47:1254(117)CA - - Justice, Office of the Inspector General, Washington, DC and AFGE, INS Council, Local 1210, El Paso, TX - - 1993 FLRAdec CA - - v47 p1254
[ v47 p1254 ]
The decision of the Authority follows:
47 FLRA No. 117
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
OFFICE OF THE INSPECTOR GENERAL
UNITED STATES IMMIGRATION AND
EL PASO, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
IMMIGRATION AND NATURALIZATION SERVICE COUNCIL
EL PASO, TEXAS
DECISION AND ORDER
July 19, 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 U.S. Department of Justice, Office of the Inspector General (OIG) to the attached decision of the Administrative Law Judge. The General Counsel filed cross-exceptions to the Judge's decision and an opposition to Respondent OIG's exceptions.
The complaint alleged that the Respondents violated section 7116(a)(1) and (8) of the Federal Labor-Management Relations Statute (the Statute), by denying a unit employee's request for union representation under section 7114(a)(2)(B) of the Statute. The Judge found that Respondent OIG violated the Statute in this regard. The Judge dismissed the complaint as to Respondent Immigration and Naturalization Service (INS) on the basis that it was not responsible for interfering with the rights of employees.(1)
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 those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, as modified below.
The facts are fully set forth in the Judge's decision and are summarized here. In October 1990 Hector Vega, an INS immigration examiner located in El Paso, Texas, was served with a "Notice to Appear" by the OIG. The notice directed Vega to appear personally before Special Agent Robert Mellado to answer questions concerning allegations of professional misconduct. Upon receiving the notice, Vega contacted Socorro Simmons, the Union President, and asked her to attend the interview as his representative. Simmons agreed and, on the morning of the interview, she accompanied Vega to the OIG's office.
Prior to the interview with Mellado and another OIG agent, Vega and Simmons were informed that it would be conducted in two phases. During the first phase, Vega would be the subject of the interview and would be entitled to union representation. However, during the second phase, Vega would be interviewed as a witness concerning possible misconduct of other individuals and, as a witness, would not be entitled to union representation. During the first phase of the interview, Simmons was in fact permitted to be present and to act as Vega's representative. Prior to the start of the second phase, however, Vega and Simmons were advised that it was OIG policy not to allow union representatives to be present when interviewing witnesses. Simmons was then directed to leave, although Vega requested that she be permitted to remain. Simmons left "under protest . . . ." Judge's Decision at 6. During the second phase, in which Vega was questioned, Simmons was called back by Mellado when a question was asked pertaining to Vega's conduct. Upon completion of the interview with respect to that one question, Simmons was again directed to leave and did so.
III. Judge's Decision
The Judge found that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to afford Vega union representation during the second phase of the interview in which he was examined as a witness. In reaching this result, the Judge noted that there was no dispute that the Respondent examined Vega as a witness without permitting him to have union representation and, in fact, ordered Vega's representative to leave. The Judge then addressed and rejected the Respondent's defense that Vega could not reasonably have believed that his examination as a witness might result in disciplinary action against him because the examination concerned the misconduct of others.
The Judge concluded, based on a variety of objective factors, that Vega reasonably could have believed that his examination as a witness might result in disciplinary action. The Judge found that this situation was similar to Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA 237 (1980) (IRS, Hartford), enforced sub nom. Internal Revenue Service v. FLRA, 671 F.2d 560 (D.C. Cir. 1982), in which the Authority found a violation of the Statute when an employee, who was not the subject of an investigation, was denied union representation at an interview.
The Judge found the Respondent's stated desire to interview witnesses about the possible misconduct of fellow employees and/or supervisors without the presence of a union representative was understandable. Nevertheless, relying on U.S. Immigration and Naturalization Service, San Diego, California, 15 FLRA 383 (1984), the Judge rejected this defense, finding that the Respondent's desire could have been achieved by granting Vega immunity from disciplinary action.
