46:0820(72)CA - - Justice, Penitentiary, Leavenworth, KS and Justice, Office of the Inspector General, Washington, DC and AFGE Local 919 - - 1992 FLRAdec CA - - v46 p820
[ v46 p820 ]
The decision of the Authority follows:
46 FLRA No. 72
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
U.S. DEPARTMENT OF JUSTICE
OFFICE OF INSPECTOR GENERAL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
December 3, 1992
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 to the attached decision of the Administrative Law Judge. The Respondents filed an opposition to the General Counsel's exceptions and cross-exceptions to the Judge's decision.
The complaint alleged that the Respondents violated the Federal Service Labor-Management Relations Statute (the Statute) by denying a bargaining unit employee's request for union representation at an examination in connection with an investigation which the employee reasonably believed could result in disciplinary action against him. The Judge found that the Respondents did not violate the Statute because, after denying the employee's request for Union representation, the Respondents offered the employee the choice between continuing the interview without representation or having no interview at all and the employee made an uncoerced choice to continue the interview without representation. The Judge relied on U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 42 FLRA 834 (1991) (Border Patrol).
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. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendation that the complaint be dismissed.(1)
The General Counsel acknowledges that the record shows that: (1) the Respondents explained to the employee his rights under Miranda v. Arizona, 384 U.S. 436 (1966),(2) including the right to have an attorney represent him; (2) the employee requested and was denied Union representation; (3) the Respondents again explained the employee's Miranda rights and informed the employee that he was free to leave the interview at any time; and (4) the employee agreed to proceed with the interview without an attorney. However, according to the General Counsel, the record does not support the Judge's finding that, following the Respondents' denial of the employee's request for Union representation, the Respondents offered the employee a choice to either continue the interview without Union representation or have no interview at all. Moreover, the General Counsel asserts that a finding that the employee agreed to proceed with the interview in the absence of an attorney does not mean that the employee consented to proceed with the interview in the absence of a Union representative. The General Counsel argues that, under Border Patrol, the Judge should have found that the employee did not make a voluntary and uncoerced decision to continue the interview without Union representation.
We disagree. In Border Patrol, the Authority found that an employee's decision to continue to participate in an investigative interview without Union representation was not voluntary and uncoerced. In this case, the record supports the Judge's finding that the employee made a voluntary and uncoerced decision to continue the interview without Union representation. Specifically, the Judge found, based on the credited testimony of the Respondents' witnesses, that "after denying [the employee's] request for Union representation and prior to proceeding with the investigative examination, [the Respondents] did inform [the employee] that he had the right to remain silent, that he was not in custody, that he did not have to answer any questions and that he could leave at any time." Judge's Decision at 8. The Judge concluded that "such statements [were] tantamount to offering [the employee] 'the choice between continuing the interview without representation or having no interview at all'" and, accordingly, the "Respondents did not violate . . . the Statute when they continued the investigative interview of [the employee] without [U]nion representation." Id. at 8-9. The Judge further found that management did not "put any pressure upon [the employee] to abandon his right to remain silent and/or to participate in the examination." Id. at 8.
The record supports the Judge's findings and conclusions that the Respondents did not coerce the employee's choice in this case to continue the investigative interview without Union representation. In particular, we find that when the employee was told, after his request for Union representation was denied, that he did not have to answer any questions and was free to leave at any time, his decision to continue the interview was uncoerced. Moreover, as the decision was made following the Respondents' denial of the employee's request for Union representation, we conclude that the choice was to continue without Union representation. Accordingly, we will dismiss the complaint in this case. See Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1077 (1990) ("[i]f, after having been given the option of continuing an interview without representation or having no interview at all, an employee elects to continue without representation, the employee has waived his rights under section 7114(a)(2)(B)" of the Statute).
The complaint is dismissed.
(If blank, the decision does not have footnotes.)
1. In view of our decision, we find it unnecessary to pass upon the Respondents' cross-exceptions.
2. The employee was told "that he had the right to remain silent, that any thing that he said could be used against him, that he was not in custody, that he did not have to