United States Department of Homeland Security, Border and Transportation Security Directorate, United States Customs and Border Protection, El Paso, Texas (Respondent/Agency) and American Federation of Government Employees, Local 1929 (Charging Party/Union)

[ v62 p241 ]

62 FLRA No. 49

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION
SECURITY DIRECTORATE
UNITED STATES
CUSTOMS AND BORDER PROTECTION
EL PASO, TEXAS
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1929
(Charging Party/Union)

DA-CA-04-0533
DA-CA-04-0576

____

DECISION AND ORDER

November 15, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1] 

I.     Statement of the Case

      This consolidated unfair labor practice (ULP) case is before the Authority on exceptions to the decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.

      The amended complaint in DA-CA-04-0533 and the complaint in DA-CA-04-0576 allege, respectively, that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding a formal discussion with a bargaining unit employee concerning a grievance filed by AFGE, Local 1929 (Union) without allowing the employee's chosen Union representative to be present and by holding a formal discussion with another bargaining unit employee concerning a grievance filed by the Union without affording the Union notice or an opportunity to attend the meeting. In both cases, the Judge found that the Respondent violated the Statute as alleged.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order for the reasons that follow.

II.      Introduction

      In June 2004, the Union submitted two unrelated employee grievances to arbitration. [n2]  Hearing dates were set for June 15 (Arbitration #1) and June 17 (Arbitration #2). The events giving rise to the alleged ULPs arose as a result of the Respondent's interviews of bargaining unit employees who were scheduled to testify as witnesses at the arbitration hearings. Case No. DA-CA-04-0533 concerns Arbitration #1 and Case No. DA-CA-04-0576 concerns Arbitration #2.

      Pursuant to 5 C.F.R. § 2423.26, the parties entered into a Joint Stipulation of Undisputed Facts and the Judge decided the case based on the stipulation.  [n3] 

III.     Case No. DA-CA-04-0533

A.      Background and Judge's Decision

      The Union filed a grievance challenging disciplinary actions taken against a bargaining unit employee, and the grievance was scheduled for an arbitration hearing. As relevant here, on May 21, an Agency labor relations specialist (LRS) notified the Union President that an attorney in the Office of Assistant Chief Counsel wanted to interview another bargaining unit employee (Employee T) [n4]  in preparation for the upcoming hearing in Arbitration #1. The LRS also informed the Union President that the Union would be permitted to send a representative to the interview, but that the representative at the meeting could not be someone who would be representing the Union at the arbitration hearing (the Arbitration Representative). Judge's Decision at 5. The reason cited by the LRS for this restriction was "attorney work product privilege." Id. In further explanation, the Assistant Chief Counsel indicated that having the Arbitration Representative present at the employees' interviews would "preclude the Respondent from adequately preparing its case, by requiring the government counsel to either disclose attorney work product or to do an inadequate job of interviewing witnesses." Id. at 6 (citing Jt. Ex. 3).

      [ v62 p242 ] On May 26, the Agency's attorney interviewed Employee T. The Union President appeared at the May 26 interview of Employee T to represent the Union, but the Respondent's attorney and the LRS would not permit the Union President to represent the Union during the interview because the Union President was going to be the Arbitration Representative for the Union at Arbitration #1.

      The GC issued an amended complaint alleging that, on May 26, the Respondent: (1) held a formal discussion with a member of the bargaining unit (Employee T) represented by the Union concerning the employee grievance at issue in Arbitration #1; and (2) failed to allow the Union's chosen representative to attend the meeting. In so doing, the amended complaint alleges that the Respondent failed to comply with § 7114(a)(2)(A) of the Statute and thereby violated § 7116(a)(1) and (8) of the Statute.

      The Judge determined that under § 7114(a)(2)(A), a union has the right to be represented at a formal discussion between one or more agency representatives and one or more unit employees or their representatives concerning a grievance, personnel policy or practices, or other general condition of employment. Judge's Decision at 11 (citing United States Dep't of Justice, INS, N.Y. Office of Asylum, Rosedale, N.Y., 55 FLRA 1032, 1034 (1999)). The Judge further stated that in order for the § 7114(a)(2)(A) right to attach, there must be: (1) a discussion; (2) that is formal; (3) between an agency representative and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Judge's Decision at 11 (citing Gen. Servs. Admin., 48 FLRA 1348, 1354 (1994) (GSA)). The Judge further found that the Authority has determined that preparing a witness for an arbitration, or other third-party proceeding, constitutes a formal discussion within the meaning of § 7114(a) (2) (A) of the Statute. Judge's Decision at 11 (citing Gen. Servs. Admin., Region 2, N.Y., N.Y., 54 FLRA 864 (1998) (GSA, New York); Dep't of the Air Force, Sacramento Air Logistics Ctr., McClellan Air Force Base, Cal., 35 FLRA 594 (1990) (McClellan II)). [n5] 

      Applying Authority precedent, the Judge concluded that the meeting with the bargaining unit employee to discuss Arbitration #1 constituted a formal discussion within the meaning of § 7114(a)(2)(A) of the Statute. [n6]  Finding that McClellan II "specifically dealt with the issue of attorney work product in relation to management interviews of bargaining unit employees who had been designated as agency witnesses[,]" the Judge further found that the Authority "considered, and explicitly rejected, the agency argument regarding the attorney work product privilege." Id. at 12-13. Specifically, the Judge stated that the Authority has found that "unions must be afforded an opportunity to be represented at interviews of unit employees in preparation for third-party proceedings where the `formal discussion' criteria [are met]." Id. at 13 (quoting McClellan II, 35 FLRA at 607).

