United States Nuclear Regulatory Commission (Agency) and National Treasury Employees Union, Chapter 208 (Union)
65 FLRA No. 22
NUCLEAR REGULATORY COMMISSION
September 23, 2010
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Stephen E. Alpern filed by the Agency under § 7122(a) of the Federal Service Labor‑Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Union filed an opposition to the Agency’s exceptions.
The Arbitrator found that the Agency violated the parties’ agreement and § 7114(a)(2)(B) of the Statute by restricting a Union representative’s participation in an investigatory interview. For the following reasons, we deny the exceptions.
II. Background and Arbitrator’s Award
The Agency’s employees are required to hold a security clearance in order to remain employed with the Agency. Award at 7. The Agency conducted an interview with an employee to determine whether the employee’s security clearance should be withdrawn. Id. At the employee’s request, a Union representative was present. Id. The Agency’s representative “sought to restrict [the Union representative’s] assistance of [the employee] during the interview.” Id. Specifically, the Agency instructed the Union representative “not to communicate with [the employee] while [the employee] was responding to questions[,]” and instructed the employee that “he could only consult with [the Union representative] after a question was answered and that after he consulted with [the Union representative] he could not ‘come back and redirect the question.’” Id. at 7-8. On a later date, the Agency sent further questions to the employee by email without notifying the Union representative. Id.
The Union filed a grievance alleging that the Agency violated § 7114(a)(2)(B) of the Statute and Article 3.3 of the parties’ agreement. The grievance was unresolved and submitted to arbitration where, absent a stipulation of the issues by the parties, the Arbitrator framed the issues, in pertinent part, as follows: “Are employees entitled to Weingarten rights[] in examinations held to determine whether an employee’s security clearance[s] should be revoked or suspended? . . . If so, were the employee’s rights denied in this case? . . . If so, what shall the remedy be?” Award at 2.
The Arbitrator noted that the parties did not dispute that the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988) (Egan) “precludes reviewing authorities from involving themselves in the substance of security clearance determinations.” Award at 20. The Arbitrator also noted that “[i]f the purpose of the examination of [the employee] was solely to determine whether [his] clearance should be revoked, one could argue that” § 7114(a)(2)(B) of the Statute would not apply, “because revocation of a security clearance is not a disciplinary action.” Id. However, the Arbitrator found that the record demonstrated that the interview “was an examination which could have resulted in disciplinary action, even if a determination had been made not to revoke [the employee’s] clearance.” Id. at 21. In this regard, the Arbitrator noted that, during the hearing, the Agency’s counsel “acknowledged that information obtained in the course of a security clearance interview could be used in a disciplinary proceeding.” Id. Thus, the Arbitrator concluded that “an employee has a reasonable fear that discipline, unrelated to security clearance matters, might result from the examination.” Id.
The Arbitrator then stated:
This is especially significant as, due to the potential broad scope of security clearance issues, all but the most minor of employee transgressions could become the subject of security clearance investigations. There is nothing in the Agreement to prevent the [Agency] from conducting all investigations into potential employee conduct under the umbrella of a security clearance investigation. Because of the fact that all [Agency] employees must have a security clearance, the [Agency] would have the ability to almost totally erode the rights, granted by both statute and the Agreement, to union representation in investigatory interviews.
Id. The Arbitrator concluded, in these circumstances, that the employee was entitled to Union representation during the interview. Id. at 22.
Next, the Arbitrator determined that the Agency “unduly restricted” the Union representative with regard to what he was permitted to do during the interview and that
[t]hese undue restrictions included instructing [the Union representative] not to speak to [the employee] until [the employee] had completely answered a question; not allowing [the employee] to consult with [the Union representative] until after a question had been answered and then not permitting [the employee] to further answer the question; instructing [the Union representative] not to point to documents while [the employee] was answering questions; and, posing questions to [the employee] by e-mail without notifying [the Union representative].
