United States Department of Treasury, United States Customs Service, Customs Management Center, Arizona and United States Department of Treasury, United States Customs Service, Office of Internal Affairs, Tucson, Arizona (Respondents) and National Treasury Employees Union, National Treasury Employees Union, Chapter 116 (Charging Party/Union)
[ v57 p319 ]
57 FLRA No. 66
UNITED STATES DEPARTMENT OF TREASURY
UNITED STATES CUSTOMS SERVICE
CUSTOMS MANAGEMENT CENTER, ARIZONA
UNITED STATES DEPARTMENT OF TREASURY
UNITED STATES CUSTOMS SERVICE
OFFICE OF INTERNAL AFFAIRS
NATIONAL TREASURY EMPLOYEES UNION
NATIONAL TREASURY EMPLOYEES UNION,
DECISION AND ORDER
June 29, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members [n1]
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel (GC). The Respondents filed an opposition to the exceptions.
The complaint in Case No. DE-CA-80829 alleges that the Respondents violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying the Charging Party the right to designate a representative of its choice, the Union vice president, to serve as the Union representative of a bargaining unit employee at an examination in connection with an investigation under § 7114(a)(2) of the Statute.
In Case No. DE-CA-80776, the complaint alleges that the Respondents violated § 7116(a)(1) of the Statute by beginning an investigation with respect to conversations [ v57 p320 ] between the Union vice president and a bargaining unit employee which allegedly occurred while the Union vice president was serving as the employee's designated representative. The Respondent United States Customs Service, Office of Internal Affairs, questioned the unit employee, and a second unit employee who was also a Union steward, concerning the nature of the Union vice president's communications to the employee being represented during the course of such representation.
The Judge recommended that the consolidated complaint be dismissed.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions as modified, and we adopt the recommended Order.
The facts, set out in detail in the attached Judge's Decision, are summarized here.
The Judge found that in April 1998, the Union vice president and the Union steward represented the unit employee during his formal counseling by a supervisor over alleged excessive telephone calls. In addition, he found that they also represented the employee concerning his subsequent preparation of a written rebuttal to the formal counseling.
The Judge found that following the counseling session, the supervisor telephonically advised Respondents' special agent, Office of Internal Affairs (IA), that two individuals had reported that the employee had made threats to physically harm the supervisor because of the counseling. The Judge found that, as a consequence, the special agent opened an investigation of the employee. The Judge found that during a follow-up interview of the supervisor, the supervisor advised the special agent that the Union steward had said he overheard the Union vice president instruct the employee being investigated to lie in his official rebuttal to the counseling.
The Judge stated that the allegation that the Union vice president had instructed the employee to lie in his rebuttal to an official counseling, if true, would be considered by the Respondents to constitute misconduct on the Union vice president's part. The Judge found that, therefore, the special agent decided to make some preliminary inquiries concerning the credibility of the allegation as part of her investigation of the alleged threats by the employee.
The Judge found that after the special agent made an appointment to interview the employee, the latter requested that the Union vice president represent him at the examination. The Judge found further that when the Union vice president told the special agent that she would be the representative, the special agent advised the Union vice president that she could not serve as the employee's Union representative because a potential conflict existed in view of questions the special agent needed to ask the employee concerning the Union vice president. The Judge found that the Union vice president stated she would assign a steward (other than the aforementioned steward) to represent the employee.
The Judge found that the special agent then conducted an examination in connection with an investigation of the employee. The Judge found that the employee was advised that he could be subject to disciplinary action for failure or refusal to answer proper questions and subject to criminal prosecution for any false answer. The Judge found that the employee was represented at the interview by the newly assigned Union steward.
