54:1502(133)CA - - Federal Bureau of Prisons, Office of Internal Affairs, Washington DC and Aurora, CO locations and Federal Correctional Institution Englewood, Littleton, CO and AFGE Local 709 - - 1998 FLRAdec CA - - v54 p1502



[ v54 p1502 ]
54:1502(133)CA
The decision of the Authority follows:


54 FLRA No. 133

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL BUREAU OF PRISONS

OFFICE OF INTERNAL AFFAIRS

WASHINGTON, D.C.

AND

FEDERAL BUREAU OF PRISONS

OFFICE OF INTERNAL AFFAIRS

AURORA, COLORADO

AND

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION ENGLEWOOD

LITTLETON, COLORADO

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 709, AFL-CIO

(Charging Party/Union)

DE-CA-40661

_____

DECISION AND ORDER

November 20, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, 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 Respondents.

The complaint alleges that the Respondents failed to comply with section 7114(a)(2)(B), and thereby violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), by refusing to allow the Union's designated representative to represent a bargaining unit employee at an investigatory examination. The Judge determined that the Respondent violated the Statute as alleged in the complaint.

For the reasons set forth below, we find that the Respondent violated section 7116(a)(1) and (8) of the Statute as alleged in the complaint.

II. Background and Judge's Decision

1. Background

The facts are set forth in detail in the Judge's decision and are briefly summarized here. The Acting Warden at the Federal Correctional Institution Englewood (Englewood) called the Union president to a meeting in the Warden's office. The Union's chief steward represented the Union president at the meeting. The Acting Warden issued a formal letter of counseling to the Union president for using profanity during a previous incident between the Acting Warden and the Union president. The Union president accused the Acting Warden of issuing the letter in retaliation for union activity and left the office.

The Acting Warden reported the Union president's allegedly insubordinate conduct to the Office of Internal Affairs (OIA). The OIA assigned a special agent (agent) to investigate the incident. After the agent interviewed the Acting Warden and two employees from the Warden's Office, she interviewed the chief steward. When the agent told the chief steward that the agent would be examining the Union president, the chief steward replied that she would be present during that examination because she was the Union's designated representative. The agent informed the chief steward that she would not be allowed to represent the Union president during the examination because she witnessed the incident under investigation.

Following her examination, the chief steward signed an affidavit prepared by the agent. The affidavit stated in part:

I have been informed and understand that I am not to discuss this interview without the permission of the [OIA]. I further understand that if I improperly discuss this matter, I may face adverse action to include removal from employment.

Judge's Decision at 2.(1)

The Union president, accompanied by the chief steward, reported for her interview with the agent. The agent told them that the chief steward could not serve as the Union president's designated representative because the chief steward was a witness to the incident under investigation. The Union president found another steward to represent her, and the interview proceeded. At the interview's conclusion, the Union president signed an affidavit in which she protested the agent's refusal to permit the chief steward to serve as the designated representative.

B. The Judge's Decision

The Judge stated the issue as whether the agent, acting on Respondents' behalf, could disqualify the chief steward from representing the Union president because the chief steward was a witness to the incident under investigation. The Judge found that the meeting was a Weingarten (2) examination, pursuant to section 7114(a)(2)(B) of the Statute,(3) and that the Union president was entitled to union representation during the examination. The Judge cited Federal Prison System, Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Council of Prison Locals, Local 2052, 25 FLRA 210, 211-12 (1987) (FCI, Petersburg) for the principle that a union has the right to designate its representative during a Weingarten examination.

The Judge found that a union's right to representation during a Weingarten examination, pursuant to section 7114(a)(2)(B) of the Statute, and an agency's interest in preserving the integrity of its investigation must be accommodated. The Judge found that "FCI, Petersburg draws the line of accommodation at the point where the examination of the [Union's] designated representative has been completed." Judge's Decision at 4. According to the Judge, FCI, Petersburg holds that the designation of a witness as the union representative, after the witness has been interviewed, is presumed not to compromise the integrity of the investigation. The Judge then found that an agency can rebut this presumption, and reject the union's designated representative, where it shows that the designated representative presents "real potential harm to the investigation." Id. at 4.

The Judge found that the Respondents did not show that the Union's designated representative presented a real potential harm to the investigation. The Judge rejected the Respondents' argument that "the fact that these events occurred at a 'law enforcement correctional workplace' requires a heightened sensitivity to the integrity of the investigation." Id. at 5. The Judge noted that FCI, Petersburg, which also involved a correctional facility, recognized no such heightened sensitivity. Accordingly, the Judge found that the Respondents failed to comply with section 7114(a)(2)(B) of the Statute by disqualifying the chief steward from representing the Union president, because the chief steward's examination was complete.

As a remedy, the Judge ordered nationwide posting of the unfair labor practice notice and required that the OIA Chief, Washington, D.C., sign the notice. However, the Judge denied the General Counsel's request to require that the Respondents train all management officials and agents in the Statute, as the Judge found that the General Counsel had not provided a "compelling justification" for such a remedy. Id. The Judge stated that such a remedy was "unprecedented as an Authority-directed unfair labor practice remedy" and "extraordinary." Id.