Finally, the Judge rejected Respondent OIG's contention that it could not have committed a violation of the Statute because OIG personnel are not representatives of an agency as defined by section 7114(a)(2)(B) of the Statute. The Judge noted that the INS and the OIG are components of the Department of Justice (DOJ), which is clearly an "agency" within the meaning of section 7103(a)(3) and 7114(a)(2) of the Statute. The Judge also found that the interview conducted by the Respondent was an examination in connection with an investigation within the meaning of section 7114(a)(2)(B). Relying on Department of Defense, Defense Criminal Investigative Service, 28 FLRA 1145, 1149 (1987) (DCIS), aff'd sub nom. Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988) (DCIS), the Judge held that the Respondent could not act in such a manner as to unlawfully interfere with the employee's statutory right to representation. Accordingly, the Judge concluded that the Respondent violated section 7116(a)(1) and (8) of the Statute when it failed to afford Vega union representation as required by section 7114(a)(2)(B) of the Statute.
To remedy the violation, the Judge recommended that the Authority issue a cease and desist order and direct the Respondent to post a remedial notice at all locations of the INS. While acknowledging that the examination involved an employee in the El Paso office, the Judge found that the Respondent's unlawful policy of prohibiting union representation at examinations of witnesses applied to "the nationwide consolidated unit[.]" Judge's Decision at 18 n.8. Therefore, the Judge ordered a nationwide posting at all INS locations.
IV. Positions of the Parties
A. The Respondent's Exceptions and the General Counsel's Opposition
The Respondent does not contest the Judge's conclusion that Vega had reasonable grounds to believe that his participation as a witness might result in disciplinary action and that he was entitled to union representation during the second phase of the interview. Rather, the Respondent excepts to other findings and conclusions made by the Judge. These exceptions, together with the General Counsel's opposition, are outlined below.
1. First Exception
The Respondent asserts that the Judge erred in concluding that the OIG agents were acting as representatives of the Agency within the meaning of section 7114(a)(2)(B) of the Statute. While acknowledging the Authority's decision in DCIS, the Respondent respectfully disagrees with the holding in that case and requests the Authority to reconsider that holding as applied to the instant proceeding.
In addition, the Respondent incorporates by reference the arguments advanced in DCIS. It also asserts that under the authority granted to Inspectors General by law, Inspectors General are granted complete autonomy with respect to the initiation and termination of investigations. According to the Respondent, no official of an agency can order the OIG to begin or end an investigation or control the method used to conduct an investigation. Therefore, the Respondent asserts that OIG agents cannot be considered "representatives of the agency" within the meaning of section 7114(a)(2)(B) of the Statute. The Respondent submits that OIG agents accordingly have no obligation to allow union representation even if an employee reasonably believes that an examination may result in discipline.
In its opposition, the General Counsel asserts that DCIS was correctly decided and continues to govern the Respondent's status as a "representative of the agency" within the meaning of section 7114(a)(2)(B). To hold otherwise, maintains the General Counsel, would effectively eliminate the rights of employees in all investigations not performed by the employing agency or activity, a result clearly not intended by Congress.
2. Second Exception
The Respondent contends that the Judge's decision could be read to imply that all employees interviewed as witnesses by the OIG will always have a reasonable belief that the interviews may result in discipline and will be entitled to union representation. The Respondent asserts that although the Judge considered all the relevant factors under section 7114(a)(2)(B) in this case, any finding that all employees are entitled to union representation would bind the Respondent "to a standard other than the one imposed by Congress." Exceptions at 6. Therefore, the Respondent asserts that the Authority should adopt the Judge's findings and conclusions only as they apply to Vega and not to depart from the case-by-case application that is required under section 7114(a)(2)(B) of the Statute.
The General Counsel maintains that any statement suggesting that all employees interviewed by the OIG would have reasonable grounds to believe that disciplinary action may result from the examination must be read in the context of the overall analysis of this case. Moreover, the General Counsel asserts that the Judge recognized that there were differences in particular cases as to whether a reasonable fear of discipline is present. The General Counsel maintains that nothing in the Judge's decision nor his recommended remedy affects the requirement that an employee must have a reasonable fear, based on objective criteria, that disciplinary action may result from an interview before the employee will be accorded the right to have a union representative present at that interview.
3. Third Exception
The Respondent asserts that the notice that the Judge ordered to be posted is inconsistent with, and exceeds the scope of, the recommended remedial order. The Respondent contends that the notice omits the requirement contained in section 7114(a)(2) that an employee reasonably believe that the examination may result in disciplinary action against that employee. According to the Respondent, this omission would "bind OIG to provide Union representation, upon request, to employees who had no fear . . . that discipline might result from the examination." Exceptions at 13. Additionally, the Respondent asserts that although the recommended order applies only to bargaining unit employees, the notice would require the OIG to provide representation to all INS employees, regardless of whether they belong to the bargaining unit represented by the Union.