At the interview, the Judge found, the employee was questioned primarily about his alleged threatening statements against a supervisor. With regard to his conversations with the Union vice president, he testified at the hearing in this case that they had no discussion about what was to be put in the rebuttal to the counseling. He stated further that all the Union vice president did "was review it for spelling and continuity." Judge's Decision at 4, quoting from the hearing transcript. According to the Judge, he also testified at the unfair labor practice hearing that he was never instructed to lie about what he was going to say or what he was going to put on paper as to why he used the telephone.
According to the Judge, after the first Union steward as well as the employee told the special agent that the alleged misconduct by the Union vice president did not occur, the special agent dropped the issue. The Judge found that the special agent did not interview the Union vice president, who testified at the hearing in this case that at no time did she tell the employee to lie or make false statements.
III. Case No. DE-CA-80829
A. Judge's Decision
Concerning whether an agency can interfere with a union's designation of its representative who is fulfilling its duties under the Statute, the Judge stated that an exclusive representative has the right to designate its representatives when fulfilling its responsibilities under the [ v57 p321 ] Statute, and, absent special circumstances, an agency violates the Statute when it refuses to honor the union's designation. Judge's Decision at 7 (citing U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA 704, 713 (1999) (Leavenworth)). The Judge stated that the presumption can be rebutted where the agency can demonstrate special circumstances that warrant precluding a particular individual from serving in this capacity, citing 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, 54 FLRA 1502, 1513 (1998) (FCI, Englewood). In FCI, Englewood, the Judge noted, the Authority stated that the exception based on "special circumstances" will be construed narrowly to preserve the union's normal prerogatives. 54 FLRA at 1513; see also Leavenworth, 55 FLRA at 713-14.
The Judge concluded that the Respondents demonstrated "special circumstances" that warranted precluding the Union vice president from serving as the Union representative during the employee's Weingarten examination. [n2] Since the Union vice president was alleged to have instructed the employee to lie during a formal counseling, the Judge determined that a conflict of interest could exist if the Union vice president were present at the interview, as her interests could be adverse to the employee's. In this connection, the Judge stated, the employee
may assert that [the Union vice president] did instruct him to lie, and [the Union vice president] may dispute this. If the allegation were true, [the employee] would be less likely to provide true, full, and complete answers in the presence of [the Union vice president], thus harming the integrity of the investigation.
Judge's Decision at 9-10. The Judge stated that because a Union may not interfere with an employer's legitimate interest and prerogative in achieving the objective of the examination or compromise its integrity, the Respondents demonstrated "special circumstances" warranting the denial of the Union's request to name the Union vice president as its representative.
B. General Counsel's Exception
The GC excepts to the Judge's finding that there were "special circumstances" warranting denial of the Union's designation of its vice president as its representative. It contends that the Judge failed to address several of its contentions regarding the "special circumstances" defense, leading to an erroneous finding that the denial of the Union vice president's presence at the interview was permissible.
In this regard, the GC excepts to the Judge's failure to address the following testimony:
- The special agent testified that she could have allowed the Union vice president to be present during the part of the employee's interview that did not concern the Union vice president;
- The "few questions" regarding the Union vice president's conduct "were a minor part of the interview;"
- The special agent testified that there was no official investigation into the Union vice president's conduct at the time of the employee interview.
Exceptions at 2.
The GC also excepts to the finding that "[there was] an inherent conflict in [the Union vice president] being present such that it would effect the integrity of the investigation. Id. In addition, the GC excepts to the failure to address "the unlikely prospect that [the employee] would subject himself to criminal prosecution in order to protect a person with whom he has had minimal contact." Id.
Relying on FCI, Englewood, the GC claims that the Respondents failed to demonstrate that special circumstances existed warranting the exclusion of the Union vice president as the Union's representative, and argues that there are "no significant factual distinctions" between that case and this. Id. at 6. Further, the GC argues that the decision to exclude the Union vice president was not based on special circumstances but "based on [the special agent's] own convenience and to avoid disruption of the investigation." Id. at 7.
