44:0768(65)CA - - VAMC, Denver, CO and AFGE Local 2241 - - 1992 FLRAdec CA - - v44 p768

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44 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER, DENVER, COLORADO

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2241

(Charging Party/Union)

7-CA-10430

DECISION AND ORDER

April 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to afford the Union an opportunity to be present during interviews of bargaining unit employees conducted by the Respondent in preparation for an arbitration hearing.

II. Facts

The American Federation of Government Employees (AFGE) is the exclusive representative of a nationwide consolidated unit of employees at the Department of Veterans Affairs Medical Center (VAMC), Denver, Colorado. Local 2241, an agent of AFGE, represents unit employees at the Denver VAMC.

On January 8, 1991, the Respondent's Assistant Chief of Pharmacy telephoned four unit employees and scheduled each for an interview with Douglas Doane, an attorney in the VA Office of District Counsel. Doane, acting on behalf of the Respondent, interviewed each employee to determine whether the employee had relevant information to support the Respondent's position in an upcoming grievance arbitration hearing involving the Respondent's termination of a unit employee. The interviews were held in the office of the Chief of Pharmacy, about 75 feet away from the unit employees' immediate work site. Each interview lasted about 15 minutes. During the interviews, Doane took notes and asked the employees questions relevant to the arbitration hearing. Doane conducted the interviews without affording the Union notice and an opportunity to attend.

III. Positions of the Parties

A. General Counsel

The General Counsel contends that Doane's interviews with the four unit employees were formal discussions under section 7114(a)(2)(A) of the Statute and, therefore, the Respondent was required to provide the Union with notice and an opportunity to be represented at the interviews. The General Counsel argues that the Authority's decision in Veteran Administration Medical Center, Long Beach, California, 41 FLRA 1370 (1991) (VAMC, Long Beach) petition for review filed sub nom. Department of Veterans Affairs Medical Center, Long Beach, California v. FLRA, No. 91-70640 (9th Cir. Oct. 23, 1991), is dispositive of the issues in this case.

B. Respondent

The Respondent argues that it did not commit the alleged unfair labor practice because: (1) 38 U.S.C. § 3311 empowers the Respondent "to make investigations and examine witnesses upon any matters within the jurisdiction of [the Respondent;]" (2) the interviews were not formal discussions within the meaning of section 7114(a)(2)(A) of the Statute because they did not concern a grievance; (3) the Union's presence at the interviews is precluded by the attorney work product doctrine and the attorney-client privilege; and (4) the information obtained in the interviews is protected under Exemption (b)(5) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5), and under the Privacy Act, 5 U.S.C. § 552a.

IV. Analysis and Conclusions

The Authority has repeatedly held that interviews by agency representatives of bargaining unit employees in preparation for third-party proceedings in which the union has an adversary role are formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. See, for example, Department of Veterans Affairs, Department of Veterans Affairs Medical Center, Denver, Colorado, 44 FLRA No. 35 (1992), VAMC, Long Beach, 41 FLRA at 1379; Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 594, 604-05 (1990). See also National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (court held that an interview of unit employees, conducted by the agency in preparation for a Merit Systems Protection Board hearing, constituted a formal discussion). In VAMC, Long Beach, we rejected the same arguments made by the Respondent here concerning 38 U.S.C. § 3311, the attorney work product privilege, the attorney-client privilege, the Freedom of Information Act, and the Privacy Act. 41 FLRA at 1381-84. We also rejected the argument that interviews such as the ones in this case do not concern a grievance, within the meaning of section 7114(a)(2)(A) of the Statute. Id. at 1380.

We find nothing in the record of this case that compels a different result here than that reached in VAMC, Long Beach. Therefore, for the reasons set forth more fully in VAMC, Long Beach, we conclude that the interviews between Doane and the four unit employees were formal discussions, within the meaning of section 7114(a)(2)(A) of the Statute, and that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to provide the Union with an opportunity to be represented at those intervi