      The Judge determined that the Authority's rationale in McClellan II applied in the present case. Specifically, the Judge found that the Authority "has routinely held that unions have a right to designate their own representatives and an agency's interference with that right is violative of the Statute." Id. at 13. The Judge further determined that, in the present case, although the Union was given notice of the meeting, it was not allowed to designate its own representative to attend the meeting. The Judge concluded that "the choice of representative is not for the Respondent to make." Id.

      According to the Judge, the Respondent was arguing, in essence, that the attorney work product privilege would apply if the Union's Arbitration Representative were present for the meeting, but would not apply if any other Union representative were present. The Judge found that the Respondent failed to explain any basis for this distinction; that is, why the attorney work product privilege would not apply if any other Union representative were present for the meeting. In the Judge's view, there was "no coherent explanation for the Respondent's position, particularly in light of consistent, long-term Authority policy." Id. at 14.

      In sum, the Judge held that the Respondent's refusal to allow the Union President to serve as the Union's representative at the formal meeting interfered with the Union's right to choose its own representative and that, under Authority precedent, the "attorney work product privilege" did not permit the Respondent to exclude the Union President from the meeting. Specifically, the Judge found that the evidence failed to support the Respondent's defense that the Union President's [ v62 p243 ] attendance at the pre-arbitration interview of the Employee T would have interfered with the Respondent's questioning and preparation of its defense since the Respondent's counsel was not required to disclose his/her thoughts, impressions, legal theories or litigation strategy before, during, or after the interview with the witness. See id.

      In these circumstances, the Judge concluded that the Respondent failed to comply with § 7114(a)(2)(A) by refusing to permit the Union to designate its representative and attend the formal discussion and, as such, violated § 7116(a)(1) and (8) of the Statute.

B.      Positions of the Parties

1.      Respondent's Exceptions

      The Respondent asserts that the Judge applied the wrong legal precedent (McClellan II) in deciding this case. In this regard, the Respondent contends that the violation in McClellan II concerned an agency's violation of the union's right to notice and an opportunity to be present at a formal discussion, and in this case it is undisputed that the Respondent provided the Union with notice and an opportunity to be present at the interview of Employee T. Exceptions at 7. Thus, according to the Respondent, "McClellan II is clearly not controlling because the violation in that case was of the union's right to notice and an opportunity to be present, not the limited right to designate its representative." Id.

      The Respondent argues that a union's right to designate its representative in interviews to prepare bargaining unit witnesses is "only a presumptive right" and this presumption can be rebutted by demonstrating "`special circumstances' that warrant precluding a particular individual from serving in this capacity." Id. at 9 (emphasis omitted) (citing Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., et al., 54 FLRA 1502, 1513 (1998) (Bureau of Prisons)). In this connection, the Respondent asserts that the Judge erred by failing to address whether the Respondent had demonstrated "special circumstances" to rebut the presumption in favor of the Union. See id. at 8, 10.

      The Respondent concedes that the Authority has previously "ruled that concerns over the disclosure of attorney work product during arbitration witness preparation meetings [are] insufficient to outweigh the union's right to notice and an opportunity to be present at formal discussions." Exceptions at 7. However, the Respondent asserts that under Bureau of Prisons, "the agency's compelling interest in preserving the confidentiality of its attorney work product and hearing strategy is sufficient to constitute `special circumstances,'" which "constitute[] grounds for restricting the Union's right to designate certain individuals as a representative in bargaining unit witness preparation interviews." Id. at 7-8 (emphasis omitted). The Respondent also cites Merit Systems Protection Board (MSPB) and National Labor Relations Board (NLRB) precedent recognizing certain exceptions to the right to designate a specific representative. See Exceptions at 9 (citing Gonzales, 22 MSPR 1 (1984) (Gonzales) (no statutory or contractual violation for an agency to refuse to postpone a meeting until the employee's designated representative is available when there is another representative available to represent the employee); N.J. Bell Tel. Co., 308 NLRB 277, 282 (1992) (NJ Bell) (designated representative can be excluded due to prior obstructive behavior at a Weingarten examination); Pac. Gas & Elec. Co., 253 NLRB 1143 (1981) (PGE) (employee may not insist on an off-site representative when an on-site representative is available)).

      In support of its assertion that special circumstances exist in the present case, the Respondent argues that the Arbitration Representative "may derive from the agency's counsel's questioning [information] that he cannot get elsewhere[,]" including: "what facts the agency knows and has compiled, what facts the agency believes are important to the case, what facts the agency believes this particular witness can impart, whether the agency believes this witness will be supportive of its case, whether the agency believes this witness may contradict other witnesses, etc." Id. at 12.