In sum, the Arbitrator concluded that the Agency violated Article 3.3 of the parties’ agreement and § 7114(a)(2)(B) of the Statute by restricting the Union representative’s participation during the interview and by subsequently sending the employee the email. Id. at 23. To remedy the violations, the Arbitrator issued an order directing the Agency to: cease and desist from violating § 7114(a)(2)(B); and post a notice.
III. Positions of the Parties
A. Agency’s Exceptions
The Agency asserts that the award is based on nonfacts because no evidence supports the Arbitrator’s finding that most “employee transgressions” can be the subject of security-clearance investigations and that, as a result, the Agency could “totally erode” Weingarten rights by precluding union representation during security-clearance-related examinations. Exceptions at 31, 32. In this regard, the Agency asserts that the security-clearance process may not be used in connection with misconduct that lacks national-security implications. Id. at 33-34 (citing Executive Order (E.O.) 12,968, § 2.1(a); the Privacy Act, 5 U.S.C. § 552a(a)(7); and 10 C.F.R. § 10.2). Also in this regard, the Agency contends that “the law presumes that Government officials will comply with the law and act in good faith in performing their duties.” Id. (citing Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, reh’g denied 541 U.S. 1057 (2004) (Favish)). According to the Agency, but for the Arbitrator’s alleged error, he would have reached a different conclusion. “For similar reasons[,]” the Agency asserts that the award is contrary to E.O. 12,968, the Privacy Act, 10 C.F.R. § 10.2, and Favish. Id. at 36 n.31.
In addition, the Agency argues that the award is contrary to law because, as a result of Egan, Weingarten rights do not apply to Agency determinations as to whether individuals are eligible for security clearances. In this connection, the Agency contends that § 7114(a)(2)(B) does not contain “any specific indication” that it applies in security-clearance-related examinations, and that Egan held that security-clearance examinations are not disciplinary in nature. Id. at 9. The Agency also contends that representation rights in security-clearance-investigatory interviews derive not from § 7114(a)(2)(B) but from E.O. 12,968 and 10 C.F.R. § 10.22(c), which do not incorporate Weingarten rights into the security-clearance process. Id. at 13-14. Additionally, the Agency asserts that its security-clearance interview procedures “specifically prohibit cross-examination by the employee’s representative, something that would be permissible in interviews where Weingarten rights apply.” Id. at 14.
Further, the Agency claims that the award is contrary to law insofar as the Arbitrator found that the Agency unduly restricted the Union representative’s conduct during the interview. Id. at 15. The Agency asserts that it is “not challenging the Arbitrator’s factual determination[s]” regarding the interview. Id. at 20 n.21. However, the Agency contends that the Arbitrator’s legal conclusion is erroneous because the Agency was entitled to insist on hearing the employee’s own account of the matter under investigation, and it imposed reasonable restrictions to achieve this goal. Id. at 17-20 (citing Dep’t of the Treasury v. FLRA, 707 F.2d 574, 580-81 (D.C. Cir. 1983) (Treasury); and Headquarters, NASA, Wash., D.C., 50 FLRA 601 (1995) (NASA)). In this connection, the Agency asserts that it “did not impose any restriction before the interview . . ., but only did so after the Union representative’s conduct substantially interfered with the Agency’s right and interest in obtaining spontaneous answers” from the employee. Id. at 21-22. Specifically, the Agency states that its “witness testified that before the ground rules were imposed there were a ‘handful of times’ of [the Union representative] ‘trying to stop [the employee] from answering questions, leaning over and cupping his hand, and whispering in [the employee’s] ear and trying to actually answer questions for [the employee].’” Id. at 22 n.23. “On other occasions,” the Agency claims, “the Union representative directed the employee’s attention to text in documents by pointing.” Id. at 4. According to the Agency, “[a]fter several instances of this behavior on the part of the Union representative, the Agency did insist that [the Union representative] refrain from speaking with or otherwise coaching the employee while a question was pending.” Id. at 22 n.23. Accord id. at 21 (“after the Union representative repeatedly had been asked not to interject while a question was pending, the Agency made it clear on the record that once a question was asked, the employee was expected to answer the question unassisted.”). However, the Agency contends that it did not prohibit the employee and the Union representative from consulting with each other after a question was answered or from taking breaks as needed. Id. at 22.
