09:0951(134)CA - Treasury, Customs Service, Region V and NTEU and NTEU Chapter 168 -- 1982 FLRAdec CA
[ v09 p951 ]
09:0951(134)CA
The decision of the Authority follows:
9 FLRA No. 134
UNITED STATES DEPARTMENT
OF THE TREASURY, UNITED
STATES CUSTOMS SERVICE,
REGION V
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 168
Charging Party
Case No. 6-CA-237
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. /1/ THEREAFTER, THE
GENERAL COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S
DECISION. /2/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. /3/ UPON CONSIDERATION OF
THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
MODIFIED HEREIN.
THE GENERAL COUNSEL ALLEGES IN THE COMPLAINT THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) OF THE STATUTE WHEN ITS REPRESENTATIVE
CONDUCTED INTERVIEWS WITH BARGAINING UNIT EMPLOYEES WHICH, IT IS
CONTENDED, CONSTITUTED "COERCIVE INTERROGATION." ADDITIONALLY, THE
GENERAL COUNSEL ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1),
(5) AND (8) OF THE STATUTE WHEN IT FAILED TO AFFORD THE NATIONAL
TREASURY EMPLOYEES UNION (NTEU) THE OPPORTUNITY TO BE REPRESENTED AT THE
INTERVIEWS WHICH, IT IS CONTENDED, WERE FORMAL DISCUSSIONS WITHIN THE
MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE. /4/ LASTLY, THE
GENERAL COUNSEL ALLEGES THAT THE "COERCIVE INTERROGATION" INTERFERED
WITH AN UNFAIR LABOR PRACTICE PROCEEDING IN VIOLATION OF SECTION
7116(A)(8) OF THE STATUTE.
IN AGREEMENT WITH THE JUDGE AND BASED ON THE ENTIRE RECORD, INCLUDING
THE JUDGE'S CREDIBILITY FINDINGS, THE AUTHORITY FINDS THAT THE
INTERVIEWS CONDUCTED BY THE RESPONDENT'S REPRESENTATIVE WERE
NON-COERCIVE IN NATURE AND, HENCE, DID NOT OTHERWISE VIOLATE THE
PROTECTED RIGHTS OF EMPLOYEES. MOREOVER, BASED ON THE ENTIRE RECORD,
INCLUDING THE JUDGE'S CREDIBILITY FINDINGS, AND FOR THE REASONS
EXPRESSED IN INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER, 9
FLRA NO. 132(1982), THE AUTHORITY FINDS THAT THE RESPONDENT DID NOT
VIOLATE SECTION 7116(A)(1), (5) OR (8) OF THE STATUTE BY NOT AFFORDING
NTEU THE OPPORTUNITY TO BE PRESENT AT THE INTERVIEWS BETWEEN THE
RESPONDENT'S REPRESENTATIVE AND BARGAINING UNIT EMPLOYEES. IT FOLLOWS,
PERFORCE, THAT THE RESPONDENT CANNOT BE FOUND TO HAVE INTERFERED WITH AN
UNFAIR LABOR PRACTICE PROCEEDING. THE COMPLAINT SHALL, THEREFORE, BE
DISMISSED IN ITS ENTIRETY. /5/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
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
-------------------- ALJ$ DECISION FOLLOWS --------------------
GARY B. LANDSMAN, ESQUIRE
FOR THE RESPONDENT
ALVARO GARZA, ESQUIRE
FOR THE GENERAL COUNSEL
B. CRAIG DEATS, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DECISION
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON AUGUST 12, 1980, BY THE
REGIONAL DIRECTOR, REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS,
TEXAS, AGAINST THE UNITED STATES CUSTOMS SERVICE, REGION V
("RESPONDENT").
THE COMPLAINT RAISES TWO PRINCIPAL ISSUES RELATING TO CERTAIN
INTERVIEWS CONDUCTED BY AN ATTORNEY FOR RESPONDENT WITH UNIT EMPLOYEES
WHO WERE PROSPECTIVE WITNESSES FOR AN UPCOMING UNFAIR LABOR PRACTICE
HEARING: (1) DID THE INTERVIEWS CONSTITUTE "COERCIVE INTERROGATION" IN
VIOLATION OF SEC. 7116(A)(1) OF THE STATUTE, AND (2) WERE THE INTERVIEWS
"FORMAL DISCUSSIONS" CONCERNING "GENERAL CONDITIONS OF EMPLOYMENT"
WITHIN THE MEANING OF SEC. 7114(A)(2)(A) WHICH REQUIRED THAT THE UNION
BE GIVEN AN OPPORTUNITY TO BE REPRESENTED? SINCE THE UNION WAS NOT
GIVEN THIS OPPORTUNITY, THE COMPLAINT ALLEGES VIOLATIONS OF SECTIONS
7116(A)(1), (5) AND (8) WITH RESPECT TO THE SECOND ISSUE. THE GENERAL
COUNSEL SEPARATELY ALLEGES A VIOLATION OF SEC. 7116(A)(8) ON THE GROUND
THAT THE ALLEGED COERCIVE INTERROGATION VIOLATED SEC. 7118 BY
INTERFERING WITH AN UNFAIR LABOR PRACTICE PROCEEDING. RESPONDENT DENIES
ALL THESE ALLEGATIONS, ARGUING THAT THE INTERVIEWS WERE NOT COERCIVE IN
NATURE AND THAT THEY DID NOT CONSTITUTE SEC. 7114(A)(2)(A) DISCUSSIONS.
