42:0834(56)CA - - Justice, INS, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1991 FLRAdec CA - - v42 p834



[ v42 p834 ]
42:0834(56)CA
The decision of the Authority follows:


42 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

BORDER PATROL

EL PASO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Charging Party/Union)

6-CA-70451

(36 FLRA 41 (1990))

DECISION AND ORDER ON REMAND

October 10, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the 5th Circuit in Department of Justice, Immigration and Naturalization Service v. FLRA, 939 F.2d 1170 (5th Cir. 1991). In the proceedings before the Authority, 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 and refusing to comply with section 7114(a)(2)(B) of the Statute. The Authority found that the Respondent violated the Statute by interfering with, restraining, or coercing a unit employee in the exercise of his right to have union representation at an examination in connection with an investigation which the employee reasonably believed might result in disciplinary action against him, and in which he requested representation. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 36 FLRA 41 (1990).

The Respondent petitioned for review of the Authority's decision. The Authority filed a cross application for enforcement. The court granted the petition for review. The court agreed with the Authority's holding that the employee's waiver of his right to representation had been coerced, but concluded that that finding was not in itself conclusive that an unfair labor practice was committed. The court held that the Authority had not ruled on whether the employee's continued participation in the interview was voluntary, as required by section 7114(a)(2)(B) of the Statute. Accordingly, the court remanded the case to the Authority for a determination of whether the employee's continued participation in the interview was voluntary.

We conclude that the employee's continued participation was coerced and, therefore, that it was not voluntary. Accordingly, we find that the Respondent violated the Statute.

II. History of Case

A. Background

In April 1987, the Respondent's Office of Professional Responsibility (OPR) conducted a criminal investigation concerning a complaint filed by the Mexican government alleging that United States border patrol agents were involved in a building burning incident on the Mexican side of the border near El Paso, Texas. OPR, as part of the investigation, interviewed border patrol agents who were considered suspects or potential witnesses.

OPR interviewed border patrol agent Jose Cruz, who had been on duty during the night of the fire and was considered a suspect. The Union's president, Arcadio Neira, accompanied Cruz to the interview as his Union representative. OPR's Regional Director Lawrence Granelli and two other special agents were present when Cruz and his representative arrived for the interview. The parties stipulated that Cruz initially requested Union representation at the interview and that Cruz reasonably believed that the interview might result in some type of disciplinary action against him. Granelli replied to Cruz' request, telling Cruz that if he wanted a representative, he was entitled to one and that they would do the interview with the representative present. He then explained the nature of the investigation, stating that the interview was criminal rather than administrative in nature and that Cruz was considered a suspect. Granelli informed Cruz that he and his Union representative would not have any kind of privileged communication with respect to the criminal proceedings. He explained to Cruz that his representative could be subject to subpoena and/or an interview by OPR, to subpoena by a grand jury, or to subpoena at trial. Cruz was informed that he was not under arrest, that he would not be arrested at the interview, and that he was free to depart at any time to seek legal counsel or obtain advice from his Union representative. When Cruz and his Union representative protested that Cruz was entitled to a Union representative, Granelli reiterated the distinction between a criminal and an administrative proceeding and stressed the absence of an attorney-client privilege. Granelli also advised Cruz that, as a Federal officer, he was expected to cooperate with the investigation, without infringing on any of his rights, and that it was his decision as to whether he would submit to the interview. Granelli explained that he could pick and choose what he wanted to answer and could terminate the interview at any time.

Cruz agreed to be interviewed without the presence of his Union representative, and his Union representative left the room with Granelli and waited outside. Cruz was questioned by the two special agents regarding the building incident. Near the end of the interview, Cruz was apprised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and asked about statements attributed to him by others. Shortly thereafter, Cruz refused to answer any further questions and left the room.

B. Administrative Law Judge's Decision

The Judge found that the OPR agents did not expressly deny Cruz Union representation. According to the Judge, Cruz was advised that Union representation would be allowed if he desired and that it was his decision whether to submit to or terminate the interview. However, the Judge found that the record reflected that Cruz withdrew his request for Union representation after the OPR agent repeatedly presented him with reasons why Union representation would not be to his or his representative's advantage.

The Judge held that an employer has one of three options when an employee requests union representation: (1) grant the request; (2) discontinue the examination; or (3) offer the employee the option of continuing the examination without representation or having no examination at all. The Judge stated that when employees are given such a choice, their continued presence must be viewed as voluntary.

