09:0930(132)CA - IRS and Brookhaven Service Center and NTEU and NTEU Chapter 99 -- 1982 FLRAdec CA

 9 FLRA No. 132
 
 INTERNAL REVENUE SERVICE
 AND BROOKHAVEN SERVICE CENTER
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 99
 Charging Party
 
                                            Case Nos. 2-CA-114 
                                                      2-CA-120
 
                            DECISION AND ORDER
 
    THESE CONSOLIDATED CASES ARE BEFORE THE AUTHORITY PURSUANT TO THE
 REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN
 ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 STIPULATION OF FACTS AND BRIEFS, THE AUTHORITY FINDS:
 
    IN CASE NO. 2-CA-114, ROBERT T. HERMANN, COUNSEL FOR THE RESPONDENT
 IN A PENDING UNFAIR LABOR PRACTICE PROCEEDING COMMENCED BY THE NATIONAL
 TREASURY EMPLOYEES UNION (NTEU), THE EXCLUSIVE REPRESENTATIVE OF A UNIT
 THAT INCLUDED THE EMPLOYEES INVOLVED HEREIN, MET WITH EMPLOYEE DIANE
 FRISINA FOR THE PURPOSE OF PREPARING THE RESPONDENT'S CASE.  AT THE
 OUTSET OF THE MEETING, HERMANN INFORMED FRISINA THAT HE WAS REPRESENTING
 THE RESPONDENT AT THE FORTHCOMING UNFAIR LABOR PRACTICE HEARING.
 HERMANN FURTHER ADVISED HER THAT HE WISHED TO ASK HER ABOUT THE FACTS IN
 THE CASE, THAT SHE WAS UNDER NO OBLIGATION TO SPEAK TO HIM, THAT SHE
 COULD LEAVE IF SHE DID NOT WISH TO SPEAK TO HIM, AND THAT REGARDLESS OF
 WHAT POSITION SHE TOOK THERE WOULD BE NO REPRISAL.  AT HER REQUEST, HE
 EXPLAINED THAT "NO REPRISAL" MEANT THAT MANAGEMENT COULD NOT DO ANYTHING
 TO HER IF SHE REFUSED TO TALK TO HIM.  FRISINA INDICATED THAT SHE WOULD
 SPEAK TO HIM BUT WOULD NEITHER TESTIFY AT THE HEARING NOR GIVE A WRITTEN
 STATEMENT.  FRISINA AND HERMANN THEN DISCUSSED THE FACTS RELATING TO THE
 UNFAIR LABOR PRACTICE PROCEEDING.  HERMANN DID NOT AT ANY TIME NOTIFY
 NTEU OF THE MEETING.
 
    IN CASE NO. 2-CA-120, ELLIOT CARLIN, THE RESPONDENT'S REPRESENTATIVE
 IN AN UPCOMING ARBITRATION HEARING TO BE CONDUCTED PURSUANT TO THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT, DETERMINED THAT IT WOULD BE
 NECESSARY TO CALL EMPLOYEES PATRICIA WINKLEBLECK AND ANDREA LIPSKI AS
 WITNESSES FOR THE RESPONDENT AT THAT HEARING.  CARLIN ADVISED WILLIAM
 WHITE, ASSOCIATE GENERAL COUNSEL OF NTEU, THAT HE INTENDED TO CALL
 WINKLEBLECK AS A WITNESS AT THE ARBITRATION HEARING AND THAT HE ALSO
 INTENDED TO INTERVIEW LIPSKI, A POTENTIAL WITNESS.  WHITE REQUESTED THAT
 AN NTEU REPRESENTATIVE BE PRESENT AT ANY MEETINGS BETWEEN CARLIN AND THE
 TWO EMPLOYEES.  CARLIN DENIED THIS REQUEST, STATING THAT THE TWO
 EMPLOYEES WOULD BE THE RESPONDENT'S MAJOR WITNESSES AND THAT THE
 PRESENCE OF AN NTEU REPRESENTATIVE DURING THE INTERVIEWS WOULD INTERFERE
 WITH HIS (CARLIN'S) ABILITY TO PREPARE HIS CASE AND TO ASCERTAIN THE
 FACTS NECESSARY TO DETERMINE WHETHER A SETTLEMENT OFFER COULD BE MADE.
 