THE OFFICE OF PERSONNEL MANAGEMENT WAS PERMITTED TO FILE A BRIEF ON THE
SEC. 7114(A)(2)(A) ISSUE AS AN AMICUS CURIAE; OPM SIDED WITH THE
RESPONDENT IN ALL MATERIAL RESPECTS.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT NEW
ORLEANS, LOUISIANA ON OCTOBER 15, 1980. ALL PARTIES WERE REPRESENTED BY
COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. THE PARTIES FILED
BRIEFS WHICH HAVE BEEN DULY CONSIDERED. /6/ BASED ON THE ENTIRE RECORD
HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
THE EXHIBITS, STIPULATIONS, /7/ AND OTHER RELEVANT EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND RECOMMENDED ORDER:
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, THE NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 168 ("THE UNION") HAS BEEN THE EXCLUSIVE REPRESENTATIVE
OF AN APPROPRIATE UNIT OF EMPLOYEES OF THE RESPONDENT U.S. CUSTOMS
SERVICE, REGION V. RESPONDENT AND THE UNION ARE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT COVERING ALL MATERIAL PERIODS.
PRIOR TO THE CHARGES UNDERLYING THE INSTANT CASE, THE UNION FILED
FOUR UNFAIR LABOR PRACTICE COMPLAINTS IN 1978 UNDER EXECUTIVE ORDER
11491 AGAINST THE RESPONDENT AGENCY. THE 1978 COMPLAINTS ALLEGED THAT
THE AGENCY HAD COMMITTED UNFAIR LABOR PRACTICES AT ITS AIR SUPPORT
BRANCH (ASB) IN BELLE CHASSE, LOUISIANA. ON MAY 7, 1979, THE REGIONAL
DIRECTOR, FLRA, REGION VI, ISSUED A NOTICE OF HEARING AND ORDER
CONSOLIDATING CASES SETTING A HEARING TO COMMENCE ON JUNE 26, 1979, IN
THE FOUR EXECUTIVE ORDER CASES. AT THE HEARING, RESPONDENT WAS
REPRESENTED BY ELIZABETH BRIGMAN, ESQ., AN ASSOCIATE REGIONAL COUNSEL
FOR THE AGENCY IN ITS NEW ORLEANS OFFICE. THE FINAL DECISION OF THE
AUTHORITY WAS ISSUED ON SEPTEMBER 29, 1980. UNITED STATES CUSTOMS
SERVICE, REGION V, NEW ORLEANS, LOUISIANA, 4 FLRA NO. 42(1980). THE
AUTHORITY FOUND, IN PART, THAT RESPONDENT HAD UNILATERALLY CHANGED THE
ESTABLISHED PAST PRACTICE OF PILOTS REPORTING AIRCRAFT DISCREPANCIES TO
MECHANICS, AND ORDERED RESPONDENT TO RETURN TO THE STATUS QUO ANTE ON
THIS ISSUE. THE REMAINING ISSUES, ALSO INVOLVING ALLEGED UNILATERAL
CHANGES IN WORKING CONDITIONS, WERE DECIDED IN RESPONDENT'S FAVOR.
IN PREPARING RESPONDENT'S DEFENSE PRIOR TO THE HEARING IN THE
EXECUTIVE ORDER CASES, ATTORNEY ELIZABETH BRIGMAN DECIDED TO INTERVIEW
SOME OF THE UNIT EMPLOYEES AT THE AIR SUPPORT BRANCH FACILITY IN BELLE
CHASSE, LOUISIANA. PRIOR TO DOING SO, HOWEVER, SHE DID SOME LEGAL
RESEARCH AND CHECKED WITH HER NATIONAL OFFICE TO ASCERTAIN THE PROPER
PROCEDURE FOR CONDUCTING SUCH INTERVIEWS. IT WAS DECIDED THAT AT EACH
EMPLOYEE'S INTERVIEW SHE WOULD COMPLY WITH THE SAFEGUARDS SET FORTH IN
THE CASE OF JOHNNIE'S POULTRY CO., 146 NLRB 770, 55 LRRM 1403, FOR THE
PURPOSE OF ELIMINATING THE POSSIBILITY OF COERCIVE INTERROGATION. THAT
CASE ALLOWS AN EMPLOYER TO QUESTION UNIT EMPLOYEES TO ASCERTAIN THE
NECESSARY FACTS FOR A ULP HEARING IF THE EMPLOYER FIRST:
(1) COMMUNICATES TO THE EMPLOYEE THE PURPOSE OF THE QUESTIONING,
(2) ASSURES HIM THAT NO REPRISAL WILL TAKE PLACE, AND
(3) OBTAINS HIS PARTICIPATION ON A VOLUNTARY BASIS; AND, IN
ADDITION,
(4) THE QUESTIONING MUST OCCUR IN A CONTEXT FREE FROM EMPLOYER
HOSTILITY TO UNION
ORGANIZATION AND MUST NOT BE ITSELF COERCIVE IN NATURE; AND
(5) THE QUESTIONS MUST NOT EXCEED THE NECESSITIES OF THE LEGITIMATE
PURPOSE BY PRYING INTO
OTHER UNION MATTERS, ELICITING INFORMATION CONCERNING AN EMPLOYEE'S
SUBJECTIVE STATE OF MIND,
OR OTHERWISE INTERFERING WITH THE STATUTORY RIGHTS OF EMPLOYEES.
PRIOR TO CONDUCTING ANY INTERVIEWS, ATTORNEY ELIZABETH BRIGMAN
STUDIED THE ABOVE SAFEGUARDS AND COMMITTED THEM TO MEMORY. SHE ALSO
TOOK A WRITTEN LIST OF THE SAFEGUARDS TO THE SUBSEQUENT INTERVIEWS.
