U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and American Federation of Government Employees, Council of Prison Locals

[ v55 p388 ]

55 FLRA No. 64

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
OFFICE OF INTERNAL AFFAIRS
WASHINGTON, D.C.
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS
(Charging Party/Union)

WA-CA-60287

_____

DECISION AND ORDER

April 29, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

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 (Judge) filed by the General Counsel.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), by failing to comply with section 7114(a)(2)(B) of the Statute, in denying requests to be provided with a representative of the Charging Party by employees Bryan Bower, James Nickerson, and Larry Zucksworth. [n2]  The complaint also alleges that the Respondent committed independent violations of section 7116(a)(1) of the Statute by (1) telling employee Nickerson that the Union would not represent him because of certain information he had disclosed to the Respondent; and (2) requiring employee Osvaldo Baez to wait for eight hours, and then failing to interview him, after he requested Union representation.

      The Judge found that the Respondent violated the Statute as alleged by denying the Union representation requests of Bower and Zucksworth, and by its treatment of Baez. The Judge dismissed the allegations that the Respondent improperly denied a request for representation by Nickerson and that it committed an independent violation of section 7116(a)(1) by its treatment of Nickerson. The Judge recommended that the Respondent be ordered to post a remedial notice at the facility of the Respondent where the violations occurred.

      The General Counsel excepts to the Judge's dismissal of the allegation that the Respondent violated the Statute by denying Union representation to Nickerson. The General Counsel also excepts to the scope of the posting recommended by the Judge. The Respondent filed an opposition to the General Counsel's exceptions.

      No exceptions were filed to the Judge's findings that the Respondent violated section 7116(a)(1) and (8) by denying Bower's and Zucksworth's requests for Union representation, and that it violated section 7116(a)(1) by its treatment of Baez. There also were no exceptions to his dismissal of the independent section 7116(a)(1) allegation concerning Nickerson. Accordingly, we adopt those findings without precedential significance. [n3] 

      Upon consideration of the Judge's decision and the entire record, for the reasons explained below, we find that the Respondent also violated the Statute by denying Nickerson's request for representation. We adopt the Judge's findings and conclusions regarding that allegation, and the Judge's recommended Order, [n4]  only to the extent consistent with this decision.

II.     Background

      The facts are set forth in the attached Judge's decision and are briefly summarized here. [ v55 p389 ]

      The Respondent is the Office of Internal Affairs (OIA) of the Bureau of Prisons. The Union represents a nationwide unit of Bureau of Prisons employees. Unit employee Nickerson is a corrections officer at the Federal Correctional Institution, Greenville, Illinois (FCI, Greenville). He was assigned to a disturbance control unit during an inmate disturbance in October, 1995. As a result of that assignment, he and others were relieved of official duties, placed on administrative leave, and charged with misconduct, including abuse of prisoners.

      The Federal Bureau of Investigation (FBI) was called in to conduct a criminal investigation. The Union president notified the Warden of FCI, Greenville, that an attorney, Thomas McGuire, would be its representative for unit employees involved in the FBI investigation. This notice was provided pursuant to the master agreement. The FBI found that the cases lacked prosecutorial merit, and referred the matter back to Respondent OIA for administrative resolution.

      The Respondent then conducted several interviews relating to the complaint in this case. Of relevance here were four interviews with Nickerson. At the last of these, Nickerson made the alleged request for Union representation that is at issue in this case.

      Nickerson was interviewed by OIA agents on January 31, and February 1 and 6, 1996. He was advised of his right to request a Union representative but declined. [n5]  On February 8, Nickerson was called back and the circumstances made it clear that he had by then become a target of investigation, whether or not he had been aware of his status before. It is this interview that is the subject of exceptions to the Judge's dismissal of the allegations that the Respondent violated section 7116(a)(1) and (8) by failing to comply with section 7114(a)(2)(B) of the Statute by denying Nickerson's request for representation.

      Nickerson's interview on February 8, 1996 was conducted by Respondent's supervisory special agent John Pfistner. Nickerson testified that there came a point in the interview when he believed that he was "being set up." Judge's decision at 5. According to credited testimony, Nickerson first requested an attorney, and then said, "I want somebody to talk to." Id. at 19.

III.     Judge's Decision

      The only issue before the Judge in the Nickerson matter was the aspect of section 7114(a)(2)(B) concerning whether Nickerson had requested Union representation. [n6]  The Judge also raised the issue of whether the Respondent was on notice at the hearing that a claim that Nickerson asked for an attorney or somebody to talk to might form the basis for finding that Nickerson requested Union representation.

A.     Judge's Analysis Of Alleged Denial Of Nickerson's Union Representation Right

      The Judge recommended dismissal of the allegation that the Respondent violated Nickerson's right to a Union representative based on what he termed a "due process analysis." Judge's decision at 19. Although the complaint alleged that the Respondent denied Nickerson's request for Union representation at the examination on February 8, the Judge found that Nickerson had not asked for a Union representative, but rather, asked for an attorney, or somebody to talk to. On this basis, the Judge considered whether such a request could be the basis for an unfair labor practice (ULP) finding, assuming, without at that point deciding, that Nickerson had asked for an attorney or somebody to talk to. The Judge determined that the Respondent did not have sufficient notice that such a request would be used to support the allegation that Nickerson asked for Union representation.

      In arriving at that conclusion, the Judge undertook a two-part analysis to determine whether the Respon- [ v55 p390 ] dent would have been afforded due process if the ULP determination was based on whether Nickerson had asked for an attorney, or somebody to talk to, and not specifically for "union representation" as alleged in the complaint. General Counsel's Exh. 1c, para. 11(c).

      The Judge first examined whether the Respondent had adequate notice to afford it a meaningful opportunity to litigate the underlying issue of whether the Respondent denied Nickerson Union representation. He stated that

[w]hen a complaint is ambiguous and the record does not clearly show that the respondent otherwise understood (or should have understood) what was in dispute, fairness requires that any doubts about due process be resolved in favor of the respondent[.]

Judge's decision at 18, quoting Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Phoenix, Arizona. 52 FLRA 421, 431 (1996) (Bureau of Prisons) (emphasis added by the Judge).

      The complaint alleged that Nickerson "requested union representation[.]" The General Counsel's opening statement, quoted by the Judge in the Judge's decision at 17, was that "the evidence will show that Nickerson requested a Union representative and that [the] agents denied his request by telling him that he had waived his right to a Union representative in a prior interview."

      The Judge stated that the complaint and the General Counsel's opening statement "clearly put OIA on notice that it had to be prepared to controvert evidence that Nickerson made a specific request for a Union representative." Id. at 18. The Judge said that the question to be answered was whether the Respondent "understood or should have understood that the proof of that allegation might come in the form of testimony that Nickerson requested an attorney or requested `somebody to talk to.'" Id.

      The Judge found a reasonable basis to doubt whether Respondent OIA understood or should have understood this, and resolved that doubt in OIA's favor. The Judge reasoned that "even if the complaint could be construed more broadly, the General Counsel's opening statement surely focuses one's attention on the specific request for a `Union representative,' and the agents' response to that specific request." Id. The Judge stated further that it seemed unreasonable to expect the Respondent to realize at the time of the hearing that it had to address the testimony "with the same perseverance with which it would attack testimony that it could recognize as being crucial." Id. at 18-19.

      Second, the Judge examined the question of the Respondent's ability to know "what conduct was in issue." Id. at 19. The Judge stated that "The conduct that may have been required of the agents if Nickerson had requested an attorney, or `somebody to talk to,' may or may not have been the same as what would have been required if he had made a specific request for a Union representative." Id. The Judge concluded that the testimony about requesting an attorney or "somebody to talk to" may not form the basis of a finding that Nickerson requested Union representation. He therefore recommended dismissal of the allegation that OIA denied such a request.

      After the above analysis, the Judge found, based on credibility, that Nickerson had in fact requested an attorney and "that he [also] said something like `I want somebody to talk to.'" Id. at 19. The Judge made this finding "in the interest of making a remand unnecessary" in the event the Authority should find his "due process" analysis "wanting," but drew "no conclusions from these findings." Id.

B.     Judge's Decision On Scope of Posting

      To remedy the violations he found, the Judge recommended that a notice be posted at the Federal Correctional Institution, Greenville, Illinois, the facility where the violations occurred. The General Counsel had requested a nationwide posting.

      The Judge stated that the basis for the request for a broad posting appeared to be, at least in part, the existence of a national policy of the Respondent to refuse requests of employees for Union representatives who are also attorneys. Based on credibility, the Judge found that the Respondent "had not, in effect, ignored the Authority's decision in [Federal Prison System, Federal Correctional Institution, Petersburg, Virginia, 25 FLRA 210, 232 (1987)] by continuing the practice of refusing to recognize a union's designation of an attorney as its representative." Judge's decision at 24. The Judge concluded that the ULPs here were not shown to reflect national policy.