Moreover, the Agency argues that the award impermissibly expands the Weingarten right by applying it to questions sent to the employee by email. Exceptions at 22-27. Specifically, the Agency contends that most, “if not all[,]” of the requirements for finding a § 7114(a)(2)(B) violation are not met in connection with that incident. Id. at 25.
Finally, the Agency contends that the award is contrary to management’s rights to determine internal-security practices and to discipline employees under § 7106 of the Statute. Id. at 27-31. To support its internal-security argument, the Agency cites United States Nuclear Regulatory Commission v. FLRA, 25 F.3d 229 (4th Cir. 1994) (NRC).
B. Union’s Opposition
The Union argues that the award is not based on nonfacts. In this regard, the Union asserts that the Arbitrator determined that Weingarten rights applied because the employee reasonably feared discipline, and the Arbitrator’s statements challenged by the Agency are “merely dicta” and were disputed before the Arbitrator. Opp’n at 57.
The Union also argues that the wording and legislative history of § 7114(a)(2)(B) of the Statute demonstrate that Congress did not exempt security-clearance interviews from the coverage of that statutory section. Id. at 17. In addition, the Union contends that Egan and its progeny do not apply because those decisions foreclose review of the merits of security-clearance determinations, not the procedural aspects of those determinations. Id. at 34.
Further, the Union contends that the Arbitrator correctly found that the Agency’s restrictions on the Union representative’s conduct during the interview violated § 7114(a)(2)(B). As an initial matter, the Union asserts that the Arbitrator found “a set of facts different than that portrayed in the Agency’s exceptions,” and that although “the Agency asserts it is not challenging the Arbitrator’s factual determinations because the parties are largely in agreement as to what transpired during the interview, the Agency proceeds to do just that.” Id. at 36, 35. With regard to the Agency’s claim that it did not impose restrictions prior to the interview, the Union contends that there was conflicting testimony on that point, but that “[r]egardless of whether the restrictions were announced at the start of the interview or during the interview, the majority of the interview was clearly conducted under the ground rule.” Id. at 40 n.9.
The Union acknowledges that, “[o]n several occasions, [its representative] did engage in efforts to confer, consult, or otherwise represent [the employee], but the Agency construed these attempts as interruptions and halted them.” Id. at 5-6. “For example,” the Union asserts, “at one point during the examination,” the Union representative pointed to a document that had been written by the employee, in order to “tr[y] to remind [the employee] to discuss a particular fact so that [he] could provide a more complete answer.” Id. at 6. According to the Union, when the Agency admonished the Union representative and told him that he could not give the employee answers, the employee stated, “He is not answering my questions. He is providing me representation.” Id. The Union also acknowledges that the Union representative “whispered advice into [the employee’s] ear[,]” but that, during the hearing, the Union representative explained that he was “just trying to ensure his answer’s more complete; correct; accurate; and, more importantly, [that] favorable aspects that he was not completely answering” would be mentioned. Id. at 6-7. In addition, the Union contends that the Union representative was “even forbidden from communicating with the Agency before [the employee] completely answered the question” because when the Union representative “told the Agency that [the employee] wasn’t finished answering a question, the Agency considered that to be an interruption.” Id. at 41.
With regard to the Agency’s claim that it did not prohibit the employee and the Union representative from consulting with each other after a question was answered or from taking breaks as needed, the Union asserts that “[o]mitted from the Agency’s version of events is the Arbitrator’s factual determination” that they could consult only “after questions were completely answered and the employee then could not revise his answer.” Id. at 36. According to the Union, “[t]hese rules also applied to breaks[,]” and, consequently, the Union representative “was not able to clarify any questions to help the employee understand what he was being asked and assist the employee in answering.” Id.