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

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

C. Authority's Decision in 36 FLRA 41

On review of the record and the Judge's decision, the Authority found that the manner, nature, and repetition of Granelli's statements to Cruz intimidated Cruz to give up his expressed desire for, and right to, Union representation. 36 FLRA at 51. The Authority found that in the atmosphere engendered before the OPR interview, the Respondent's statements precluded Cruz from making an uncoerced decision as to whether to have his Union representative present at the interview. Id. at 50. Accordingly, the Authority found that the repeated statements by Granelli interfered with, restrained, and coerced Cruz in the exercise of his right to a Union representative, pursuant to section 7114(a)(2)(B) of the Statute regardless of whether Granelli's statements were true. The Authority found it unnecessary to address the Judge's statement about the employer's three options.

D. Court's Decision

The Respondent petitioned for review of the Authority's decision in the U.S. Court of Appeals for the 5th Circuit. The Authority filed a cross application for enforcement. The court granted the petition for review, denying enforcement, vacating the decision and order, and remanding the case to the Authority for further findings. The court found that substantial evidence supported the Authority's holding that Granelli's statements were sufficiently coercive to cause a reasonable person in Cruz' position to waive his request for union representation. The court found that this coercion could establish a constructive denial of the option of an interview with union representation.

The court found, however, that it does not follow that this coercion by Granelli constituted an unfair labor practice. The court held that under the Authority's construction of section 7114(a)(2)(B), an employer faced with a request for union representation may offer the employee the option of participating in the interview without representation or having no interview at all. The court found that the facts established that the Respondent offered Cruz the option of participating with representation, while noting the potential disadvantage of doing so, participating without representation, or having no interview. The court held that to the extent the Judge concluded on the present record that Cruz was not offered the right to have no interview, his finding was unsupported and incorrect.

The court held that although the Authority had determined that the Respondent coerced Cruz to rescind his request for representation, it did not consider whether the Judge's conclusions were proper. Significantly, according to the court, the Authority did not decide whether Cruz voluntarily decided to participate in the interview after he had been coerced to withdraw his request that his Union representative be present. The court held that "[b]y itself, a constructive denial of a request for union representation does not invalidate an employer's offer of this option." 939 F.2d at 1175. The court found that the record on appeal did not contain a determination of whether Cruz voluntarily participated in this interview and that such a determination was critical to the final resolution of the petition for review. Accordingly, the court remanded the proceeding to the Authority so that the Authority could consider whether Cruz' decision to participate in the interview was voluntary.

III. Analysis and Conclusions

On consideration of the court's decision, and based on the findings of the court and on the record as a whole, we conclude that Cruz' decision to participate in the interview was not voluntary.

As the court stated, under Authority and court precedent, when an employee is required by an agency to submit to an interview, which the employee reasonably believes could result in disciplinary action, the employee has the right to request union representation at that interview. When a valid employee request has been made, the agency is permitted one of three options: (1) grant the request; (2) discontinue the interview; or (3) offer the employee the choice between continuing the interview without representation or having no interview at all. See Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1077 (1990).

In our previous decision we found, and the court agreed, that Granelli constructively denied Cruz' request for Union representation by coercively repeating statements that it would not be in the best interests of Cruz or his representative if the representative accompanied Cruz at the interview. On remand, we conclude, consistent with the court's decision, that the Respondent offered Cruz the option of continuing to participate in the interview without representation, or having no interview. We further find, in reviewing the record, however, that even though the Respondent offered Cruz such a choice, the predictable effect of the conduct that was found to be coercive in 36 FLRA 41, combined with Granelli's continued emphasis on the criminal nature of the proceeding, Transcript at 82, 97, was to pressure Cruz into waiving his right under section 7114(a)(2)(B) of the Statute to terminate the interview. Thus, taking into consideration all the circumstances of this case, we conclude that the Respondent's actions in effectively dissuading Cruz from remaining firm in his request for Union representation also affected Cruz' judgment regarding his continued participation in the interview and that, by the totality of its conduct, the Respondent precluded Cruz from making an uncoerced decision as to whether he should permit the interview to take place without the presence of his representative.

We find it significant that Granelli presented Cruz with the decision as to whether he wished to proceed without representation at the same time as Granelli made the statements found by the Authority and the court to constitute improper pressure on Cruz to surrender his right to such representation. We conclude that the coercive effect of those statements permeated the entire discussion between the Respondent's representatives and Cruz. It is important to paint the complete picture, insofar as we know it. In the office of OPR, the investigative arm of his employer, Cruz was confronted by three OPR agents. One of those agents, who informed Cruz that he might be accused of criminal misconduct, coerced him into relinquishing his right to Union representation. At the same time, the agent assured Cruz that he was free to leave at any time.