THEN ON JUNE 11 AND 12, 1979, BRIGMAN WENT TO THE AIR SUPPORT BRANCH IN
BELLE CHASSE AND CONDUCTED INTERVIEWS WITH THREE INDIVIDUAL UNIT
EMPLOYEES. SHE DID NOT KNOW WHETHER THE UNION INTENDED TO CALL THESE
EMPLOYEES AS WITNESSES. THE INTERVIEWS WERE CONDUCTED DURING WORKING
HOURS IN A SUPERVISOR'S OFFICE. THE INTERVIEWS WERE NOT SCHEDULED IN
ADVANCE AND NO EMPLOYEE WAS ORDERED TO SUBMIT TO THE INTERVIEW. AT EACH
INTERVIEW ONLY BRIGMAN AND THE INDIVIDUAL EMPLOYEE WERE PRESENT. THE
UNION WAS NOT NOTIFIED IN ADVANCE THAT THE THREE INTERVIEWS WERE GOING
TO OCCUR, AND WAS NOT OTHERWISE GIVEN AN OPPORTUNITY TO ATTEND.
AT THE OUTSET OF EACH OF THE ABOVE INTERVIEWS, ELIZABETH BRIGMAN TOLD
THE EMPLOYEE THAT SHE WAS CONDUCTING A FACTFINDING INVESTIGATION ON
RESPONDENT'S BEHALF IN PREPARATION FOR THE UPCOMING UNFAIR LABOR
PRACTICE HEARING. SHE TOLD THEM THAT THEY DID NOT HAVE TO TALK TO HER
IF THEY DID NOT WANT TO, AND, IF THEY CHOSE TO TALK, THEY COULD ALSO
REFRAIN FROM ANSWERING ANY PARTICULAR QUESTIONS IF THEY DID NOT WANT TO
ANSWER THEM. SHE MADE IT CLEAR TO THEM THAT IT WAS STRICTLY VOLUNTARY
AND THAT THERE WOULD BE NO REPRISALS AGAINST THEM IF THEY CHOSE NOT TO
ANSWER THE QUESTIONS. THESE STATEMENTS WERE MADE FROM MEMORY. AFTER
SHE CONCLUDED GIVING THE ABOVE "JOHNNIE'S POULTRY ASSURANCES," EACH
EMPLOYEE INDICATED THAT HE UNDERSTOOD WHAT HAD BEEN SAID.
THE JUNE 11 INTERVIEW WAS CONDUCTED WITH PILOT MEEK KIKER. AT THE
HEARING OF THE INSTANT CASE, THE LATTER TESTIFIED CREDIBLY THAT THE
ABOVE ASSURANCES WERE GIVEN TO HIM AT HIS INTERVIEW WITH BRIGMAN. AFTER
KIKER AGREED TO SUBMIT TO THE INTERVIEW, THE ATTORNEY CONFINED HER
QUESTIONS TO THE FACTS OF THE UPCOMING UNFAIR LABOR PRACTICE HEARING.
THE INTERVIEW LASTED ABOUT 20-30 MINUTES. AT THE 1979 EXECUTIVE ORDER
HEARING, KIKER TESTIFIED ON BEHALF OF THE RESPONDENT, EVEN THOUGH HE WAS
A MEMBER OF THE UNION.
ON JUNE 12 BRIGMAN INTERVIEWED PILOTS TERRY WHITE AND WALTER
CHANDLER. WHILE SHE WAS GIVING WHITE THE "ASSURANCES," HE ASKED "DO YOU
THINK I NEED MY UNION REPRESENTATIVE?" SHE TOLD HIM THAT SHE DID NOT
THINK THAT HE NEEDED A REPRESENTATIVE, AND THAT THIS WAS NOT THE KIND OF
INTERVIEW REQUIRING THE PRESENCE OF THE UNION. SHE FURTHER STATED THAT
SHE PREVIOUSLY HAD CHECKED THIS QUESTION WITH HER SUPERVISOR AND HAD
BEEN TOLD THAT THE UNION HAD NO RIGHT TO ATTEND SUCH A MEETING. WHITE
SAID "OKAY" AND DIDN'T MENTION THE MATTER AGAIN. BRIGMAN THEN FINISHED
GIVING WHITE THE "ASSURANCES." WHITE INDICATED THAT HE UNDERSTOOD AND
VOLUNTARILY SUBMITTED TO THE INTERVIEW, WHICH WAS CONFINED THEREAFTER TO
THE FACTS OF THE UNFAIR LABOR PRACTICE CASES. WHITE'S INTERVIEW LASTED
ABOUT 20 MINUTES.
WHEN WHITE LEFT HIS INTERVIEW, HE TOLD CHANDLER THAT MS. BRIGMAN
WISHED TO SPEAK WITH HIM. WHITE WAS APPARENTLY HAVING SECOND THOUGHTS
ABOUT WHETHER THE UNION HAD A RIGHT TO ATTEND THE MEETINGS, BECAUSE HE
MENTIONED THE MATTER TO CHANDLER JUST BEFORE THE LATTER ENTERED HIS
INTERVIEW. CONSEQUENTLY, WHEN BRIGMAN WAS GIVING CHANDLER THE
"ASSURANCES," HE ASKED HER IF SHE WAS SURE THE UNION DID NOT HAVE A
RIGHT TO ATTEND. SHE TOLD HIM THE SAME THING SHE TOLD WHITE, I.E., THAT
IT WAS HER SUPERVISOR'S OPINION THAT THE UNION HAD NO SUCH RIGHT. SHE
THEN FINISHED ASSURING CHANDLER THAT NO REPRISALS WOULD OCCUR REGARDLESS
OF WHETHER HE PARTICIPATED OR NOT AND OBTAINED HIS VOLUNTARY COOPERATION
TO PARTICIPATE IN THE ENSUING 5 MINUTE INTERVIEW. AS IN THE PRECEDING
INTERVIEWS, ALL QUESTIONS PERTAINED TO THE ESSENTIAL FACTS OF THE UNFAIR
LABOR PRACTICE ISSUES AND DID NOT EXCEED THE NECESSITIES OF THIS
LEGITIMATE PURPOSE.