Moreover, the Union asserts that the award does not impermissibly expand the Weingarten right with regard to the email to the employee. Id. at 45. In this regard, the Union relies on the Authority’s decision in United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 46 FLRA 363 (1992).
Finally, the Union contends that the award is not contrary to management’s rights under § 7106 of the Statute because those rights “must be read in context with other parts of the Statute” and “cannot be read to trump Weingarten rights, as doing so would render § 7114(a)(2)(B) a nullity.” Id. at 47-48 (citing Fed. Bureau of Prisons, Wash., D.C., 55 FLRA 1250 (2000) (Prisons) (Member Cabaniss dissenting)).
IV. Analysis and Conclusions
A. The award is not based on nonfacts.
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.
The alleged nonfacts cited by the Agency involve the Arbitrator’s findings that most “employee transgressions” at the Agency can become the subject of security-clearance investigations and that, as a result, the Agency could “totally erode” Weingarten rights by precluding union representation during security-clearance-related examinations. Exceptions at 31, 32. The Arbitrator made the challenged findings only after he addressed the requirements of § 7114(a)(2)(B) – including the requirement that the employee reasonably feared discipline – and found those requirements met. See Award at 20-21. Thus, the challenged findings are dicta. See Broad. Bd. of Governors, Office of Cuba Broad., 64 FLRA 888, 891-92 (2010) (citation omitted) (dicta are statements separate from the award and do not provide a basis for finding an award deficient). As such, the findings do not provide a basis for finding the award deficient. See id. Thus, we deny the nonfact exception and the related exception alleging that the challenged findings are contrary to law.
B. The award is not contrary to law.
When an exception involves an award’s consistency with law, the Authority reviews any question of law raised by an exception and the award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable legal standard. See U.S. DOD, Dep’ts of the Army & the Air Force, Ala. Nat’l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator’s underlying factual findings. Id.
1. The Finding that § 7114(a)(2)(B) Applies to Security-Clearance Examinations
Section 7114(a)(2)(B) of the Statute provides, in pertinent part, that “[a]n exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- . . . any examination of an employee in the unit by a representative of the agency in connection with an investigation if . . . the employee reasonably believes that the examination may result in disciplinary action against the employee; and . . . the employee requests representation.” The plain wording of § 7114(a)(2)(B) does not exclude security-clearance-related examinations from the definition of “examination[.]” In addition, the Agency does not cite any Authority or court decisions holding that § 7114(a)(2)(B) does not apply to security-clearance-related examinations. Although the Agency asserts that representation rights in security-clearance-investigatory interviews derive from E.O. 12,968 and 10 C.F.R. § 10.22(c), nothing in those authorities indicates that § 7114(a)(2)(B) is inapplicable to investigatory interviews that are conducted in connection with security-clearance investigations. See supra, notes 5 & 6. In addition, although the Agency asserts that its security-clearance interview procedures specifically prohibit “cross-examination” by the employee’s representative, the Arbitrator did not find that the Union representative attempted to “cross-examin[e]” anyone. Exceptions at 14. As such, even assuming that the Agency’s procedures could trump § 7114(a)(2)(B) in some circumstances, the Agency fails to demonstrate that § 7114(a)(2)(B) does not apply in this case.
