46:0363(31)CA - - Border Patrol, Del Rio, TX and AFGE, National Border Patrol Council, Local 2366 - - 1992 FLRAdec CA - - v46 p363
[ v46 p363 ]
The decision of the Authority follows:
46 FLRA No. 31
FEDERAL LABOR RELATIONS AUTHORITY
U.S. IMMIGRATION AND NATURALIZATION SERVICE
U.S. BORDER PATROL, DEL RIO, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
LOCAL 2366, AFL-CIO
DECISION AND ORDER
October 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying employees' requests for Union representation under section 7114(a)(2)(B) of the Statute. The Respondent filed exceptions to the Judge's decision. The General Counsel did not file an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings that the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
The Respondent argues, among other things, that the Judge erred in concluding that the Respondent's requirement that affected employees prepare the disputed memoranda constituted an examination in connection with an investigation, within the meaning of section 7114(a)(2)(B) of the Statute. The Respondent "does not contend in this case that an investigatory interview must always be oral." Exceptions at 35, n.13. However, the Respondent argues that the requirement that affected employees prepare the memoranda in this case does not satisfy the requirements of section 7114(a)(2)(B) because the disputed investigation was not "confrontational" and because the investigation constituted only "preliminary inquiries." Id. at 35. We find no merit in the Respondent's arguments and we agree with the Judge, for the reasons he stated, that the Respondent conducted an examination in connection with an investigation, within the meaning of section 7114(a)(2)(B).
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. Immigration and Naturalization Service, U.S. Border Parol, Del Rio, Texas, shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee to take part in an examination in connection with an investigation without the assistance of his or her union representative where such representation has been requested by the employee, provided the employee reasonably believes that the examination may result in disciplinary action.
(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 action in order to effectuate the purposes and policies of the Statute:
(a) Post at all of its facilities where 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 Chief Patrol Agent, Del Rio Sector, 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, 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 require any bargaining unit employee to take part in an examination in connection with an investigation without the assistance of his or her union representative where such representation has been requested by the employee, provided the employee reasonably believes that the examination may result in disciplinary action.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.
Dated: ______________ By: _________________________________
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 with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, LB-107, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.