III. Positions of the Parties

A. Respondents' Exceptions

The Respondents contend that the Judge misstated and/or misapplied the FCI, Petersburg test in determining whether and when an agency may preclude a specific individual from serving as a union's designated representative at a Weingarten examination. The Respondents assert that the Judge incorrectly interpreted FCI, Petersburg as holding that an individual under investigation may serve as a representative after that individual's own examination is complete. According to the Respondents, FCI, Petersburg requires that the entire investigation be completed before a subject (or, as in this case, a witness) may serve as a designated representative.

The Respondents further contend that the Judge's test--requiring the Respondents to show that allowing the witness to act as a representative would be a "real potential harm to the investigation"--is without precedent. Respondents' Exceptions at 5. The Respondents, relying on Bell v. Wolfish, 441 U.S. 520, 546-47 (1979) (Bell), argue that the Judge's presumption in favor of a union's designation ignores the fact that the Respondents' "determination as to whether something would have an effect on the integrity of an investigation is clearly an internal security matter." Respondents' Exceptions at 6.

Finally, the Respondents argue that "allowing a witness to act as a representative for the subject of an investigation during an interview of that subject . . . clearly interferes with the integrity of such interview[]." Id. at 7. Specifically, the Respondents argue that allowing the chief steward to act as a union representative would have made it more likely that the chief steward would violate the oath contained in the affidavit she signed, as well as violate the mandate of the Respondent's program statement.

B. General Counsel's Opposition

The General Counsel asserts that in FCI, Petersburg, the Authority held that individuals who had been investigated could serve as a union's designated representative when their own personal examination had been completed. The General Counsel asserts that in the phrase "until their own investigations had been completed[,]" 25 FLRA at 211, the word "investigations" is used synonymously with the word "examinations." General Counsel's Opposition at 3-4. Further, the General Counsel argues, the Authority clearly stated that it is an unfair labor practice to refuse " 'to permit designated representatives, whose examinations had been completed, to represent employees to be examined.'" Id. at 4 (quoting FCI, Petersburg, 25 FLRA at 211) (emphasis added by the General Counsel).

The General Counsel argues that the Respondents have also misstated, or misapplied, the holding in Bell. The General Counsel distinguishes Bell by noting that it deals with an action by prison inmates to protest certain practices against, and seek certain protections for, prison inmates; the rights of prison employees were not involved. The General Counsel asserts that the right of the Respondents to conduct investigations, or determine what is necessary in order to manage Federal prisoners, is not comparable to the Respondents' rights with regard to bargaining unit employees.

C. General Counsel's Cross-Exceptions

The General Counsel contends that nationwide training is needed to avoid further violations of section 7116 of the Statute. Specifically, the General Counsel requests that the Respondents be ordered to provide:

[T]raining in the Statute for all employees and all supervisors and management officials and special agents employed by the [OIA and] . . . all supervisors and management officials at . . . Englewood, through an entity other than the Department of Justice and any of its agencies. The completion of such training in the Statute shall [be] annotated in the personnel records of all supervisors, management officials[,] and special agents employed by . . . [OIA and Englewood].

General Counsel's Cross-Exceptions, Attachment A.

The General Counsel contends that precedent for ordering such training as a remedy is found in the arbitration area, where, with court approval, the Authority has enforced arbitrators' awards that directed training for agency managers. In support, the General Counsel cites U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California and American Federation of Government Employees, Local 3854, 48 FLRA 74, 87-89 (1993) (Edwards AFB), where the Authority upheld an arbitrator's award ordering supervisors to attend training workshops on sexual harassment; and U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania, and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288, 1303-05 (1991) (Lewisburg), in which the Authority upheld an arbitrator's award requiring a supervisor to take sensitivity training. Based on these two cases, the General Counsel argues that the requested remedy is neither "unprecedented" nor "extraordinary." General Counsel's Cross-Exceptions at 15 (quoting Judge's Decision at 5). The General Counsel asserts that the Authority's broad remedial powers allow the Authority to issue similar orders in unfair labor practice cases, and that the requested training is remedial, not punitive.

Finally, the General Counsel asserts that there is a "compelling justification" for the remedy, as stated by the Judge, in view of the Judge's finding that "a nationwide posting was appropriate to remedy OIA's nationwide policy inimical to section 7114(a)(2)(B) because of its adverse effect on the entire, nationwide, consolidated bargaining unit." Id.

D. Respondents' Opposition

The Respondents characterize the General Counsel's argument as alleging that the Respondents have shown a tendency to repeatedly violate the Statute and that, therefore, they would not be inclined to obey an order in this case. The Respondents contend that such an argument is unsupported. The Respondents assert that the broad scope of the General Counsel's requested training bears no relationship to what might be needed to remedy the alleged violation. The Respondents contend that the requested training for the Respondents' managers is punitive and beyond the scope of the Authority's remedial powers. The Respondents argue that reliance on Lewisburg and Edwards AFB is misplaced, because the training was ordered on the basis of the parties' negotiated agreement and to remedy violations of EEO law, respectively, not the Statute. Further, the Respondents argue that the General Counsel's reliance on Lewisburg is misplaced, because the court declined jurisdiction and therefore its remarks were, at most, dicta.