In addition, the Agency’s reliance on Egan is misplaced. In that decision, the Supreme Court held that the Merit Systems Protection Board lacks the authority to resolve the merits of an executive agency’s security-clearance determination. 484 U.S. at 530-32. The Authority has held that, under Egan, neither arbitrators nor the Authority generally may review the merits of security-clearance determinations. See IFPTE, Local 3, 57 FLRA 699, 700 (2002);P.R. Air Nat’l Guard, 156th Airlift Wing (AMC), Carolina, P.R., 56 FLRA 174, 181 n.10 (2000) (Chairman Wasserman dissenting in part). However, the Authority also has held that Egan does not preclude arbitrators from resolving issues that do not depend on a review of the merits of a security-clearance determination. See AFGE, Local 1923, 39 FLRA 1197, 1205 (1991);U.S. Info. Agency, 32 FLRA 739, 745-46 (1988) (USIA). For example, an arbitrator may review whether required procedural protections were satisfactorily provided to an employee in connection with the revocation of a security clearance. See USIA, 32 FLRA at 745.
The Arbitrator’s assessment of whether the Agency violated § 7114(a)(2)(B) of the Statute did not involve a review of the merits of the Agency’s security-clearance determination. In fact, as noted previously, the parties stipulated before the Arbitrator that no remedy was available to the employee in connection with the revocation of his security clearance. See Award at 8. Thus, nothing in Egan precluded the Arbitrator from assessing whether the investigatory interview violated § 7114(a)(2)(B).
For the foregoing reasons, we deny the exception.
2. The Finding that the Agency Denied the Employee the Right to Meaningful Union Representation
The Authority has held that “the purposes underlying [§] 7114(a)(2)(B) can be achieved only by allowing a union representative to take an active role in assisting a unit employee in presenting facts in his or her defense.” Bureau of Prisons, Office of Internal Affairs, Wash., D.C. & Phx., Ariz., 52 FLRA 421, 432 (1996) (Member Wasserman dissenting) (Internal Affairs) (quoting NASA, 50 FLRA at 607)). “A union representative’s right to take an ‘active role’ includes not only the right to assist the employee in presenting facts but also the right to consult with the employee[.]” Internal Affairs, 52 FLRA at 432-33. In this connection, the Authority has held that “for the right to representation to be meaningful, the representative must have freedom to assist, and consult with, the affected employee.” Id. at 433 (citation omitted). This is consistent with Weingarten, where the Court stated that: “[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors[;]” and “[a] knowledgeable union representative could assist the employer by eliciting favorable facts[.]” Weingarten, 420 U.S. at 262-63.
However, “a union’s representational rights under [§] 7114(a)(2)(B) may not interfere with an employer’s legitimate interest and prerogative in achieving the objective of the examination or compromise its integrity.” NASA, 50 FLRA at 607 (citing FAA, New Eng. Region, Burlington, Mass., 35 FLRA 645, 652 (1990)). In Weingarten, the Court, in summarizing the Board’s litigative position, stated that an employer “is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation.” 420 U.S. at 260.
This wording from Weingarten has been interpreted as being “directed toward avoiding a bargaining session or a purely adversary confrontation with the union representative and to assure the employer the opportunity to hear the employee’s own account of the incident under investigation.” NLRB v. Texaco, 659 F.2d 124, 126 (9th Cir. 1981) (Texaco). Thus, where a union representative disrupts an interview by engaging in interruptions that are “verbally abusive” and “arrogantly insulting,” an employer does not violate Weingarten rights by limiting the representative’s participation. Yellow Freight Sys., Inc., 317 NLRB 115, 124 (1995) (Yellow Freight) (representative “not entitled to disrupt the process by verbally abusive and arrogantly insulting interruptions, by conduct that grossly demeaned [an individual’s] managerial status in front of an employee and fellow manager and that consisted of violent desk pounding and shouted obscenities, and finally by point-blank falsely calling [an individual] a liar and . . . refusing to immediately leave the office.”). In addition, an employer does not violate Weingarten rights when it limits the union representative’s participation after the representative has counseled an employee to answer a question only once and has prevented the employer from questioning the employee by engaging in persistent objections and interruptions. Id. (citing N.J. Bell Tel. Co., 308 NLRB 277 (1992)).
