File 2: Opinion of Chairman Cabaniss
[ v62 p251 ]
Opinion of Chairman Cabaniss, dissenting in part:
With respect to Case No. DA-CA-04-0533, I agree with the Majority that the Judge appropriately relied upon Department of the Air Force, Sacramento Air Logistics Command, McClellan Air Force Base, California, 35 FLRA 594 (1990) (McClellan II) to determine whether Respondent violated § 7114(a)(2)(A) when the Respondent did not allow the Union president to represent the Union at its interview of a bargaining unit employee, who was identified as a witness for the Respondent in a pending MSPB case. I disagree, however, with the result. As in Pension Benefit Guaranty Corp., Washington, D.C., 62 FLRA 219 (2007) (Chairman Cabaniss dissenting) (PBGC), the Majority fails to weigh the salient facts that distinguish the instant matter from NTEU v. FLRA, 774 F.2d 1181 (1985) (NTEU), McClellan II, and Veterans Affairs 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). See PBGC, 62 FLRA at 227 (Dissenting Opinion of Chairman Cabaniss).
The Majority incorrectly cites McClellan II as holding that "unions have a right to be represented during a management attorney's interview of a bargaining unit employee" in preparation for a third party hearing. Majority at 4. In so citing McClellan II, the Majority ignores the fact that the only issue before the authority in that case was:
whether the Respondent was required under section 7114(a)(2)(A) of the Statute to afford the Union an opportunity to be represented at interviews of bargaining unit employees known to be Union witnesses . . . . [n1]
McClellan II, 35 FLRA at 607 (emphasis added). Since the Respondent here interviewed a bargaining unit employee who was its own witness, Judge's Decision at 10, the interview was not a formal discussion and cannot be considered a violation of §7114(a)(2)(A). [n2]
Following Internal Revenue Service and Brookhaven Service Center, 9 FLRA 930 (1982) (Brookhaven), the Authority recognized that the interview of an Agency's "major witnesses" in preparation for a third party hearing is not a "formal" discussion. NTEU, 774 F.2d at 1192. The DC Circuit explained that:
a formal discussion is more likely to be found where an agency interviews the witnesses of its opponent than when it interviews its own witnesses . . . even if other indicia of formality are similar.
Id. at 1192.
The distinction between the interview of an adverse witness and a party's own witness is a factor that cannot be ignored. See id. at 1193. The Majority fails to make that necessary distinction and thereby expands the reach of McClellan II to the interview of an Agency's own witness. This is a clear departure from the Authority's own precedent, and one that does not preserve the intent of § 7114(a)(2)(A). See id.; see also PBGC, 62 FLRA at 229 (Dissenting Opinion of Chairman Cabaniss).
Regardless of bargaining unit status, the interview of a party's own witness in preparation for a third party hearing simply does not carry "the same potential for intimidation or coercion" as the interview of an adverse witness. Id. at 1192; McClellan II, 35 FLRA at 607. An employee does not become an adverse witness simply because of their bargaining unit status. Bargaining unit status is but one "relevant factor" to be considered. NTEU, 774 F.2d at 1192; McClellan II, at 606. This is the distinction we must be willing to make in order to preserve the intent of § 7114(a)(2)(A) and the legitimate interests of union representatives, agency representatives, and individual employees. See PBGC, 62 FLRA at 229 (Dissenting Opinion of Chairman Cabaniss).
Neither do I agree with the narrow application of the attorney work product doctrine applied by the Majority. As it did in VA, Long Beach, the Majority fails to apply the doctrine in light of Hickman v. Taylor, 329 U.S. 495 (1947) (Hickman) and Judicial Watch v. DOJ, 432 F.3d 366 (D.C. Cir. 2005) (Judicial Watch). The Supreme Court in Hickman held that the work product privilege should be interpreted broadly and includes both tangible, written work products as well as those [ v62 p252 ] that are intangible, such as "interviews" and "mental impressions." Judicial Watch, 432 F.3d at 369-370 (citing Hickman, 329 U.S. at 510-11).