The fact that the Respondents conceded that no official investigation of the Union vice president was being conducted, claims the GC, demonstrates clearly that the Union was denied the right to designate a representative in violation of § 7116(a)(1) and (8), because "special circumstances" must be "construed narrowly to preserve the union's normal prerogatives." Id. at 5 (quoting FCI, Englewood at 1513). Furthermore, argues the GC, even if an investigation had been open at the [ v57 p322 ] time, the Union vice president's presence at the employee interview "would not interfere with the integrity of such an investigation because only [the employee's] testimony could implicate [the Union vice president] in such a scheme." Id. at 9.
FCI, Englewood held, according to the GC, that the fact that a witness may be the subject of an investigation is not sufficient to warrant exclusion. The reason for this holding, according to the GC, is that "stating a person would be a witness is subject to manipulation, all an agency would have to do to preclude a union's choice would be to say a person may be subject to an investigation in the future." Id.at 9-10.
C. Respondents' Opposition
The Respondents assert that there is no support in FCI, Englewood for precluding a representative from only a portion of an investigative interview. If there are special circumstances, that is a basis for precluding the representative of the Union's choice.
In response to the GC's claim that no special circumstances existed because there was no official investigation of the Union vice president's alleged activities, the Respondents note that the allegations concerning the employee and the Union vice president arose from the same chain of events. The Respondents point out that the Judge noted this fact when he stated that there was a logical connection between the allegation under investigation, the threats by the employee against his supervisor, and the allegation that the Union vice president instructed the employee to lie in his rebuttal to the counseling. Furthermore, pointing out the Respondents, the special agent was attempting to determine the credibility of the allegations against the Union officer before opening an official investigation.
The Respondents argue that if the Union vice president instructed the employee to lie in his official rebuttal to a formal counseling, such behavior constituted serious misconduct. According to the Respondents, "[t]o argue [as did the GC] that the employee would be under no pressure or has nothing to fear when asked to potentially substantiate serious misconduct on the part of his representative . . . is naive." Opposition at 7.
Finally, the Respondents dispute the GC's claim that there are no significant factual differences between this case and FCI, Englewood. In that case, a respondent sought to disqualify a steward because the steward was a witness to the incident under investigation. Here the Respondents would bar the union's choice because he was the subject of alleged misconduct related to the incident under investigation. According to the Respondents, the Judge correctly noted this distinction in finding that a conflict could exist if the representative, as the subject of alleged misconduct related to the issue under investigation, was present since the representative's interests could be adverse to the unit employee's.
D. Analysis and Conclusions
Under § 7114(a)(2)(B) of the Statute, [a]n exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at . . . an examination of an employee in the unit by a representative of the agency in connection with an investigation. The Authority has held, as a general matter, that a union has the right to designate the individual representative for an examination under this section, and that an agency violates § 7116(a)(1) and (8) of the Statute when it refuses to honor the union's designation of its representative. FCI, Englewood, 54 FLRA at 1502-03. Nevertheless, a union's presumptive right to designate a particular representative for an investigatory examination may be overcome if the agency establishes special circumstances that warrant precluding a particular individual from serving as a representative. Id., 54 FLRA at 1513 (citing New Jersey Bell Tel. Co., 308 NLRB 277, 282 (1992)).
In FCI, Englewood, the Authority determined that the fact that the designated representative was also a witness to the events that were the subject of the investigation did not, standing alone, establish special circumstances that warranted precluding that individual from serving as a representative. 54 FLRA at 1513-14. The Authority rejected the agency's claims that permitting a witness to serve as a representative would increase the likelihood that the representative would break a pledge of confidentiality, that there was an inherent conflict between the function of a witness and that of a representative, and that such an individual could not be reexamined in the event new information was discovered. Id. at 1514-15.