However, the Authority has rejected the position that an employer is entitled to question an employee without any interruptions or intervention by the union representative. For example, in United States Customs Service, Region VII, Los Angeles, California, 5 FLRA 297 (1981), the Authority adopted a judge’s decision in which the judge rejected an argument that an investigator “was entitled to obtain a statement from the employee without interruption from her representative.” Id. at 307. Specifically, the judge held that “some interruption, by way of comments re[garding] the form of questions or statements as to possible infringement of employee rights, should properly be expected from the employee’s representative.” Id. In this connection, “[t]he employer always retains the option to refrain from conducting the examination in the event it decides that the interview, in the presence of a union representative, is not efficacious.” Id. In addition, the judge found that even prohibiting the union representative from “pass[ing] notes” to the employee during the interview would impermissibly “circumscribe the effectiveness of the representative.” Id.
The Authority reached a similar conclusion in Norfolk Naval Shipyard, 9 FLRA 458 (1982). In that decision, the Authority adopted the judge’s finding of a Weingarten violation where, by intimidating the employees and attempting to silence their union representatives, the investigator interfered with protected rights. Id. at 473. The judge found a Weingarten violation despite the fact that the stewards continued to object, counsel and confer with the unit employees after being told to remain quiet. Id.
In addition, the Authority has held that meaningful representation includes the right to make statements that are part of the official record. In this connection, even where a representative has been permitted to confer with an employee and make statements “off the record,” the Authority has found no “meaningful representation” where there was no indication that off-the-record statements would be considered in making a final determination regarding discipline. Dep’t of Veterans Affairs, Veterans Affairs Med. Ctr., Jackson, Miss., 48 FLRA 787, 798, 799 (1993), on recon. 49 FLRA 171, recon. denied, 49 FLRA 701 (1994) (VAMC Jackson).
The Board has reached similar conclusions regarding a representative’s right to actively participate in an investigatory interview. Specifically, the Board has held that an employer’s “right to regulate the role of the representative at the interview . . . cannot exceed that which is necessary to ensure the ‘reasonable prevention of such a collective-bargaining or adversary confrontation with the statutory representative.’” U.S. Postal Serv., 288 NLRB 864, 867 (1988) (citation omitted) (USPS). The principle that the employer may regulate the role of the union representative “does not state that the employer may bar the union representative from any participation[,]” which would be “wholly contrary to other language in the Weingarten opinion which explains that the representative should be able to take an active role in assisting the employee to present the facts.” Texaco, 659 F.2d at 126. Accordingly, the Board has found a Weingarten violation when an interviewer silenced the union representative whenever the representative interrupted the interviewer’s questioning of the employee. USPS, 288 NLRB at 868. See also San Antonio Portland Cement Co., 277 NLRB 338, 339 (1985) (employer violated Weingarten rights by “cut[ting] off [union representative’s] attempt to elicitinformation from employee and telling representative that he was “merely [present] as a witness and was not supposed to speak”); Greyhound Lines, Inc., 273 NLRB 1443, 1448 (1985) (employer violated Weingarten rights by telling union representative that he must remain silent during interview);U.S. Postal Serv., 254 NLRB 703, 707 (1981) (employer violated Weingarten rights where union representative was “not permitted to consult with nor counsel [the employee] in any way or to make any utterance during the questioning”) (emphasis added).
Here, allowing the Union representative to counsel the employee while questions were pending was necessary to afford meaningful representation, particularly given the Arbitrator’s finding that, once the employee had answered the question without assistance from the Union representative, he could not “further answer the question[.]” Award at 2. In this connection, as stated previously, § 7114(a)(2)(B) allows a union representative to “take an active role in assisting a unit employee in presenting facts in his or her defense.’” Internal Affairs, 52 FLRA at 432 (emphasis added). This is consistent with the policies underlying Weingarten, which, as stated above, include the considerations that an employee “may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors[,]” and that “[a] knowledgeable union representative could assist the employer by eliciting favorable facts[.]” Weingarten, 420 U.S. at 263 (emphasis added). Accord Texaco, 659 F.2d at 126 (representative entitled to “take an active role in assisting the employee to present the facts”) (emphasis added). In addition, as stated previously, there is no “meaningful representation” when there is no indication that statements made by an employee with a union representative’s assistance will be part of the official record that the employer considers in deciding whether discipline is warranted. VAMC Jackson, 48 FLRA at 799.
