 31A, that breach constituted a repudiation of the parties' agreement. Accordingly, in agreement with the Judge, we will dismiss this allegation in the complaint.

2. The March 9 Board Hearing

We disagree with the Judge's conclusion that the Respondent repudiated the parties' agreement by failing to grant the trainees' request for a postponement of the Board hearing in order to enable them to obtain representation. We find, in agreement with the Respondent, that this issue is not encompassed by the complaint in this case.

The portions of the complaint relating to the Respondent's alleged repudiation of the parties' agreement provide, in their entirety:

8.

(a) The employees . . . were required by Respondent to produce sworn written statements at examinations conducted on or about March 6, 7 and 8, 1989, in connection with the investigations of their off-duty conduct.

(b) The collective bargaining agreement at Article 31, Section A, states:

. . . .

(c) Despite the repeated examinations and requests for written statements from bargaining unit employees on or about March 6, 7 and 8, 1989, Respondent, by its agents, . . . did not at any time advise the employees . . . of their contractual right to representation as set out above in subparagraph 8(b).

. . . .

10.

By the conduct described in subparagraph 8(c), in the circumstances of subparagraphs 8(a) and 8(b), Respondent repudiated Article 31 of its collective bargaining agreement and thereby committed unfair labor practices as defined by Section 7116(a)(5) of the Statute.

General Counsel's Exhibit 1(e) at 4-5.

The sole purpose of a complaint is to put a respondent on notice of the basis of the charges against it. We do not, therefore, judge the sufficiency of a complaint based on rigid pleading requirements. See U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494 (1990) and cases cited therein. As such, where both parties understand the subject of a dispute and present evidence relevant thereto, a mere ambiguity in the wording of a complaint does not prevent consideration and disposition of the issue. Id. See also Department of the Air Force, 343rd Combat Support Group, Eielson Air Force Base, Alaska, 39 FLRA 609 (1991) (Member Talkin dissenting).

In this case, we are unable to conclude that the complaint reasonably can be read as putting the Respondent on notice that it was charged with repudiating the parties' agreement by failing to postpone the Board hearing. We note three things.

First, the complaint contains no reference to the trainees' request for a postponement of the Board hearing. Second, the portion of the complaint charging the Respondent with repudiating the parties' agreement refers specifically, unambiguously, and solely to the Respondent's failure to advise the trainees of their right to Union representation under Article 31A. Third, although there was testimony to the fact that the Respondent denied the requests for postponement of the hearing, at no time during the hearing did the General Counsel assert that the Respondent repudiated the parties' agreement by denying the requests. To the contrary, the General Counsel asserted plainly that the "Respondent's repeated failure to inform the employees to [sic] their right of representation combined with the coercive interrogation techniques employed amount to a patent bre[a]ch of the collective bargaining agreement and, therefore, violation of the law." Transcript at 41-42.

In these circumstances, we find no basis on which to conclude that the complaint reasonably can be read as encompassing an allegation that the Respondent repudiated the parties' agreement by failing to postpone the March 9 Board hearing. (12) Accordingly, we reverse that portion of the Judge's decision finding that the Respondent violated the Statute by failing to postpone the hearing. In so doing, we express no view on whether, if the allegation properly were encompassed by the complaint, the Respondent's actions would constitute a repudiation of the agreement.

VI. Remedy

The Agency failed to comply with section 7114(a)(2)(B) of the Statute by unlawfully denying William C.'s request for Union representation during the March 6 interrogation. William C. was not, however, disciplined in connection with the incident about which the interrogation occurred. Compare Safford, 35 FLRA at 446-49. Accordingly, we will order the Respondent to cease and desist from its unlawful actions and to post an appropriate notice. See U.S. Department of Labor, Mine Safety and Health Administration, 35 FLRA 790 (1990).