      Further, the Respondent asserts that the Judge erred in finding that the Respondent was arguing that the attorney work product "only `attached' when the union's designated representative at a witness preparation hearing was the same person as the union representative in the underlying arbitration (or other third-party hearing)." Id. The Respondent contends that:

although the attorney work product undeniably "attaches" regardless of whom the union designates as its representative, it is not sufficiently weighty to overcome the union's right to have a representative present. However, under Authority precedent the Respondent asserts that it is sufficiently weighty to overcome the union's right to have as its designated representative in a witness hearing, the union's representative in the hearing at which the witness will appear.

Id. at 13.

      Finally, the Respondent contends that, "[t]o the extent the Authority interprets McClellan II, as finding [ v62 p244 ] that preparing an agency witness in front of what amounts to opposing counsel does not force an agency attorney to choose between inadequately preparing a witness (in possible violation of attorney ethics rules) or disclosing confidential attorney work product and hearing strategy (also in possible violation of attorney ethics rules)," McClellan II is in error in this regard and should be reversed. Id. at 12 n.9.

2.     GC's Opposition [n7] 

      The GC contends that the Authority has consistently held that a union has the right to choose its own representative at formal discussions. Noting that the Respondent misidentified the pertinent statutory provision in Bureau of Prisons, the GC asserts that Bureau of Prisons is inapplicable because that case concerns investigative examinations under § 7114(a)(2)(B) of the Statute, while the present case concerns formal discussions under § 7114(a)(2)(A). The GC further asserts that the Respondent's rebuttable presumption argument is not appropriate in cases concerning formal discussions. In addition, the GC argues that, contrary to the Respondent's claim, the Judge did consider the Respondent's "special circumstances" argument and rejected the application of that standard to formal discussions.

      Further, contrary to the Respondent's assertion, the GC argues that the facts and circumstances in the record do not constitute special circumstances. The GC cites several Authority decisions in which the Authority rejected various agencies' reliance on attorney work product privilege. See Opposition at 8-9 (and cases cited therein). In particular, the GC contends that the Authority "has already addressed this issue and found that an exclusive representative has a legitimate interest[] in being represented in pre-arbitration formal meetings, and its representational responsibilities `far outweigh any impact its presence might have on management's preparation of its case for arbitration.'" Id. at 9 (quoting McClellan I, 29 FLRA at 601).

C.     Analysis and Conclusions

1.      The Judge did not err in relying on McClellan II.

      The Respondent does not contest the Judge's finding that the meeting with Employee T constituted a formal discussion, and there is no dispute that the Union was entitled to -- and did -- receive notice and an opportunity to be represented at the meeting. [n8]  The primary issue on exceptions is whether the Judge properly rejected the Respondent's attorney work product privilege claim in finding that the Union was entitled to designate the Union President as its representative at the meeting.

      In finding that the Respondent failed to comply with § 7114(a)(2)(A) of the Statute, in violation of § 7116(a) (1) and (8) of the Statute, the Judge relied on McClellan II. In that case, the Authority rejected the respondent's reliance on attorney work product privilege as a defense to a failure to comply with § 7114(a)(2)(A) and found that, where the formal discussion criteria under that section have been satisfied, unions have a right to be represented during a management attorney's interview of a bargaining unit employee. The Judge further found that the Authority has consistently held that unions have the right to designate their own representatives and an agency's interference with that right violates the Statute. In this regard, the Authority has specifically found that § 7114(a)(2)(A) of the Statute "encompasses not only a union's right to notice of a formal discussion but also the union's right `to designate its own representative to attend a formal discussion.'" Gen. Servs. Admin., Region 9, L.A., Cal., 56 FLRA 683, 685 (2000) (quoting Dep't of the Air Force, Sacramento Air Logistics Ctr., McClellan Air Force Base, Cal., 29 FLRA 594, 605-07 (1987) (McClellan I)). In McClellan I, the Authority reviewed and clarified applicable principles regarding a [ v62 p245 ] union's opportunity to be represented at a formal discussion under § 7114(a)(2)(A). The Authority rejected the holding of earlier cases, such as United States Dep't of the Treasury, U.S. Customs Serv., Region V, 9 FLRA 951 (1982), and found that unions must be afforded an opportunity to be represented at interviews of unit employees in preparation for third-party proceedings where the formal discussion criteria of § 7114(a)(2)(A) are met. See McClellan I, 29 FLRA at 598-603. The Authority also held that it would examine whether notice received by a union of a formal discussion "was sufficient to establish that the union had an opportunity to be represented at the formal discussion within the meaning of § 7114(a)(2)(A), including the opportunity to designate a representative of its own choosing." Id. at 606.

      The Respondent argues that Bureau of Prisons -- and not McClellan II -- is controlling in the present case. However, as noted by the GC, Bureau of Prisons did not involve an alleged failure to comply with § 7114(a)(2)(A) of the Statute; rather, it involved an alleged failure to comply with § 7114(a)(2)(B), which sets forth an exclusive representative's right to be represented at investigative examinations of bargaining unit employees.  [n9]  In Bureau of Prisons, the Authority found, with respect to alleged § 7114(a)(2)(B) violations, that there is a presumption that a union can designate the individual it wants as its representative during the investigative (Weingarten) examination. [n10]  The Authority further found that an agency can rebut this presumption and "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." Bureau of Prisons, 54 FLRA at 1513 (citing NJ Bell, 308 NLRB at 282). Additionally, the Authority noted that "`[s]pecial circumstances' will, consistent with its application in the private sector, be construed narrowly to preserve the union's normal prerogatives." Id.

