DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE U.S. BORDER PATROL LAREDO, TEXAS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2455, AFL-CIO
DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
U.S. BORDER PATROL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2455, AFL-CIO Charging Party
Case No. DA-CA-00878
On November 30, 2000, the Regional Director of theDallas Region of the Federal Labor Relations Authority issued a Complaint and Notice of Hearing which was duly served by certified mail on a designated representative of the Respondent. The Complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (8), by failing to comply with 5 U.S.C. § 7114(a)(2)(B)(1) , when bargaining unit employee Aynee Garcia requested representation during an investigatory examination and Respondent denied the request by placing unwarranted restrictions on his Union representative during the examination. A hearing was scheduled for February 9, 2001.
The Complaint specifically advised the Respondent that an answer
must be filed with this office by December 26, 2000 and that "[i]f
Respondent does not file an answer, the Authority will find that
Respondent has admitted each allegation. See 5 C.F.R. §
2423.60(b)." The Respondent did not file an answer, either in
person or by mail, within the required period or at any time
thereafter. Accordingly, the Respondent has admitted all
allegations of the complaint. Department of Veterans Affairs
Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1594
On January 5, 2001 Counsel for the General Counsel filed a Motion for Summary Judgment and requested an appropriate remedy requiring the Respondent to post a Notice of All Employees. Respondent failed to file a response to the motion for summary judgement within the time period provided for in the Regulations, 5 C.F.R. § 2423.27(b) and 2429.22, or at any time to date.
Based on the allegations of the Complaint, the admissions by operation of section 2423.20(b) of the Authority's Rules and Regulations, and all the pleadings, it appears that there are no genuine issues of material fact and that the General Counsel is entitled to Summary Judgment as a matter of law. Accordingly, I make the following findings of fact, conclusions of law, and recommendations.
The Respondent, Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol, Laredo, Texas, is an agency under 5 U.S.C. § 7103(a)(3).
The American Federation of Government Employees, AFL-CIO (AFGE), is a labor organization under 5 U.S.C. § 7103(a)(4) and is the exclusive representative of a unit of employees appropriate for collective bargaining at the U.S. Border Patrol. The American Federation of Government Employees, Local 2455 (the Union), is an agent of AFGE for the purpose of representing employees of Respondent within the unit.
On or about September 8, 2000, the Respondent, by Mike Douglas, a Supervisory Border Patrol Agent, and a supervisor or management official under 5 U.S.C. § 7103(a)(10) and (ll) acting on behalf of Respondent, conducted an examination of bargaining unit employee Aynee Garcia for the purpose of gathering information regarding an allegation of misuse of government property.
The examination was in connection with an investigation. Garcia reasonably believed that the examination could result in disciplinary action and requested Union representation.
The Respondent denied Garcia's request for representation at the examination by placing unwarranted restrictions on the representative during the examination.
By the conduct described, the Respondent failed to comply with 5 U.S.C. § 7114(a)(2)(B).
Based on the admitted material facts by operation of section 2423.20(b) of the Authority's Rules and Regulations, it is concluded that the Respondent violated section 7116(a)(1) and (8) of the Statute, as alleged, by failing to comply with 5 U.S.C. § 7114(a)(2)(B). The Authority has consistently held that a union representative must be given the opportunity to actively participate in an examination of a unit employee conducted pursuant to section 7114(a)(2)(B). See National Aeronautics and Space Administration v. FLRA, 119 S. Ct. 1979 (1999); United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 440 (1990).
Among other things, Counsel for the General Counsel requests
that the Respondent be ordered to repeat the examination of Aynee
Garcia with the statutory participation of his Union
representative. The proposed remedy would effectuate the purposes
and policies of the Statute.
Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:
Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol, Laredo, Texas, shall:
1. Cease and desist from:
(a) Placing unwarranted restrictions on a Union representative during an examination of a bargaining unit employee in connection with an investigation where such representative has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request of the American Federation of Government
Employees, Local 2455, AFL-CIO, and Aynee Garcia, repeat the
examination of Anyee Garcia that occurred on about September 8,
2000. In repeating the examination, afford Aynee Garcia the
statutory right to union representation.
(b) Ensure that no disciplinary action is taken against Anyee Garcia as a result of any information obtained as a result of the examination on or about September 8, 2000 when Garcia requested and was denied the active participation of a Union representative.
(c) Post at its facilities in the Laredo, Texas Sector, where bargaining unit employees represented by the American Federation of Government Employees, Local 2455, AFL-CIO, 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 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.
(d) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to