IN ALL THREE OF THE ABOVE INTERVIEWS BRIGMAN MADE SURE THAT SHE "GOT
EVERYTHING IN" THAT WAS REQUIRED BY THE NLRB IN THE JOHNNIE'S POULTRY
CASE. SHE ALSO WAS CAREFUL TO CREATE A CORDIAL, NON-COERCIVE
ATMOSPHERE. ALL THREE EMPLOYEES WERE VERY COOPERATIVE AND HELPFUL IN
ANSWERING HER QUESTIONS, AND EXPLORED MANY FACT SITUATIONS IN DETAIL.
BRIGMAN TOOK NOTES DURING THE INTERVIEWS.
SUBSEQUENT TO THE ABOVE MEETINGS, THE UNION STEWARD OBJECTED TO THE
CONTINUATION OF SUCH INTERVIEWS UNLESS THE UNION WAS GIVEN THE
OPPORTUNITY TO ATTEND. NO FURTHER INTERVIEWS WERE CONDUCTED.
AT THE 1979 HEARING IN THE EXECUTIVE ORDER CASES, WHITE AND CHANDLER
TESTIFIED FOR THE UNION. WHEN BRIGMAN CROSS-EXAMINED THEM, SHE BROUGHT
OUT POINTS IN SUPPORT OF THE AGENCY'S CASE THAT SHE HAD LEARNED IN THE
INTERVIEWS. KIKER WAS CALLED AS A WITNESS FOR THE AGENCY.
CONCLUSIONS OF LAW
THE COERCIVE INTERROGATION ISSUE
THE FIRST ISSUE PRESENTED FOR CONSIDERATION IS WHETHER THE RESPONDENT
AGENCY'S ATTORNEY CONDUCTED COERCIVE INTERROGATIONS OF BARGAINING UNIT
EMPLOYEES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING. A
COERCIVE INTERVIEW OF A BARGAINING UNIT EMPLOYEE BY AGENCY
REPRESENTATIVES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING HAS
LONG BEEN PROHIBITED IN THE PRIVATE SECTOR BECAUSE IT INHIBITS THE
EMPLOYEE IN THE EXERCISE OF HIS PROTECTED RIGHTS UNDER SEC. 7 OF THE
LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. 157. JOY SILK MILLS, INC. V.
N.L.R.B., 185 F.2D 732(D.C. CIR. 1950), 27 LRRM 2012. OVER THE YEARS,
THE NATIONAL LABOR RELATIONS BOARD AND THE COURTS HAVE ATTEMPTED TO
DEVELOP A STANDARD OF EMPLOYER CONDUCT FOR PRE-HEARING INTERVIEWS OF
PROSPECTIVE EMPLOYEE WITNESSES WHICH STRIKES "A DELICATE BALANCE BETWEEN
THE LEGITIMATE INTEREST OF THE EMPLOYER IN PREPARING ITS CASE FOR TRIAL,
AND THE INTEREST OF THE EMPLOYEE IN BEING FREE FROM UNWARRANTED
INTERROGATION." TEXAS INDUSTRIES, INC. V. N.L.R.B., 336 F.2D 128, 133
(5TH CIR. 1964), 57 LRRM 2046. THE INTERROGATION RULES FOLLOWED BY THE
BOARD ARE SET FORTH IN THE WELL-KNOWN CASE OF JOHNNIE'S POULTRY, INC.,
146 NLRB 770, 55 LRRM 1403(1964), ENFORCEMENT DENIED, /8/ 344 F2D
617(8TH CIR. 1965), 59 LRRM 2117. JOHNNIE'S POULTRY PROVIDES THAT THE
FOLLOWING SAFEGUARDS MUST BE OBSERVED TO MINIMIZE THE COERCIVE IMPACT OF
EMPLOYER INTERROGATION IN THESE CIRCUMSTANCES:
(T)HE EMPLOYER MUST COMMUNICATE TO THE EMPLOYEE THE PURPOSE OF THE
QUESTIONING, ASSURE HIM
THAT NO REPRISAL WILL TAKE PLACE, AND OBTAIN HIS PARTICIPATION ON A
VOLUNTARY BASIS; THE
QUESTIONING MUST OCCUR IN A CONTEXT FREE FROM EMPLOYER HOSTILITY TO
UNION ORGANIZATION AND
MUST NOT EXCEED THE NECESSITIES OF THE LEGITIMATE PURPOSE BY PRYING
INTO OTHER UNION MATTERS,
ELICITING INFORMATION CONCERNING AN EMPLOYEE'S SUBJECTIVE STATE OF
MIND, OR OTHERWISE
INTERFERING WITH THE STATUTORY RIGHTS OF EMPLOYEES.
146 NLRB AT 775.
IT IS THE BOARD'S POSITION THAT FAILURE TO ADHERE STRICTLY TO THE
RULES SET FORTH IN JOHNNIE'S POULTRY CONSTITUTES A PER SE VIOLATION OF
SEC. 8(A)(1) OF THE LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. 158(A)(1).
HOWEVER, THAT POSITION HAS NOT BEEN ADOPTED BY SEVERAL CIRCUIT COURTS
OF APPEALS WHICH HAVE TENDED TO IGNORE TECHNICAL OMISSIONS AND LOOK TO
THE "TOTALITY OF THE CIRCUMSTANCES" WHEN DECIDING WHETHER COERCION IS
PRESENT. SEE DISCUSSION OF CASES IN A & R TRANSPORT, INC. V. N.L.R.B.,
601 F2D 311(7TH CIR. 1979), 101 LRRM 2856. DUE TO THE PARTICULAR
CIRCUMSTANCES OF THE INSTANT CASE, HOWEVER, IT WILL NOT BE NECESSARY TO
DECIDE WHETHER THE BOARD'S VIEW IS TOO RIGID A TEST FOR THE PUBLIC
SECTOR. THIS IS SO BECAUSE I HAVE FOUND, BASED UPON THE CREDIBLE
TESTIMONY OF THE AGENCY'S ATTORNEY, BETTY BRIGMAN, THAT SHE STRICTLY
OBSERVED THE JOHNNIE'S POULTRY SAFEGUARDS (THE MOST RIGID TEST) AND
CREATED A NON-COERCIVE ATMOSPHERE DURING EACH OF THE EMPLOYEE INTERVIEWS
IN QUESTION.
I WAS IMPRESSED WITH MS. BRIGMAN'S TESTIMONIAL DEMEANOR AND I AM
CONVINCED THAT SHE WAS TELLING THE TRUTH. /9/ SHE EXPLAINED HOW SHE HAD
RESEARCHED THE JOHNNIE'S POULTRY RULES, AND OBTAINED THE INSTRUCTION OF
HER NATIONAL OFFICE TO FOLLOW THOSE RULES, PRIOR TO CONDUCTING ANY
INTERVIEWS. SHE MADE NOTES AND MEMORIZED THE SAFEGUARDS. AT THE OUTSET
OF EACH INTERVIEW SHE TOLD THE EMPLOYEE THE PURPOSE OF HER QUESTIONING,
AND ASSURED HIM THAT NO REPRISAL WOULD TAKE PLACE, AND OBTAINED HIS
PARTICIPATION ON A VOLUNTARY BASIS. /10/ THE QUESTIONS WHICH FOLLOWED
PERTAINED STRICTLY TO THE ISSUES OF THE UNFAIR LABOR PRACTICE COMPLAINT
AND THE ATMOSPHERE WAS NON-COERCIVE. SHE DID NOT PRY INTO UNION
MATTERS, ELICIT INFORMATION CONCERNING THE EMPLOYEES' SUBJECTIVE STATE
OF MIND (MATTERS WITHOUT PROBATIVE VALUE), OR OTHERWISE INTERFERE WITH
THEIR PROTECTED RIGHTS UNDER THE STATUTE.
IN CONCLUSION, I HOLD THAT THE AGENCY ATTORNEY'S INTERVIEWS OF
PROSPECTIVE EMPLOYEE WITNESSES IN PREPARATION FOR AN UNFAIR LABOR
PRACTICE HEARING WERE NOT COERCIVE AND DID NOT OTHERWISE VIOLATE THE
PROTECTED RIGHTS OF THE EMPLOYEES. THEREFORE, I FIND NO VIOLATION OF
SEC. 7116(A)(1) OF THE STATUTE. IN ADDITION, SINCE THE QUESTIONING WAS
PROPER, IT DID NOT INTERFERE WITH THE UNFAIR LABOR PRACTICE PROCEEDING
AS CONTENDED BY THE GENERAL COUNSEL. /11/
THE "FORMAL DISCUSSION" ISSUE
THE NEXT ISSUE FOR CONSIDERATION IS WHETHER THE ABOVE INTERVIEWS OF
UNIT EMPLOYEES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING
CONSTITUTED "FORMAL DISCUSSIONS" CONCERNING GENERAL CONDITIONS OF
EMPLOYMENT WITHIN THE PURVIEW OF SEC. 7114(A)(2)(A) OF THE STATUTE.
THAT SECTION PROVIDES THAT THE EXCLUSIVE REPRESENTATIVE SHALL BE GIVEN
AN OPPORTUNITY TO BE REPRESENTED AT SUCH FORMAL DISCUSSIONS. SINCE THE
UNION WAS NOT GIVEN THAT OPPORTUNITY IN THIS CASE, THE GENERAL COUNSEL
AND THE CHARGING PARTY CONTEND THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1), (5), AND (8).
SECTION 7114(A)(2)(A) PROVIDES AS FOLLOWS:
(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 OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT.
THE LANGUAGE CONTAINED IN THIS STATUTE HAD ITS GENESIS IN THE THIRD
SENTENCE OF SEC. 10(E) OF EXECUTIVE ORDER 11491. IT IS CLEAR THAT,
UNDER THAT SENTENCE, TWO REQUIREMENTS HAD TO BE MET BEFORE THE UNION'S
RIGHT TO BE REPRESENTED AT MEETINGS BETWEEN MANAGEMENT AND BARGAINING
UNIT EMPLOYEES ATTACHED: (1) THE MEETING MUST HAVE BEEN A "FORMAL" ONE;
AND (2) THE MEETING MUST HAVE CONCERNED "GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT." NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
(NASA), WASHINGTON, D.C., FLRC NO. 74A-95, 3 FLRC 618(1975).
WHETHER A MEETING BETWEEN A BARGAINING UNIT EMPLOYEE AND AN AGENCY
REPRESENTATIVE WAS A "FORMAL DISCUSSION" AS THAT TERM WAS USED IN SEC.
10(E) OF THE ORDER WAS BASICALLY A FACTUAL DETERMINATION MADE BY
CONSIDERING MANY TYPES OF FACTORS SUCH AS "WHO CALLED THE MEETING AND
FOR WHAT PURPOSE; WHETHER WRITTEN NOTICE WAS GIVEN; WHERE THE MEETING
WAS HELD; WHO ATTENDED; WHETHER A RECORD OR NOTES OF THE MEETING WERE
KEPT; AND WHAT WAS ACTUALLY DISCUSSED." DEPARTMENT OF DEFENSE, U.S.
NAVY, NORFOLK NAVAL SHIPYARD, AND TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO, FLRC NO. 77A-141, 6 FLRC 1103(1978).
THERE CAN BE NO DOUBT THAT THE ASSISTANT SECRETARY WOULD HAVE
CONSIDERED THE EMPLOYEE INTERVIEWS IN QUESTION TO HAVE BEEN "FORMAL" IN
NATURE, THEREBY SATISFYING THE FIRST REQUIREMENT OF SEC. 10(E). IN
INTERNAL REVENUE SERVICE SOUTH CAROLINA DISTRICT, A/SLMR NO. 1172, 8
A/SLMR 1370(1978), HE HELD THAT THE INTERVIEW OF A UNIT EMPLOYEE WHO WAS
A POTENTIAL WITNESS IN AN UPCOMING ARBITRATION HEARING CONSTITUTED A
FORMAL DISCUSSION. SEE ALSO, UNITED STATES AIR FORCE, MCCLELLAN AIR
FORCE BASE, CALIFORNIA, A/SLMR NO. 830, 7 A/SLMR 350(1977), FLRC NO.
77A-56 (1977). THUS, IT WOULD APPEAR THAT THE INTERVIEWS OF POTENTIAL
WITNESSES FOR AN UNFAIR LABOR PRACTICE HEARING AS IN THE INSTANT CASE
WOULD BE CONSIDERED "FORMAL."
HOWEVER, THE ABOVE-CITED CASES ARE NOT DISPOSITIVE OF THE INSTANT
CASE SINCE SEC. 10(E) WAS HELD TO APPLY DUE TO THE FACT THAT THOSE
INTERVIEWS WERE CONDUCTED IN CONNECTION WITH THE PROCESSING OF PENDING
"GRIEVANCES." /12/ HERE, SINCE NO GRIEVANCE EXISTED, THE SECOND
REQUIREMENT OF SEC. 7114(A)(2)(A) AND ITS PREDECESSOR WILL NOT BE
SATISFIED UNLESS THE DISCUSSIONS CONCERNED A "GENERAL CONDITION OF
EMPLOYMENT." /13/ "CONDITIONS OF EMPLOYMENT" ARE DEFINED IN SEC.
7103(A)(14), IN PERTINENT PART, AS "MATTERS . . . AFFECTING WORKING
CONDITIONS." "AFFECTING" IS DEFINED AS "PRODUCING AN EFFECT OR CHANGE
IN" SOMETHING. RANDOM HOUSE COLLEGE DICTIONARY (1973 ED.).
THUS THE QUESTION BECOMES: DOES A PRE-HEARING EMPLOYEE INTERVIEW,
WHICH IS CONFINED TO ASCERTAINING THE FACTS IN PREPARATION OF THE
AGENCY'S DEFENSE OF AN UNFAIR LABOR PRACTICE COMPLAINT, CONCERN A MATTER
PRODUCING A CHANGE IN GENERAL WORKING CONDITIONS? CERTAINLY THERE IS NO
DIRECT CONNECTION BETWEEN THE ABOVE PROCESS OF GATHERING FACTS AND THE
ULTIMATE DISPOSITION OF THE COMPLAINT. IT IS, OF COURSE, POSSIBLE THAT
THE ULTIMATE DISPOSTION WILL RESULT IN PUTTING UNILATERALLY CHANGED
WORKING CONDITIONS BACK ON THE BARGAINING TABLE AND A RETURN TO THE
STATUS QUO ANTE. BUT THE CONNECTION BETWEEN THE INFORMATION ACQUIRED AT
MEETINGS LIKE THE ONES IN QUESTION AND THIS ULTIMATE RESULT IS TOO
TENUOUS. /14/ SECTION 7114(A)(2)(A) NECESSARILY ENCOMPASSES ONLY THOSE
MEETINGS IN WHICH THE UNION REPRESENTATIVE COULD BE EXPECTED TO PLAY A
MEANINGFUL AND USEFUL ROLE REGARDING CHANGES IN WORKING CONDITIONS. THE
FACT-FACTING SESSIONS IN ISSUE HEREIN DO NOT LEND THEMSELVES TO THIS
TYPE OF ROLE. THEREFORE, I HOLD THAT THESE INTERVIEWS DID NOT
CONSTITUTE "FORMAL DISCUSSION(S) . . . CONCERNING . . . GENERAL
CONDITION(S) OF EMPLOYMENT" SINCE THEY LACKED THE REQUISITE NEXUS TO
CHANGES IN WORKING CONDITIONS.
HOWEVER, THERE ARE FAR MORE IMPORTANT REASONS WHY THE INTERPRETATION
ADVANCED BY THE GENERAL COUNSEL AND THE CHARGING PARTY SHOULD NOT
PREVAIL. THEIR VIEW WOULD DEAL A SERIOUS BLOW TO THE ADVERSARY SYSTEM
OF JUSTICE IN THE FIELD OF PUBLIC SECTOR LABOR LAW. THE COLLECTIVE
BARGAINING RELATIONSHIP ENVISAGED BY THE STATUTE REQUIRES THAT EACH
PARTY HAVE THE ABILITY TO FUNCTION AS AN EQUAL PARTNER WITHIN THE
RELATIONSHIP. UNITED STATES AIR FORCE, AIR FORCE LOGISTICS COMMAND,
AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK, OHIO, 4 FLRA NO.
70(1980). FURTHER, IT IS BASIC TO THE CONCEPT OF JUDICIAL FAIRNESS AND
ADMINISTRATIVE DUE PROCESS THAT THE PARTIES TO A LAWSUIT BE AFFORDED
EQUAL PROCEDURAL RIGHTS. THE GENERAL COUNSEL'S INTERPRETATION OF SEC.
7114(A)(2)(A) WOULD PUT THE PARTIES ON AN UNEQUAL FOOTING BY ALLOWING
ONE PARTY ALONE, THE UNION, A FORM OF DISCOVERY ENCOMPASSING NOT ONLY
THE FACTS ELICITED BY THE AGENCY ATTORNEY, TO THE EXTENT THEY ARISE
DURING THE INTERVIEW, BUT ALSO THE CONFIDENTIAL THEORIES AND STRATEGIES
OF THE AGENCY'S CASE IN DEFENSE OF THE UNFAIR LABOR PRACTICE COMPLAINT.
THE QUESTIONS ASKED BY THE ATTORNEY WOULD INEVITABLY REVEAL THE FACTUAL
TERRITORY ON WHICH THE AGENCY'S DEFENSES ARE BASED AND THEREBY GIVE THE
UNION AN UNFAIR ADVANTAGE AND VALUABLE INSIGHT INTO THE AGENCY'S CASE IN
ADVANCE OF THE HEARING. THIS WOULD BE EQUIVALENT TO PROVIDING THE UNION
WITH ITS OWN EXCLUSIVE PROCEDURAL RIGHT WHICH WOULD DIRECTLY CONFLICT
WITH THE FAIR, BALANCED PRETRIAL AND TRAIL PROCEDURES PROVIDED BY THE
AUTHORITY'S REGULATIONS. IN SHORT, THE GENERAL COUNSEL'S AND CHARGING
PARTY'S POSITION AMOUNTS TO UNJUSTIFIED TAMPERING WITH THE ADVERSARY
SYSTEM ITSELF, WHICH HAS PROVEN TO BE A WORKABLE MEANS OF SEEKING THE
TRUTH.
IN ADDITION, IT WOULD BE EQUALLY ABHORRENT TO THE ADVERSARY Y SYSTEM
OF JURISPRUDENCE TO ALLOW ANY PARTY (IN THIS CASE, THE UNION) TO INVADE
THE PRIVACY OF THE OPPOSING COUNSEL IN THE PREPARATION OF HIS CASE.
THIS PRINCIPLE WAS ENUNCIATED BY THE SUPREME COURT IN HICKMAN V. TAYLOR,
329 U.S. 495 AT 510(1947):
. . . HERE IS SIMPLY AN ATTEMPT, WITHOUT PURPORTED NECESSITY OR
JUSTIFICATION, TO SECURE
WRITTEN STATEMENTS, PRIVATE MEMORANDA AND PERSONAL RECOLLECTIONS
PREPARED OR FORMED BY AN
ADVERSE PARTY'S COUNSEL IN THE COURSE OF HIS LEGAL DUTIES. AS SUCH,
IT FALLS OUTSIDE THE
ARENA OF DISCOVERY AND CONTRAVENES THE PUBLIC POLICY UNDERLYING THE
ORDERLY PROSECUTION AND
DEFENSE OF LEGAL CLAIMS. NOT EVEN THE MOST LIBERAL OF DISCOVERY
THEORIES CAN JUSTIFY
UNWARRANTED INQUIRIES INTO THE FILES AND THE MENTAL IMPRESSIONS OF AN
ATTORNEY.
HISTORICALLY, A LAWYER IS AN OFFICER OF THE COURT AND IS BOUND TO
WORK FOR THE ADVANCEMENT
OF JUSTICE WHILE FAITHFULLY PROTECTING THE RIGHTFUL INTERESTS OF HIS
CLIENTS. IN PERFORMING
HIS VARIOUS DUTIES, HOWEVER, IT IS ESSENTIAL THAT A LAWYER WORK WITH
A CERTAIN DEGREE OF
PRIVACY, FREE FROM UNNECESSARY INTRUSION BY OPPOSING PARTIES AND
THEIR COUNSEL. PROPER
PREPARATION OF A CLIENT'S CASE DEMANDS THAT HE ASSEMBLE INFORMATION,
SIFT WHAT HE CONSIDERS TO
BE THE RELEVANT FROM THE IRRELEVANT FACTS, PREPARE HIS LEGAL THEORIES
AND PLAN HIS STRATEGY
WITHOUT UNDUE AND NEEDLESS INTERFERENCE. THAT IS THE HISTORICAL AND
THE NECESSARY WAY IN
WHICH LAWYERS ACT WITHIN THE FRAMEWORK OF OUR SYSTEM OF JURISPRUDENCE
TO PROMOTE JUSTICE AND
TO PROTECT THEIR CLIENT'S INTERESTS. THIS WORK IS REFLECTED, OF
COURSE, IN INTERVIEWS,
STATEMENTS, MEMORANDA, CORRESPONDENCE, BRIEFS, MENTAL IMPRESSIONS,
PERSONAL BELIEFS, AND
COUNTLESS OTHER TANGIBLE AND INTANGIBLE WAY-- APTLY THOUGH ROUGHLY
TERMED BY THE CIRCUIT COURT
OF APPEALS IN THIS CASE (153 F.2D 212, 223) AS THE "WORK PRODUCT OF
THE LAWYER." WERE SUCH
MATERIALS OPEN TO OPPOSING COUNSEL ON MERE DEMAND, MUCH OF WHAT IS
NOW PUT DOWN IN WRITING
WOULD REMAIN UNWRITTEN. AN ATTORNEY'S THOUGHTS, HERETOFORE
INVIOLATE, WOULD NOT BE HIS
OWN. INEFFICIENCY, UNFAIRNESS AND SHARP PRACTICES WOULD INEVITABLY
DEVELOP IN THE GIVING OF
LEGAL ADVICE AND IN THE PREPARATION OF CASES FOR TRIAL. THE EFFECT ON
THE LEGAL PROFESSION
WOULD BE DEMORALIZING. AND THE INTERESTS OF THE CLIENTS AND THE
CAUSE OF JUSTICE WOULD BE
POORLY SERVED.
