46:1210(114)CA - - INS, NY District Office, NY, NY and AFGE Local 1917 - - 1993 FLRAdec CA - - v46 p1210

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[ v46 p1210 ]
46:1210(114)CA
The decision of the Authority follows:


46 FLRA No. 114

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. IMMIGRATION AND NATURALIZATION

SERVICE, NEW YORK DISTRICT OFFICE

NEW YORK, NEW YORK

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1917

(Charging Party/Union)

12-CA-10366

_____

DECISION AND ORDER

January 15, 1993

_____

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 Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed a cross-exception and an opposition to the Respondent's exceptions. The Respondent filed an opposition to the General Counsel's cross-exception and a motion to strike portions of the General Counsel's opposition.(1)

The Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying Union representation to five unit employees during examinations in connection with an investigation. The Judge also found that the Respondent violated section 7116(a)(1) and (2) of the Statute by proposing to suspend the five employees for refusing to answer questions during the examinations.

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 conclude, for the following reasons, that the complaint in this case must be dismissed.

II. Facts

Following is a summary of the facts, which are fully set forth in the Judge's decision.

In 1990 the Respondent initiated an investigation into allegations of misconduct by five unit employees. A Special Agent from the Immigration and Naturalization Service (INS) was assigned in October 1990 to investigate the allegations as a collateral duty investigator for the Office of Inspector General (OIG).(2) The Special Agent "was under no particular time constraints to initiate the investigation of the case." Judge's Decision at 4.

On November 21, 1990, the five affected employees were provided with notices that they were required to appear before the Special Agent at the John F. Kennedy Airport (JFK) on November 28 to answer questions concerning the alleged misconduct. The five employees requested the Union's President and First Vice President, the only Union representatives who previously had represented employees in investigatory examinations, to attend the November 28 examinations as their representatives. The Union officers told the employees that the officers would arrange an alternative date for the examinations because semi-annual labor-management consultation meetings (hereinafter the consultations) were scheduled to be held on November 28.(3) The Union "had never had any trouble in the past securing alternate dates for . . . examinations when they conflicted with other commitments." Id. at 5.

On November 21, the Vice President contacted the Special Agent, explained the scheduling conflict, and suggested alternative dates for the examinations. The Special Agent rejected all the suggested dates. On November 23, the Vice President again contacted the Special Agent, who suggested that the Vice President call the Special Agent's supervisor. Later that day, the President asked the Respondent's chief labor relations specialist to talk with the Special Agent's supervisor about securing alternate dates and the labor relations specialist agreed to "see what he could do to delay the . . . examinations." Id. 6.(4)

Before leaving New York for Vermont, the President told the Union's 3rd Vice President, who was a Union steward and the only Union representative located at JFK, that the Union had not designated the 3rd Vice President (hereinafter the steward) to represent the employees at the examinations. The steward had never represented an employee in such an examination.

On November 28, the Special Agent met with the Respondent's Port Director, arranged for use of the Respondent's facilities, and confirmed with the Respondent's representatives that the steward was on duty and available to represent employees. Next, the Special Agent questioned each of the five affected employees, individually, in an INS conference room at JFK. Before commencing the questioning, the Special Agent identified himself as an employee of Respondent INS and showed his INS credentials. He started each examination by asking the employee if his or her representative was present.

Each of the five affected employees told the Special Agent that his or her Union representative was either the Union President or Vice President and that these officials were not available. The Special Agent told the employees that a Union representative was available to represent them.(5) Each employee declined representation by the steward and requested that the examinations be postponed. The Special Agent refused to postpone the examinations. Each employee refused to answer the questions in the absence of his or her designated representative.

On May 1, 1991, the Respondent proposed that each of the five employees be suspended for 5 days for refusing to cooperate in the examinations on November 28.

III. Judge's Decision

The Judge found that Respondent INS (6) violated section 7116(a)(1), (2), (5), and (8) of the Statute by refusing to reschedule the examinations and by proposing to suspend the affected employees.