The Respondents also argue that the General Counsel's requested training order is outside the Authority's power because it orders a specifically named individual to take action. The Respondents contend that only an "agency" can be ordered to take action, pursuant to section 7118(a)(7) of the Statute. In support, the Respondents cite to the legislative history of the Statute, which shows that language contained in early bills allowing named individuals to be ordered to take action does not appear in the Statute.

IV. Analysis and Conclusions

A. Section 7114(a)(2)(B) of the Statute--Codifying the Right of Federal Employees to Union Representation During an Investigatory Examination

Under section 7114(a)(2)(B) of the Statute, 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. 5 U.S.C. § 7114(a)(2)(B). The legislative history demonstrates 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 (NLRB) in interpreting and applying the National Labor Relations Act and the Supreme Court's decision in 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., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 926 (1979) (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 Courts's decision in Weingarten). See also Internal Revenue Service, Washington, D.C. v. FLRA, 671 F.2d 560, 563 (D.C. Cir. 1982).

B. NLRB v. J. Weingarten, Inc.--Establishing the Right to Representation During an Investigatory Interview

In Weingarten, the Supreme Court held that an employer's denial of an employee's request for union representation during an investigatory interview which the employee reasonably believed might result in disciplinary action interfered with, restrained, and coerced the employee's right to engage in concerted activities for mutual aid or protection. See 420 U.S. at 267. The Court stated that an employee who is questioned during an investigatory examination that may result in discipline "may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors," and that union representation would allay such fears and elicit useful information. Id. at 263. The Court also stated that an exclusive representative protects "the interests of the entire bargaining unit." Id. at 260-61. 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 the same time, the Court recognized that the right of an employee to be represented during investigatory interviews "may not interfere with legitimate employer prerogatives." Id. at 258. The Court stated:

The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and forgoing any benefits that might be derived from one.

Id.

C. FCI, Petersburg

In FCI, Petersburg the Authority held that the agency was justified, in order "to preserve the integrity of [its] investigation," in refusing to accept as the union's designated representative an unexamined subject of the same investigation. 25 FLRA at 211. However, the Authority found that the respondent was not justified in refusing to accept as the union's designated representative an examined subject of the same investigation. See id. The Authority stated:

[T]o preserve the integrity of the investigation, individuals who were to be investigated could not serve as representatives of other employees being investigated until their own investigations had been completed. Consequently, the Judge found that the Respondent had violated section 7116(a)(1) and (8) only in those instances where the Respondent had refused to permit designated representatives, whose examinations had been completed, to represent employees to be examined. . . . .

. . . .

We adopt the Judge's findings and conclusions.

Id. at 211-212.

The General Counsel and the Respondents disagree on FCI, Petersburg's holding. The General Counsel contends that FCI, Petersburg stands for the proposition that an agency may preclude a subject from acting as the union's designated representative only until that individual has been examined. See General Counsel's Opposition at 4. The Respondents, however, argue that the principle of FCI, Petersburg is that a subject cannot serve as a representative until the entire investigation is complete. See Respondents' Brief at 2 n.1. The General Counsel also argues that, because the Union has a right to designate its representative, FCI, Petersburg places the burden on a respondent to show that the designated representative poses a threat to the integrity of the investigation. The Respondents, however, argue that FCI, Petersburg does not create any such burden, and that, throughout the entire examination, a subject has an interest that conflicts with the duties of a union representative. The Respondents also argue that a subject serving as a representative presents an inherent threat to the integrity of the investigation, and there should be no burden on a respondent to justify the objection to the subject as a representative.

FCI, Petersburg does not fully explain how an unexamined witness serving as a representative poses a threat to the integrity of the investigation, or how examination alleviates that threat. Additionally, to the extent that FCI, Petersburg draws a line after a designated representative has been examined as a witness, the line is subject to manipulation. For example, if an individual may serve as a union's representative after that individual's examination is complete, then an agency could delay examining that individual until all other interviews were completed, effectively preventing the union from ever using that individual as its representative. Because of FCI, Petersburg's lack of clarity and the potential for manipulation, we take this opportunity to clarify the analytical framework for determining whether an agency can preclude a particular individual from serving as a designated representative.

D. Where "Special Circumstances" are Shown, an Agency Can Preclude a Particular Individual from Serving as a Union's Designated Representative During a Weingarten Examination