    CARLIN MET SEPARATELY WITH WINKLEBLECK AND LIPSKI.  BEFORE BEGINNING
 THE INTERVIEWS, HE INFORMED EACH EMPLOYEE THAT SHE WAS IN NO WAY
 REQUIRED TO SPEAK WITH HIM, THAT THE PURPOSE OF THE INTERVIEW WAS TO
 PREPARE THE RESPONDENT'S CASE FOR THE PENDING ARBITRATION HEARING AND TO
 ASCERTAIN WHETHER THE CASE COULD BE SETTLED, THAT SHE WAS FREE TO HAVE
 ANYONE PRESENT SHE DESIRED, THAT NO REPRISALS WOULD BE TAKEN AGAINST HER
 WHETHER OR NOT SHE CHOSE TO BE INTERVIEWED AND REGARDLESS OF WHAT SHE
 TOLD HIM, AND THAT SHE WAS NOT BEING EVALUATED IN ANY WAY.  EACH
 EMPLOYEE AGREED TO BE INTERVIEWED AND NEITHER REQUESTED THE PRESENCE OF
 AN NTEU REPRESENTATIVE.  CARLIN SUBSEQUENTLY INFORMED WHITE THAT THE
 INTERVIEWS HAD OCCURRED.
 
    THE COMPLAINTS IN BOTH CASES, IN RELIANCE UPON SECTION 7114(A)(2)(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 /1/ ALLEGE THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8)
 OF THE STATUTE BY MEETING DIRECTLY WITH UNIT EMPLOYEES TO INTERVIEW THEM
 IN PREPARATION FOR UNFAIR LABOR PRACTICE AND ARBITRATION HEARINGS
 WITHOUT NOTIFYING NTEU AND AFFORDING NTEU THE OPPORTUNITY TO BE PRESENT
 AT THE ABOVE-MENTIONED MEETINGS.  THE GENERAL COUNSEL CONTENDS THAT THE
 MEETINGS HEREIN WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF SECTION
 7114(A)(2)(A) OF THE STATUTE.  THE AUTHORITY DISAGREES.
 
    THE AUTHORITY AGREES WITH THE POSITION OF THE GENERAL COUNSEL THAT
 SECTION 7114(A)(2)(A) APPLIES ONLY TO "FORMAL" DISCUSSIONS.  THE STATUTE
 SPECIFICALLY REFERS TO "FORMAL" DISCUSSIONS, AND THE LEGISLATIVE HISTORY
 CLEARLY INDICATES CONGRESSIONAL INTENT NOT TO EXTEND THE APPLICATION OF
 THIS SECTION TO PERSONAL, INFORMAL MEETINGS.  /2/
 
    THEREFORE, THE ISSUE TO BE RESOLVED IS WHETHER THE DISCUSSIONS IN
 QUESTION WERE FORMAL OR INFORMAL.  IF THEY WERE FORMAL, NTEU SHOULD HAVE
 BEEN GIVEN AN OPPORTUNITY TO BE REPRESENTED;  IF THEY WERE INFORMAL, NO
 RIGHT ATTACHED.  THE AUTHORITY HAS FOUND MEETINGS TO BE "FORMAL
 DISCUSSIONS" WHERE, FOR EXAMPLE, MANAGEMENT REPRESENTATIVES HAVE CALLED
 MEETINGS WITH EMPLOYEES AT WHICH ATTENDANCE WAS MANDATORY AND AN AGENDA
 HAD BEEN ESTABLISHED BY MANAGEMENT TO DISCUSS A NUMBER OF MATTERS
 INVOLVING GENERAL CONDITIONS OF EMPLOYMENT OR SPECIFIC CHANGES IN JOB
 DUTIES.  /3/ HOWEVER, THE AUTHORITY HAS RECOGNIZED THAT NOT ALL
 DISCUSSIONS BETWEEN REPRESENTATIVES OF AGENCY MANAGEMENT AND UNIT
 EMPLOYEES ARE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
 7114(A)(2)(A).  /4/ FOR EXAMPLE, THE AUTHORITY HAS HELD THAT CERTAIN
 TYPES OF "INFORMATION GATHERING" ACTIVITIES ARE NOT "FORMAL DISCUSSIONS"
 UNDER SECTION 7114(A)(2)(A) OF THE STATUTE.  /5/ IN THE INSTANT CASES,
 FOR EXAMPLE, ATTENDANCE OF THE EMPLOYEES AT THE MEETINGS WAS NOT
 MANDATORY AND AN AGENDA HAD NOT BEEN ESTABLISHED BY MANAGEMENT TO
 DISCUSS MATTERS INVOLVING GENERAL CONDITIONS OF EMPLOYMENT OR SPECIFIC
 CHANGES IN JOB DUTIES.  UNDER THE FACTS AS STIPULATED, THE AUTHORITY IS
 UNWILLING TO FIND THE EXISTENCE OF A FORMAL DISCUSSION WITHIN THE
 MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE AND APPLICABLE AUTHORITY
 PRECEDENT.
 