Unlike FCI, Englewood, the designated representative in this case was not merely a witness to the events at issue, she was the subject of the investigation. The Judge found that the potential conflict of interest presented by this situation was a special circumstance that permitted the Respondents to preclude her from representing the employee. The Judge also found that if the allegation against the Union vice president was true, then the employee would be less likely to provide true, full, and complete answers to questions, thereby harming the integrity of the investigation. See FCI, Englewood, 54 FLRA at 1511 (specific representative may be [ v57 p323 ] precluded where presence would compromise the integrity of the investigation).
We conclude that the Judge did not err in finding that there was a potential conflict of interest in permitting the Union vice president to represent the employee, sufficient to establish special circumstances justifying the Respondents' refusal to permit her to act in this capacity. In this regard, the subject of an investigation, unlike a witness, has a direct stake in the outcome of the investigation. In this case, for example, if the Union vice president had, in fact, advised the employee to lie as part of an official investigation, then it is reasonable to conclude that the Union vice president would have an interest in preventing the Agency from establishing her culpability. This interest is distinct from, and might conflict with, the vice president's obligation to advise the employee in a manner that protects the employee's interests. We conclude that these potentially divergent and competing interests posed a potential of harm to the integrity of the investigation that was sufficient to overcome the presumption that the Union may select the representative.
The GC asserts that the special agent's decision to preclude the Union representative was not based on special circumstances. Instead, according to the GC, the decision to preclude the Union representative was based on the special agent's own convenience. Exceptions at 7. The GC relies, in this regard, on the special agent's testimony that she could have limited the preclusion to those few questions that related to the allegation against the vice president, and allowed the vice president to represent the employee for the remainder of the examination.
This argument -- that the Respondents should have split the examination in two -- has no support in the wording of the Statute or in case law. With respect to the former, nothing in the Statute requires that an employee be permitted separate representatives for separate lines of questioning. With respect to the latter, case law establishes that employers are granted latitude in determining the form and timing of examinations, especially in situations where alternative representatives are available and the unavailability of a designated representative is not the fault of the employer. See 54 FLRA at 1511-13. For example, the Authority has held that an agency did not violate the Statute when it did not reschedule examinations, in a situation where the designated representative was out of town and the agency was not at fault, United States INS, N.Y. Dist. Office, N.Y., N.Y., 46 FLRA 1210, 1223 (1993) (INS); aff'd 22 F.3d 1184 (D.C. Cir). Similarly, the National Labor Relations Board (NLRB) has held that an employee may not insist on the representation of an off-site representative who is not readily available where an on-site representative is available. Pacific Gas & Elec. Co., 253 NLRB 1143 (1981).
Consistent with the foregoing precedent, there is no basis to find a violation of the Statute based on Respondents' failure to restructure the examination in such a way that the vice president could represent the employee as to some, but not all, matters under investigation. We note, in this connection, that with the exception of the Union vice president, the Respondents did not seek to designate a representative for the Union, or otherwise restrict the Union's choice of representative.
Finally, the GC has not established that the Respondents' failure to initiate an official investigation into the allegations against the Union vice president demonstrates that no special circumstances warranted excluding her from the examination. We find no basis to conclude that the Respondents were required to undertake a particular type of investigation.
For the above reasons, we adopt the Judge's dismissal of the complaint.
IV. Case No. DE-CA-80776
A. Judge's Decision
The issue in this case is whether there was an overriding need for the Respondents to require disclosure of communications between the employee and his Union representative made in a representation context.
The Judge stated that a union representative or an employee may not be compelled to disclose confidential statements made in the course of representation, absent "an overriding need." Judge's Decision at 9 (citing United States Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 1300 (1991) (Customs Service)). However, according to the Judge, "the representative may not aid and assist an employee to engage in conduct that the representative knows is criminal or fraudulent." Id. The Judge found that counseling a unit employee to lie in connection with preparing an official response to an agency would constitute "flagrant misconduct." Id. at 10 n.8 (citing Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 80-83 (1985) (Defense Mapping Agency)).
