50:0601(82)CA - - HQ, NASA, Washington, DC and NASA, Office of the Inspector General, Washington DC and AFGE, Local 3434 - - 1995 FLRAdec CA - - v50 p601



[ v50 p601 ]
50:0601(82)CA
The decision of the Authority follows:


50 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

HEADQUARTERS

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

WASHINGTON, D.C.

(Respondent)

and

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

OFFICE OF THE INSPECTOR GENERAL

WASHINGTON, D.C.

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3434

(Charging Party/Union)

AT-CA-30481

_____

DECISION AND ORDER

July 28, 1995

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent National Aeronautics and Space Administration, Office of the Inspector General, Washington, D.C. (NASA, OIG). The General Counsel filed an opposition to the Respondent's exceptions.

The complaint alleges that Respondents Headquarters, National Aeronautics and Space Administration, Washington, D.C. (NASA, HQ) and NASA, OIG violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with the provisions of section 7114(a)(2)(B) of the Statute. Specifically, the complaint alleges that the Respondents refused to allow a Union representative to actively participate in an examination of a unit employee held pursuant to section 7114(a)(2)(B). The Judge found that NASA, OIG violated the Statute as alleged, and recommended dismissal of those portions of the complaint that allege violations of the Statute by Respondent NASA, HQ.

For the reasons explained below, we find first that NASA, OIG's investigatory examination of a unit employee was conducted in a manner that violated section 7114(a)(2)(B) of the Statute because the exclusive representative was precluded from actively participating in the examination. Second, we find that the NASA, OIG investigator who conducted the investigatory examination is a "representative of the agency" within the meaning of section 7114(a)(2)(B) of the Statute. Third, we find that both NASA, OIG and NASA, HQ violated the Statute.

II. Judge's Decision

A. Judge's Findings of Fact

The facts, which are set forth fully in the attached Judge's decision, are summarized here. The George C. Marshall Space Flight Center (MSFC) at Huntsville, Alabama is a component of the National Aeronautics and Space Administration (NASA), headquartered in Washington, D.C. NASA, OIG is also a component of NASA and is similarly headquartered in Washington, D.C. Offices of NASA, OIG are maintained at all NASA component operations, including MSFC. Although NASA, OIG agents are assigned to local NASA centers, they do not report to officials at such centers, including MSFC. Rather, through a chain of command they report to NASA, OIG headquarters in Washington, D.C. The Inspector General, in turn, reports to the Administrator of NASA, the head of the agency. The American Federation of Government Employees, Local 3434, is the exclusive representative of an appropriate unit of MSFC employees.

In 1993, NASA, OIG received information from the Federal Bureau of Investigation (FBI) pertaining to an employee at MSFC. The employee, referred to as P,(1) was linked to documents that purportedly might pose a serious threat to co-workers. The information was conveyed to NASA, OIG investigator Larry Dill at MSFC.(2) When Dill contacted P to set up an interview, P requested both legal and Union representation. Dill agreed.

Dill's investigative examination of P took place in P's attorney's office. Also present were Union representative Patrick Tays and another NASA, OIG investigator. At the beginning of the interview, Dill read prepared ground rules, which included the following: "The union representative, if present, serves as a witness and is not to interrupt the question and answer process. Additionally, the union representative is subject to being called as a witness for the government." Judge's Decision at 3. Tays objected when the ground rules were read and explained that he was "there to represent the union's and the bargaining unit's interests and P's interests." Id. After hearing Tays' objection, Dill read the ground rules statement again. Tays then objected again, arguing that he was not a witness, and Dill responded that he would cancel the meeting and move it someplace else at a different time if Tays did not "'maintain himself.'" Id. at 4 (footnote omitted).

During the examination, many of Tays' actions were challenged by Dill. In particular, when Tays asked to see some documents that had been shown to P's attorney, Dill regarded this as "a distinct interruption of the interview process." Id. Thereafter, when documents were reviewed, Tays, who was seated at the opposite end of the table, went over and stood behind P and his attorney to view the documents. Later, when Tays cautioned P against speculating in response to a question, Dill responded that Tays could not direct P not to answer the question because, as a witness, "he [Tays] 'was just there.'" Id. On the other hand, when P's attorney offered the identical advice regarding the same question, Dill responded: "Okay, fine." Id.

Dill's "actions regarding [Tays'] role in the proceeding affected the way P subsequently reacted to Tays' questions or comments." Id. As a result, P "ignored [Tays] and paid attention only to his attorney or Dill." Id.

B. Judge's Conclusions

The Judge found that Dill acted as a "representative of the agency" within the meaning of section 7114(a)(2)(B) when he examined P, and further concluded "that the information secured by [NASA] OIG is referred for administrative or disciplinary action to MSFC . . . ." Id. at 5, 6. The Judge thereafter determined that Dill's conduct of the examination interfered with the union's right to take an active role "in assisting the employee to elicit and present facts as contemplated by the Statute." Id. at 9. In particular, the Judge found that Tays' objections were both minor and justifiable and did not unduly disrupt or interfere with the objective of the examination. Consequently, the Judge concluded that Tays' conduct did not warrant denying him his right, as the union representative, to take an active role in the examination.

In response to NASA, OIG's argument that Tays was able to fulfill his responsibility to the bargaining unit, the Judge concluded that the fact that Tays may have done so was "immaterial." Id. at 9. The Judge further stated: "An agency can not [sic] impose an unduly restrictive limitation on a union representative and later escape responsibility by taking advantage of, or finding fault with, the representative's conduct under the circumstances." Id. at 9-10.

Accordingly, the Judge found that NASA, OIG violated section 7116(a)(1) and (8) of the Statute. Lastly, the Judge recommended that the complaint be dismissed as to NASA, HQ, finding that the record evidence failed to show that it was responsible for the violation.

III. Positions of the Parties

A. Respondent NASA, OIG's Exceptions

Respondent NASA, OIG excepts to the Judge's holding that NASA, OIG investigator Dill acted as a representative of the agency within the meaning of section 7114(a)(2)(B) of the Statute. NASA, OIG's argument in this regard relies entirely upon the holding of the United States Court of Appeals for the D.C. Circuit in United States Department of Justice v. FLRA, 39 F.3d 361, 365-68 (D.C. Cir. 1994) (DOJ). NASA, OIG urges the Authority to overrule its precedent stated in Department of Defense, Defense Criminal Investigative Service; Defense Logistics Agency and Defense Contract Administration Services Region, New York, 28 FLRA 1145 (1987), enforced sub nom. Defense Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93 (3d Cir.1988) because that precedent is inconsistent with the Inspector General Act of 1978, as amended, 5 U.S.C. app. §§ 1-12 (1988) (IG Act).

NASA, OIG's second exception concerns the Judge's finding that investigator Dill's reading of the ground rules constituted interference with the union representative's right to take an active part in the examination. In support of this exception, NASA, OIG states that the Judge failed to apply an objective standard in accordance with Authority case law for determining interference under section 7116(a)(1). NASA, OIG further claims that an examination of the ground rules reveals nothing that could reasonably tend to intimidate or coerce the union representative, or from which he could reasonably have drawn a coercive inference.

In its last exception, NASA, OIG asserts that the posting of the Notice should be limited to MSFC, the site of the bargaining unit. In this regard, NASA, OIG points out that the Judge's order requires a posting of the Notice at all NASA facilities where bargaining unit employees are located.(3)

B. General Counsel's Opposition

The General Counsel argues that the Authority should affirm the Judge's ruling that the NASA, OIG investigator is a representative of the agency within the meaning of section 7114(a)(2)(B) of the Statute. In this connection, the General Counsel urges the Authority to apply its precedent.

With regard to NASA, OIG's second exception, the General Counsel argues that the Judge correctly concluded that the investigator's conduct of the investigatory examination, including the reading of the threat to cancel the examination when the union representative objected to the ground rules, improperly interfered with the union representative's right to take an active part in the examination.

Lastly, the General Counsel maintains that the breadth of the Judge's posting requirement contained in the recommended order is appropriate. In support of this assertion, the General Counsel states that a broad posting requirement is necessary in this case to inform all NASA employees who may come under NASA, OIG's scrutiny of their section 7114(a)(2)(B) rights.

IV. Analysis and Conclusions

Two central questions are presented in this case: (1) whether the investigatory examination of P was conducted in a manner that violated the Statute; and (2) whether NASA, OIG investigator Dill was acting as a "representative of the agency" within the meaning of section 7114(a)(2)(B). For the reasons explained below, we answer each of these questions in the affirmative. Having so concluded, we further determine that both NASA, OIG and NASA, HQ violated the Statute, and issue an appropriate remedial order, requiring, among other things, a posting at MSFC.

A. The Conduct of the Examination Violated Section 7114(a)(2)(B)

1. Congressional Codification of "Weingarten"

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.(4) 5 U.S.C. § 7114(a)(2)(B). It is clear from the legislative history that this statutory requirement is intended to provide rights to Federal sector bargaining unit employees consistent with those provided in the private sector by the National Labor Relations Board (Board) in interpreting and applying the National Labor Relations Act and the Supreme Court's decision in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1974) (Weingarten). See 124 Cong. Rec. 29,184 (1978), reprinted in Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 926 (Legislative History) (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, Washington, D.C., Internal Revenue Service, Hartford District Office v. FLRA, 671 F.2d 560, 563 (D.C. Cir. 1982).

In Weingarten, the Supreme Court recognized that an employee who is questioned during an investigatory examination which may result in discipline "may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors." Weingarten, 420 U.S. at 263. Thus, the union representative must be free to help clarify the issues or facts, or to suggest other employees who may have knowledge of them. Id. at 260.

An exclusive representative, whose presence is requested under section 7114(a)(2)(B), also protects "the interests of the entire bargaining unit. A union representative present at an investigatory examination is able to exercise vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly." Id. at 260-61.

Finally, the Supreme Court recognized that a union representative's presence at an investigatory examination benefits not only the employee, but the employer as well. In this connection, the Court stated that "[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.

2. Case Law Under Section 7114(a)(2)(B) and in the Private Sector

In accordance with the principles embodied in Weingarten, the Authority has consistently held that the purposes underlying section 7114(a)(2)(B) can be achieved only by allowing a union representative to take an active role in assisting a unit employee in presenting facts in his or her defense. See, e.g., United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 440 (1990) (Safford). Thus, the Authority found an unfair labor practice in Safford when a union representative was told to remain silent at an examination. Id. This pronouncement is in line with the Authority's longstanding position finding an investigator's unduly aggressive and intimidating behavior during an investigative interview to be unlawful. See, e.g., Norfolk Naval Shipyard, 9 FLRA 458 (1982). On the other hand, the Authority has recognized that a union's representational rights under section 7114(a)(2)(B) may not interfere with an employer's legitimate interest and prerogative in achieving the objective of the examination or compromise its integrity. Federal Aviation Administration, New England Region, Burlington, Massachusetts, 35 FLRA 645, 652 (1990).

The Authority has recognized that section 7114(a)(2)(B) rights have their origin in private sector labor law, and in interpreting the Statute, has looked to the Board's development of the Weingarten right. See U.S. Immigration and Naturalization Service, New York District Office, New York, New York, 46 FLRA 1210, 1218-21 (1993) (INS District Office), rev. denied sub nom. American Federation of Government Employees, Local 1917 v. FLRA, 22 F.3d 1184 (D.C. Cir. 1994) (without opinion).(5) In this regard, the Board has, on several occasions, addressed the role of a union representative at a Weingarten examination.

The Board has found unfair labor practices when a union representative was prevented from actively participating in an investigatory interview. In National Labor Relations Board v. Texaco, Inc., 659 F.2d 124, 126-27 (9th Cir. 1981) (Texaco), the United States Court of Appeals for the Ninth Circuit affirmed a Board finding of an unfair labor practice, and held that by relegating the union representative "to the role of a passive observer" the company did not afford the employee the representation to which he was entitled. Similarly, in United States Postal Service, 288 NLRB 864, 868 (1988) (Postal Service I), the Board found a violation where the union representative was frustrated in his attempts to assist a unit employee because the interviewer expected that the union representative's role be comparable to that of a witness rather than a participant and therefore silenced the union representative whenever he interrupted the interviewer's questioning of the employee. Finally, the Board found a violation in Greyhound Lines, Inc., 273 NLRB 1443, 1448 (1985) (Greyhound) where an interrogator advised a union representative at the commencement of an interview that "although he could be present as a witness he would have to remain silent and not participate."

The Board, however, reached a different conclusion in United States Postal Service, 303 NLRB 463 (1991) (Postal Service II), a case presenting somewhat similar facts as are present in the instant case. There, a bargaining unit employee was the subject of an investigatory examination. Before the union representative arrived, an investigator informed the employee that the representative "would be present only as a witness and instructed [the employee] not to speak to nor look at the union representative . . . ." Id. at 470. The Board affirmed the ALJ's finding that no violation had occurred.

The Postal Service II ALJ noted that the union representative "expressed herself on several occasions during the interview on [the employee's] behalf, and the postal inspectors listened to her, and interrupted her only after they understood the point she was making." Id. The ALJ found that "even though [the union representative] was instructed to be seated behind the employee in a chair away from the table, whenever it became necessary for her to inspect [the employee's] ledger book which was on the table, she stood up and walked to the table so she could better observe the particular part of the ledger book that the postal inspector was referring to, and the postal inspectors did not object to her doing so." Id. Finding that under certain circumstances the pre-interview admonition to the employee "might very well constitute a violation of Section 8(a)(1) of the Act, insofar as it was reasonably calculated to interfere with [the employee's] right to [the union representative's] participation in the interview," the ALJ nevertheless determined that in this case no violation had occurred because "[the union representative], without objection, was permitted to participate in the interview on [the employee's] behalf and in fact did participate on his behalf . . . ." Id.

3. Application of the Case Law

We find that NASA, OIG investigator Dill's conduct of the examination of employee P prevented union representative Tays from actively participating in the examination, in violation of the Statute and Authority precedent. See Safford, 35 FLRA at 440. As the Statute and the above case law indicate, the Authority has uniformly held that a union representative must be given the opportunity to actively participate in an examination of a unit employee conducted pursuant to section 7114(a)(2)(B) of the Statute. In this case, it is clear from the outset of the examination that Dill prevented Tays from playing an active role in the examination. He established intrusive ground rules which relegated Tays to the role of a mere "witness" at the examination. When Tays objected to the nature of the ground rules, Dill reiterated them, and threatened to cancel the examination and move it to another location if Tays did not comply with his rules. Dill's actions in this case were attempts to preclude representative Tays from actively participating in the interview and thus run afoul of the Statute.

In concluding that the Statute was violated, we have considered the fact that Tays disregarded Dill's ground rules and, at least to some extent, participated in P's examination. However, we find that the statutory violation occurred when the overly restrictive ground rules were announced.(6) An attempt to restrict the union's role at a section 7114(a)(2)(B) examination to that of a witness is not in accordance with the Statute or the decisions of the Authority.(7) We agree with the Judge's conclusion that it is immaterial whether Tays, in fact, was able to fulfill his statutory responsibilities, as an agency cannot impose unduly restrictive limitations on a union representative and later seek to escape responsibility by taking advantage of the representative's conduct under the circumstances. Were the agency so entitled, a union representative would be placed in the untenable position of either complying with the ground rules, see, e.g., Safford, 35 FLRA at 431, and thereby failing to fulfill the exclusive representative's statutory responsibilities, or objecting to the ground rules, thus subjecting the representative to charges of disruption or insubordination.

Notwithstanding Tays' attempts at representation during the interview, we find that the imposition of overly restrictive ground rules and the manner in which this interview was conducted had a chilling effect upon the union's exercise of its rights under section 7114(a)(2)(B). Tays testified that the union had no role and that at times P would not listen to him, instead listening only to his attorney.(8) Contrary to the Respondent NASA, OIG's exceptions, we do not find these to be the mere subjective perceptions of representative Tays; rather, we conclude that Dill's insistence upon imposing the restrictive ground rules he announced would reasonably tend to have a coercive or intimidating impact upon any individual seeking to represent an exclusive representative. Additionally, bargaining unit members who become aware of the manner in which this examination was conducted could reasonably conclude that requesting union representation pursuant to section 7114(a)(2)(B) would be futile.(9)

In concluding that the Statute was violated in this case, we have considered the NLRB's Postal Service II decision wherein the Board found no statutory impropriety under somewhat similar circumstances. There are significant factual variances which distinguish the two cases and justify different results. In Postal Service II, the pre-interview rules imposed restrictions on the employee's participation at the examination and were announced prior to the union representative's arrival; as a result, the union representative presumably was unaware of the ground rules. In contrast, in this case, the ground rules restricted the union representative's participation in the examination and were read to the union representative at the examination. Moreover, when Tays attempted to explain his role and to clarify the ground rules, investigator Dill ignored his plea, reiterated the ground rules, and threatened to cancel the examination and move it to another location. In Postal Service II, the examiner listened to the representative and did not interrupt her until the point she was making was understood. This conduct of an interrogation is contrasted with Dill's view that Tays' request to see documents was a "distinct interruption of the interview process" and with Dill's understanding of the limited role Tays played as a witness--he was "just there." Judge's Decision at 4.

In addition, finding a violation in this case is entirely consistent with the Board's holdings in Texaco, Postal Service I, and Greyhound, discussed above. In each of those cases, as here, the Board held that a union representative was illegally relegated to the role of a silent or passive observer or witness.

B. NASA's OIG Investigator is a "Representative of the Agency" Under Section 7114(a)(2)(B)

1. Case Law Interpreting "Representative of the Agency"

The Authority has long held that an OIG investigator can, under certain circumstances, be a "representative of the agency" within the meaning of section 7114(a)(2)(B) of the Statute. Department of Defense, Defense Criminal Investigative Service; Defense Logistics Agency and Defense Contract Administration Services Region, New York, 28 FLRA 1145 (1987) (DOD, DCIS), enforced sub nom. Defense Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93 (3d Cir. 1988) (DCIS). In DOJ, 39 F.3d at 365-68, however, the D.C. Circuit squarely rejected the Authority's interpretation of this statutory language as well as the Third Circuit's rationale in affirming the Authority's decision in this regard. Given the irreconcilable ultimate conclusions reached by these two United States Courts of Appeals, we have carefully considered the facts and reasoning in both decisions.

As relevant here, the facts in DCIS and DOJ were in all material respects analogous to the scenario presented in the case currently before us. Both DCIS and DOJ involved interviews of bargaining unit employees who worked for a subcomponent of the agency. In both cases, the employees requested representation by their exclusive representative and in each instance the representative was the exclusive representative of employees within the agency's subcomponent. In each instance, the investigator conducting the respective interviews represented the parent agency's separate investigative component in its office of inspector general. In both cases the respondents claimed that the investigators were not representatives of the agency within the meaning of the Statute. The Authority rejected these arguments, finding in both cases that the agencies' inspector general subcomponents had violated section 7114(a)(2)(B). Both agencies appealed the Authority's decision.

In DCIS, the agency argued to the Third Circuit that the "agency" referred to in the Statute is the governmental entity with which the union has a collective bargaining agreement. The court responded that it "would have some difficulty understanding an interpretation limiting 'agency' to the subdivision comprising the collective bargaining unit and excluding 'representatives' of management that are employed in the higher echelons . . . ." DCIS, 855 F.2d at 99. The agency also argued that its agent did not conduct the interviews as a "representative of the agency"--the DOD--for purposes of section 7114(a)(2)(B), because it is independent of the DOD. The court rejected this argument, stating that in the context of the objective underlying section 7114(a)(2)(B), "the degree of supervision exercised by DOD management over the affairs of the DOD-OIG is simply irrelevant." Id. at 100.

The D.C. Circuit also addressed whether the investigator in DOJ was acting as a "representative of the agency" under the Statute, and concluded he was not. The court examined the introductory phrase under section 7114(a)(2)--"An exclusive representative of an appropriate unit in an agency"--and concluded that the OIG, despite qualifying as a statutory agency, "could not have been the 'agency' section 7114(a)(2)(B) contemplates." DOJ, 39 F.3d at 365. The court reached this conclusion because "[t]he union here was not . . . the 'exclusive representative of an appropriate unit in the agency,' that is, in the Office of [the] Inspector General." Id. (footnote omitted).

Both courts examined provisions of the Inspector General Act (IG Act). In DCIS, the agency argued that section 3(a) of the IG Act(10) was intended to prevent other agency programmatic concerns, such as Federal labor relations matters, from interfering with the IG's statutory functions. The court rejected the DCIS' argument and instead found the purpose of the IG Act was to insulate the IGs from pressure from agency management. DCIS, 855 F.2d at 98. The DCIS court refused to hold that in enacting the IG Act, Congress intended to repeal section 7114(a)(2)(B) of the Statute. Id. at 100.

On the other hand, in DOJ, the D.C. Circuit considered several provisions of the IG Act aimed at maintaining an independence from the parent agency or subcomponent thereof to be audited.(11) The court found that neither the Third Circuit in DCIS, nor the Authority, had considered these provisions in finding violations of the Statute. The D.C. Circuit concluded, contrary to the Third Circuit and the Authority, that the IG's independence would be jeopardized "if another agency of government--the Federal Labor Relations Authority--influenced the Inspector General's performance of his duties on the basis of its view of what constitutes an unfair labor practice." DOJ, 39 F.3d at 367.

2. Application of Relevant Statutory Provisions and Case Law

Consistent with our decision in DOD, DCIS, and the Third Circuit's affirmance of this decision in DCIS, we find that investigator Dill was acting as a "representative of the agency"--NASA, HQ--within the meaning of section 7114(a)(2)(B). We reach this conclusion based upon our determination that: (1) the term "representative of the agency" under section 7114(a)(2)(B) should not be so narrowly construed as to exclude management personnel employed in other subcomponents of the agency; (2) the statutory independence of agency OIGs is not determinative of whether the investigatory interviews implicate section 7114(a)(2)(B) rights; and (3) section 7114(a)(2)(B) and the IG Act are not irreconcilable. See DCIS, 855 F.2d at 99, 100. These determinations will be addressed in turn.

a. Section 7114(a)(2)(B) Covers the Actions of Management Personnel Employed in Other Subcomponents of the "Agency"

In enacting section 7114(a)(2)(B), Congress provided Federal employees and their exclusive representatives with certain representational rights during an interview of a bargaining unit employee. There is no basis in the Statute or its legislative history to make the existence of these statutory rights dependent upon the organizational entity within the agency to whom the person conducting the examination reports.(12) As explained above, Congress intended that Federal employees have the same rights as their counterparts in the private sector--the assistance of a union representative when they are called upon to provide information that exposes them to the risk of disciplinary action. See Legislative History, at 926. There is no dispute that the NASA, OIG investigator, although employed in a separate component from the MSFC, is an employee of and ultimately reports to the head of NASA. As discussed below (paragraph c.(2)), NASA, OIG not only provides investigatory information to NASA, HQ but also to other NASA subcomponent offices. It is equally clear and unchallenged that NASA is an "agency" under 5 U.S.C. § 7103(a)(3). As the Third Circuit stated: "We doubt that Congress intended that union representation be denied to the employee solely because the management representative is employed outside the bargaining unit." DCIS, 855 F.2d at 99.

b. Statutory Independence of IGs Is Not Controlling

To be sure, the IG Act grants an IG a degree of freedom and independence from the parent agency that employs him or her. However, this statutory recognition of autonomy is not absolute, and becomes nonexistent when the IG's purpose in "conducting interviews . . . is to solicit information concerning possible misconduct of [agency] employees in connection with their work," and "the information secured may be disseminated to supervisors in affected subdivisions of the [agency] to be utilized by those supervisors for [agency] purposes." DCIS, 855 F.2d at 100.

As is evident from the facts in this case, in some circumstances, NASA, OIG performs an investigatory role for NASA, HQ and its subcomponents, specifically MSFC. The information obtained during the course of an OIG investigatory examination may be released to, and used by, other subcomponents of NASA to support administrative or disciplinary actions taken against unit employees. Contrary to the D.C. Circuit's determination that "[t]he Inspector General does not stand in the shoes of management," DOJ, 39 F.3d at 368, under these circumstances we conclude, in agreement with the Third Circuit, that "Congress would regard [an OIG] investigator as a 'representative of the [agency].'" DCIS, 855 F.2d at 100.(13)

c. The Requirements of Section 7114(a)(2)(B) and the IG Act Do Not Conflict

We conclude that the requirements of section 7114(a)(2)(B) do not conflict with the IG Act. In reaching this conclusion, we have examined the language of both statutes and their legislative histories and considered the interrelationship between these two enactments.

(1) Statutory Language

An examination of the individual provisions of the IG Act reveals no inconsistency with the Statute in general, or section 7114(a)(2)(B) in particular. See IV.B.2., above. As noted earlier, the IG enjoys a degree of independence from the parent agency; however, the text of the IG Act establishes that the IG plays an integral role in assisting the agency and its subcomponent offices in meeting the agency's objectives. Under section 2(1) of the IG Act, the investigations and audits that the agency's IG is authorized to conduct and supervise are focused entirely on the agency's programs and operations. 5 U.S.C. app. § 2(1). Section 2(2) of the IG Act sets forth the IG's leadership role in promoting "the economy, efficiency and effectiveness" of, and in preventing fraud and abuse in, the agency's programs and operations. 5 U.S.C. app. § 2(2). Section 2(3) expands upon this theme, enabling the head of the agency--through the IG--to be "fully and currently informed about agency problems and deficiencies, and the necessity for and progress of corrective action by the agency." 5 U.S.C. app. § 2(3). Plainly, the IG represents and safeguards the entire agency's interests when it investigates the actions of the agency's employees. Such activities support, rather than threaten, broader agency interests and make the IG a participant, with other agency components, in meeting various statutory obligations, including the agency's labor relations obligations under the Statute.

(2) Legislative History

We have already noted that the expressed legislative intent in enacting section 7114(a)(2)(B) was to provide rights to Federal sector bargaining unit employees consistent with those provided in the private sector under Weingarten. See IV.A.1., above. We agree with the Third Circuit that the purpose of the IG Act is "to insulate Inspector Generals [sic] from pressure from agency management which might attempt to cover up its own fraud, waste, ineffectiveness, or abuse." DCIS, 855 F.2d at 98 (emphasis added). We find that this conclusion is entirely consistent with the statement of purpose in the legislative history of the IG Act: "The purpose of this legislation is to create Offices . . . to more effectively combat fraud, abuse, waste and mismanagement in agency programs and operations." S. Rep. No. 1071, 95th Cong., 2d Sess. 1 (1978), reprinted in 1978 U.S.C.C.A.N. 2676. Thus, we agree with the Third Circuit's rejection of the argument that the IG Act was "intended to create 'an independent investigatory office at the [agency] which would not be subject to interference by any other agency programmatic concerns, including federal labor relations.'" DCIS, 855 F.2d at 98. This broad reading is "unsupported by the text and legislative history of the IG Act." Id.

(3) Interrelationship Between Section 7114(a)(2)(B) and the IG Act

The D.C. Circuit concluded in DOJ that if required to comply with 5 U.S.C. § 7114(a)(2)(B), "the Inspector General's independence and authority would necessarily be compromised." DOJ, 39 F.3d at 361. With all due respect, we disagree. Our examination of the IG Act does not reveal any irreconcilable conflict with section 7114(a)(2)(B) of the Statute. In particular, no provision in the IG Act cited by the D.C. Circuit as support for its finding of an incompatibility between the IG Act and the Statute, DOJ, 39 F.3d at 367, would be rendered ineffective by the right to have a union representative present during an OIG investigative interview. For example, compliance with the Statute does not prevent an agency IG from "conduct[ing] audits and civil and criminal investigations relating to the Department's operations. 5 U.S.C. app. § 4(a)(1)." Id. Nor does compliance with the Statute preclude an IG from "notify[ing] the Attorney General directly, without notice to other agency officials, upon discovery of 'reasonable grounds to believe there has been a violation of Federal criminal law' [5 U.S.C. app. § 4(d)]." Id. Rather than hindering such investigations, we find that providing section 7114(a)(2)(B) rights to Federal bargaining unit employees will serve in this context as well the salutary purposes the Supreme Court envisioned in its Weingarten decision, e.g., clarifying issues or facts, raising extenuating factors, suggesting other employees having knowledge, and protecting the interests of the entire bargaining unit. Weingarten, 420 U.S. at 260-61.

Moreover, as we have held, and as the Third Circuit noted in DCIS, 855 F.2d at 100-01, the representational function of a Weingarten representative is limited. Among other things, the employer may insist on hearing the employee's own account of the matter under investigation and the union's presence need not transform the examination into an adversary proceeding. Id. (relying upon Weingarten, 420 U.S. at 260, 262-63); see also Norfolk Naval Shipyard, 9 FLRA 458 (1982) (agency management may have need, under certain circumstances, to place reasonable restrictions on the exclusive representative's participation at a section 7114(a)(2)(B) examination). "Given the limited function of a Weingarten representative, it is conceivable to us that Congress might conclude that the employee's interest in representation outweighs the limited interference that his or her representative's presence might occasion in [IG] interviews." DCIS, 855 F.2d at 101.

In sum, we agree with the Third Circuit and "do not find section 7114(a)(2)(B) and the mandate of the [IG] so clearly irreconcilable that we are willing to imply an exception based solely on the enactment of the IG Act." Id. at 100.

Even if we were to find a conflict between these two statutes, given the absence of statutory language evidencing a legislative intent that one is preemptive of the other,(14) we find no support for the D.C. Circuit's determination that the IG Act should trump the Statute in general, or section 7114(a)(2)(B) in particular. Resolving such an inconsistency "is a legislative decision . . . and nothing in the IG Act or its legislative history persuades us that Congress considered and resolved [this inconsistency] against federal employees when it passed [the IG] Act." Id. at 101. Should Congress disagree with our conclusion, it can amend the laws in accordance with its policy objectives.(15) See id.

Our reading of the Statute and the IG Act is consistent with the canons of statutory construction because it gives effect to each law while preserving their sense and purpose. See, e.g., Morton, Secretary of the Interior v. Mancari, 417 U.S. 535, 551 (1974); NRC, 25 F.3d at 237 (Murnaghan, J., dissenting) ("Neither the Inspector General Act nor the [Statute] . . . is deserving of more or less statutory dignity than the other."). We are unwilling, as is the Third Circuit, "to find a partial, implied repeal of section 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." DCIS, 855 F.2d at 100.

C. NASA, OIG and NASA, HQ Have Violated the Statute

1. NASA, OIG

By the conduct of investigator Dill, NASA, OIG violated section 7114(a)(2)(B) of the Statute and thus committed unfair labor practices in violation of section 7116(a)(1) and (8) of the Statute. The Authority has long held that "when a component of an agency engages in conduct which unlawfully interferes with the protected rights of employees of another component, a violation of section 7116(a)(1) of the Statute will be found to have occurred." Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA 875, 884 (1986) (DLA).(16) Here, we conclude that the conduct of the NASA, OIG investigator interfered with the rights of the unit employees at MSFC, another subcomponent of NASA.(17) Accordingly, having found earlier herein that NASA, OIG is a representative of the agency, we find that NASA, OIG has violated the Statute.

2. NASA, HQ

We also find, contrary to the Judge, that NASA, HQ violated section 7114(a)(2)(B) of the Statute and thus committed unfair labor practices in violation of section 7116(a)(1) and (8) of the Statute.(18) In this regard, we have discussed the investigative role that OIGs perform for the agency. Investigative information is shared with the agency head and other subcomponents of the agency and is a basis upon which disciplinary action is taken. Thus, the OIG represents not only the interests of the OIG, but ultimately NASA, HQ and its subcomponent offices.

Moreover, the IG Act specifically provides that IGs report to and are under the supervision of the head of the agency. 5 U.S.C. app. § 3(a). See II.A., above. Accordingly, NASA, HQ is responsible for the statutory violations committed by its OIG in this case.

In reaching this conclusion, we recognize that although the MSFC has a collective bargaining relationship with Local 3434, NASA, HQ does not. However, this does not preclude a finding of a statutory violation against NASA, HQ. The DLA rationale, holding one subcomponent of an agency responsible for actions which affect another subcomponent, DLA, 22 FLRA at 884, has been applied to the parent agency's actions involving a subcomponent. See, e.g., U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA 991, 1000-01 (1993); Headquarters, U.S. Air Force, Washington, D.C. and 375th Combat Support Group, Scott Air Force Base, Illinois, 44 FLRA 117, 125 (1992), rev. denied sub nom. Headquarters, U.S. Air Force, Washington, D.C. v. FLRA, 10 F.3d 13 (D.C. Cir. 1993) (without opinion). NASA, HQ's failure to ensure that its IG comply with the Statute justifies a finding of a statutory violation.

We conclude that holding NASA, HQ responsible for the manner in which its OIG conducts investigative interviews pursuant to section 7114(a)(2)(B) fully effectuates the purposes of the Statute. In reaching this conclusion, we recognize that the Authority has, in similar circumstances, previously declined to hold an agency headquarters responsible for the actions of its IG. U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota and Office of Professional Responsibility, Washington, D.C. and National Border Control Council, American Federation of Government Employees, 46 FLRA 1526, 1571 (1993) rev'd sub nom. But cf. U.S. Department of Labor, Mine Safety and Health Administration, 35 FLRA 790 (1990) (holding the Mine Safety and Health Administration liable for the illegal actions of the Department's IG in a case where the Inspector General was not charged).

However, the Authority also has noted in prior decisions that it is appropriate for agency headquarters with administrative responsibility for the Office of Inspector General to advise IGs "of the pertinent rights and obligations established by Congress in enacting the Federal Service Labor-Management Relations Statute. More particularly, . . . investigators should be advised that they may not engage in conduct which interferes with the rights of employees under the Statute." DOD, DCIS, 28 FLRA at 1151. It is with this objective in mind--ensuring that the Office of Inspector General is advised by its statutory superior of the obligation to comply with the Statute--that we find the purposes underlying the Statute will be effectuated by holding NASA, HQ liable for the actions of its Inspector General. As set forth in this decision, despite a degree of independence, the IG is nevertheless under the direct supervision of the head of the agency. Accordingly, we will no longer follow Authority precedent declining to hold an agency headquarters responsible for the statutory violations of its Inspector General.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, NASA Headquarters, Washington, D.C., and NASA Office of Inspector General, Washington, D.C., shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee of Marshall Space Flight Center to take part in an investigatory examination conducted pursuant to section 7114(a)(2)(B) of the Statute without allowing the employee's exclusive representative to actively participate in such examination.(19)

(b) In any like or related manner, interfering with, restraining or coercing Marshall Space Flight Center 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) NASA Headquarters shall order the NASA Office of Inspector General to comply with the requirements of section 7114(a)(2)(B) when conducting investigatory examinations of employees pursuant to that section of the Statute.

(b) NASA Headquarters shall post at Marshall Space Flight Center, 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 NASA Administrator, 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Atlanta Regional Office, 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 at the Marshall Space Flight Center to take part in an investigatory examination of a bargaining unit employee conducted pursuant to section 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statute (Statute) without allowing the exclusive representative of such employee to actively participate in the examination.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce Marshall Space Flight Center bargaining unit employees in the exercise of their rights assured them by the Statute.

________________________
NASA Headquarters and NASA
Office of Inspector General
Washington, D.C.

Date: ___________ 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 with the Regional Director of the Atlanta Regional Office, Federal Labor Relations Authority, whose address is 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30309-3102, and whose telephone number is: (404) 347-2324.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

HEADQUARTERS, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, DC

and

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, OFFICE OF THE INSPECTOR GENERAL, WASHINGTON, DC

Respondents

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, L0CAL 3434

Charging Party

Case No. AT-CA-30481

Elizabeth Richardson
Counsel for the Respondent, OIG

Barbara Long
Representative of the Charging Party

Brent S. Hudspeth
Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER
Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondents violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (8), by failing to comply with the provisions of section 7114(a)(2)(B) of the Statute. Respondents allegedly refused to allow a Charging Party (Union) representative to actively participate in the examination of a bargaining unit employee who reasonably feared discipline and requested the representation of the Union.

Respondent OIG's answer denied any violation of the Statute.

A hearing was held in Decatur, Alabama. Respondent OIG, the Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

Respondent National Aeronautics and Space Administration, Washington, D.C. (NASA) is an agency under 5 U.S.C. § 7103(a) (3). The George C. Marshall Space Flight Center, Marshall Space Flight Center, Alabama (MSFC) is a component of NASA, and the Union is the exclusive representative of an appropriate unit of MSFC employees.

Respondent OIG is also a component of NASA. OIG was established by Public Law 95-452, as amended, 5 U.S.C. app. 3, to, among other things, "create independent and objective units -- (1) to conduct and supervise audits and investi- gations relating to the programs and operations" and "(3) to provide a means for keeping the head of the establishment and the Congress fully and currently informed about problems and deficiencies[.]" 5 U.S.C. app. 3 § 2 (1) and (3). The Inspector General has the duty and responsibility "to provide policy direction for and to conduct, supervise, and coordi- nate" investigations. 5 U.S.C. app. 3 § 4(a)(1). The Inspector General reports to and is under the general supervision of the Administrator of NASA, but the Administrator cannot "prevent or prohibit the Inspector General from initiating, carrying out, or completing" any investigation. 5 U.S.C. app. 3 §§ 3(a); Joint Exh. 1.

The OIG maintains offices at all NASA Centers, including MSFC. OIG Agents assigned to the MSFC OIG Center Office are not under the supervision of any MSFC officials. They are subject to the direction of individuals in the OIG chain of command. (Tr. 33).

In January 1993 OIG furnished information to MSFC officials indicating that P,(1) an employee of MSFC and a member of the bargaining unit represented by the Union, might pose a serious and immediate threat to his coworkers. P's name was linked with several documents which set forth potential threats and plans for violence. As a result of this information, MSFC officials placed P on nonduty status with pay, restricted his access to the Center, and ordered him to report for a fitness for duty examination. (G.C. Exh. 2).

OIG Special Agent Larry E. Dill was assigned the investigation to determine whether P was indeed the author of the documents and, if so, whether he intended to carry out the actions set forth in them. The only timely way to resolve the authorship issue was to interview P as soon as possible. Dill contacted P, and P agreed to be interviewed in the office of his attorney, Bo Emerson. P requested that both his attorney and his Union representative be allowed to be present at the interview. Dill agreed. (Tr. 38-39). Respondent OIG admits that it was reasonable for P to believe that the examination could result in disciplinary action. (Tr. 8).

In preparation for the interview, Special Agent Dill prepared an outline. (Respondent Exh. 1). This outline included the following ground rule:

The union representative, if present, serves as a witness and is not to interrupt the question and answer process. Additionally, the union representative is subject to being called as a witness for the government.

The examination was conducted on January 25, 1993 and attended by Special Agents Dill and David Carson of the OIG Office, P, Union Steward Patrick Tays, and Attorney Bo Emerson. (Tr. 39). Dill read aloud his prepared ground rules, including the above, but leaving out the words "if present." (Tr. 41). Tays objected to this statement and pointed out that he was "there to represent the union's and the bargaining unit's interests and P's interests." (Tr. 24). Dill listened to Tays' objection, stated that this was indeed a ground rule for the meeting, and read his statement again. (Tr. 24, 42). Tays objected again, arguing that he was not present as a witness and would refuse to be called as a witness. (Tr. 24). Dill said he would cancel the meeting and move it someplace else at a different time if Tays did not "maintain" himself.(2) (Tr. 29).

Early in the interview, Dill asked questions of P and provided P and his attorney, who were seated near Dill, some documents to peruse. After P returned the documents to Dill, Tays, who was seated at the opposite end of the table, requested, in "a somewhat agitated tone of voice," to see the documents. Dill regarded this as "a distinct interruption of the interview process" because he "had completed what [he] wanted to do with those documents with Mr. Emerson and P" and "[i]f Mr. Tays had wanted to see those documents, [he should have] viewed them while Mr. Emerson and P were viewing [them]." Nevertheless, Dill passed the documents to Tays after P "basically stated that it was okay to pass those documents to Mr. Tays." (Tr. 41-44). Thereafter, when Dill passed documents to P, Tays walked over and stood behind P and Emerson to view them. (Tr. 24).

Later on in the interview process, Dill asked P if he felt his coworkers were afraid of him. Tays advised P that he didn't think P should answer as he would be giving an opinion and couldn't really answer the question accurately. Dill responded that Tays could not direct P not to answer as he "was just there." When P's attorney spoke up and said that P should not answer the question, Dill said, "Okay, fine," and went on to other questions. (Tr. 25).

Tays testified that the OIG's actions regarding his role in the proceeding affected the way P subsequently reacted to Tays' questions or comments. For example, when he advised P to avoid a discussion about fantasies with the OIG agents, P ignored him and paid attention only to his attorney or Dill. (Tr. 25-26).

P was ultimately removed from his employment at MSFC. The Union does not know his whereabouts. (Tr. 20, 26).

Conclusions

The General Counsel contends that the examination was by a representative of the Respondent NASA and Respondent OIG and the representative's conduct interfered with the Union's right to be represented and/or would have a reasonable tendency to interfere with the Union's right to be represented. The General Counsel seeks a remedial cease and desist order and a notice to be signed by the Administrator, NASA and Director, OIG and posted at every NASA facility where the Union is the exclusive representative.

Respondent OIG defends on the basis that OIG was faced with a delicate situation and acted reasonably to protect the safety of MSFC employees, P's individual rights, and the Union's representational rights. OIG contends that the ground rules were proper to keep the situation from becoming adversarial and emotionally charged and did not reasonably tend to intimidate or coerce Mr. Tays. OIG claims that Mr. Dill did nothing during the interview to interfere with Mr. Tays' rights to fully participate as a Union representa- tative. OIG points out that Mr. Dill never asked Tays to leave the room, to shut up or be quiet, and never stopped him from looking at documents, restricted his movements, or threatened him with disciplinary action.

Section 7114(a)(2) provides:

An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--

. . . .

(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if --

(1) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(2) the employee requests representation.

The examination of P was conducted by Special Agent Dill under the direction of Respondent OIG. Thus, he was a "repre- sentative of the agency" under section 7114(a)(2)(B). In Department of Defense, Defense Criminal Investigative Service, 28 FLRA 1145 (1987), aff'd sub nom. DCIS v. FLRA, 855 F.2d 93, 100 (3d Cir. 1988), the court found that the degree of super- vision exercised by agency management over investigators is irrelevant when 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. Here the OIG investigator was employed by the same parent agency, NASA, as was P, and was questioning P regarding possible misconduct in connection with his work. The record establishes that the information secured by OIG is referred for administrative or disciplinary action to MSFC, where the employee's collective bargaining unit is located. See also U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 47 FLRA 1254, 1261 (1993) (Justice, OIG).

In United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 438-40 (1990) the Authority reviewed the provision, purposes, and benefits of section 7114(a)(2)(B), as follows, and held that by directing a union representative to remain silent -- "just to be present during this interview" -- the agency violated section 7116(a)(1) and (8):

Section 7114(a)(2)(B) provides that an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action and the employee requests representation. The purpose of section 7114(a)(2)(B) is to create representational rights for Federal employees similar to the rights provided by the National Labor Relations Board (NLRB) in interpreting the National Labor Relations Act (NLRA). 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 enactment of section 7114(a)(2)(B) was to reflect the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten).

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. See Wireman, Union Representation at Investigatory Interviews: The Subsequent Development of Weingarten, 28 Cleveland State L. Rev. 127, 129-31 (1979). In particular, representation at an investigatory interview promotes a more equitable balance of power between labor and management. See Weingarten, 420 U.S. at 261-62, where the Court noted that "[r]equiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the [National Labor Relations] Act was designed to eliminate[.]" Such representation also contributes to preventing unjust discipline and unwarranted grievances. In Weingarten the Court noted that "[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. In such circumstances, the Court concluded that "[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 support of its conclusion that represen- tation could be beneficial to the employer as well as the employee, the Court quoted from an arbitra- tor's award that described the representation process as contemplating "that the steward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified." Id. at 262-63 n.7.

In view of the legislative history underlying section 7114(a)(2)(B), cited above, we conclude that the purposes underlying the Weingarten right in the private sector--promoting a more equitable balance of power and preventing unjust disciplinary actions and unwarranted grievances--also apply to the right to representation created by section 7114(a)(2)(B). These purposes are consistent with the overall purposes and policies of the Statute set forth in section 7101. That is, they effectuate "the right of employees to organize, . . . and participate through labor organizations . . . in decisions which affect them . . . [which] safeguards the public interest, . . . contributes to the effective conduct of public business, and . . . facilitates and encourages the amicable settlements of disputes[.]" Insofar as representation at examinations promotes a more equitable balance of power between management and labor, we believe that this is consistent with the intent of Congress in passing the Civil Service Reform Act (CSRA), Pub. L. 95-454, of which the Statute constitutes title VII. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 107 (1983) in which the Court noted, "[i]n passing the Civil Service Reform Act, Congress unquestion- ably intended to strengthen the position of federal unions and to make the collective bargaining process a more effective instrument of the public interest[.]"

The purposes underlying section 7114(a)(2)(B) and the benefits intended for the various parties cannot be achieved if the union representative is prohibited from taking an active role in assisting an employee in presenting facts at an examination. Consequently, under section 7114(a)(2)(B) representation includes the right of the Union representative to take an "active part" in the defense of the employee. Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678, 678-79, n.2 (1981); NLRB v. Texaco, Inc., 659 F.2d 124 (9th Cir. 1981).

In U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 42 FLRA 834, 840 (1991), the Authority stated, "The Authority has long held that for the right of representation to be meaningful, the representative must have complete freedom to assist, and consult with, the employee," citing U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA 297, 306 (1981) (Customs). In Customs the Authority found a violation where the representative's active participation was limited to a "practice" interview, he was admonished not to speak out or make statements during the subsequent taped interview, and was only allowed to volunteer additional information at the end of the taped interview.

As Counsel for the General Counsel points out, the Supreme Court in Weingarten also noted that the union representative is "safeguarding not only the particular employee's interest, 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." 420 U.S. at 260-61. Based on this proposition, it is now well established that representation by a private attorney does not divest an employee of his right to union representation at the examination. See, e.g., American Federation of Government Employees, Local 1941 v. FLRA, 837 F.2d 495, 499 n5 (D.C. Cir. 1988) ("The union's interest is not vindicated by the presence of counsel for the employee[.]")

The record reflects that Special Agent Dill advised Tays at the outset that he "serves as a witness and is not to interrupt the question and answer process." A common dictionary meaning of "witness" is "One who has seen or heard something," or "One who is called upon to be present at a transaction in order to attest to what takes place." Webster's II New Riverside University Dictionary, 1324 (1988). Special Agent Dill's ground rules statement conveyed the clear message that Tays was to be strictly an observer and not one who would take an active part in the proceedings. Special Agent Dill subsequently threatened to cancel the meeting if Tays did not "maintain" himself, and later informed Tays that he was "just there." These actions interfered with the Union representative's ability to take an active part in assisting the employee to elicit and present facts as contemplated by the Statute.

The Supreme Court declared in Weingarten that the presence of the Union representative "need not transform the interview into an adversary contest," 420 U.S. at 263, and the Authority has held that a union's representational rights under section 7114(a)(2)(B) may not interfere with an employer's legitimate interest and prerogative in achieving the objective of the examination or compromise the integrity of the employer's investigation. Federal Aviation Administration, New England Region, Burlington, Massachusetts, 35 FLRA 645, 652 (1990).

Union representative Tays objected to Dill's description of his role in the proceedings when Dill read and then reread from his ground rules. Tays also raised his voice when he requested to view the documents which had been shown to P and P's attorney. These minor and justifiable reactions did not unduly disrupt or interfere with the objective of the examination and were insufficient to deny Tays his right to take an active role in the examination.

Respondent OIG contends that Mr. Tays was able to fulfill his responsibility to the bargaining unit. The fact that Mr. Tays may have done so is immaterial. An agency can not impose an unduly restrictive limitation on a union representative and later escape responsibility by taking advantage of, or finding fault with, the representative's conduct under the circumstances. U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 46 FLRA 1526, 1568 (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); Department of the Air Force, Office of Special Investigations, McChord Air Force Base, Tacoma, Washington, Case No. 9-CA-80368, 87 ALJDR (1990).

By the conduct of Special Agent Dill, described above, Respondent OIG failed to comply with section 7114(a)(2)(B) of the Statute and thereby committed an unfair labor practice in violation of section 7116(a)(1) and (8) of the Statute, as alleged.

There is no evidence in the record that Respondent NASA was responsible for this violation. Therefore, it is recommended that such allegations as to Respondent NASA be dismissed. Justice, OIG, 47 FLRA at 1255, 1271; INS, Twin Cities, 46 FLRA at 1528, 1569.

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that National Aeronautics and Space Administration, Office of the Inspector General, Washington, DC, shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee of the National Aeronautics and Space Administration to take part in an examination in connection with an investigation, without allowing the exclusive representative of such employee to actively assist such employee, where 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 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 all NASA 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 Inspector General, 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 of the Atlanta Region, 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30309-3102, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, October 21, 1994

_____________________________
GARVIN LEE OLIVER
Administrative Law Judge

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT require any bargaining unit employee of the National Aeronautics and Space Administration to take part in an examination in connection with an investigation without allowing the exclusive representative of such employee to actively assist such employee, where representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.

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.

_______________________________
(Activity)

Date:__________________ 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 with the Regional Director of the Federal Labor Relations Authority, Atlanta Region, 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30309-3102, and whose telephone number is: (404) 347-2324.




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


Authority's Footnotes Follow:

1. The Judge referred to the employee as "P" due to the nature of the allegations against him and the limited relief requested by the General Counsel.

2. Dill determined, after consulting appropriate investigative agencies, that employee P had not violated the law and, as a result, that the matter would be administratively, rather than criminally, investigated. Transcript of hearing at 36.

3. NASA, OIG also excepts to the language of the Judge's cease and desist order. NASA, OIG maintains that the words "its" and "our" (referring to NASA, OIG employees) should be deleted from paragraph 1.(b) of the Order and the second paragraph of the Notice. The General Counsel has no objection to this exception. The modified Order and Notice below reflect the Authority's decision with regard to this matter.