    IN THE CIRCUMSTANCES HEREIN, THE AUTHORITY CONCLUDES THAT THE
 ABOVE-DESCRIBED MEETINGS DID NOT CONSTITUTE FORMAL DISCUSSIONS WITHIN
 THE MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE.  RATHER, THEY WERE
 FACT-GATHERING SESSIONS BETWEEN A REPRESENTATIVE OF THE RESPONDENT AND A
 UNIT EMPLOYEE WHEREIN MANAGEMENT WAS MERELY SEEKING INFORMATION TO AID
 IN THE PREPARATION OF ITS CASES FOR PRESENTATION AT PROCEEDINGS BEFORE A
 THIRD-PARTY NEUTRAL, IN THE SAME MANNER AS AN EXCLUSIVE REPRESENTATIVE
 MAY GATHER THE FACTS FROM EMPLOYEES PRIOR TO SUCH PROCEEDINGS.
 THEREFORE, THE RESPONDENT WAS NOT REQUIRED TO GIVE NTEU AN OPPORTUNITY
 TO BE REPRESENTED AND ITS FAILURE TO DO SO HEREIN DID NOT CONSTITUTE AN
 UNFAIR LABOR PRACTICE.
 
    IT MUST BE EMPHASIZED, HOWEVER, THAT AN AGENCY MAY NOT CONDUCT SUCH
 FACT-GATHERING SESSIONS WITHOUT LIMITATION.  THUS, WHILE MANAGEMENT MAY
 ASCERTAIN FACTS IN PREPARING ITS CASE FOR THIRD-PARTY PROCEEDINGS
 WITHOUT THE PRESENCE OF THE EXCLUSIVE REPRESENTATIVE, THE UNIT EMPLOYEES
 HAVE THE PROTECTED RIGHT UNDER SECTION 7102 OF THE STATUTE TO "FORM,
 JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN FROM SUCH
 ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL(.)"
 ACCORDINGLY, WHERE MANAGEMENT EXERCISES ITS RIGHT TO INTERVIEW UNIT
 EMPLOYEES IN PREPARATION FOR THIRD-PARTY PROCEEDINGS, BUT DOES NOT TAKE
 NECESSARY PRECAUTIONS TO PRESERVE EMPLOYEES' PROTECTED RIGHTS, AND
 INSTEAD ACTS IN A MANNER WHICH "INTERFERES WITH, RESTRAINS, OR COERCES"
 THE EMPLOYEES, IT VIOLATES SECTION 7116(A)(1) OF THE STATUTE.  TO
 PROTECT EMPLOYEES' RIGHTS UNDER SECTION 7102 WHILE MANAGEMENT ATTEMPTS
 TO ASCERTAIN NECESSARY FACTS, THE AUTHORITY CONCLUDES THAT (1)
 MANAGEMENT MUST INFORM THE EMPLOYEE WHO IS TO BE QUESTIONED OF THE
 PURPOSE OF THE QUESTIONING, ASSURE THE EMPLOYEE THAT NO REPRISAL WILL
 TAKE PLACE IF HE OR SHE REFUSES, AND OBTAIN THE EMPLOYEE'S PARTICIPATION
 ON A VOLUNTARY BASIS;  (2) THE QUESTIONING MUST OCCUR IN A CONTEXT WHICH
 IS NOT COERCIVE IN NATURE;  AND (3) THE QUESTIONS MUST NOT EXCEED THE
 SCOPE OF THE LEGITIMATE PURPOSE OF THE INQUIRY OR OTHERWISE INTERFERE
 WITH THE EMPLOYEE'S STATUTORY RIGHTS.  IN THIS MANNER, THE NECESSARY
 BALANCE BETWEEN THE RIGHTS OF MANAGEMENT AND THE RIGHTS OF EMPLOYEES AND
 THEIR EXCLUSIVE REPRESENTATIVES WILL BEST BE PRESERVED.
 