      In the present case, unlike Bureau of Prisons, there is no assertion that the interview constituted an investigative examination and there is no alleged violation of § 7114(a)(2)(B) of the Statute. As such, Bureau of Prisons is not dispositive and, therefore, the Respondent's exception fails to demonstrate that the Judge erred by applying McClellan II and by not applying Bureau of Prisons.

      While the Authority has never applied the special circumstances exception in the context of § 7114(a)(2)(A), in one instance the Authority set forth the special circumstances exception broadly enough to imply that it might apply in this context. In United States Penitentiary, Leavenworth, Kansas, 55 FLRA 704, 713-14 (1999) (Leavenworth), the complaint alleged that the respondent violated § 7116(a)(1) and (5) of the Statute by refusing to allow a union president access to a penitentiary in order to teach a class at a training to be held at the penitentiary. The Authority stated that "[a]n exclusive representative has the right to designate its representatives when fulfilling its responsibilities under the Statute, and, absent special circumstances, an agency violates section 7116(a)(1) and (5) of the Statute when it refuses to honor the union's designation." Id. at 713 (emphasis added; citation omitted). The Authority found that a Federal correctional facility has special security concerns that may not be present at other work locations, and, as such, the union's representational rights did not trump the respondent's legitimate security concerns.

      The Authority's decision in Leavenworth suggests that the special circumstances exception applies to any union selection of a representative under the Statute. Here, however, even if the special circumstances exception applies, we find, for the reasons set forth below, that the attorney work product privilege -- the only special circumstance relied on by the Respondent -- does not warrant preclusion of the Union President from serving as the Union Representative at the interview of Employee T.  [n11] 

2.     "Special circumstances" do not exist in the present case.

      The Respondent claims that special circumstances exist because, if an Arbitration Representative is allowed to attend the interview of witnesses in an arbitration [ v62 p246 ] hearing, then the attorney work product privilege will be violated. For example, the Respondent asserts that by listening to the Respondent's attorney's questioning of witnesses, the Arbitration Representative would discover: "what facts the agency knows and has compiled, what facts the agency believes are important to the case, what facts the agency believes this particular witness can impart, whether the agency believes this witness will be supportive of its case, [and] whether the agency believes this witness may contradict other witnesses[.]" Exceptions at 12.

      The Authority has repeatedly rejected agencies' claims of attorney work product privilege as a defense to a failure to comply with § 7114(a)(2)(A) of the Statute. In McClellan II, the Authority held that a union had the right to be present at an agency attorney's interview of a bargaining unit employee in preparation for a third-party arbitration hearing. The Authority rejected the agency's claim of attorney work product privilege and found that the presence of the union at this type of interview did not preclude the agency attorney from interviewing bargaining unit employees in preparation for upcoming third-party arbitration hearings, or creating documents for the agency's use which reflected the attorney's thoughts or impressions resulting from the interview. See McClellan II, 35 FLRA at 607-08. In reaching a similar determination in McClellan IV, the Authority additionally noted that "there was no attempt by the [u]nion to secure any notes, records or documents prepared by or for the [r]espondent's attorney in preparation for the third-party hearing or to prevent the [r]espondent from creating such material." McClellan IV, 38 FLRA at 733.

      Subsequently, in Veterans Administration Medical Center, Long Beach, California., 41 FLRA 1370 (1991), aff'd sub nom. Dep't of Veterans Affairs Med. Ctr. v. FLRA, 16 F.3d 1526 (9th Cir. 1994) (VA, Long Beach), the Authority also rejected applying the attorney work product privilege to its determination that the union had a right to be present at telephone interviews that constituted formal discussions. In this regard, the Authority reaffirmed the reasoning of McClellan II and found that the union's presence did not require the respondent's attorney to "disclose anything about her thoughts, impressions, legal theories or litigation strategy." VA, Long Beach, 41 FLRA at 1381. Moreover, the Authority stated that the attorney was not "precluded . . . from fully investigating her case through other means." Id.; see also, Dep't of Veterans Affairs, Med. Ctr., Denver, Colo., 44 FLRA 768, 770 (1992) (rejecting attorney work product privilege argument).

      Our dissenting colleague's claim that the Authority's rejection of the Respondent's work product argument is an unduly "narrow application" of that doctrine demonstrates a misunderstanding of the scope of the work product privilege. Dissent at 2. A leading treatise defines the doctrine as follows:

By its own terms, the work product doctrine, as codified in Rule 26 (b)(3) [of the Federal Rules of Civil Procedure], applies only to requests for production of documents and tangible things. However, because the doctrine is intended only to guard against divulging an attorney's strategies and legal impressions, it does not protect facts concerning the creation of work product, or facts contained within work product.