The Judge found that one of the employee's Union representatives allegedly reported overhearing a wrongful course of conduct being discussed by another Union representative and the employee. The Judge concluded that this report provided sufficient evidence to justify [ v57 p324 ] the Respondents' inquiring into the protected communication. Accordingly, the Judge concluded that
there was an overriding need to require [disclosure of] confidential statements made in the course of representation to the extent reasonably necessary to determine whether [the] Union representative . . . had urged [the employee] to lie.
The Judge analyzed the facts and determined that the conduct of the investigation did not interfere with protected rights. The Judge found that while the Respondents' questioning could have elicited a broad answer, it did not, and there was "no indication that [the special agent] intended to probe . . . more deeply than reasonably necessary to establish or disprove" the allegation of misconduct. Id.
B. General Counsel's Exception
Relying on Long Beach Naval Shipyard, Long Beach, California, 44 FLRA 1021 (1992) (Long Beach Naval Shipyard), the GC states that a union representative cannot be required to disclose the content of statements made by an employee to a representative in the course of representation in a disciplinary proceeding "unless the right of confidentiality . . . had been waived or some overriding need for the information had been established." Exceptions at 11 (citing id. at 1037).
The GC contends that the Judge erred in finding an overriding need in this case. The GC claims that National Aeronautics and Space Administration v. FLRA, 527 U.S. 229 (1999) and Weingarten, its underlying antecedent, do not apply because they "deal with the conduct of the union representative during the investigatory examination and whether that conduct is obstructive." Exceptions at 12.
According to the GC, this case does not involve an investigatory examination in which an unruly representative is disputing or obstructing the interview process by being present. "Rather, this case deals with the interference by Respondent with the privileged communications made in the context of official union business between a bargaining unit employee and a Union representative, which . . . took place outside the investigatory process." Id. at 12-13.
Moreover, argues the GC, under Long Beach Naval Shipyard a supervisor's bare assertions that a union steward informed him of possible wrongdoing by another union representative, and supported only by a statement that the union steward would deny making the statements, are not enough to create an overriding need that would warrant investigation into the privileged communications
C. Respondents' Opposition
The Respondents assert that the Judge correctly relied on Customs Service, which states the "overriding need" standard before a union representative can be compelled to divulge confidential information given to the representative by a unit employee. The Respondents state that the Judge appropriately determined, consistent with Defense Mapping Agency, that certain kinds of potential misconduct are not protected activity.
D. Analysis and Conclusions
Confidential communication between a union representative and an employee made during the course of representation constitutes protected activity under the Statute. Long Beach Naval Shipyard, 44 FLRA at 1037-38. An agency may not interfere with the confidentiality of such communication unless the right to maintain the confidentiality of the conversations has been waived or some overriding need for the information was established. Long Beach Naval Shipyard, 44 FLRA at 1038 (quoting Customs Service, 38 FLRA at 1309). An agency's need for such information may arise in the context of an investigation of employee misconduct. See Fed. Bureau of Prisons, Office of Internal Affairs, Wash. D.C. and Fed. Bureau of Prisons, Fed. Correctional Institution Englewood, Littleton, Colorado, 53 FLRA 1500, 1510 (1998) (affidavit of an employee alleging that physical violence had been threatened by one employee against another on employer's premises justified investigation of union meeting).
Here, the Respondents' special agent asked the employee two questions concerning advice that the Union vice president gave the employee, in an attempt to verify a report that the vice president had advised the employee to lie in the course of an earlier investigation. The GC excepts to the Judge's conclusion that the Respondents established a sufficient overriding need to permit the agent's questions.
We conclude that the Judge did not err in finding that the Respondents established a sufficient need to justify the two questions asked by the special agent. In particular, the Respondents were justified in attempting to verify the information that its supervisor had received, that the steward reported an instruction by the Union vice president to falsify an official investigation. This is a serious allegation, and the record does not reveal any way that the Respondents could have determined whether a formal investigation was warranted without [ v57 p325 ] questioning the employee and the steward, both of whom also were engaged in protected activity. [n3] The special agent limited the questioning to the critical issue, and ended this line of questioning immediately on being told by the employee that there had been no instruction to provide false information. Under these circumstances, the Respondents have established a need for this very limited investigation sufficient to override the right of the employee to keep the conversation confidential. [n4]
We therefore adopt the Judge's dismissal of the complaint.