    APPLYING THE FOREGOING PRINCIPLES TO THE FACTS AND CIRCUMSTANCES OF
 THE INSTANT CASE, THE AUTHORITY CONCLUDES THAT THE MANNER IN WHICH THE
 RESPONDENT QUESTIONED THE EMPLOYEES IN PREPARATION FOR THE UNFAIR LABOR
 PRACTICE AND ARBITRATION HEARINGS DID NOT VIOLATE SECTION 7116(A)(1) OF
 THE STATUTE.  PRIOR TO INTERVIEWING EACH OF THE EMPLOYEES HEREIN, THE
 RESPONDENT'S REPRESENTATIVE INFORMED THE EMPLOYEE THAT THE PURPOSE OF
 THE INTERVIEW WAS TO PREPARE THE RESPONDENT'S POSITION FOR THE UPCOMING
 HEARINGS, THAT THE EMPLOYEE WAS UNDER NO OBLIGATION TO SUBMIT TO THE
 INTERVIEW, AND THAT THE EMPLOYEE FACED NO REPRISAL FROM AGENCY
 MANAGEMENT REGARDLESS OF WHETHER THE EMPLOYEE AGREED TO BE INTERVIEWED.
 THE GENERAL COUNSEL HAS NOT ESTABLISHED THAT THE QUESTIONING HEREIN WAS
 CONDUCTED IN A COERCIVE CONTEXT OR EXCEEDED ITS LEGITIMATE SCOPE AND
 PURPOSES OR OTHERWISE INTERFERED WITH EACH EMPLOYEE'S STATUTORY RIGHTS.
 
    IN SUMMARY, THE AUTHORITY FINDS THAT THE RESPONDENT NEITHER
 UNLAWFULLY DENIED NTEU THE OPPORTUNITY TO BE PRESENT AT THE INSTANT
 INTERVIEWS BETWEEN MANAGEMENT'S REPRESENTATIVES AND BARGAINING UNIT
 EMPLOYEES, NOR UNLAWFULLY QUESTIONED ITS EMPLOYEES, AND THEREFORE DID
 NOT VIOLATE SECTION 7116(A)(1), (5) OR (8) OF THE STATUTE AS ALLEGED IN
 THE COMPLAINTS.  THEREFORE, SUCH COMPLAINTS SHALL BE DISMISSED IN THEIR
 ENTIRETY.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CASE NOS. 2-CA-114 AND
 2-CA-120 BE, AND THEY HEREBY ARE, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7114(A)(2)(A) PROVIDES THAT:
 
    (2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
    (A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
 AGENCY AND ONE OR MORE
 
    EMPLOYEES IN THE UNIT OF THEIR REPRESENTATIVES CONCERNING ANY
 GRIEVANCE OR ANY PERSONNEL
 
    POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT . .  . .
 
    /2/ REPRESENTATIVE CLAY OF MISSOURI PROVIDED THE FOLLOWING
 EXPLANATION FOR THE ADDITION OF THE WORD "FORMAL" DURING DEBATE ON THE
 HOUSE FLOOR OF THE "UDALL SUBSTITUTE" WHICH BECAME THE FINAL HOUSE
 VERSION OF TITLE VII AND, AS RELEVANT HEREIN, WAS ENACTED:
 
    THE WORD "FORMAL" WAS INSERTED BEFORE "DISCUSSIONS" IN ORDER TO MAKE
 CLEAR THE INTENTION
 
    THAT THIS SUBSECTION DOES NOT REQUIRE THAT AN EXCLUSIVE
 REPRESENTATIVE BE PRESENT DURING
 
    HIGHLY PERSONAL, INFORMAL MEETINGS SUCH AS COUNSELING SESSIONS .  . .
 .
 
    124 CONG.REC. 29187(1978).
 
    /3/ SEE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION IV,
 ATLANTA, GEORGIA AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV,
 5 FLRA NO. 58(1981).  SEE ALSO, NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
 VIRGINIA, 6 FLRA NO. 22(1981).
 
    /4/ SEE OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL
 SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 9 FLRA NO. 9(1982).
 
    /5/ SEE KAISERSLAUTERN AMERICAN HIGH SCHOOL, DEPARTMENT OF DEPENDENTS
 SCHOOLS, GERMANY NORTH REGION, 9 FLRA NO. 28(1982).