6 James Wm. Moore et al., Moore's Federal Practice, § 26.70(2)(a) (3d ed. 2006). The treatise goes on to explain that the definition of "tangible things" is interpreted broadly to include a "compilation of facts" that collates or categorizes fact, interview notes, and interview transcripts. Id. at 2(a). It also explains that the doctrine has been applied in other contexts to prevent parties from "attempting to elicit an attorney's thought processes through depositions or interrogatories." Id. at 2(c). However, there is no indication that the doctrine has been applied to preclude a representative, who otherwise has a right to be present at the examination of a witness, from being present on the ground that the attorney's theories of a case will be revealed by questioning.

      Applying the above description of the doctrine, the statements of the witness here constitute the "facts contained within work product," not the work product itself. Id. at 2(a). Further, the right of a union to be represented at the discussion does not give the union any right to question attorneys about their theories or strategies or otherwise "elicit an attorney's thought processes." Id. at 2(c). In reaching a contrary conclusion, the dissent relies primarily on Hickman v. Taylor, 329 U.S. 495 (1947), and Judicial Watch v. Dep't of Justice, 432 F.3d 366 (D.C. Cir. 2005). This reliance is misplaced, however, because both of these cases involved requests for documents that explained attorney impressions. Neither of these cases supports the dissent's position that a person's mere presence during an attorney's questioning of a witness is precluded by the work product privilege.

      The Respondent acknowledges that its position would allow Union representatives other than the Arbitration Representative to attend the interview on the Union's behalf. In this regard, as it is clear under Authority precedent that unions have a right to be represented at [ v62 p247 ] these types of interviews, the Respondent has not cited anything that would prevent the union representative who attends the meeting from communicating any information derived from that meeting to the Arbitration Representative. Thus, even assuming that the Respondent's theory could support exclusion of the Union President as the Union representative at the pre-arbitration interview, the Respondent has not explained how its concerns would be addressed if another representative were present. In any event, the Respondent has not explained what it would have been prevented from doing if the Union President (or another representative) had been present; for example, which, if any, questions it would have been prevented from asking the witness. As such, the Respondent's attempt to distinguish its proposed use of the attorney work product privilege from previous Authority decisions is not persuasive.

      Moreover, the MSPB and NLRB precedent cited by the Respondent does not establish special circumstances in the present case, or otherwise establish a limitation on the Union's § 7114(a)(2)(A) rights. This precedent recognizes two limitations on the right to designate a representative, one involving the unavailability of a designated representative and the other concerning a designated representative's prior obstructive behavior at a Weingarten examination. See Gonzales, 22 MSPR at 2 (unreasonable to insist on designated representative when another representative available); NJ Bell, 308 NLRB at 282 (prior obstructive behavior legitimate basis for exclusion); PGE, 253 NLRB at 1143-44 (another representative available). Cf. United States, INS, N.Y. Dist. Office, N.Y., N.Y., 46 FLRA 1210, 1223 (1993), aff'd 22 F.3d 1184 (D.C. Cir. 1994) (unavailability of a designated representative constitutes a limitation on the § 7114(a)(2)(B) right). Neither of those factors is present here: it is undisputed that the designated representative -- the Union President -- appeared at the interview of Employee T and was turned away; and there is no assertion or evidence that the Union President had previously engaged in obstructive behavior. Further, we note that the Respondent has not cited any decisions from the NLRB, MSPB, or other adjudicatory agencies holding that an attorney work product claim allows an agency to exclude a particular union representative from a meeting in which a union has a right to have a representative present. Accordingly, the Respondent has provided no support for its claim that special circumstances exist in this case.

      Based on the foregoing, we find that the Judge properly applied applicable long-standing precedent to find that the Respondent's refusal to allow the Union President to serve as the Union's representative at the interview of Employee T constituted the unfair labor practice alleged in the complaint. In addition, for the reasons set forth above, we reject the Respondent's claim that McClellan II should be reversed.

IV.     Case No. DA-CA-04-0576

A.     Background and Judge's Decision

      On June 14, in a matter unrelated to Arbitration #1, a different labor relations specialist and a different attorney in the Office of Assistant Chief Counsel interviewed a different bargaining unit employee (Employee A) who was listed as a witness in Arbitration #2. All questions related to Employee A's actions while he was serving as an Acting Supervisory Border Patrol Agent on July 9, 2000, approximately 4 years before the interview. The parties stipulated that the Union was not given notice of, or an opportunity to attend, the meeting.

      The GC filed a complaint alleging that, on June 14, the Respondent: (1) held a formal discussion with a member of the bargaining unit represented by the Union concerning the employee grievance at issue in the arbitration hearing; and (2) failed to afford the Union notice or an opportunity to attend the meeting. The consolidated complaint further alleges that in so doing, the Respondent failed to comply with § 7114(a)(2)(A) and committed a ULP in violation of § 7116(a)(1) and (8) of the Statute.