As stated above, 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. 5 U.S.C. § 7114(a)(2)(B). Moreover, the Authority has held that an exclusive representative has the right to designate its representatives when fulfilling its responsibilities under the Statute, and an agency violates section 7116(a)(1) and (5) of the Statute when it refuses to honor the union's designation of a representative. See, e.g., Food and Drug Administration, Newark District Office, West Orange, New Jersey, 47 FLRA 535, 566 (1993). However, a union's representational rights under section 7114(a)(2)(B) of the Statute are not without qualification. For example, a union may not interfere with an employer's legitimate interest and prerogative in achieving the objective of the examination or compromise its integrity. See Federal Aviation Administration, New England Region, Burlington, Massachusetts and National Association of Air Traffic Specialist, 35 FLRA 645, 652 (1990). In addition the Authority has held that section 7114(a)(2)(B) does not create a per se right for an employee and the union's representative to confer outside of an examination room during a Weingarten examination. See Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Phoenix, Arizona and Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 421, 435, 438-39 (1996) (Member Wasserman, dissenting). Another limitation on section 7114(a)(2)(B) rights was recognized in U.S. Immigration and Naturalization Service, New York District Office, New York, New York and American Federation of Government Employees, Local 197, 46 FLRA 1210, 1223 (1993) (INS) aff'd 22 F.3d 1184 (D.C. Cir. 1994), where the Authority held that it was not an unfair labor practice for a respondent to proceed with investigatory interviews where the union's president and vice president--its designated Weingarten representatives--were out of town on union business and unavailable to represent employees through no fault of the respondent. The Authority's approach in these cases is consistent with the Supreme Court's recognition of the need to "strik[e] a balance between an employer's legitimate interests and prerogatives in investigating and disciplining misconduct[,] and the right of an employee to have the 'assistance of his union representative at a confrontation with his employer.'" 46 FLRA at 1218 (citing Weingarten, 420 U.S. at 260).

Similarly, the NLRB has recognized that the right to representation under Weingarten is not unfettered. See New Jersey Bell Telephone Co. and Local 827, International Brotherhood of Electrical Workers, AFL-CIO, 308 NLRB 277, 282 (1992) (New Jersey Bell) (allowing an employer to preclude a witness to the incident under investigation from serving as the union's representative because the employer demonstrated "special circumstances" warranting preclusion; specifically, because of the designated individual's obstructive behavior during an earlier Weingarten examination and the individual's trespassing on the employer's property); Pacific Gas & Electric Co. and Joseph C. Green, 253 NLRB 1143, 1143 (1981) (holding that an employee may not insist on the representation of an off-site union representative who is not readily available when the assistance of another union representative, who is on-site, is readily available); Roadway Express, Inc. and Van Drake and Edward Bailey, 246 NLRB 1127, 1129 (1979) (holding that Weingarten does not "state or suggest that an employee's interest can only be safeguarded by the presence of a specific representative sought by the employee, as opposed to being accompanied by any union representative;" in particular, that an employee under investigation cannot insist on representation from an off-site representative when an on-site representative is available); Coca-Cola Bottling Co. of Los Angeles and International Association of Machinists & Aerospace Workers District Lodge 94, Local Lodge 1186, AFL-CIO, 227 NLRB 1276, 1276 (1977) (holding that an employer is not required to postpone examinations because a shop steward is unavailable--for personal or other reasons for which the employer is not responsible--where another union representative is available to act as a representative).

To effectuate an agency's legitimate concerns regarding the integrity of its investigation and the union's right to designate the representatives for purposes of section 7114(a)(2)(B) of the Statute, it is necessary to accommodate these interests. Our framework of accommodation is governed by the presumption that a union can designate the individual it wants as its representative during a Weingarten examination, pursuant to section 7114(a)(2)(B) of the Statute. By adopting this presumption, we continue to recognize the agency's interest in preserving the integrity of its investigation. Therefore, an agency can rebut this presumption. We hold that an agency may preclude a particular individual from serving as the union's designated representative only where the agency can demonstrate "special circumstances" that warrant precluding a particular individual from serving in this capacity. See New Jersey Bell, 308 NLRB at 282. "Special circumstances" will, consistent with its application in the private sector, be construed narrowly to preserve the union's normal prerogatives. We emphasize, in addition, that even if an agency can demonstrate such special circumstances, a union nonetheless may exercise its right of representation by designating another individual to serve as a representative.

E. The Respondents did Not Show Special Circumstances that Warrant Precluding the Chief Steward from Serving as the Union's Representative

Starting with the presumption stated above, the Union had the right to designate the chief steward as its representative during the Union president's Weingarten examination. To rebut this presumption, and preclude the chief steward from serving as the representative, the Respondents need to demonstrate special circumstances warranting preclusion. Here, the Respondents did not demonstrate special circumstances. As discussed below, the mere fact that the chief steward was a witness to the incident under investigation alone is not enough to warrant precluding her from serving as the Union's representative, because the Respondents have not shown how permitting the chief steward to serve as the Union's representative harms the integrity of its investigation. The Respondents have not raised any other arguments or facts that explain why the chief steward should be precluded from serving as the Union's representative. Accordingly, we affirm the Judge's conclusion that the Respondent violated the Statute by interfering with the Union's section 7114(a)(2)(B) right, and deny the Respondents' exception.(4)

The Respondents urge adoption of a rule that absolutely prohibits a witness to an incident under investigation from serving as a union's representative during a Weingarten examination. The Respondents made several arguments in support of this rule, each of which we address below.

The Respondents' first argument in support of the absolute prohibition is that allowing the witness to serve as the Union's representative increases the likelihood that the witness would break her pledge not to discuss the issues raised during the witness's interview. We reject this argument because a witness's opportunity to violate his or her oath during the time between his or her interview and an interview in which he or she serves as the union's representative is the same regardless of his or her status as a representative.