The General Counsel asserts that "[t]he absence of certain affirmative language in one paragraph [of the notice] does not mean that the contrary to that language is then given effect." Opposition and Cross-Exceptions at 7. The General Counsel states that "[a]s a matter of course," the statutory requirement that an employee have a reasonable fear of discipline is present in every situation under section 7114(a)(2)(B) of the Statute. Id.
The General Counsel further asserts that the Respondent's concern that the notice will apply to employees who are not in the Union's bargaining unit "is similarly overstated." Id. at 8. The General Counsel maintains that as the identity of the named parties is clear, there is no requirement to post the notice at facilities where no bargaining unit employees are located.
4. Fourth Exception
The Respondent asserts that the Judge erred in assuming that the OIG has a "blanket policy" of denying representation during interviews of witnesses and, for that reason, in ordering a nationwide posting of the notice. Exceptions at 14. The Respondent contends that there is absolutely no testimony in the record to support the Judge's conclusion and that "it is uncontested (and, indeed uncontestable) that the 'stated policy' of OIG is to provide representation to any employees, including witnesses who have a reasonable fear of discipline and who request representation." Id. The Respondent argues that because the Judge's finding regarding a nationwide policy is incorrect, the remedial order and notice should apply only locally and not nationwide. Similarly, based on its contention that the posting should be local, the Respondent adds that the notice should be signed by the "OIG's Special Agent In Charge" rather than by the Inspector General, as ordered by the Judge. Id. at 18.
The General Counsel asserts that the record provides ample support for the existence of a nationwide policy and that the Judge credited the testimony of witnesses to that effect. The General Counsel further states that if the policy is "perceived and stated [O]IG policy," a nationwide posting is required to effectuate the Statute's purposes. Opposition and Cross-Exceptions at 10.
5. Fifth and Sixth Exceptions
The Respondent contends that it does not have the authority to post notices at INS facilities. The Respondent explains that the OIG and the INS, which is no longer a party to this case, are independent organizations and that the OIG lacks authority to post at INS offices. Therefore, the Respondent asserts that, at most, the Authority can order it to request that INS post the appropriate notices. The Respondent further explains that INS employees are represented in three separate bargaining units. Accordingly, if a posting at INS facilities is required, the Respondent claims that the notice should be clarified to require posting only at locations at which the Union's bargaining unit members are located.
The General Counsel contends that the Respondent's position should not be sustained and that the same type of nationwide posting that was ordered in DCIS should be ordered in this case.
B. General Counsel's Cross-Exceptions
The General Counsel excepts to a portion of the Judge's recommended remedy. According to the General Counsel, the order should be modified to include the type of affirmative remedy that was ordered in Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 36 FLRA 41, 53-54 (1990), remanded, 939 F.2d 1170 (5th Cir. 1991), U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 42 FLRA 834 (1991) (INS, Border Patrol). Specifically, the General Counsel states that the Respondent must establish that no disciplinary action was taken against Vega based on information obtained from the unlawful interview and that no improper information was retained in Vega's personnel file. In addition, the General Counsel states that if no such showing can be made by the Respondent, the interview must be repeated at the request of Vega and the Union.
The General Counsel also asserts that the notice should be posted at all OIG locations where interviews of bargaining unit employees are conducted. The General Counsel acknowledges that the Authority has declined to order postings that go beyond the area where bargaining unit employees are located. However, the General Counsel argues that because the interview in this case was conducted at the OIG's office, a notice that is posted only at INS locations will not adequately apprise unit employees that Respondent OIG intends to fulfill its statutory obligations.
V. Analysis and Conclusions
We agree with the Judge that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to afford Vega union representation under section 7114(a)(2)(B) during the second phase of the interview in which he was examined as a witness. We will address separately the parties' exceptions to the Judge's decision.