      The Judge concluded that a posting limited to the facility where the unfair labor practices occurred would be appropriate here. He noted that the OIA chief put out instructions that it is appropriate for unions to designate representatives who are attorneys, finding this to be "a pro-active step" constituting "an affirmative indication that, in the future, OIA agents will recognize the rights involved in this case." Id. at 25. He therefore found that [ v55 p391 ] the Respondent "is entitled to the presumption that it will challenge my findings and conclusions only through the established review procedures[.]" Id. He found that the policies underlying the cases finding limited postings should prevail, based on Federal Aviation Administration, Washington, D.C., 17 FLRA 142, 146, 175-76 (1985), and National Treasury Employees Union, 10 FLRA 519, 521-22 (1982).

IV.     Positions of the Parties

A.     General Counsel's Exceptions

1.     Whether All Issues Were Fully and Fairly Litigated

      Addressing the Judge's finding that the complaint was not sufficient to put the Respondent on notice that Nickerson's specific statements were at issue in the case, the General Counsel states that due process requires that "a violation not expressly alleged in a complaint may be found if all issues surrounding the violation have been litigated fully and fairly." Bureau of Prisons, 52 FLRA at 429. The Bureau of Prisons test has two parts. One is "whether the respondent knew what conduct was at issue[.]" Id. The second is whether the Respondent had a fair opportunity to present a defense.

      The General Counsel states that the "sole purpose of a complaint is to put a respondent on notice of the basis of the charges against it." Exceptions at 5, quoting U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154 (1991) (DOJ/INS). The General Counsel states that the Authority also has held that "a violation not expressly alleged in a complaint may be found if all issues surrounding the violation have been litigated fully and fairly." Bureau of Prisons, 52 FLRA at 429. According to the General Counsel, the test of full and fair litigation is "whether the respondent knew what conduct was at issue and had a fair opportunity to present a defense." Id. Where both parties understand the subject of the dispute at the hearing, "a mere ambiguity in the language of the complaint does not remove the issue from being encompassed by the complaint." U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494 (1990) (HHS, HCFA).

      The complaint gave the date of the interview at issue, asserted that Nickerson requested Union representation, and alleged that he was denied representation. The General Counsel argues that although the statements that constituted Nickerson's request were not specifically pleaded, "the Respondent was clearly on notice that this case concerned the denial of Nickerson's request for representation" pursuant to section 7114(a)(2)(B). Exceptions at 8.

      The General Counsel contends that the fact that the specific words of Nickerson's request were not pleaded in the complaint did not prejudice the Respondent in preparing or presenting its defense to the allegation. "Presumably," states the General Counsel, "preparation for the hearing entailed questioning the OIA agents involved in [the] examination about whether Nickerson made any requests for representation." Id. The General Counsel asserts that "Nickerson's testimony that he first requested a lawyer, then a Union representative or somebody to talk to, does not pose any new or separate allegation which was not alleged in the complaint." Id.

      Even if the complaint contained some ambiguity about which of Nickerson's statements should be considered as his request for Union representation, the General Counsel argues that it is clear that the Respondent understood that the issue in dispute was whether its agents unlawfully denied Nickerson's request for Union representation.

      The relevant witnesses to the event--Nickerson and agent Pfistner--both testified and were subject to cross- examination. Therefore, contends the General Counsel, the alleged shortcomings of the complaint in no way compromised the Respondent's ability to procure and prepare additional witnesses who could have bolstered its case.

      In further support of this exception, the General Counsel notes that Nickerson testified specifically about the time during the interrogation when he asked for representation, and the Respondent questioned him on cross-examination at the hearing about each statement now in dispute. Nickerson testified that he asked for an attorney, and when that request was denied, he asked for "a union rep," or "somebody to talk to." Id. at 11. From this, asserts the General Counsel, "it is evident that the two (2) phrases now in dispute-- `I want an attorney' and `I want somebody to talk to'--were inextricably linked to Nickerson's request for a union representative." Id.

2.     The Sufficiency of the Request

      The Judge found that although Nickerson did not specifically request a Union representative, he did ask for an attorney, and when that was denied, he said he wanted "to talk to somebody." The General Counsel contends that Nickerson's request for an attorney, or somebody to talk to, provides a sufficient basis for con- [ v55 p392 ] cluding that Nickerson made a valid request for Union representation.

3.     The Scope of the Posting

      The General Counsel asserts that there are two main purposes of a remedial notice: (1) it provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced; and (2) it is the only visible indication to employees that a respondent recognizes and intends to fulfill its obligations under the Statute. See U.S. Department of Treasury, Customs Service, Washington, D.C. and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 604-05 (1990) (Customs Service, Miami, Florida).

      The General Counsel argues that the Judge's reliance on the "post-violation action of the Chief of OIA" is not a valid basis to limit the scope of the posting, since this instruction was made known only to the investigatory agents, and not the unit employees. This is identified as important both because the Union represents Bureau of Prisons employees nationwide, and because all headquarters and field office OIA agents travel nationwide conducting investigatory examinations.

      In addition, the General Counsel questions the significance of the Chief's instruction to agents, noting that the Chief "merely indicated [in his testimony] that he had given the OIA agents involved with the FCI-Greenville investigation instructions on how to handle future requests" at that facility once they returned to resume their investigation. Exceptions at 18. Therefore, the General Counsel contends that the Judge's conclusion, that the OIA Chief's action in issuing instructions "constitutes an affirmative indication that, in the future, OIA agents will recognize the rights involved in this case[,]" is unsupported by the record. Id., quoting Judge's decision at 25. Similarly, contends the General Counsel, it has not been established that the OIA Chief's action had a far-reaching effect that would warrant limiting the posting.

      Finally, whatever the Respondent's policy is regarding allowing attorneys to be present during investigatory interviews, the General Counsel notes that "several experienced OIA agents were confused by the policy[,]" resulting in the wrongful denial of clear requests of at least employees Bowers and Zucksworth to have attorney McGuire as their Union representative. Id. at 19.

B.     Respondent's Opposition to the Exceptions

1.     Whether All Issues Were Fully and Fairly Litigated

      The Respondent asserts that it lacked notice that it would have to defend against the allegation that it denied Nickerson Union representation by dealing with a statement that he asked for an attorney or someone to talk to. Respondent argues, therefore, that its due process rights were violated because it was not informed of what factual matters would be at issue, but only that it would have to litigate the question of whether Nickerson requested Union representation. In addition, the Respondent argues that "neither the factual issue nor [the] legal implications of Mr. Nickerson saying [that] he would like `somebody to talk to' have been fully and fairly litigated." Opposition at 6.

2.     The Sufficiency of the Request

      The Respondent argues that even if Nickerson did say "I want somebody to talk to," it would be "illogical" to find a violation based on that request, as he previously had declined Union representation.

      The Respondent contends that this case is distinguishable from DOJ/INS, in which the Authority found that a request for a lawyer or somebody to advise the requesting employee was sufficient to put the agency on notice that the employee desired union representation. The Respondent argues that it is "illogical" in the circumstances here to find a violation based on a request to talk to "somebody" when the Judge also found that "Nickerson had decided to continue to forego Union representation even after he had reason to believe that the investigation could result in discipline against him, and . . . he did not, during any interview, change his mind and request such representation." Opposition at 7, quoting Judge's decision at 17.

3.     The Scope of the Posting                    

      In support of the Judge's limited posting, the Respondent contends, first, that there is no evidence that it has refused to abide by earlier orders, or that it will continue to engage in similar unlawful conduct in the future, citing a case with a similar holding Federal Aviation Administration, 23 FLRA 209, 218-19 (1986)). In addition, the Respondent states that the Judge found that the agents' acts did not reflect national policy.

      Second, argues the Respondent, it has taken precautionary measures to prevent such future incidents "where it is not clear that a particular individual requested by a bargaining unit member is in fact the rep- [ v55 p393 ] resentative appointed by the Union." Opposition at 9. The Respondent cites new procedures to avoid problems in the future.

      Finally, the Respondent argues that precedent supports the limited posting ordered by the Judge. It distinguishes Customs Service, Miami, Florida, where a broad posting was ordered to remedy violation of a single employee's rights, by noting that the violations there involved compliance with an arbitration award. In that case, the Respondent contends that "the posting was somewhat of a punitive measure[.]" Id. at 10. Here, the violations "were not a blatant disregard for a bargaining unit member's right to request Union representation." Id. In addition, "the Union failed to prove attorney McGuire was in fact the designated Union representative." Id.

V.     Analysis and Conclusions

A.     The Complaint Provided the Respondent Adequate Notice that Nickerson's Alleged Request for Union Representation Was at Issue, and the Issue Was Fully Litigated

      Contrary to the Judge, we find that the complaint was adequate to put the Respondent on notice that it would have to defend its agent's behavior at the February 8 Nickerson interrogation based on the request for an attorney, or somebody to talk to.

      The Authority has repeatedly affirmed the importance of giving a respondent adequate notice of the allegations against it, and has dismissed complaints where such notice was not given. See F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 153-54 (1996). The Authority has also noted that "[w]hat constitutes adequate notice will depend on the circumstances of each case." American Federation of Government Employees, Local 2501, Memphis, Tennessee, 51 FLRA 1657, 1660 (1996). However, the Authority has stated that, in every instance, this notice must afford the respondent "a meaningful opportunity to litigate the underlying issue." Id., citing Road Sprinkler Fitters Local Union No. 669 v. NLRB, 778 F.2d 8, 16 (D.C. Cir. 1985). Here, we conclude that the complaint, on its face, adequately put the Respondent on notice that Nickerson's request for representation during his February 8 interview was at issue. [n7]  The complaint does not allege that any particular words were used by Nickerson in requesting representation. Thus, the fact that, according to the Judge, Nickerson did not explicitly ask for a "Union" representative did not relieve the Respondent from having to defend its actions in denying representation.