The complaints in Case Nos. DE-CA-80829 and DE-CA-80776 are dismissed.
Dissenting opinion of Member Wasserman:
I respectfully disagree with my colleagues, and would find in Case No. DE-CA-80829 that the Respondents did not establish special circumstances constituting an affirmative defense to its refusal to allow the Union vice president to represent the employee in his Weingarten interview. The investigation concerning the employee's alleged threats easily could have been conducted without reference to the Union official's alleged misconduct. Since the facts do not indicate that the timing of the Weingarten interview was a matter of extreme urgency, the Union steward who allegedly made the report raising the concern about the designated representative could easily have been questioned before the Weingarten interview, rather than after. This would have been a simple alternative to refusing the Union its statutory right to be present at the Weingarten interview with the representative of its choosing, and could have resulted in a decision to allow the Union vice president to attend.
Although conducting the interview about both allegations at once might have been more convenient for the Respondents, there is no showing that such a joint investigation was necessary for the integrity of either one. Protected activity is not lightly to be discounted, and, in my view, special circumstances must be clear and without reasonable alternative before being sufficient to constitute an affirmative defense to disregarding the Statute's protections. An agency's right to structure an interview is not unfettered. When an alternative is available that does not harm the integrity of the interview, an agency should be expected to adapt its approach so as not to impair the union's or the employee's statutory rights. In this case, such a change in format might have inconvenienced the agency, but in the long run it would have led to an informed decision about the appropriateness of allowing the Union its chosen representative.
My colleagues' reliance on INS for granting latitude in determining time and location of examinations is misplaced. That decision did not rely on the doctrine that the statutory requirement to honor a union's designation of representative raises a presumption that may be rebutted upon a showing of special circumstances. Rather, the inability of the chosen union officers to represent employees in examinations resulted from the union's own decision to have the officers attend other functions. Unlike that case, the designated representative here was not unavailable, and certainly not because of any decision by the Union. Nor was there a showing here that the selection of the chosen representative would unnecessarily delay the examination. Additionally, the Authority concluded that in those circumstances the respondent had not failed to comply with the Statute when it refused to postpone the examinations. However, it further stated that as postponement would have had no effect on the respondent's investigation, a grant of the postponement would have better served all parties' interests. INS, 46 FLRA at 1223.
Finally, my colleagues' observation that the Respondents did not restrict the Union's choice of representative with the exception of the Union vice president hardly seems relevant. They cite no support for their view that denying a union its right to designate a particular representative is less a violation of the Statute than if the Respondents themselves sought to designate the union representative, or otherwise restrict the Union's choice. Majority opinion at 10. The alleged violation, and the one that I would find occurred, is that the Respondents informed the Union vice president that she could not serve as the employee's representative. The circumstances here simply do not establish a basis to ignore the violation of a statutory right.
I also must respectfully dissent from the result reached by my colleagues in Case No. DE-CA-80776. [ v57 p326 ] On the facts, I am not convinced that there was the overriding need necessary to require disclosure of communications between employees made in a representation context. Just as I noted in my dissent above, exceptions to statutory protections are not to be found lightly.
Rather than questioning the steward and the employee about confidential conversations, the Respondents could simply have gone to the steward, who allegedly was the source of the supervisor's report about the improper conversation, and asked the steward what he had heard. Although we cannot predict the investigator's reaction to the denial by the steward, it is possible that the matter would have been dropped at that point, prior to implicating statutory rights. As we know, after hearing from both employees, the investigator made an informed decision to drop the issue.
Certainly in analyzing this