      Citing McClellan II and GSA, New York, the Judge again stated that the Authority has previously found that preparing a witness for an arbitration, or other third-party proceeding, constitutes a formal discussion within the meaning of § 7114(a) (2) (A) of the Statute. Judge's Decision at 17-18. Applying the formal discussion criteria set forth in § 7114(a) (2) (A), the Judge focused her analysis on whether the discussion was "between one or more representatives of the [A]gency and one or more employees in the unit[.]" Before the Judge, the Respondent did not dispute that it conducted an interview with Employee A on June 14 in preparation for the arbitration hearing without giving the Union notice of, or an opportunity to attend, the interview. Rather, the Respondent argued that the Union was not entitled to be present at the interview of Employee A because the interview related only to the employee's actions on July 9, 2000, when the employee was an Acting Supervisory Border Patrol Agent.

      The Judge found that there was no dispute that Employee A was a bargaining unit employee on June 14, the date of the interview, and that "the Union has a primary representational interest in safeguarding its bargaining unit employees and ensuring that witnesses are [ v62 p248 ] not coerced or intimidated prior to an appearance at the scheduled arbitration hearing." Id. at 18. As such, the Judge found that Employee A's status on July 9, 2000 was not relevant to the issue of whether the June 14 meeting constituted a formal discussion within the meaning of § 7114(a)(2)(A). In this connection, the Judge found that the Authority "has consistently been concerned with the status of the employee on the date of the actual discussion, rather than any other time frame." Id. (citing GSA, New York, 54 FLRA 864; McClellan III).

      The Judge further found that, even if Employee A's status on July 9, 2000, were relevant, Employee A would not meet the criteria for a supervisor under § 7103(a)(10) of the Statute, and thus, was a bargaining unit employee on that date.  [n12]  In this regard, the Judge found that there was no evidence that Employee A had "any authority to transfer, furlough, layoff, recall, suspend or remove employees, or to adjust grievances or to effectively recommend such action." Id. at 19. According to the Judge, the Respondent only offered evidence that Employee A could approve leave requests in support of its assertion that Employee A was a supervisor. The Judge found that the ability to approve leave requests is not a criterion for being a supervisor under § 7103(a)(10) and that, absent any of the criteria set forth in § 7103(a)(10), evidence that Employee A had the authority to approve leave on July 9, 2000, is insufficient to establish that he was a supervisor within the meaning of the Statute.

      Based on the foregoing, the Judge found the Respondent's meeting with the bargaining unit employee was a formal discussion within the meaning of § 7114(a)(2)(A) of the Statute. Accordingly, the Judge concluded that the Respondent failed to comply with § 7114(a) (2) (A) by refusing to provide the Union with notice and an opportunity to attend the meeting and, as such, violated § 7116(a) (1) and (8) of the Statute.

B.     Positions of the Parties

1.     Respondent's Exceptions

      The Respondent contends that the Judge erred when she determined that Employee A's status on July 9, 2000, was irrelevant in determining whether the Union had a right to notice and an opportunity to be present at the meeting. The Respondent asserts that because the judge in McClellan IV determined the status of the employee at the time of the events that were the subject of the questioning, such status "has been recognized by the Authority as relevant and at least potentially controlling." Id. at 17. Specifically, the Respondent further asserts that, since it would have served "no purpose" to perform such an analysis in McClellan IV if it were "irrelevant[,]" the Judge in the present case erred in finding that the status of Employee A on July 9, 2000 was irrelevant. Id. at 16.

      The Respondent also asserts that the Judge erred in finding that Employee A was not a supervisor within the meaning of § 7103(a)(10) of the Statute. The Respondent contends that it is undisputed that Employee A "had the authority of a supervisor" and that "[t]he only clear evidence of this is the fact that he approved sick leave for a bargaining unit employee." Id. at 18. The Respondent further argues that the Judge's finding that Employee A was not a supervisor "is based upon a record with no evidence that [Employee A] did not actually possess supervisory authority" and "is contrary to the understanding of all parties and contrary to the parties' Joint Stipulation [of Facts]." Id. at 20.

2.     GC's Opposition

      As relevant here, the GC asserts that under Authority precedent, in determining an employee's bargaining unit status for purposes of § 7114(a)(2)(A), it is the employee's status at the time of the discussion -- and not at the time of the event about which the employee is questioned -- that is controlling. In this connection, the GC asserts that Employee A was a bargaining unit employee at the time of the interview and, as such, the Judge correctly found that the Union was entitled to notice and an opportunity to be present.

      The GC rejects the Respondent's assertion that, because the judge in McClellan IV addressed whether an employee was a supervisor on the date of the event about which the respondent questioned him, it is relevant and controlling in the present case whether Employee A was acting as a supervisor on July 9, 2000. See Opposition at 12. In this regard, the GC asserts that the judge in McClellan IV "clarified" that the employee in that case "was and had always been a bargaining unit employee despite also being an alternate supervisor[,]" and such a finding does not support the premise that an employee's status on the date about which an agency questions him is controlling. Id. According to the GC, [ v62 p249 ] § 7114(a)(2)(A) of the Statute is "clear about what is controlling, and the status of the employee at the time of the event on which he is questioned about is not one of the controlling criteria." Id.

      The GC also asserts that the Judge did not err in finding that Employee A was not a supervisor on July 9, 2000. Even if the Judge had erred, the GC asserts that, based on its previous argument, Employee A's supervisory status on that date is not relevant in determining whether the Respondent failed to comply with § 7114(a)(2)(A).