First, the Judge concluded that the examinations were covered under section 7114(a)(2)(B) of the Statute.(7) The Judge noted that examinations were scheduled to determine whether the employees had engaged in wrongdoing. The Judge found that each employee reasonably believed that the examination could result in disciplinary action and requested representation.

Relying on Department of Defense, Defense Criminal Investigative Service, 28 FLRA 1145 (1987), aff'd sub nom. Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988) (DCIS), the Judge found that the Special Agent who conducted the examinations was "a representative of the agency," within the meaning of section 7114(a)(2)(B). Judge's Decision at 9. The Judge noted that INS and OIG are components of the DOJ, which is an agency within the meaning of section 7114(a)(2)(B), and that the Special Agent was an INS employee acting as a collateral duty investigator for OIG. The Judge concluded that the Special Agent "was a representative of the agency." Id.

Next, the Judge found that the Respondent violated the Statute when it "made no attempt to reschedule" the examinations "to permit the [Union] to be represented by representatives of its choosing." Id. at 11. The Judge found that the Union President and Vice President "were the only union representatives who represented unit employees" in previous examinations and that the Union "had never had any trouble in the past securing alternate dates for Q and A examinations when they conflicted with other commitments." Id. at 4, 5. The Judge noted that the Union representatives were prevented from attending the examinations because of the regional consultations and concluded that the representatives' request to reschedule the examinations "was justified, reasonable, and would not have unreasonably interfered with the integrity of the investigation." Id. at 12. In particular, the Judge found "nothing in the record to indicate that postponing or rescheduling the examinations would have interfered with or compromised the investigation." Id.

The Judge noted that, under section 7114(a)(2)(B) of the Statute, a union has a right to be represented at an examination. The Judge further noted that a union has the right to designate its own representatives when fulfilling its responsibilities under the Statute. The Judge determined that both the Union and the affected employees designated the President and Vice President to represent the Union and the employees because those officials "had extensive experience and knowledge concerning . . . examinations." Id. at 11. The Judge noted that the Union steward was "a person with no real experience or knowledge concerning such examinations and a person in whom the [U]nion and employees had no confidence, to be the representative." Id. In the Judge's view, under section 7114(a)(2)(B), a "union must be able to designate as its representative someone capable of providing the employee the best possible assistance." Id. at 10. The Judge concluded that the Union had the right to choose its own representatives at examinations under section 7114(a)(2)(B) and that the Respondent violated section 7116(a)(l), (5) and (8) of the Statute by refusing to permit the Union to be represented at the examinations by representatives of its choosing.

The Judge rejected Respondent INS's contention that it was not responsible for the alleged violations of the Statute because the examinations were conducted by an agent of the OIG. The Judge noted that: (1) the investigation was initiated at the request of the Respondent; (2) the Special Agent identified himself to the affected employees as an employee of the Respondent; (3) the Respondent's agents provided the Special Agent with the use of the Respondent's facilities to conduct the examinations; and (4) the Respondent's agents told the Special Agent that a Union steward was available to represent the employees.

The Judge further found that Respondent INS violated section 7116(a)(1) and (2) of the Statute by issuing letters of proposed 5-day suspensions to the five affected employees because they insisted upon exercising their rights under section 7114(a)(2)(B).(8) As a remedy, the Judge recommended that the Respondent be ordered to withdraw the proposed suspensions.

IV. Respondent's Exceptions

Respondent INS claims that certain of the Judge's factual findings are contradicted by the record. Among other things, the Respondent maintains that the Special Agent offered to reschedule the interviews and that the Union refused to agree to any of the suggested alternative dates.

The Respondent also argues that, as designated Union representatives (including the steward, other representatives in the commuting area of JFK, and representatives in the Union's national office) were available to represent the employees, management was not obligated to reschedule the examinations. The Respondent contends, in this regard, that the Union is bound by, and failed to adhere to, the procedure for designating its representatives set forth in Article 6B of the parties' collective bargaining agreement.(9) The Union also contends that the Judge's decision is contrary to National Labor Relations Board (NLRB) case law applying the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten). In this regard, the Respondent relies on Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977) (Coca-Cola), and Pacific Gas and Electric Company, 253 NLRB 1143 (1981) (Pacific Gas).