As we will dismiss the portions of the complaint alleging that the Respondent failed to comply with section 7114(a)(2)(B) in connection with the March 9 Board hearing, as well as the allegations that the Respondent repudiated the parties' agreement, it is unnecessary to address the parties' arguments concerning the reinstatement of the two terminated trainees. We also find it unnecessary to address the Respondent's assertion that the Judge erred in failing to grant its oral motion "to reject the [General Counsel's] attempt to treat the original complaint as sufficiently broad" to encompass issues concerning the termination of probationary employees. Respondent's Exceptions at 42. We note, however, in agreement with the General Counsel, that no authority has been cited, or is otherwise apparent, for the argument that a complaint must specify the remedies to be sought by the General Counsel.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., shall:

1. Cease and desist from:

(a) Interfering with the right of its employees represented by the American Federation of Government Employees, National Border Patrol Council, AFL-CIO, to union representation at examinations in connection with investigations.

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

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

(a) Post at its training facilities at Glynco, Georgia 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 Chief of the Academy 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, Atlanta Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The portions of the unfair labor practice complaint alleging that the Respondent failed to comply with section 7114(a)(2)(B) of the Statute in connection with a proceeding conducted by a Special Probationary Board on March 9, 1989, and repudiated the parties' collective bargaining agreement are dismissed.

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 interfere with the right of our employees represented by the American Federation of Government Employees, National Border Patrol Council, AFL-CIO, to union representation at examinations in connection with investigations.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured 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, Atlanta Regional Office, whose address is: 1371 Peachtree Street, N.E. Suite 122 Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.




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

1. One trainee resigned shortly after the incident and is not involved in this case. Pursuant to the General Counsel's motion, which is not opposed by the Respondent or the Union, the trainees' full names will not be used herein. The four trainees are identified as William C., Timothy M., Robert M. and Frank P.

2. Article 31A provides:

The Agency agrees prior to taking a written or sworn statement from an employee, or when an employee is going to be interrogated before witnesses which may lead to disciplinary action against the employee, he will be advised in writing of his right to be represented by the Union or any other person of his choice. The failure to obtain representation will not delay the interrogation for more than 48 hours from the time the employee receives notice of the interrogation. Upon request, a reasonable extension of time will be granted when a representative cannot be present. . . .

Judge's Decision at 8.

3. The Assistant Chief also testified that:

If from what was disclosed from the investigation it was determined that further proceedings before the Probationary Board was [sic] necessary, then the Trainee was served with a notice which included being informed of his rights under Article 31A of the collective bargaining agreement, but not before.

Judge's Decision at 9.

4. If the Respondent is not found to have repudiated the parties' agreement in connection with the March 6 interrogations, the General Counsel "concedes that there would be no basis for reinstating Robert M. and Frank P." Exceptions at 12.

5. As no exceptions were filed to the Judge's finding that the Respondent did not violate section 7114(a)(2)(B) with respect to the other three trainees, we adopt the Judge's recommendation that this aspect of the complaint be dismissed.

6. The Respondent concedes that the March 6 interrogation of William C. constituted an examination, within the meaning of section 7114(a)(2)(B) of the Statute.

7. In part, the Respondent's exceptions challenge the credibility findings made by the Judge. The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has the benefit of observing the witnesses. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See Antilles Consolidated School System, 39 FLRA 496 (1991).

8. The Respondent does not dispute that the Board hearing was an examination, within the meaning 7114(a)(2)(B) of the Statute, and that William C. and Robert M. requested Union representation.

9. As this is the sole exception before us as to the Judge's decision on this allegation in the complaint, we do not address the assertions in the Respondent's opposition, or the Union's response thereto in its opposition, regarding the extent to which a union has a right, separate and apart from an employee's right, under section 7114(a)(2)(B). Compare U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 1300, 1308 (1991) ("[T]he 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.") and Prudential Insurance Company of America, 275 NLRB 208, 209 (1985) ("although the Weingarten right is triggered only by an employee's request," the "Weingarten right . . . is subject to being waived by the Union.").

10. Neither Claydon nor Porras testified at the hearing. Judge's Decision at 12 n.12.

11. The parties' agreement containing Article 31A predates not only the Statute but also the Supreme Court's decision in Weingarten. Respondent's Exceptions at 39.

12. Although it is not argued to be relevant here, we note that the Union's unfair labor practice charge, as amended, appears to be broad enough to encompass this claim. Compare U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 40 FLRA No. 42 (1991), slip op. at 6-7 (Authority rejected respondent's claim that the charge did not provide a valid basis for the complaint).