C.     Analysis and Conclusions

      Section 7114(a)(2)(A) applies to "any formal discussion between one or more representatives of the agency and one or more employees in the unit[.]" The Authority has stated that the purpose of § 7114(a)(2)(A) is "to allow a union to safeguard its representational interest by making sure that its witness is not coerced or intimidated prior to appearing at a scheduled arbitration hearing." McClellan II, 35 FLRA at 607 (citing NTEU v. FLRA, 774 F.2d 1181, 1192-93 (D.C. Cir. 1985)); McClellan I, 29 FLRA at 598. The Respondent does not contest the Judge's findings that the interview was a formal discussion and that Employee A was a unit employee at the time of the discussion.

      The plain wording of the Statute, referring to a formal discussion between an agency representative and "one or more employees in the unit," supports the Judge's conclusion that the employee's unit status at the time of the formal discussion, and not 4 years earlier, is the controlling fact for determining whether § 7114(a)(2)(A) applies in these circumstances. Moreover, as stated by the Judge, in resolving cases of this nature, the Authority has considered the employee's status at the time of the formal discussion, as opposed to any other time frame. See, e.g., GSA, New York, 54 FLRA at 874-77 (on the date of the formal discussion, the employee was not a supervisor within the meaning of § 7103(a)(10) of the Statute); McClellan III, 35 FLRA at 1240 (at the time of the formal discussion, the employee was no longer an alternate supervisor).

      To the extent the Respondent asserts that, because the judge in McClellan IV considered an employee's status at some time earlier than the date of the formal discussion, an employee's status at the time of the formal discussion is not controlling, we reject this contention. In McClellan IV, it was undisputed that the interviewed employee had been designated as, but was not acting as, an alternate supervisor at the time she was interviewed; however, the respondent alleged that the witness was interviewed on the basis of her role as an alternate supervisor, and, as such, was not a bargaining unit employee. In resolving this claim, the judge determined that, although the employee was designated as an alternate supervisor, she was a bargaining unit employee because she did not possess the indicia of a supervisory status set forth in § 7103(a)(10) of the Statute. On review, the Authority upheld the judge's decision. To the extent McClellan IV, or any other decision, may be construed as having considered an employee's supervisory status at some time other than the date of the formal discussion, we take this opportunity to clarify that, consistent with the plain wording of § 7114(a)(2)(A), its purpose, and Authority precedent, it is an employee's status at the time of the formal discussion that is the controlling factor for determining the applicability of § 7114(a)(2)(A) of the Statute.

      In any event, the record supports the Judge's alternate finding that even if Employee A's status on July 9, 2000 were relevant, Employee A was not a supervisor within the meaning of § 7103(a)(10) and was a bargaining unit employee on that date. The Respondent concedes that "[t]he only clear evidence" in support of its assertion that Employee A was a supervisor "is the fact that he approved sick leave for a bargaining unit employee." Exceptions at 18. As found by the Judge, the Respondent has not provided any evidence that Employee A had "any authority to transfer, furlough, layoff, recall, suspend or remove employees, or to adjust grievances or to effectively recommend such action." Judge's Decision at 19. Consistent with the Judge's finding, the ability to approve leave requests is not a criterion for being a supervisor under § 7103(a)(10) and, absent any of the criteria set forth in § 7103(a)(10), evidence that Employee A had the authority to approve leave on July 9, 2000, is insufficient to establish that he was a supervisor within the meaning of the Statute at that time. Veterans Admin. Med. Ctr., Allen Park, Mich., 34 FLRA 423, 426 (1990). As such, Employee A was in the bargaining unit both on the date the events giving rise to the grievance took place, and on the date Employee A was interviewed by the Respondent in preparation for Arbitration #2. Accordingly, at all relevant times, Employee A was in the bargaining unit.

      Consequently, based on the foregoing, we uphold the Judge's determination that the Respondent violated the Statute when it failed to give the Union notice and an opportunity to be present at the interview of Employee A. [ v62 p250 ]

V.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (the Statute), it is hereby ordered that the United States Department of Homeland Security, Border and Transportation Security Directorate, United States Customs and Border Protection, El Paso, Texas (the Respondent), shall:

      1.      Cease and desist from:

           (a)     Conducting formal discussions with bargaining unit employees represented by the American Federation of Government Employees, Local 1929 (the Union), concerning any grievance or personnel policy or practices, or other general conditions of employment, including interviews conducted in preparation for arbitration hearings, without affording the Union prior notice of and an opportunity to be represented at the formal discussions.

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

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

           (a)      Give the Union, the exclusive representative of our employees, prior notice of and an opportunity to be represented at formal discussions with bargaining unit employees concerning grievances, personnel policies and practices, or other general conditions of employment, including interviews with bargaining unit employees concerning third-party litigation.

           (b)      Post at all locations in the El Paso Sector where bargaining-unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Respondent's Chief Border Patrol Agent, 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 ensure that such Notices are not altered, defaced, or covered by any other material.

           (c)      Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, 525 S. Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.