A. Respondent's Exceptions
First, the Respondent argues that the OIG agents were not acting as "representatives of the agency" within the meaning of section 7114(a)(2)(B). In this regard, the Respondent disagrees with the decision in DCIS and argues that the OIG acts autonomously in conducting investigations. We reject the Respondent's contentions with respect to its obligations under section 7114(a)(2)(B) and its request to reconsider DCIS as applied to this case. The Judge correctly determined that OIG personnel were acting as representatives of the agency as defined by section 7114(a)(2)(B). In this connection, the Judge found that INS, the employer of the employee who was subject to the investigatory interview, and OIG are components of DOJ. As DOJ is an agency within the meaning of the Statute, the Judge correctly concluded that OIG was a representative of that agency. The Respondent's contentions regarding the autonomy of the OIG do not warrant a different result. In DCIS, the court found that the degree of supervision exercised by agency management over investigators is irrelevant where the investigators are employees of the same agency and their purpose when conducting interviews is to solicit information concerning possible misconduct on the part of agency employees in connection with their work. Applying DCIS to the facts of this case, we agree with the Judge that the OIG agents were acting as representatives of DOJ. We find no basis on which to reconsider our decision in DCIS.
Next, the Respondent maintains that the Judge's decision could be read to imply that all employees who are interviewed as witnesses have a reasonable belief that the interview may result in disciplinary action and, consequently, would be entitled to union representation.(2) The Respondent concedes that the Judge's discussion may be "mere dicta" and that, in any event, the Judge properly followed the case-by-case approach required in cases involving section 7114(a)(2)(B) of the Statute. Exceptions at 6. We agree with the Respondent that the Judge conducted an appropriate inquiry to determine whether, in the facts of this case, Vega had a reasonable belief that the examination could result in disciplinary action against him. However, we do not adopt any portions of the Judge's decision to the extent that it could be read to entitle employees to representation regardless of whether they meet the requirements of section 7114(a)(2)(B) of the Statute.
Next, the Respondent asserts that the Judge erred in finding that the OIG has an unlawful nationwide policy of denying representation during interviews of witnesses and in relying on that finding to order a nationwide posting of a notice to employees at all INS locations. It is not clear to us that the Judge, in fact, found that the Respondent maintained an unlawful nationwide policy, and we conclude, for purposes of our decision, that he did not so find. None of the Judge's findings suggest that he reached such a conclusion. Rather, in ordering a remedy, the Judge found that the Respondent's unlawful conduct in this instance essentially affected the entire bargaining unit. On that basis, the Judge ordered a nationwide posting which, as modified below, is appropriate in the circumstances of this case.
The Respondent's remaining exceptions address the scope and nature of the order and notice posting. The Respondent argues that the Judge's recommended remedy should be modified to require that the notice be signed by the "OIG official in charge at the organizational level responsible for the error" rather than the Inspector General and that the notice should be posted only at those facilities where INS employees are located. Exceptions at 17-18. The Respondent also maintains that it has no authority to effect postings at INS facilities but can only request that INS post the appropriate notices. Finally, the Respondent contends that the language of the remedial order must conform to the language of section 7114(a)(2)(B) of the Statute and apply only to INS bargaining unit employees.
First, we find that a nationwide posting, as recommended by the Judge, is appropriate. However, we will order that the notice be posted only in those INS locations where members of the Union's bargaining unit are located.
In determining the scope of a posting requirement, the Authority considers the purposes that a notice serves. See U.S. Department of Treasury, Customs Service, Washington, D.C., and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 605 (1990) (Customs Service, Region IV). For example, a notice provides evidence to bargaining unit employees that the rights guaranteed under the Statute will be vigorously enforced. In addition, in many instances, the posting of a notice is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute. See Department of Housing and Urban Development, San Francisco, California, 41 FLRA 480, 483 (1991) (HUD San Francisco). Consequently, it is appropriate to require that notices be posted in areas other than the particular locations where the violation occurred. See Customs Service, Region IV, 37 FLRA at 605.
In this case, the record reflects that the Union holds exclusive recognition in a nationwide consolidated unit of certain INS employees, including those employees assigned to the El Paso facility. The issue presented here involves an employee's right to union representation during an examination in connection with an investigation--an issue of import to members of the bargaining unit who are located outside the El Paso facility. In order to give full effect to the purposes served by the notice, we find that a posting in all INS locations where employees in the Union's bargaining unit are located will best effectuate the purposes of the Statute. See, for example, Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 23 FLRA 807 (1986), aff'd in part and rev'd and remanded as to other matters in part sub nom. American Federation of Government Employees, SSA Council 220, AFL-CIO, et al. v. FLRA, 840 F.2d 925 (D.C. Cir. (1988). In reaching this result, we reject the Respondent's contention that, at most, it can be required to request only that the INS post the appropriate notices. The Respondent has not established that it would be estopped from either posting the notices or ensuring that the appropriate authorities post the notices. Indeed, our order is consistent with the remedy directed in similar circumstances involving the same respondent. See U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 46 FLRA 1526 (1993) (INS, Twin Cities) petition for review filed as to other matters sub nom. U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Twin Cities Minnesota, et al. v. FLRA, No. 93-1283 (D.C. Cir. Apr. 26, 1993).