The work product doctrine is designed to protect an opposing representative unfairly benefiting from opposing counsel's work. In re Echostar Communications Corp., 448 F.3d 1294, 1301 (Fed Cir. 2006) (citing Hickman, 329 U.S. at 511). Attorneys and other representatives routinely write down questions they intend to ask potential witnesses as part of their case preparation. These questions will reflect their theory and planned strategy. It simply defies common-sense to conclude that an observer to these interviews will not gain an unfair insight into that strategy and theory.
The NLRB has recognized that information obtained during an interview and other case preparation is routinely preserved in writing and therefore must be protected because it reflects the "mental impressions, conclusions, opinions, or legal theories" of the attorney "concerning the litigation." Central Tele. Co. of Texas, 343 NLRB 987, 988 (2004) (citing Fed R. Civ. P. 26(b)(3)). Conversely, the notes, prompts, and thoughts prepared prior to a witness interview can no less be considered a work product prepared "in anticipation of litigation[,]" Judicial Watch, 432 F.3d at 369, than are the attorney's "thoughts, impressions, legal theories, or litigation strategy" prepared after or during a witness interview. VA, Long Beach, 41 FLRA at 1381.
The Majority's reliance on McClellan II and VA, Long Beach to reject Respondent's work product defense is flawed. Neither case applied Hickman, and both cases involved the interview of an adverse witness by the Agency representative. Here, the interview was of a bargaining unit employee who had been identified as an Agency witness. Unlike the Majority, I would apply Hickman. Accordingly, I would find that Respondent's preparation for interview, interview, and written summary of the interview of its own witness is protected by the work product doctrine.
I agree with the Majority that Respondent's offer to permit a representative other than the Union president to attend the interview is confusing. However, I cannot agree that it is necessary for Respondent to explain "what it would have been prevented from doing if the Union president had been present" in order to successfully invoke the work product doctrine. Majority at 10. The Respondent does note its concern with "disclosing the thoughts, impressions, and compilations of data that went into deriving the questions to be asked at the interview." Respondent's Exceptions at 12. That information is protected by the work product doctrine. See Judicial Watch, 432 F.3d at 369-370 (citing Hickman, 329 U.S. at 510-11). Without a doubt, the presence of a Union representative at the interview of one's own witness, as discussed above, does force the Respondent to "disclose" its "thoughts, legal impressions, legal theories [and] litigation strategy." [n3] VA, Long Beach, 41 FLRA at 1381.
Accordingly, I would not find a violation of § 7114(a)(2)(A).
Footnote # 1 for 62 FLRA No. 49 - Chairman Cabaniss
The Judge incorrectly cites the issue in McClellan II as regarding "management interviews of bargaining unit employees who had been designated as agency witnesses." Judge's Decision at 12-13 (emphasis added).
Footnote # 2 for 62 FLRA No. 49 - Chairman Cabaniss
I note that Respondent in its exceptions did not challenge whether the subject interview was a formal discussion requiring notice to the Union, but does challenge whether McClellan II is in error. It is not surprising, however, that the Respondent would not do so in view of how far the Majority's findings have extended the reach of § 7114(A)(2)(A) beyond its original intent. See PBGC, 62 FLRA 219 (Dissenting Opinion of Chairman Cabaniss). The fact remains that Respondent could not violate § 7114(a)(2)(A) by refusing to allow the Union's choice of representative if no "formal discussion" occurred.
Footnote # 3 for 62 FLRA No. 49 - Chairman Cabaniss
In Department of Veterans Affairs v. FLRA, 3 F.3d 1386, 1391 (10th Cir. 1993) (VA), the 10th Circuit affirmed the FLRA's finding that the Agency violated 7114(a)(2)(A) in conducting an interview of bargaining unit employees, who had neither been identified as Agency or appellant witnesses, in preparation for an MSPB hearing. In a concurring opinion, Justice Moore noted that "requiring a lawyer to prepare for trial with adversarial counsel at the lawyer's elbow, the law sends that lawyer into the arena with only one arm." VA, 3 F.3d at 1391 (Moore, J., concurring).