4. That the employee (1) reasonably feared discipline as a result of the examination and (2) requested union representation are not at issue in this case.

5. However, the Authority has noted Congress' recognition that the right to representation might evolve differently in the private and Federal sectors, and that Board decisions would not necessarily be controlling in the Federal sector. See INS, District Office, 46 FLRA at 1218; Legislative History at 824.

6. In response to Tays' objection, had Dill withdrawn or properly revised the ground rules to permit active representation, a different case would be presented. Instead, however, the violation was exacerbated by Dill's reiteration of the ground rules in responding to Tays' objection.

7. We note that such a constraint upon the union representative's role is similarly not in accord with Weingarten or decisions of the Board. See A.2., above.

8. The union's interest at a section 7114(a)(2)(B) examination is not vindicated by the presence of an employee's private counsel. See American Federation of Government Employees, Local 1941, AFL-CIO v. FLRA, 837 F.2d 495, 499 n.5 (D.C. Cir. 1988).

9. We note that in DOJ, 39 F.3d at 365 n.2, the D.C. Circuit suggested in dictum that the record did not support a violation because the union representative admitted that there was nothing else that he "wanted to do or planned on doing that [he] couldn't do" in representing the unit employee at the examination. The record testimony distinguishes this case. Here, Tays testified that during the examination: the OIG agents had "run the meeting the way they wanted; the union had no role;" the conditions "really affected me" and the way P reacted to Tays' questions or comments; and the atmosphere was "chilling," "an oppressive environment." (Transcript of hearing at 26-27).

10. Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.

5 U.S.C. app. § 3(a).

11. In explaining its opposition to the Third Circuit's reasoning in DCIS, the D.C. Circuit relied upon, and quoted extensively from, United States Nuclear Regulatory Commission, Washington, D.C. v. FLRA, 25 F.3d 229 (4th Cir. 1994) (NRC). However, it cannot be concluded from the NRC decision that the United States Court of Appeals for the Fourth Circuit would agree with the D.C. Circuit's decision in DOJ. Unlike DOJ, and unlike the present case and DCIS, which all arose in the context of an unfair labor practice complaint, NRC arose in the context of a negotiability dispute. In a 2-1 decision, the Fourth Circuit reversed the Authority's upholding of the negotiability of several proposals involving investigative interviews. Although the Fourth Circuit disagreed with the Authority's negotiability determination, the NRC panel majority recognized that DCIS was distinguishable in that it arose in the context of an unfair labor practice complaint. Id. at 235. More importantly, the NRC majority neither criticized, nor viewed its decision as inconsistent with, DCIS. See id.

12. If such were the case, agencies could abridge bargaining unit rights and evade statutory responsibilities under section 7114(a)(2)(B), and thus thwart the intent of Congress, by utilizing personnel from other subcomponents (such as the OIG) to conduct investigative interviews of bargaining unit employees.

13. The D.C. Circuit noted that in an agency such as the Department of Justice, it saw no distinction between investigative interviews being conducted by an OIG employee and, for example, an FBI agent. The court found that under the Authority's logic both would be "representatives of the agency" and thus obliged to comply with 5 U.S.C. § 7114(a)(2)(B). Finding it "impossible to believe" that questioning by an FBI agent could be constrained by the Statute, the court rejected the Authority's holding. DOJ, 39 F.3d at 366. We note that in its hypothetical, the D.C. Circuit did not consider the FBI's statutory authority to "investigate any violation of title 18 involving Government officers and employees--(1) notwithstanding any other provision of law." 28 U.S.C. § 535(a) (emphasis added).

Although the situation envisioned by the D.C. Circuit is not present in the case before us, a cautionary note is appropriate. Our decision herein should not be construed as suggesting that we would conclude in all circumstances that every employee of each subcomponent of agencies having government-wide, law-enforcement responsibilities, such as the Department of Justice, is a "representative of the agency" for the purposes of section 7114(a)(2)(B). Such cases might well be distinguished in light of statutory responsibilities extending outside of the parent agency, as contrasted with the OIG's jurisdiction and its actions in this case, which are focused on internal agency matters.

14. See, e.g., 32 U.S.C. § 709(e): "Notwithstanding any other provision of law . . ." which was interpreted as exempting National Guard Technicians from certain provisions of the Statute. New Jersey Air National Guard v. FLRA, 677 F.2d 276, 283 (3d Cir. 1982) cert. denied sub nom., American Federation of Government Employees, AFL-CIO, Local 3486 v. New Jersey Air National Guard, 177 Fighter Interception Group, 459 U.S. 988 (1982). Compare 28 U.S.C. § 535(a) which governs the FBI's statutory authority, discussed in note 13, above.

15. Further, section 5 of the IG Act, 5 U.S.C. app. § 5(a)(1), which requires an agency IG to report semiannually to Congress on, among other things, "significant problems . . . relating to the administration of programs and operations . . . ," provides an agency IG with a mechanism to communicate directly with Congress should compliance with section 7114(a)(2)(B) of the Statute present an agency OIG with "significant problems."

16. This concept has its genesis in the private sector. See Austin Co., 101 NLRB 1257, 1258-59 (1952). There, a violation was found even though Austin was not the employer of the employees whose rights were violated. The Board premised liability on a finding that an "intimate business character" existed between Austin and the employer of the employees and that they shared a "community of interests." See also Hudgens v. NLRB, 424 U.S. 507, 510 n.3 (1976) (citing Austin Co. approvingly). For the reasons discussed above, we find that such a relationship is shared by NASA, OIG, NASA, HQ, and the MSFC.

17. In reaching this conclusion, and as discussed above in section IV.B.1., we note that the D.C. Circuit rejected, in a similar scenario, a finding of a violation against the OIG because the union in that case was not the exclusive representative of the Office of the Inspector General. DOJ, 39 F.3d at 365. Although the court's point is indisputable, it is not determinative of whether the Statute has been violated. DLA, 22 FLRA at 884.

18. There were no exceptions filed with respect to the Judge's recommended dismissal of the complaint as to NASA, HQ. However, NASA, HQ is a party pursuant to 5 CFR § 2421.11 and the Authority has previously addressed, sua sponte, matters that were not excepted to by the parties. See, e.g., United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 654 (1991) (even though no exceptions were filed, because ALJ applied incorrect standard, Authority independently examined negotiability of proposal, applying the correct standard), enforced sub nom. United States Immigration and Naturalization Service, United States Border Patrol v. FLRA, 12 F.3d 882 (9th Cir. 1994).

19. Consistent with our case law, we have modified the scope of the Judge's recommended Order and Notice to require Respondents: (1) to cease and desist from interfering with the rights of the bargaining unit employees at Marshall Space Flight Center; and (2) to post the corresponding Notice at Marshall Space Flight Center, the only NASA site where bargaining unit employees are located. See, e.g., Department of Housing and Urban Development, San Francisco, California, 41 FLRA 480, 482 (1991) (posting of notices required only at sites where bargaining unit employees are located as evidence that their rights guaranteed under the Statute will be enforced).

Further, we are not ordering the reconstruction type of relief the Authority ordered in Safford, 35 FLRA at 450, because the record does not establish, nor does the General Counsel contend, that P's removal was connected in any way with the interview that violated the Statute. Judge's Decision at 4.


ALJ's Footnotes Follow:

1. P's name is reflected in the record, but, due to the nature of the allegations against him and the limited relief requested by the General Counsel, it is not de