The Respondents' second argument in support of the absolute prohibition is that there is an inherent conflict between the "function" of a representative and that of a witness, a conflict that increases the probability of collusion. Respondent's Exceptions at 9. We disagree. The function of a witness is to recount events; the function of a representative is to protect and monitor the examinee's and the bargaining unit's rights and interests. We see no conflict between the former and the latter. The opportunity to collude is not necessarily increased by allowing the witness to serve as the union's representative. As the Judge stated, had the union representative and the examinee both "been of a mind to ignore the instructions with which they were both familiar, in order to collude, they would not have needed [the witness'] participation as the union representative at [the examinee's] interview to enable them." Judge's Decision at 4. Similarly, the Respondents assert that it is unwise to expect an employee to perform the conflicting functions of witness and union representative, citing U.S. Department of the Treasury, Customs Service, Washington, D.C. and National Treasury Employees Union, 38 FLRA 1300 (1991) (Customs Service) in support of the proposition that a union representative cannot be compelled to divulge the confidential statements of an employee under investigation. However, Customs Service holds only that a representative may not be compelled to divulge information learned in the course of representation, and does not limit the duty of a witness to reveal what he or she witnessed. See Customs Service, 38 FLRA at 1308-09.

The Respondents' third argument in support of an absolute prohibition against allowing a witness to serve as a representative is that new information might appear, requiring reexamination of the witness. As the Judge notes, however, the possibility of reexamination exists in any situation, and the possibility of it arising in a situation such as this does not increase the likelihood of a witness changing her testimony. If the chief steward offered different or contradictory testimony, presumably the Respondents could have impeached the chief steward's testimony with her earlier statement or with the statements of the other two witnesses to the incident. See Judge's Decision at 2 (noting the presence of two other witnesses to the incident).

The Respondents, relying on Bell, 441 U.S. at 520, argue that determining whether something affects the integrity of an investigation is an agency's internal security matter, and that deference should be shown to the Respondents in deciding to preclude a witness from serving as a representative. We disagree. Bell concerned the constitutionality of housing and security rules as they pertained to pre-trial inmates, and did not concern the labor and employment rights of correctional employees. Accordingly, we reject the Respondents' argument as to the applicability of Bell here.

In sum, we find that the Respondent violated the Statute by interfering with the Union's section 7114(a)(2)(B) right, because the Respondents did not demonstrate special circumstances that warrant precluding the chief steward from serving as the Union's representative. Therefore, we deny the Respondents' exception.

F. The General Counsel's Requested Remedy

In addition to nation-wide posting of the notice as a remedy, the General Counsel attaches a recommended notice containing the personal name of the chief of the OIA, and requests training for OIA and Federal Correctional Institute Englewood officials and agents to be conducted by individuals from outside of the Department of Justice.

The Authority has previously addressed the remedies it will grant in unfair labor practice cases. See Department of Veterans Affairs, Medical Center, Phoenix, Arizona, 52 FLRA 182, 184-87 (1996) (VA Phoenix); F.E. Warren Air Force Base, Cheyenne, Wyoming and American Federation of Government Employees, Local 2354, 52 FLRA 149, 160-62 (1996) (Warren). In Warren, the Authority discussed its approach to evaluating requests for nontraditional remedies, and concluded that such remedies must satisfy the same broad objectives that the Authority described in United States Department of Justice, Bureau of Prisons, Safford, Arizona and American Federation of Government Employees, Local 2313, 35 FLRA 431, 444-45 (1990) (DOJ). "That is, assuming that there [are] no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to 'recreate the conditions and relationships' with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct." Warren, 52 FLRA at 161 (citing DOJ, 35 FLRA at 444-45). The Authority also determined that "[a]s these questions are essentially factual, we evaluate them, as we do other factual questions, by considering the record evidence, arguments to the Judge, and any exceptions to the Judge's decision." VA Phoenix, 52 FLRA at 186.

In VA Phoenix, the Authority applied the Warren standards and rejected a requested remedy substantially similar to the requested remedy here. In VA Phoenix, the Authority held that conducting a formal discussion with unit employees without giving the union notice and an opportunity to be represented violated the Statute. The Authority rejected the General Counsel's request to order that supervisors be trained in the obligations of VA management under section 7114(a)(2)(A) of the Statute, and that such training be provided by an agency other than VA. The Authority also rejected the argument that because supervisors ignored Authority precedent, they are likely to continue to do so. In this regard, the Authority found that the "facts and circumstances do not establish that the supervisors' actions were based on their ignorance of obligations under the Statute or that, for any other reason, training of the supervisors is reasonably necessary to effectuate the purposes and policies of the Statute." VA Phoenix, 52 FLRA at 186.

VA Phoenix took note that the state of the law was not settled when the violation took place; the agency was awaiting the outcome of an appeal to the United States Court of Appeals for the Ninth Circuit of Authority precedent.(5) The Ninth Circuit subsequently affirmed the Authority and the VA asserted that it had since followed the law. The Authority concluded that:

Under the approach adopted in Warren, the record does not establish that requiring the supervisors to undergo training, even if they are likely to conduct interviews of the type found to constitute a formal discussion in this case, is reasonably necessary and would be effective to create conditions and relationships with which the violation interfered or to effectuate the purposes and policies of the Statute.

Id. The Authority also found that the General Counsel had not shown that the proposed training was necessary, or that it could only properly be done by another agency. Id. at n.6.