The Respondent argues that the Judge erred in concluding that the Special Agent was a representative of the agency, within the meaning of section 7114(a)(2)(B). Respondent INS maintains that, under the Inspector General Act, 5 U.S.C. Appendix 3, neither DOJ nor INS has any control over an OIG investigation. The Respondent excepts, in this regard, to a statement of the Judge regarding the responsibility of INS and OIG for the actions of DOJ.(10)

The Respondent also excepts to the Judge's finding that it violated section 7116(a)(5) of the Statute. The Respondent argues that "employers are under no obligation to negotiate or bargain with union representatives involved in an investigatory interview." Respondent's Exceptions at 59.

Finally, Respondent INS excepts to the Judge's finding that it violated section 7116(a)(1) and (2) of the Statute when it proposed that the affected employees be suspended. According to the Respondent, it did not violate the Statute because the proposed suspensions were not unlawful.

V. Opposition and Cross-Exception

The General Counsel argues that the Judge correctly concluded that Respondent INS violated the Statute by failing to comply with section 7114(a)(2)(B) of the Statute. The General Counsel maintains that the Respondent's claim that other Union representatives were authorized to represent the employees must be rejected because the Union has expressly designated the Union President and Vice President as the affected employees' representatives.

The General Counsel also argues that the Judge properly concluded that the Special Agent was a representative of the agency, within the meaning of section 7114(a)(2)(B). The General Counsel asserts that the Special Agent "was an INS employee who conducted the examinations of other INS employees for and on behalf of INS, at the request of INS and with INS assistance, cooperation and resources, to elicit information for the use of INS alone." GC Opposition at 4-5. The General Counsel notes that the court stated, in DCIS, that "there [was] no 'partial, implied repeal of § 7114(a)(2)(B) based solely on Congress' decision in 1978 to authorize the creation of inspector general offices in a number of federal agencies.'" Id. (citing DCIS, 855 F.2d at 100).

Finally, the General Counsel excepts to the Judge's remedial order. According to the General Counsel, the order should be modified to require the Respondent to make the affected employees whole for any losses in pay and benefits suffered as a result of the proposed suspensions.

VI. Respondent's Opposition to Cross-Exception

The Respondent contends that the Authority may not grant the relief requested by the General Counsel because the complaint "did not assert that any actual suspension violated the Statute." Respondent's Opposition at 3.

VII. Analysis and Conclusions

For the following reasons, we find that Respondent INS did not fail to comply with section 7114(a)(2)(B) of the Statute in this case and that, therefore, the complaint must be dismissed.

A. Background

Section 7114(a)(2)(B) of the Statute provides that an exclusive representative shall be given the opportunity to be represented at any examination of a unit employee by an agency representative in connection with an investigation if the employee reasonably believes that discipline may result from the examination and requests representation. There is no dispute in this case that the November 28 examinations constituted examinations in connection with an investigation, within the meaning of section 7114(a)(2)(B).

Section 7114(a)(2)(B) is intended to provide Federal employees with rights consistent with those provided private sector employees by the NLRB in interpreting and applying the National Labor Relation Act (NLRA) and the Supreme Court's decision in Weingarten. See 124 Cong. Rec. 29184 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, H.R. Comm. Print No. 7, 96th Cong., 1st Sess. 926 (1979) (Legislative History), where Congressman Udall explained that the purpose of the House bill provisions which led to the enactment of section 7114(a)(2)(B) was to reflect the Supreme Court's decision in Weingarten. See also Internal Revenue Service v. FLRA, 671 F.2d 560, 563 (D.C. Cir. 1982), enforcing Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA 237 (1980). In this regard, the Authority has consistently interpreted section 7114(a)(2)(B) of the Statute as providing Federal employees rights similar to those discussed in Weingarten. For example, United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 438-40 (1990) (Justice, Safford). We note, however, that the legislative history of section 7114(a)(2)(B) also reflects Congressional recognition that the right to representation might evolve differently in the private and Federal sectors and that NLRB decisions would not necessarily be controlling in the Federal sector. See Legislative History at 824. See also Justice, Safford, 35 FLRA at 444-48.

In Weingarten, the Supreme Court held that under the NLRA an employee has the right to the presence of a union representative at an investigative interview conducted by the employer. Under Weingarten, the right to representation at an examination is intended to benefit an employee who is called into a meeting with his or her employer in connection with an investigation as well as to benefit the employer and the union. The Court was concerned with striking a balance between an employer's legitimate interests and prerogatives in investigating and disciplining misconduct and the right of an employee to have the "assistance of his union representative at a confrontation with his employer[.]" Weingarten, 420 U.S. at 260.

Weingarten affirmed that a union is responsible for representing not only the individual employee's interests but also "the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly." Id. at 260-61. The Court recognized that union representation at such examinations could contribute to preventing unjust discipline and unwarranted grievances. In the Court's view, "[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors." Id. at 262-63. The Court concluded that, in such circumstances, "[a] knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview." Id. at 263.

In interpreting and applying Weingarten, the NLRB has held that employers need not postpone investigatory interviews in order to afford employees representation by particular union representatives. For example, in Coca-Cola, an employee insisted on representation by a steward who the employee knew was on vacation. The employee did not request any alternative representative and the employer proceeded with the interview. The NLRB acknowledged the "legitimate employer prerogative" in holding the interview without undue delay and concluded that:

[T]here is nothing in . . . Weingarten which indicates that an employer must postpone interviews with its employees because a particular union representative . . . is unavailable either for personal or other reasons for which the employer is not responsible, where another representative is available whose presence could have been requested by the employee in the absent representative's place.

Id. at 1276. See also Roadway Express, Inc., 246 NLRB 1127, 1130 (1979) (employer did not violate the "intent of Weingarten" by suspending an employee for refusing to attend an investigatory meeting because the employee requested the presence of a particular union representative who was unavailable due to causes outside the employer's control and the employee refused alternative representation).

Similarly, in Pacific Gas, an employee refused to be represented at an investigatory interview by a representative designated by the union and, instead, insisted on being represented by a union steward who was on vacation. Relying on Coca-Cola, the NLRB found that the employer did not violate the NLRA by proceeding with the interview in the absence of a representative. The NLRB stated:

The Supreme Court in Weingarten neither stated nor suggested that an employee's interest can only be safeguarded by the presence of a specific representative sought by the employee. To the contrary, the focus of the decision is on the employee's right to the presence of a union representative designated by the union to represent all employees.

253 NLRB at 1143.

B. Analysis

We reject the Respondent's contentions that the Judge's findings of fact are contrary to the evidence.(11) Instead, we conclude that the Judge's factual findings are fully supported by the record. However, we disagree with the Judge's conclusion that the Respondent violated the Statute.

At the outset, we find it unnecessary to determine whether the Judge's decision is inconsistent with NLRB decisions. As noted previously, Congress specifically recognized that NLRB decisions would not necessarily be determinative under the Statute. In this regard, we note a difference between the right in the Federal and private sectors: the right in the Federal sector is codified in Statute.

In particular, the right to representation in the private sector is encompassed within employees' rights under section 7 of the NLRA, 29 U.S.C. § 157, "to engage in . . . concerted activities for . . . mutual aid or protection." For example, Weingarten, 420 U.S. at 257 ("[T]he right inheres in § 7's guarantee of the right of employees to act in concert for mutual aid and protection."). Section 7114(a)(2)(B), on the other hand, specifically sets forth the right in the Federal sector. Like the right under section 7114(a)(2)(B), the right to representation in the private sector depends on, among other things, a request by an affected employee. Further:

[A]lthough the Weingarten right is triggered only by an employee's request, and although that employee alone may have an immediate stake in the outcome of the interview, it is clear that the exclusive bargaining representative also has an important stake in the process.

Prudential Insurance Company of America, 275 NLRB 208, 209 (1985).

In the Federal sector, Congress provided unions with more than an important stake in the process. Congress provided unions, in section 7114(a)(2)(B) of the Statute, the right to be represented at examinations. See also U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 1300, 1308 (1991) ("[T]he Statute clearly assures the right and duty of a union to represent employees in disciplinary proceedings, and the correlative right of each employee to be represented."). Compare Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154, 168 n.9 (1991) (Authority did not address "the extent to which a union has a right, separate and apart from an employee's right, under section 7114(a)(2)(B).").

In view of express Congressional recognition of a union's institutional right to be represented at examinations under section 7114(a)(2)(B), and in view of a union's right under the Statute to designate its representatives (Internal Revenue Service v. FLRA, 963 F.2d 429, 431 (D.C. Cir. 1992)), we are unwilling to conclude that, as the Respondent argues, "there is never any obligation to postpone a Weingarten interview merely because a specific union representative is not available." Exceptions at 36. In this case, however, we conclude that the Respondent was not so obligated.

We find it significant that the Respondent may not be held responsible for the fact that the Union President and Vice President were unavailable to represent the affected employees.(12) In particular, it is clear that the Respondent scheduled the regional consultations substantially in advance of the examinations. However, there is no assertion or evidence that the Respondent required the President and Vice President to attend the consultations. Moreover, even if the presence of a high level Union officer was required at the consultations, there is no assertion or evidence that such requirement extended to both the President and Vice President or that, if only one had attended the consultations, the other could not have represented the affected employees at the examinations. Accordingly, noting that the Union was aware significantly in advance that the examinations were scheduled and that such scheduling conflicted with the regional consultations, we conclude that those officers were not available to represent the affected employees because the Union chose to have them attend the regional consultations instead of the examinations.

On a related point, we also conclude, and find significant, that the Respondent did not interfere with the Union's right to designate its representatives. As noted above, the record reflects that the Union had unfettered authority to designate representatives to attend the regional consultations. Just as importantly, the Union had unfettered authority to designate representatives at the examinations. That is, the Respondent did not refuse to recognize, or impose any limitations on, any Union representatives in connection with the examinations. In this connection, the inability of the Union President and Vice President to represent employees at the examinations resulted from the Union's decision to have the officers attend other functions.

In addition, although the Union officers informed the steward that he was not authorized to represent employees in the examinations, the officers did not so inform the Respondent. In this regard, there is no question that the Union informed the Respondent that the President and Vice President were designated as Union representatives for the examinations. There also is no question in the record before us that the steward was an officer in and representative of the Union. It is unnecessary for us to determine, and we do not determine, whether, as the Respondent asserts, the Union's actions in this case constituted "a blatant breach" of Article 6B of the parties' agreement.(13) Respondent's Exceptions at 30. It is clear, however, that, at the time the Union officers departed for the regional consultations and, thereby, became unavailable to represent employees in the examinations, the examinations had not been postponed and, at that time, another representative of the Union was available at JFK and, insofar as the Respondent knew, this representative was capable of representing the affected employees.

In these circumstances, we conclude that the Respondent did not fail to comply with section 7114(a)(2)(B) of the Statute when it refused to postpone the examinations. However, although we conclude that the Respondent was not obligated under the Statute to postpone the examinations, the Judge concluded, and the record supports the conclusion, that postponing the examinations for a reasonable time to afford the affected employees the opportunity to be represented by the Union President and Vice President would have had no effect on the Respondent's investigation. As such, and as the Respondent had granted postponements in the past and was aware that the Union desired a postponement in this case, it would appear that a grant of the postponement would have better served all parties' interests.

VIII. Order

The complaint is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Respondent contends, in its motion, that portions of the General Counsel's opposition are contrary to the facts. We find that the Respondent's motion to strike is a response to the General Counsel's opposition. As the Authority's Regulations do not provide for the filing of a response to an opposition, the Respondent's motion has not been considered. See Department of Defense, U.S. Army Armor Center and Fort Knox, Kentucky, 43 FLRA 476 n.1 (1991).

2. A collateral duty investigator is an employee of a component of the Department of Justice (DOJ), including INS, who has been given special training as an OIG investigator. A collateral duty investigator receives pay from his/her regular employing office during investigations.

3. The consultations were scheduled by Respondent INS for November 28 and 29, 1990, in Burlington, Vermont. The Union President and Vice President, who had been designated by the Union in September 1990, to attend the consultations to d