It is against this backdrop that we view Granelli's statement to Cruz that the questioning would be part of a criminal investigation and that "as a Federal officer, he was expected to cooperate with the investigation[.]" 36 FLRA at 43. As was the case with Granelli's other statements to Cruz, the Respondent appeared to grant Cruz a right that the Respondent simultaneously pressured him into abandoning. Thus, although Granelli, and later the other OPR agents, informed Cruz that he could terminate the interview, it was also made clear to him that he had a duty to "cooperate." By repeatedly underscoring the criminal nature of the investigation and stressing the importance of Cruz' cooperation in that investigation, Granelli implicitly sent the message that the rights protected by the Statute are somehow weakened in the presence of allegations of criminal misconduct. We agree with the National Labor Relations Board that such a result would be "repugnant." United States Postal Service, 241 NLRB 141 (1979). See Department of the Treasury, Internal Revenue Service, Jacksonville District and Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection, 23 FLRA 876, 878 (1986) ("Congress intended section 7114(a)(2)(B) to apply to all examinations in connection with all investigations, not just to examinations of employees in connection with non-criminal matters." Emphasis in original.) We will not infer the waiver of such an important statutory right in these circumstances. See Southwestern Bell Telephone Co., 227 NLRB 1223 (1977).

Moreover, the Respondent may have given Cruz a false sense of security by telling him that he could leave the interview room to consult with his Union representative when such consultations could not have provided him with the full measure of protection that section 7114(a)(2)(B) was meant to safeguard. The Authority has long held that for the right to representation to be meaningful, the representative must have complete freedom to assist, and consult with, the employee. U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA 297, 306 (1981). Finally, we note that although Cruz ultimately decided to terminate the interview, he did so only after hearing his Miranda rights and learning of statements that could implicate him in the incident under investigation. Based on the timing of Cruz' actions, we conclude that it was a fear of criminal prosecution, and not a reasoned, uncoerced exercise of his rights under section 7114(a)(2)(B), that caused Cruz to stop answering questions.

Accordingly, we conclude that Cruz' decision to participate in the interview was not voluntary and that the Respondent violated section 7116(a)(1) and (8) of the Statute by interfering with, restraining, and coercing an employee in the exercise of his rights under section 7114(a)(2)(B).

IV. Order (*)

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

1. Cease and desist from:

(a) Discouraging or intimidating any employee from exercising rights under section 7114(a)(2)(B) of the Statute during an examination in connection with an investigation if the employee reasonably believes that the examination might result in disciplinary action against the employee and the employee requests union representation.

(b) Requiring any bargaining unit employee of the Department of Justice, Immigration and Naturalization Service, Border Patrol, to take part in an examination in connection with an investigation without affording the employee the rights guaranteed by section 7114(a)(2)(B) of the Statute when union representation has been requested by the employee and the employee reasonably believes that the examination might result in disciplinary action against him or her.

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

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

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

(b) Post at its facilities, copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the District Director, Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that these Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Dallas Regional Office, 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 discourage or intimidate any employee from exercising rights under section 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute) during an examination in connection with an investigation if the employee reasonably believes that the examination might result in disciplinary action against the employee and the employee requests such representation.

WE WILL NOT require any bargaining unit employee of the Department of Justice, Immigration and Naturalization Service, Border Patrol, to take part in an examination in connection with an investigation without affording the employee the rights guaranteed by section 7114(a)(2)(B) of the Statute when union representation has been requested by the employee and the employee reasonably believes that the examination might result in disciplinary action against him or her.

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

WE WILL establish that no discipline to Jose Cruz has occurred as a result of the investigative interview that occurred in April 1987 with regard to a burned building and that the information from the investigative interview will not be relied on so as to adversely affect Mr. Cruz in the future; and that nothing has been retained in Mr. Cruz' personnel records as a result of the interview that could adversely affect him. If this cannot be shown, we will, on the request of the American Federation of Government Employees, National Border Patrol Council, and Mr. Cruz, repeat the examination of Mr. Cruz at which he was denied his right to union representation. In repeating the examination, we will afford Mr. Cruz his statutory right to union representation. After repeating the examination, we will reconsider any disciplinary action taken against Mr. Cruz and/or the retention in Mr. Cruz' personnel records of information obtained during the April 1987 interview.

WE WILL, as appropriate, make Mr. Cruz whole for any losses suffered to the extent consistent with the de