VA Phoenix also rejected the General Counsel's arguments based on the Authority's upholding of arbitrators' remedies in Edwards and Lewisburg, stating that these "decisions do not support a conclusion that training should be required as a remedy in unfair labor practice cases." Id. at 185.

The General Counsel relies on the Authority's order of training in arbitration cases in support of its request for training in the Statute here. Further, the General Counsel argues that nationwide training is appropriate because the Respondents' arguments--that a witness should be absolutely precluded from serving as a union representative, and that the heightened security practices in a correctional facility warrant absolute preclusion--demonstrate the failure to acknowledge section 7114(a)(2)(B) of the Statute.

We reject the General Counsel's request for training in the Statute, as we did in VA Phoenix. The General Counsel has not demonstrated why the remedy is reasonably necessary, how the remedy would effectively recreate the conditions and relationships with which the unfair labor practice interfered, how the policies of the Statute would be effectuated, or how future violative conduct would be deterred. The fact that the Respondents argued in favor of absolutely precluding the witness from serving as the union's representative does not mean that the Respondents fail to recognize their obligations under the Statute, such that training would likely prevent future violations. The Respondents' recognition of their obligations under the Statute is shown by their allowing the Union to designate another individual to serve as Union representative and continuing with the interview. Finally, their reliance on the heightened security risks in a correctional institution to support an absolute preclusion standard also does not demonstrate that training is necessary. Therefore, based on the record evidence, arguments to the Judge, and the General Counsel's exceptions, we affirm the Judge's decision not to direct Agency-wide training regarding Weingarten rights.

Finally, we reject the argument that the order and notice should identify by name the chief of OIA. In VA Phoenix the Authority rejected a request that the names of the supervisors responsible for the unfair labor practices appear in the notice to employees. The Authority found that "no authority is cited or apparent for concluding that individuals are named in private-sector notices," and noted one case in which an Authority judge denied such a request. Id. at 185 n.5. The Authority also found that "[b]ased on our application of Warren, we conclude that this remedy, too, is not necessary to effectuate the legal and policy objectives to be achieved by the Statute." Id. at 187. We reach a similar conclusion here, as the General Counsel has made no argument and cited no precedent warranting the naming of a particular individual in the order and notice. Therefore, we will identify the agency official by position but not by name in the order and notice.

V. Order

Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Bureau of Prisons, Office of Internal Affairs, Aurora, Colorado, and Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, shall:

1. Cease and desist from:

(a) Failing and refusing to comply with section 7114(a)(2)(B) of the Statute, by interfering with the American Federation of Government Employees, Local 709's lawful designation of its officers and stewards as its representatives at any examination of a unit employee.

(b) In any like or related manner, interfering with, restraining, or coercing bargaining unit 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 its facilities within the Federal Bureau of Prisons where bargaining unit employees represented by American Federation of government Employees, AFL-CIO, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chief of the Office of Internal Affairs, and shall be posted and maintained for 60 consecutive says 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 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80004-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Federal Bureau of Prisons, Office of Internal Affairs, Aurora, Colorado and Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado (Respondents), violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY BARGAINING UNIT EMPLOYEES THAT:

WE WILL NOT interfere with the American Federation of Government Employees, Local 709 (the Union) lawfully designating its officers and stewards as it representatives at any examination of a unit employee, pursuant to section 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statue.

WE WILL NOT in any other 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 Statue.

WE WILL comply with section 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statute and allow the Union to designate employees whose examinations have been completed, in the absence of a demonstration of special circumstances by the Respondents, to be representatives at any examination of an employee.

______________________

(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 an 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, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, Colorado, 80204-3581, and whose telephone number is: (303) 844-5224.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

FEDERAL BUREAU OF PRISONS,

OFFICE OF INTERNAL AFFAIRS, WASHINGTON, D.C. AND FEDERAL BUREAU OF PRISONS, OFFICE OF INTERNAL AFFAIRS, AURORA, COLORADO AND FEDERAL BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION ENGLEWOOD, LITTLETON, COLORADO

Respondents

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

LOCAL 709, AFL-CIO

Charging Party

Case No. DE-CA-40661

Hazel E. Hanley, Esquire

For the General Counsel

Steven R. Simon, Esquire

Marcus Williams, Esquire

For the Respondent

Ron Melton, North Central Regional Vice President

For the Charging Party

Before: JESSE ETELSON

Administrative Law Judge

DECISION

The complaint in this case alleges that the Respondents failed to comply with section 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute) by denying an employee's request for the assistance of the designated representative of the Charging Party (the Union) at an investigatory interview that the employee reasonably believed might result in disciplinary action against her. This denial, was in violation of sections 7116(a)(1) and (8) of the Statute. The requested Union representative was a witness to the incident about which the employee was to be interviewed, and had herself been interviewed about the incident.

Respondents' answer admits every factual allegation of the complaint except the allegation that the examination of the Union representative, as a witness, had been completed. The answer denies any failure to comply with the Statute and any unfair labor practices. The answer further asserts that the exclusion of an eyewitness as a Union representative was a legitimate employer prerogative to preserve the integrity of the investigation.

A hearing was held in Denver, Colorado. Counsel for the General Counsel and for the Respondents filed post-hearing briefs.(1)

Findings of Fact

The Union is the agent, for the purpose of representing bargaining unit employees at the Federal Correctional Institution Englewood, of the exclusive representative of employees in a nationwide bargaining unit. Employee Erica Shields is the president of the Union. In April 1994 Shields was called to the warden's office, where she had a confrontation with Acting Warden Daniel Fitzgerald. Shields protested Fitzgerald issuance of a formal letter of counseling for a previous alleged use of profanity. Shields accused Fitzgerald of retaliation against her and left the April meeting. The meeting thus ended, apparently no more than five minutes from its start. Fitzgerald reported this incident to the Federal Bureau of Prisons, Office of Internal Affairs (OIA), alleging that Shields' conduct constituted insubordination.

OIA opened an investigation of the matter and assigned it to Special Agent Elizabeth P. Strack. Strack began conducting interviews about the incident on May 13, 1994. She interviewed Fitzgerald and two others, then Michele Allport, the Union's chief steward, who had been present at the April incident as Shields' Union representative. Strack interviewed Allport for two to two and one-half hours and prepared an affidavit, which Allport signed.(2) Allport's account of the April incident was essentially in accord with the summary of the incident given by Fitzgerald in the report that initiated the investigation. The final paragraph of her affidavit reads as follows:

10. That I have cooperated fully with this investigation and I do not know of or have any additional information, that I have not already mentioned, concerning this case. I have been informed and understand that I am not to discuss this interview without the permission of the Office of Internal Affairs. I further understand that if I improperly discuss this matter, I may face adverse action to include removal from employment.

In including the last two sentences in the affidavit presented to Allport for signature, Strack was following an OIA Program Statement that includes the following: "Victims, witnesses, collateral sources and subjects shall be advised . . . that the subject matter of the interview and any information exchanged with the investigator is confidential and may not to [sic] be discussed with others."

Strack told Allport that Shields was the only person remaining to be interviewed. Allport responded that in that case she and Strack would see each other again, because Allport would be acting as Shields' designated Union representative. Strack told Allport that she would not allow Allport to serve as Shields' representative because she was a witness.

On May 16, Shields was called for her interview. She notified Allport, who obtained official time and clearance from her supervisor to attend the interview with Shields. When they appeared together, Strack told them essentially what she had previously told Allport--that Allport could not serve as Shields' representative because she was a witness to the alleged misconduct that was the subject of the investigation. Shields found another Union official, Lori Salazar, to act as her representative and the interview proceeded. As Salazar was inexperienced, Shields used her presence more as a training tool for Salazar than as an assistance to herself. In the affidavit that Shields signed to conclude the interview, she noted Strack's refusal to permit her to have Allport as her representative, and protested that refusal.

Discussion and Conclusions

A union has the right to designate its representatives in investigatory examinations described in section 7114(a)(2)(B) of the Statute. U.S. Immigration and Naturalization Service, New York District Office, New York, New York, 46 FLRA 1210, 1221 (1993) (INS). Respondents do not acknowledge this general principle. Thus, they put great stock in the Authority's specific failure to adopt the statement by Judge Devaney in Federal Prison System, Federal Correctional Institution, Petersburg, Virginia, 25 FLRA 210, 211-12 (1987) (FCI Petersburg) that "as a general rule a union's right to designate its representative for the purpose of an examination in connection with an investigation is inviolate." However, despite the Authority's rejection of that statement, its decision in that case, affirming the judge's findings and conclusions, leaves little doubt of its agreement with the general principle. Thus, the Authority affirmed Judge Devaney's finding that the activity's refusal to permit the union's president, who had also been examined in connection with the investigation, to represent other employees at their interviews, constituted a failure to comply with section 7114(a)(2)(B) of the Statute. Whatever problem the Authority may have had with Judge Devaney's formulation of the principle in FCI Petersburg, it reaffirmed, in the more recent INS decision, the existence of a union's right to designate.

In the instant case, the applicability of section 7114(a)(2)(B) is undisputed, and the only question is whether Strack, undisputedly acting on behalf of the Respondents, was entitled to disqualify the representative designated by Shields, in her capacity as Union president, to assist herself as an employee in a section 7114(a)(2)(B), or Weingarten, situation.(3)

Without conceding the general principle of a union right to designate, Respondents contend that the exclusion of Allport as Shields' representative was necessary to preserve the integrity of the investigation because, being a witness, her role with respect to the accused employee would carry the potential for collusion as well as an "inherent conflict of interest." In FCI Petersburg, Judge Devaney recognized the need to preserve the integrity of investigations, and explored, with the Authority's approval, the means of accommodating the union's right and the employer's legitimate interest in the integrity of the examination.(4) To deal with situations where, like the instant case, the investigation requires the examination of someone who has been designated as the representative of an employee who is the subject of the investigation, FCI Petersburg draws the line of accommodation at the point where the examination of the designated representative has been completed(5). Once that point has been reached, the designee's participation as the subject's representative will not necessarily compromise the integrity of the investigation, and the union's right to designate must be recognized. Id. at 211-12, 228-29.