      Even if the complaint was not sufficient to put the Respondent on notice that it would have to defend its denial of a Union representative based on a request for an attorney, or somebody to talk to, the matter was fully litigated. See Bureau of Prisons, 52 FLRA at 429. All of the statements that constituted Nickerson's alleged request for Union representation, including his statement that he wanted an attorney, or somebody to talk to, were presented at the hearing and were fully litigated. The Respondent had the opportunity to question and cross-examine Nickerson about his testimony, and it had the opportunity to prepare its defense by eliciting its agent's version of events of February 8. Furthermore, we note that the Respondent has not shown what else it might have asked or done, or what it was somehow prevented from doing, in its defense. Therefore, although we have found that the complaint was sufficient on its face to put the Respondent on notice as to the issue it must defend, even if this were not the case, as we have discussed above, the issue was fully and fairly litigated.                                   

      Accordingly, as we have found that the complaint provided adequate notice and its allegations were fully and fairly litigated, we proceed to review the record to determine whether Nickerson made a valid request for representation.

B.     The Respondent Violated Section 7116(a)(8) of the Statute By Failing to Comply With Section 7114(a)(2)(B) When It Denied Nickerson's Request for Representation

      The section 7114(a)(2)(B) provision for representationwas intended to codify for Federal employees the private sector protections established by the NLRB and the courts in Weingarten. See Federal Bureau of Pris- [ v55 p394 ] ons, 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, 54 FLRA 1502, 1509 (1998); United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 438-39 (1990) (Bureau of Prisons, Safford). Given this historical background, NLRB case law is an appropriate source of precedent, along with pertinent cases decided by the Authority, for determining issues of compliance with section 7114(a)(2)(B) of the Statute.

      The adequacy of a request for representation depends on the facts of each case. Although the right to union representation under section 7114(a)(2)(B) attaches only if an employee makes a valid request, a request need not be made in any specific form to be valid. See, for example, DOJ/INS, 41 FLRA at 167; see also Montgomery Ward & Co., 273 NLRB 1226 (1984) (Montgomery Ward). Indeed, when an employee asked to have his "work supervisor" present at a Weingarten interview, the NLRB found that the request gave notice of his desire for representation, and that the employer's denial of the request for representation by a supervisor ineligible to serve as a Weingarten representative, and statement that the employee could see no one, was preemptive. Id. at 1227. As a result, the employee was precluded from exercising the right to request an alternative representative after the employer lawfully denied the initial request. The NLRB concluded that in view of the respondent's preemptive denial, the employee's request was sufficient to invoke Weingarten protections.

      The Authority, like the NLRB, looks to see whether, in all the circumstances, the request for representation was sufficient to put the respondent on notice of the employee's desire for representation. See, e.g., United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA 874, 880 (1987). The record in this case demonstrates that Nickerson, although not specifically requesting "Union" representation, did request representation. [n8]  He asked for an attorney, and then said, "I want somebody to talk to." Judge's decision at 19. [n9]  There are no findings regarding the Respondent's response to Nickerson's request. However, it is undisputed that the Respondent did not grant the request, and proceeded with the investigation. This course of conduct comes in the context of the Respondent's denial of Weingarten representation rights to other employees as well. We find that, as in Montgomery Ward, the Respondent's denial was preemptive and "effectively prohibited [the employee] from making a further request for representation." Montgomery Ward, 273 NLRB at 1227. As Nickerson requested representation, and as the Respondent's actions in proceeding with the interview without according representation effectively foreclosed further discussion to clarify whether Nickerson wanted a Union representative, we find that the "request" aspect of Weingarten was satisfied. See Montgomery Ward, supra[n10]  By proceeding with the interview without according Nickerson representation, and thereby foreclosing further discussion to clarify whether the request was for a Union representative, the Respondent violated section 7116 (a)(1) and (8) of the Statute, by failing to comply with section 7114(a)(2)(B).

C.     The Remedy

1.     The Appropriate Scope for the Posting of the Notice is Nationwide.

      In determining the scope of a posting requirement, the Authority considers the two purposes served by the posting of a notice. U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 47 FLRA 1254, 1263-64 (1990) (OIG, Washington), citing Customs Service, Miami, Florida, 37 FLRA at 605 (1990). First, the notice provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced. Second, in many cases, the posting is the only visible indication to those employees that a [ v55 p395 ] respondent recognizes and intends to fulfill its obligations under the Statute. See Department of Housing and Urban Development, San Francisco, California, 41 FLRA 480, 483 (1991). There are circumstances where it is appropriate to require that notices be posted in areas other than the particular locations where the violation occurred to further these purposes. See Customs Service, Miami, Florida, 37 FLRA at 605. The question here, then, is whether a posting beyond the particular locations where the improper denial of representation occurred is appropriate to effectuate the purposes and polices of the Statute.

      As noted by the Judge, a broad posting has been ordered where the violation involved "an issue of import" to members of the unit who do not work at the site where the violations occurred. Violation of an employee's section 7114(a)(2)(B) right to representation has been found to be such an "issue of import." See OIG, Washington, 47 FLRA at 1263 (single employee's Weingarten rights violated). Here, three employees' Weingarten rights were violated. In addition, an independent section 7116(a)(1) violation was found based on the Respondent's conduct toward a fourth employee who made a similar request. On the basis of this record of multiple violations involving improper responses to several requests for representation, we reject the Respondent's assertion that the violations "were not a blatant disregard for a bargaining unit member's right to request Union representation." Opposition at 10.

      We note the multiple violations, combined with the fact that the investigators' work is not limited to one facility but rather involves assignment throughout the locations of the bargaining unit. In these circumstances, it is reasonable to assume that the Respondent's disregard for Weingarten rights is of import to unit employees well beyond the facility where the violations occurred. Furthermore, the record does not indicate that the new procedures, assertedly instituted by the Respondent, have been announced to unit employees. A unit-wide posting would indicate to all unit employees that their Weingarten rights will be vigorously enforced, and that the Respondent recognizes and intends to fulfill its obligations under the Statute.

      Finally, in trying to minimize its culpability, the Respondent argues that the evidence does not show it has refused to abide by earlier orders. While factually correct, the argument ignores the multiple violations here, combined with, at best, confusion by not one, but several investigators, about whether there is a policy to deny requests for Union representatives who are attorneys.

2.     Affirmative Relief

      In the absence of exceptions, we adopt the Judge's order to remedy the violations involving Bower and Zucksworth. To remedy the violation concerning the Nickerson interview, we modify the order to include a provision to protect Nickerson from discipline in the future based on any information obtained in the investigative interview conducted when his Weingarten rights were violated. We also require that if any adverse information has been retained in Nickerson's personnel records from that interview, such information is to be expunged from his records.

      In addition, the Judge indicated that disciplinary action was taken against Nickerson as a result of that interview. Judge's decision at 6. We order that the investigative interview of Mr. Nickerson be repeated at the request of the Union and Mr. Nickerson, with appropriate Union representation, and that the disciplinary action previously taken against Mr. Nickerson be reconsidered based on information obtained in the new interview without reference to or reliance on information obtained in the interview of February 8, 1996. See Bureau of Prisons, Safford, 35 FLRA at 447-48. See also, OIG Washington, 47 FLRA at 1264-65. Finally, our order directs that Mr. Nickerson be made whole for any losses suffered to the extent consistent with the decision by the Respondent on reconsideration, and be afforded grievance and arbitration rights to which he is entitled. [ v55 p396 ]

VI.     Order

      Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., shall:

      1.     Cease and desist from:

           (a)     Rejecting the requests of employees in the bargaining unit represented by American Federation of Government Employees, Council of Prison Locals (the Union), to be represented by one of the Union's attorneys at examinations in connection with an investigation, when the employees reasonably believe that the examinations may result in disciplinary action against them, without giving the employees the opportunity to request that the Union designate such attorneys as its representatives at such examinations.

           (b)     Creating the impression that employees may be made to suffer a lengthy wait for such an examination because they insist on having a Union representative present.

           (c)     In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights assured them by the Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     Establish that the information from the investigative interview of Bryan Bower in February 1996 will not be relied on so as to adversely affect Mr. Bower in the future, and that nothing has been retained in Mr. Bower's personnel records as a result of the interview that could adversely affect him. If this cannot be shown, repeat the interview, if requested by the Union and Mr. Bower. In repeating the interview, afford Mr. Bower his statutory right to Union representation. After repeating the interview, reconsider the retention in Mr. Bower's personnel records of information obtained during his February 1996 interview.

           (b)     Establish that the information from the investigative interview of Larry Zucksworth in February 1996 will not be relied on so as to adversely affect Mr. Zucksworth in the future, and that nothing has been retained in Mr. Zucksworth's personnel records as a result of the interview that could adversely affect him. If this cannot be shown, reconsider the retention in Mr. Zucksworth's personnel records of information obtained during his February 1996 interview in light of the information obtained during the interview in which he was re-examined with a Union representative present to assist him.

           (c)     Establish that the information from the investigative interview of James Nickerson on or about February 8, 1996, will not be relied on so as to adversely affect Mr. Nickerson in the future, and that nothing has been retained in Mr. Nickerson's personnel records as a result of the interview that could adversely affect him. The Respondent will expunge from Mr. Nickerson's personnel records any such information that has been retained. On request of the Union and Mr. Nickerson, repeat the examination of Mr. Nickerson that took place on or about February 8, 1996, at which he was denied his right to Union representation. In repeating that examination, afford Mr. Nickerson his statutory right to Union representation. After repeating the examination, reconsider the disciplinary action taken against Mr. Nickerson without reference to or reliance on information obtained during the February 8, 1996 interview. On reconsideration, make Mr. Nickerson whole for any losses suffered to the extent consistent with the decision on reconsideration and, if relevant, afford him whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation.

           (d)     Post at all facilities of the Respondent where bargaining unit employees are employed, 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, Bureau of Prisons, United States Department of Justice, Washington, D.C., 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.

           (e)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Region, Federal Labor Relations Authority, 800 K Street, NW., Suite 910, Tech World Plaza, Washington, D.C. 20001, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

IT IS FURTHER ORDERED that the allegation that the Respondent committed an independent violation of section 7116(a)(1) of the Statute by its treatment of Nickerson be dismissed. [ v55 p397 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., has 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 reject the requests of employees in the bargaining unit represented by American Federation of Government Employees, Council of Prison Locals (Union), to be represented by one of the Union's attorneys at examinations in connection with an investigation, when the employees reasonably believe that the examinations may result in disciplinary action against them, without giving the employees the opportunity to request that the Union designate such attorneys as its representatives at such examinations.

WE WILL NOT create the impression that employees may be made to suffer a lengthy wait for such an examination because they insist on having a Union representative present.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights assured them by the Statute.

WE WILL establish that the information from the investigative interview of Bryan Bower in February 1996 will not be relied on so as to adversely affect Mr. Bower in the future, and that nothing has been retained in Mr. Bower's personnel records as a result of the interview that could adversely affect him. If this cannot be shown, repeat the interview, if requested by the Union and Mr. Bower. In repeating the interview, we will afford Mr. Bower his statutory right to Union representation. After repeating the interview, we will reconsider the retention in Mr. Bower's personnel records of information obtained during his February 1996 interview.

WE WILL establish that the information from the investigative interview of Larry Zucksworth in February 1996 will not be relied on so as to adversely affect Mr. Zucksworth in the future, and that nothing has been retained in Mr. Zucksworth's personnel records as a result of the interview that could adversely affect him. If this cannot be shown, we will reconsider the retention in Mr. Zucksworth's personnel records of information obtained during his February 1996 interview in light of the information obtained during the interview in which he was re-examined with a Union representative present to assist him.

WE WILL establish that the information from the investigative interview of James Nickerson on or about February 8, 1996, will not be relied on so as to adversely affect Mr. Nickerson in the future, and that nothing has been retained in Mr. Nickerson's personnel records as a result of the interview that could adversely affect him. The Respondent will expunge from Mr. Nickerson's personnel records any such information that has been retained. We will, on request of the Union and Mr. Nickerson, repeat the examination of Mr. Nickerson that took place on or about February 8, 1996 at which he was denied his right to Union representation. In repeating that examination, we will afford Mr. Nickerson his statutory right to Union representation. After repeating the examination, we will reconsider the disciplinary action taken against Mr. Nickerson without reference to or reliance on information obtained during the February 8, 1996 interview. On reconsideration, we will make Mr. Nickerson whole for any losses suffered to the extent consistent with the decision on reconsideration and, if relevant, afford him whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation.

      ________________________
(Activity)

Dated: __________ 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, Washington Region, whose address is: 800 K Street, NW., Suite 910, Tech World Plaza, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700. [ v55 p398 ]


Dissenting Opinion of Member Cabaniss:

      While I agree with most of what my colleagues have concluded in the majority opinion, I respectfully dissent from their finding that the Respondent violated section 7116(a)(1) and (8) of the Statute with respect to employee Nickerson. Under the particular circumstances of this case, Nickerson's statements were not sufficient to put the Respondent on notice that he wanted union representation. Therefore, no violation of section 7114(a)(2)(B) occurred.

      As noted by the majority, the right to union representation arises only if an employee makes a valid request, and the adequacy of a request for representation depends on the facts of each case. Thus, Nickerson's request for "someone to talk to" must be analyzed in the context of the rest of the surrounding circumstances.

      The complaint relates to events that occurred at Nickerson's fourth interview by agents of the Respondent. At the first interview, he signed a "Form B" which explained his right to request Union representation, and as he testified at the hearing, he was also notified of this right at the following two interviews. The Judge found, and the record supports this finding, that Nickerson reasonably should have realized he was in danger of being disciplined based on the circumstances surrounding several of the interviews including being placed and kept in a home duty status. However, he never specifically asked for Union representation. On the contrary, during at least one of the earlier interviews, he expressed doubt that the Union would be willing to represent him. His concerns in this regard were memorialized in the affidavit he signed following the second interview.

      Given this background, the Respondent had no basis for concluding that the "somebody" Nickerson wanted to talk to during the fourth interview was a Union representative. Certainly, as the majority points out in footnote 10, Nickerson had the right to change his mind; however, he could not reasonably expect the Respondent to read his mind, and to discern his changed intent even though he failed to express it.

      Since Nickerson did not request Union representation, I would affirm the Judge's decision dismissing this portion of the complaint.


File 1: Authority's Decision in 55 FLRA No. 64 and Opinion of Member Cabaniss
File 2: ALJ's Decision


Footnote # 1 for 55 FLRA No. 64 - Authority's Decision

   Member Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 64 - Authority's Decision

   Section 7114(a)(2)(B) of the Statute is designed to protect the rights of an employee who is examined in connection with an investigation. It provides:

(2) 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--
(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and
(ii) the employee requests representation.

      A failure to comply with section 7114(a)(2)(B) is known as a "Weingarten" violation because that section codified the union representation rule formulated by the National Labor Relations Board (NLRB, or Board) and affirmed by the U.S. Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).


Footnote # 3 for 55 FLRA No. 64 - Authority's Decision

   These findings and conclusions are without precedential significance pursuant to section 2423.41 of the Authority's Regulations. See U.S. Penitentiary Florence, Colorado, 54 FLRA 30, 31, n.* (1998). This regulatory provision, which concerns the Authority's action on judges' decisions, was amended in 1997. With respect to precedential significance, the amended provision is substantively identical to 5 C.F.R. § 2423.29, which was previously in effect. As section 2423.41 applies to all unfair labor practice complaints pending after October 1, 1997, it is applicable here. See 62 Fed. Reg. 40,922, 46,175 (1997).


Footnote # 4 for 55 FLRA No. 64 - Authority's Decision

   Paragraphs 1(a), (b) and (c) and 2(a) and (b) of the order are adopted pro forma from the Judge's decision, because there have been no exceptions to the violations they address.


Footnote # 5 for 55 FLRA No. 64 - Authority's Decision

   At the time of the January 31 interview, Nickerson signed a form acknowledging that the Respondent had warned him that if he believed his rights were being threatened, he could "request the presence of a representative," and that no further questioning would take place "until your representative is present." Respondent's Exh. 5.


Footnote # 6 for 55 FLRA No. 64 - Authority's Decision

   The Respondent admitted the allegations of the complaint that: (1) on or about February 8, 1996, through its Office of Internal Affairs agents, it met with James Nickerson in connection with an investigation concerning alleged abuse of inmates by Bureau of Prisons employees; and (2) it was reasonable for Nickerson to believe that the examination could result in disciplinary action. Complaint paragraph 11(a) and (b), General Counsel's Exh. 1(c), and Respondent's answer to the complaint, paragraph 11(a) and (b), General Counsel's Exh. 1(d).


Footnote # 7 for 55 FLRA No. 64 - Authority's Decision

   The complaint, paragraph 11, states,

(a)     On or about February 8, 1996, the Respondent, through its Office of Internal Affairs agents, met with James Nickerson in connection with an investigation concerning alleged abuse of inmates by BOP [Bureau of Prisons] employees.
(b)     It was reasonable for Nickerson to believe that the examination described in paragraph 11(a) could result in disciplinary action.
(c)     At this time, Nickerson requested union representation at the examination described in paragraph 11(a).
(d)     At this time, the Respondent denied Nickerson's request for union representation at the examination described in paragraph 11(a).

Complaint, General Counsel's Exh. 1(c).

      The Respondent admitted the allegations of paragraph (a) and (b), and denied (c) and (d). Respondent's answer to the complaint, General Counsel's Exh. 1(d).


Footnote # 8 for 55 FLRA No. 64 - Authority's Decision

   We note that the term "representation," rather than union representation, comports with the statutory language in section 7114(a)(2)(B)(2), which provides for the union to be given the opportunity to be represented if "the employee requests representation." Consistent with the statutory language, the Respondent's form advises employees of their "right to request the presence of a representative." See n.3, above.


Footnote # 9 for 55 FLRA No. 64 - Authority's Decision