By not allowing the Union representative to counsel the employee before he answered questions, and then precluding the employee from adding to his answers after he had answered them without assistance, the Agency did not allow the Union representative to assist the employee in presenting facts in his own defense. Any counseling that the Agency permitted after the answers were completed did not preserve the Union representative’s ability to provide meaningful representation to the employee, as required by § 7114(a)(2)(B).
The Agency asserts that it did not impose limitations on the Union representative until the representative “substantially interfered with” the Agency’s “right and interest in obtaining spontaneous answers” from the employee. Exceptions at 21-22. However, the Union argues that the evidence was disputed with respect to whether the Agency imposed the limitations prior to, or during, the interview, and that, in either case, “the majority of the interview was clearly conducted under” the restrictions imposed by the Agency. Opp’n at 40 n.9. The Arbitrator did not make a factual finding that the Agency imposed its restrictions only after the start of the interview or after the Union representative interrupted the questioning. In addition, the Agency asserts that it is “not challenging the Arbitrator’s factual determination[s]” regarding the interview. Exceptions at 20 n.21. Accordingly, there is no basis for the Authority to make a factual finding, not present in the award, that the Agency imposed the limitations only after the Union representative substantially interfered with the questioning.
Even assuming that the Agency imposed the limitations only after the Union representative intervened in some manner, the Agency’s allegations regarding the nature of the alleged interventions do not support finding that the Union representative engaged in impermissible conduct during the interview. According to the Agency, the Union representative “directed the employee’s attention to text in documents by pointing[,]” Exceptions at 4, and also engaged in “trying to stop [the employee] from answering questions, leaning over and cupping his hand, and whispering in [the employee’s] ear and trying to actually answer questions for [the employee].” Id. at 22 n.23. However, the Agency does not corroborate this claim with any specific examples, and the Arbitrator did not make any findings that the representative acted as alleged. With regard to pointing to documents, the Union acknowledges that this occurred “at one point during the examination,” but states that the document had been written by the employee himself and that the Union representative pointed to it only to “tr[y] to remind [the employee] to discuss a particular fact so that [he] could provide a more complete answer.” Opp’n at 6. With regard to whispering in the employee’s ear, the Union acknowledges that the Union representative whispered “advice” because he was “trying to ensure his answer’s more complete; correct; accurate; and, more importantly, favorable aspects that he was not completely answering” would be mentioned. Id. at 6-7.
These circumstances provide no basis for finding that the Union representative: engaged in interruptions that were “verbally abusive” and “arrogantly insulting,” Yellow Freight, 317 NLRB at 124; counseled the employee to answer questions only once, id.; prevented the Agency from questioning the employee by engaging in persistent objections and interruptions, id.; or attempted to convert the interview into “a bargaining session or a purely adversary confrontation[.]” Texaco, 659 F.2d at 126. In addition, although the Union representative attempted to assist the employee in answering questions, he did not preclude the Agency from “hear[ing] the employee’s own account of the incident under investigation.” Id. Further, as discussed previously, given the fact that the employee was not permitted to elaborate upon his initial answers to the Agency’s questions, the only opportunity that the Union representative had to meaningfully elicit favorable facts from the employee was while questions were pending. Finally, Treasury, 707 F.2d 574, cited by the Agency, does not support setting aside the Arbitrator’s finding of a violation, as that decision did not involve Weingarten rights under § 7114(a)(2)(B) of the Statute. <