I treat this analysis not as a hard and fast rule but as a set of presumptions in aid of a general principle of accommodation. As the Authority has held with respect to the analogous problem of determining what information should be provided to a union to enable its representative to prepare for a Weingarten examination, the union's right "must be balanced against the interests of an agency employer in investigating and disciplining misconduct." Federal Aviation Administration, New England Region, Burlington, Vermont, 35 FLRA 645, 653 (1990). Thus, to overcome the FCI Petersburg presumption where the examination of a designated representative has been completed, the employer may be able to justify rejecting the union's choice of representative by showing real potential harm to the investigation.

Reflecting the only factual allegation of the complaint that is in dispute, Respondents deny that Strack had completed her examination of Allport at the time Shields was interviewed. The state of "completion" of this examination as of that time is a subjective matter, but one that must be determined on the basis of inference grounded in the objective evidence. I find that, for purposes of the FCI Petersburg analysis, the examination of Allport had been completed. Strack examined Allport thoroughly and obtained from her an affidavit containing, to the extent it was possible to determine this, everything relevant that Allport knew. Moreover, Allport essentially confirmed the factual basis on which Fitzgerald presented his charge of insubordination against Shields. Thus, Strack had little reason to suspect that Allport was holding information back, and she acknowledged as much at the hearing.

Respondents raise the possibility that new information coming to Strack's attention might have caused her to examine Allport further. However, if such a theoretical possibility were sufficient to prevent a finding that the examination had been completed, the FCI Petersburg analysis would be meaningless. The possibility of examining a witness further always exists until the investigation is totally completed. By then, of course, the employee under investigation will have been interviewed without the participation of the designee-witness.

Nor have Respondents shown any other practical reasons to suspect that Allport would violate her oath to refrain from discussing her interview. The opportunity to do so existed during all the time that elapsed between the end of Allport's interview and the beginning of Shields'. Had they been of a mind to ignore the instructions with which they were both familiar, in order to collude, they would not have needed Allport's participation as the union representative at Shields' interview to enable them.

Respondents contend that it would be "extremely unwise to subject eyewitness employees to the kind of diverging loyalties inherent" in the dual roles of witness and union representative because, under Authority precedent, a union representative may not be compelled by the employer to disclose confidential statements an employee makes to the representative in the course of representing that employee. U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 1300 (1991). However, I am not able to perceive the assert conflict. Although she may later be called upon to act as an employee's representative, nothing in the Authority's decision in Customs Service, or the principles for which it stands, constrains a witness from revealing fully what she has witnessed. The assertion of a conflict of interest presupposes that, because she is also a witness, that individual is expected to reveal not only what she observed, but also, if called for further questioning, what she has been told by the employee she is assisting. Such a doctrine conflates the two roles, and is, moreover, incompatible with Customs Service.

Although not articulated directly, I detect in Respondents' argument the suggestion that the fact that these events occurred at a "law enforcement correctional workplace" requires a heightened sensitivity to the integrity of the investigation. While I would not recommend that the Authority ever be insensitive to considerations of integrity, I see no basis for giving this investigation any special status. FCI Petersburg, which is controlling here, also involved a "correctional workplace." Moreover, I would describe the alleged misconduct that was the subject of this investigation as more a matter of relations between Shields--as an employee--and one of her superiors, than one that was uniquely connected with law enforcement.

I conclude that, by refusing the Union's request to permit Allport to represent Shields, the Respondents failed to comply with section 7114(a)(2)(B) of the Statute and thereby violated sections 7116(a)(1) and (8).

The Remedy

Counsel for the General Counsel requests, in addition to a remedy corresponding to the one provided in FCI Petersburg, a nationwide posting, the notice to be signed by the chief of Respondent Office of Internal Affairs (OIA), and training for OIA and Federal Correctional Institute (FCI) Englewood officials and agents, "through an entity other than the Department of Justice and any of its agencies." Attendance at such training is to be documented by annotation of personnel records. Presumably, the requested training is to focus on section 7114(a)(2)(B) rights.

I find a nationwide posting, at Federal Bureau of Prisons facilities where members of the bargaining unit are located, to be signed by the chief of OIA, to be appropriate. The practice of denying the Union's right to designate as a representative anyone who was a witness was defended here as a matter of national OIA policy, and therefore affected the entire bargaining unit. See U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 47 FLRA 1254, 1262-64 (1993) (OIG). As in OIG, however, the purposes of the notice do not require further posting at OIA facilities. Id. at 1265. The requested training remedy is, as far as I have been able to determine, unprecedented as an Authority-directed unfair labor practice remedy. It is also an extraordinary remedy. Neither of these labels, of course, makes it inappropriate. Counsel may be expected, however, when seeking such a remedy, to provide a compelling justification. I find none here, and deny the request. I recommend 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 the Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., Federal Bureau of Prisons, Office of Internal Affairs, Aurora, Colorado and Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, shall:

1. Cease and desist from:

(a) Failing and refusing to comply with section 7114(a)(2)(B) of the Statute, by interfering with the American Federation of Government Employees, Local 709's lawful desig-nation of its officers and stewards as its representatives at any examination of an employee.

(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 facilities within the Federal Bureau of Prisons where bargaining unit employees represented by American Federation of Government Employees, AFL-CIO, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chief of the Office of Internal Affairs, 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 t