We also agree with the Judge that the designated official who should sign the notice is the Respondent's Inspector General. The Authority has repeatedly held that requiring a responsible official to sign the notice signifies that a respondent acknowledges its obligations under the Statute and intends to comply with those obligations. See HUD San Francisco; Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 217, 220 (1990). As the unlawful refusal to permit union representation was committed by OIG agents, and as this conduct affects the entire nationwide consolidated unit, ordering the Inspector General to sign the notice comports with the above requirements. See also INS, Twin Cities.
Finally, in response to the Respondent's contention that the language of the notice exceeds the scope of the remedial order, we will clarify the language of the order and the notice to comport with the statutory requirements of section 7114(a)(2)(B).
B. General Counsel's Cross-Exceptions
The General Counsel argues that the Judge erred in failing to recommend that the order include the type of affirmative relief ordered by the Authority in INS, Border Patrol. In that case, the Authority stated that where a violation of section of 7114(a)(2)(B) of the Statute has occurred, but the record is silent as to whether any adverse effects flowed from the examination, the respondent should be given an opportunity to show that no discipline has occurred or will occur in the future based on information obtained from an unlawful investigative interview of an employee and that nothing has been retained in the employee's personnel records as a result of the interview that could adversely affect him. See, generally, United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431 (1990). If the respondent cannot make this showing, the respondent will be ordered, upon the request of the union and the employee, to repeat the investigatory interview and afford the employee full rights to union representation. After repeating the investigatory interview, the respondent will reconsider the disciplinary action taken against the employee. If, on reconsideration, the respondent concludes that the disciplinary action was unwarranted or that a mitigation of the penalty is warranted, the employee will be made whole for any losses suffered to the extent consistent with the respondent's decision on reconsideration. The respondent will notify the employee and, if relevant, afford the employee any grievance or appeal rights that may exist under the parties' negotiated agreement, law, or regulation with respect to the respondent's action in reconsidering the disciplinary action.
The record in this case is silent as to whether any discipline of Vega ensued as a result of the second phase of the OIG interview in which he was denied union representation. Accordingly, consistent with Authority precedent, we will modify the Judge's recommended remedy to comport with the requirements set forth above. See also INS, Twin Cities.
Finally, we reject the General Counsel's assertion that the remedial notice should be posted at all OIG locations where interviews of bargaining unit employees are conducted. For the reasons previously discussed, we find that a posting at INS locations where bargaining unit employees are located will effectuate the purposes served by the notice.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of Justice, Office of the Inspector General, Washington, D.C., shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee of the United States Immigration and Naturalization Service, represented by the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, to take part in any examination in connection with an investigation, whether as a subject or as a witness, without union representation when such representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.
(b) In any like or related manner, interfering with, restraining, or coercing 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 Statute:
(a) Establish that no discipline to Hector Vega occurred as a result of the second phase of the investigative interview that took place in October 1990, and that the information from that interview was not relied on or will not be relied on so as to adversely affect Mr. Vega in the future; and that nothing has been retained in Mr. Vega's personnel records as a result of the interview that could adversely affect him. If this cannot be shown, repeat the portion of the examination during which Mr. Vega was denied his right to union representation, if requested by the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, and Mr. Vega. In repeating the examination, afford Mr. Vega his statutory right to union representation. After repeating the examination, reconsider any disciplinary action taken against Mr. Vega and/or the retention in Mr. Vega's personnel records of information obtained during the October 1990 interview. On reconsideration of the disciplinary action, as appropriate, make Mr. Vega whole for any losses suffered to the extent consistent with the decision upon reconsideration, and, if relevant, afford him whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law, or regulation.
(b) Post at all locations within the Immigration and Naturalization Service where bargaining unit employees represented by the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, 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 Inspector General, U.S. Department of Justice, 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 these Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Dallas Region, Feder