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

The Federal Labor Relations Authority has found that the United States Department of Homeland Security, Border and Transportation Security Directorate, United States Customs and Border Protection, El Paso, Texas, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT conduct formal discussions with bargaining unit employees represented by the American Federation of Government Employees, Local 1929 (the Union), concerning any grievance or personnel policy or practices, or other general conditions of employment, including interviews conducted in preparation for arbitration hearings, without affording the Union prior notice of and an opportunity to be represented at the formal discussions.

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 give the Union, the exclusive representative of our employees, prior notice of and an opportunity to be represented at formal discussions with bargaining unit employees concerning grievances, personnel policies and practices, or other general conditions of employment, including interviews with bargaining unit employees concerning third-party litigation.

      ___________________
(Activity)

Date: ________     By: __________________

                                (Signature)                     (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, 525 S. Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-4996.


File 1: Authority's Decision in 62 FLRA No. 49
File 2: Opinion of Chairman Cabaniss
File 3: ALJ's Decision


Footnote # 1 for 62 FLRA No. 49 - Authority's Decision

   The opinion of Chairman Cabaniss, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 49 - Authority's Decision

   All dates refer to 2004, unless otherwise noted.


Footnote # 3 for 62 FLRA No. 49 - Authority's Decision

   As these complaints involve different legal issues, for the convenience of the reader, we discuss the first complaint in its entirety before discussing the second complaint.


Footnote # 4 for 62 FLRA No. 49 - Authority's Decision

   The bargaining unit employees interviewed as witnesses for the two arbitration hearings will be referred to by the first letter of their last names.


Footnote # 5 for 62 FLRA No. 49 - Authority's Decision

   As this decision discusses several different cases involving McClellan Air Force Base, we refer to these cases in chronological order. Dep't of the Air Force, Sacramento Air Logistics Ctr., McClellan Air Force Base, Cal., 29 FLRA 594 (1987) (McClellan I); Dep't of the Air Force, Sacramento Air Logistics Ctr., McClellan Air Force Base, Cal., 35 FLRA 594 (1990) (McClellan II); Dep't of the Air Force, Sacramento Air Logistics Ctr., McClellan Air Force Base, Cal., 35 FLRA 1230 (1990) (McClellan III); and Dep't of the Air Force, Sacramento Air Logistics Command, McClellan Air Force Base, Cal., 38 FLRA 732 (1990) (McClellan IV).


Footnote # 6 for 62 FLRA No. 49 - Authority's Decision

   No exception was taken to this determination.


Footnote # 7 for 62 FLRA No. 49 - Authority's Decision

   As a preliminary matter, the GC objects to the Respondent's inclusion of the parties' collective bargaining agreement (CBA) in its exceptions because the CBA was not introduced into the record through the Joint Stipulation of Undisputed Facts submitted by the parties. See Opposition at 3. The parties agreed that "the Charges, the Complaints, the Notices of Hearing, Respondent's Answers, and all Pleadings and Orders in this matter, attached as the formal papers [Joint Exhibits 1(a) through (z)], this Stipulation and its attached exhibits, and the parties' post-stipulation brief constitute the entire record in this case[.]" Joint Stipulation of Undisputed Facts at 1. See also Judge's Decision at 3. The parties' agreement was not part of these documents. Pursuant to § 2429.5 of the Authority's Regulations, the Authority will not consider evidence offered by a party that was not presented in proceedings before the Judge. Accordingly, we will not consider the parties' CBA.


Footnote # 8 for 62 FLRA No. 49 - Authority's Decision

   Our dissenting colleague provides no basis for ignoring the Respondent's concession that the meeting at issue constituted a "formal discussion" under § 7114(a)(2)(A) of the Statute, both raising the issue sua sponte and resolving it contrary to the concession. See Dissent at 1; Exceptions at 6 ("It is undeniable in this case that Respondent recognized and honored the Union's right to notice and an opportunity to be present at the witness preparation meeting . . . ."). As this issue is not before us, we do not address the dissent's discussion of it. See United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 968, 970-71 (1999) (Judge may not ignore concession of party).


Footnote # 9 for 62 FLRA No. 49 - Authority's Decision

   With respect to this point, we note that the Respondent misquotes Bureau of Prisons in its exceptions. The Authority did not state -- as the Respondent asserts -- that "a union's representational rights under § 7114(a)(2)(A) of the Statute are not without qualification[,]" Exceptions at 8; rather, in the quoted portion the Authority was referring to § 7114(a)(2)(B) of the Statute. Bureau of Prisons, 54 FLRA at 1511.


Footnote # 10 for 62 FLRA No. 49 - Authority's Decision

   NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), the model for § 7114(a)(2)(B) of the Statute, mandates the right of an exclusive representative to be given the opportunity to be represented at investigatory examinations of unit employees under certain circumstances.


Footnote # 11 for 62 FLRA No. 49 - Authority's Decision

   Since the only argument the agency makes for special circumstances is under the work product doctrine, and the work product doctrine has no application here, we need not address whether special circumstances could arise in the formal discussion context on some other basis.


Footnote # 12 for 62 FLRA No. 49 - Authority's Decision

   § 7103(a)(10) provides in pertinent part:

`supervisor' means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment . . . .