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46:0107(14)CA
The decision of the Authority follows:
46 FLRA No. 14
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
NATIONAL LABOR RELATIONS BOARD
(Respondent/Agency)
and
NATIONAL LABOR RELATIONS BOARD
PROFESSIONAL ASSOCIATION
(Charging Party/Union)
3-CA-10395
DECISION AND ORDER
October 19, 1992
Before Chairman McKee and Member Armendariz.(1)
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Union to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the exceptions of the General Counsel or the Union.
The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by conducting formal discussions within the meaning of section 7114(a)(2)(A) of the Statute without affording the Union prior notice and an opportunity to be represented at those discussions. The Judge recommended that the complaint be dismissed in its entirety.
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 that no prejudicial error was committed. We affirm the rulings.(2) Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order to the extent consistent with this decision.
II. The Judge's Findings
A. Formal Discussions and Targeted Employees
The Judge found that, as interviews of unit employees by the Respondent's Director of Equal Employment Opportunity (EEO), which included questions related to an EEO investigation begun because of an anonymous letter sent to the Respondent's General Counsel, were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute, the Union was entitled to prior notice and an opportunity to be represented at the interviews. The Judge also found that the Respondent notified the Union of its right to be represented, and the Union was represented, at the interviews of unit employees implicated in the EEO investigation (targeted employees). As to the targeted employees, therefore, the Judge concluded that the Respondent had fulfilled its statutory obligation under section 7114(a)(2)(A) of the Statute. No exceptions were filed to these findings and conclusions.
B. Employee A
The Judge found that the Respondent failed to give the Union notice of, and an opportunity to be represented at, its first interview of a unit employee (Employee A) who was not implicated in the EEO investigation (non-targeted employee). The Judge concluded, however, that because the Union subsequently stated that it had no further interest in the interview of Employee A, it would not effectuate the purposes of the Statute to find that this failure was a violation of the Statute. The General Counsel and the Union except to the Judge's conclusion as to Employee A.
C. Non-targeted Employees
As to non-targeted employees other than Employee A, the Judge concluded that "there is no dispute whatever that the Union was given notice that non-targeted unit employees were going to be interviewed" and that "the Union clearly and unmistakabl[y] waived its right to be present at the interview[s] of non-targeted unit employees." Judge's Decision at 27. The General Counsel and the Union except to the Judge's conclusion in this regard.
III. Analysis and Conclusions
A. Formal Discussions and Targeted Employees
As no exceptions were filed to the Judge's findings and conclusions as to whether the interviews of employees constituted formal discussions and as to the meetings with targeted employees, we adopt the Judge's findings and conclusions as to those matters.
B. Employee A and Non-targeted Employees
The Respondent undertook to interview, among other individuals, approximately 17 unit employees. The Union became aware of the first interview of a non-targeted employee (Employee A) only after it had been completed. Upon learning of the interview from Employee A, Young, the Union Steward for the Division of Advice, asked the Respondent's Assistant General Counsel, Advice (AGC), "what was going on." Id. at 23. The AGC called the EEO Director, who told the AGC that no unit employees were mentioned in the anonymous letter. The AGC told Young the same information, whereupon Young said to the AGC "'fine, I don't need to know anymore, and that was it.'" Id., quoting Young's testimony at Tr. 27.
Later the same day, the EEO Director interviewed Employee Z, one of the employees mentioned in the anonymous letter. At the time of the interview, the EEO Director believed that Employee Z was a supervisor. When Employee Z told the EEO Director his position and grade level, the EEO Director recognized that he was a unit employee and stopped the interview. She asked him if he wanted Union representation and he said that he did. The EEO Director then called Young, who arrived at the interview. After Young spoke with the EEO Director and with Employee Z, the interview was rescheduled for the following day.
After the interview was rescheduled, the EEO Director told Young the names of the other targeted employees and that she would be interviewing almost 100 percent of the employees in the Division of Advice, including non-targeted unit employees. Young told the EEO Director that "'any employees who were implicated I'm going to speak with them and I want to know their names'" and that "'I would be there if people were being implicated.'" Id. at 25, quoting Young's testimony at Tr. 27. According to the Judge, the EEO Director "credibly testified" that: (1) she told Young that she would be interviewing unit members; (2) Young "only indicated that she was interested in being present during the interviews with the four people who had been targeted"; (3) Young said that "she wanted to be there for the targeted ones"; and (4) Young said that "she wanted to be there for the people who had been accused of making racial slurs and jokes." Id. at 25-26, quoting the EEO Director's testimony at Tr. 194, 247, 248.
l. Employee A
Section 7114(a)(2)(A) of the Statute requires prior notification so that the union may have the opportunity to choose its representatives and prepare for the formal discussion. See, for example, U.S. Department of Defense, Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 37 FLRA 952, 961 (1990) (Defense Logistics Agency); Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 604 (1987) (McClellan Air Force Base); Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG)(TAC), Kelly Air Force Base, 15 FLRA 529 (1984); and Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74 (1981). By interviewing Employee A without providing the Union with prior notification of and the right to be represented at that formal discussion, the Respondent deprived the Union of its statutory right. As the Judge found, the Union did not waive that statutory right as to the interview of Employee A. No exceptions were filed as to this finding.
Contrary to the Judge, we find that by interviewing Employee A without providing the Union its statutory right under section 7114(a)(2)(A) to be notified of, and be represented at, a formal discussion, the Respondent violated section 7116(a)(1) and (8) of the Statute. The purpose of section 7114(a)(2)(A) is to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit. See, for example, Defense Logistics Agency; Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA 747, 754 (1990); and McClellan Air Force Base, 29 FLRA at 598. Therefore, in order to safeguard the rights of both the Union and the bargaining unit employees in future formal discussions, we will order the Respondent to cease and desist from denying the Union its section 7114(a)(2)(A) right and to post an appropriate notice.
2. Non-targeted Employees
On the other hand, we agree with the Judge that the record in this case demonstrates that the Union was given notice that the other non-targeted unit employees were going to be interviewed and that the Union waived its right under section 7114(a)(2)(A) of the Statute to be represented at formal discussions as to the interviews of the other non-targeted unit employees. The Judge found, in support of the testimony of Young, that Union Steward Mantz "emphasized, as Ms. Young had also, that if unit employees were not targets of the investigation, the Union didn't need to know about the interviews." Judge's Decision at 27. The Judge found that the Union's choice was made "[w]ith full knowledge that [the EEO Director] was going to interview 'almost 100 percent of the people in Advice'; with full knowledge of the purpose of the interviews; having furnished [the EEO Director] a list of unit employees; and with full knowledge of named 'targeted employees' [implicated employees] on the one hand and 'non-targeted employees' [non-implicated employees] on the other hand[.]" Id. at 25 (brackets in original).
In agreeing with the Judge's finding that the Union was aware that non-targeted unit employees were being interviewed, we note particularly that the Union President (Brinker) attended the interview of non-targeted Steward Mantz (Judge's Decision at 7, 26), and the testimony of a non-targeted unit employee that Young had informed him that he was going to be interviewed (Tr. at 131). Moreover, in agreeing with the Judge's finding that the Union had "full knowledge of the purpose of the interviews," we note the Judge's finding, based on the testimony of Young and the EEO Director, that the interviews included questions both as to the anonymous letter and as to matters unrelated to that letter. We also note the Judge's finding, referring to the EEO Director's own testimony, that the EEO Director asked all employees "the same questions (Tr. 182)." Judge's Decision at 8. Finally, we note the undisputed testimony of Mantz that Young and Brinker had communicated about the interviews (Judge's Decision at 27, Tr. at 122), and that, at the request of the Union, the EEO Director met with Brinker and Mantz and discussed the purpose of the interviews (Tr. at 122-23). Accordingly, contrary to the General Counsel's argument, we find that the Union waived its right to be present at the interviews of non-targeted employees both as to the anonymous letter and as to matters unrelated to that letter.
In all the circumstances of this case, the Judge concluded, and we agree, that the Union clearly and unmistakably waived its right under section 7114(a)(2)(A) of the Statute to be represented at the interviews of non-targeted unit employees other than Employee A.
Accordingly, we find that by interviewing Employee A, on or about November 28, 1990, without affording the Union prior notice and an opportunity to be represented at the interview, the Respondent failed to comply with the requirements of section 7114(a)(2)(A) of the Statute and violated section 7116(a)(1) and (8) of the Statute. We will issue an appropriate remedial order. We will dismiss the remaining allegations of the complaint.
IV. 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 National Labor Relations Board shall:
1. Cease and desist from:
(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by the National Labor Relations Board Professional Association (the Union) concerning any grievance or any personnel policy or practices or other general condition of employment without affording the Union prior notice of and the opportunity to be represented at the formal discussions.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Post at its facilities wherever bargaining unit employees are located, 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 General Counsel 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 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, Washington, D.C. 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.
The allegations of the complaint as to the interviews of targeted employees, and as to the interviews of non-targeted employees other than Employee A, 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 conduct formal discussions with our employees in the bargaining unit exclusively represented by the National Labor Relations Board Professional Association (the Union) concerning any grievance or any personnel policy or practices or other general condition of employment without affording the Union prior notice of and the opportunity to be represented at the formal discussions.
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.
_______________________________
(Agency)
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 any of its provisions, they may communicate directly the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1111 - 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Talkin did not participate in this decision.
2. The General Counsel contends that the Judge "abused the considerable discretion he is given in conducting hearings by denying the General Counsel's request for a continuance" in order to recall a witness. General Counsel's Exceptions at 12. The Judge presiding at the hearing has discretion to determine whether a witness should be recalled and whether a continuance shall be granted for that purpose. See 5 C.F.R. §§ 2423.19, 2423.19(f), 2423.19(m). We conclude that the General Counsel has not demonstrated that the Judge abused his discretion by denying the General Counsel's request for a continuance in this case. See, for example, Department of Housing and Urban Development, Region X, Seattle, Washington, 41 FLRA 363 (1991).