THESE PRINCIPLES SHOULD NOT BE VIOLATED UNLESS EXCEPTIONAL
CIRCUMSTANCES ARE SHOWN. GOOD CAUSE HAS NOT BEEN SHOWN. OBVIOUSLY, IF
THE UNION WERE ALLOWED TO ATTEND INTERVIEWS SIMILAR TO THOSE IN QUESTION
IT WOULD BE AIDED IN THE PREPARATION OF ITS OWN CASE BY GATHERING
ADDITIONAL EVIDENCE. BUT THIS "NEED" IS MORE THAN OFFSET BY THE
UNWARRANTED INTRUSION INTO THE SUBTLETIES OF THE AGENCY'S DEFENSE.
ALSO, SINCE THE PURPOSE OF THE INTERVIEW INVOLVES A SEARCH FOR THE
TRUTH, THIS PURPOSE MIGHT SOMETIMES BE THWARTED. ALTHOUGH THE UNION
WOULD GENERALLY BE EXPECTED, IN THE INTEREST OF GOOD LABOR-MANAGEMENT
RELATIONS, TO PLAY A CONSTRUCTIVE ROLE IN ELICITING FACTS FROM THE
EMPLOYEE, IT IS UNFORTUNATELY FORESEEABLE THAT SOME UNION
REPRESENTATIVES MIGHT INSTRUCT THE EMPLOYEE TO REFRAIN FROM ANSWERING
CERTAIN LEGITIMATE QUESTIONS. ALSO, SOME EMPLOYEES MIGHT BE RELUCTANT
TO REVEAL FACTS WHICH ARE CONTRARY TO THE UNION'S POSITION IN THE
PRESENCE OF THE UNION REPRESENTATIVE. FINALLY, IT MIGHT BE ARGUED THAT
THE UNION'S PRESENCE WOULD HELP TO INSURE AGAINST COERCIVE
INTERROGATION. HOWEVER, THE EXPERIENCE IN THE PRIVATE SECTOR HAS SHOWN
THAT THE UNION'S PRESENCE IS NOT NECESSARY FOR THIS PURPOSE WHERE OTHER
APPROPRIATE SAFEGUARDS ARE FOLLOWED. SEE, E.G., JOHNNIE'S POULTRY,
SUPRA. THUS NO OVERRIDING NEED HAS BEEN SHOWN TO WARRANT AN INVASION OF
THE PRIVACY OF AN AGENCY ATTORNEY IN THE PREPARATION OF HIS OR HER CASE.
FINALLY, IT SHOULD BE NOTED THAT SEC. 7114(A)(2) CONSTITUTES FAR MORE
THAN A MERE CODIFICATION OF THE PRINCIPLES AND RIGHTS PROVIDED BY SEC.
10(E) OF THE EXECUTIVE ORDER. CONGRESS SPECIFICALLY CHANGED THE UNION'S
REPRESENTATION RIGHTS IN CERTAIN SITUATIONS. IN THE PROCESS OF
CONSTRUCTING THE LANGUAGE OF SEC. 7114(A)(2)(A) IT DID NOT CHOOSE TO
SPECIFICALLY EXPAND THE RIGHT TO BE REPRESENTED AT FORMAL DISCUSSIONS TO
THOSE CONCERNING UNFAIR LABOR PRACTICE COMPLAINTS. THE ONLY SIMILAR
PROCEDURES MENTIONED ARE "GRIEVANCES," AND AREA IN WHICH THE EXCLUSIVE
REPRESENTATIVE HAS A UNIQUE CONTRACTUAL RELATIONSHIP. IF CONGRESS HAD
INTENDED TO INCLUDE THE PRE-HEARING INTERVIEWS IN QUESTION WITHIN SEC.
7114(A)(2)(A) IT COULD EASILY HAVE DONE SO. /15/ FOR ALL OF THE
FOREGOING REASONS, I HOLD THAT THE MEETINGS IN ISSUE DO NOT FALL WITHIN
THE PURVIEW OF SEC. 7114(A)(2)(A) OF THE STATUTE. SINCE NO VIOLATIONS
OF SECTIONS 7116(A)(1), (5), AND (8) HAVE BEEN FOUND, I HEREBY RECOMMEND
THAT THE AUTHORITY ADOPT THE FOLLOWING:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-237 BE, AND
HEREBY IS, DISMISSED.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 20, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE OFFICE OF PERSONNEL MANAGEMENT (OPM) WAS PERMITTED TO FILE A
BRIEF AMICUS CURIAE WITH THE JUDGE IN SUPPORT OF THE RESPONDENT'S
POSITION.
/2/ ADDITIONALLY, PURSUANT TO SECTION 2429.26 OF THE AUTHORITY'S
RULES AND REGULATIONS, THE CHARGING PARTY WAS GRANTED PERMISSION TO FILE
A SUPPLEMENTAL BRIEF AND THE RESPONDENT FILED A RESPONSE THERETO.
/3/ THE CHARGING PARTY EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE
BY THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES SUCH RESOLUTION
WAS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD CAREFULLY AND
FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY FINDINGS.
/4/ 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 OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
/5/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON
THE JUDGE'S STATEMENT TO THE EFFECT THAT AN UNFAIR LABOR PRACTICE
COMPLAINT DOES NOT CONSTITUTE A "GRIEVANCE" WITHIN THE MEANING OF
SECTION 7103(A)(9) OF THE STATUTE, AS WELL AS HIS STATEMENT TO THE
EFFECT THAT SECTION 7114(A)(2)(A) ENCOMPASSES FORMAL DISCUSSIONS
CONCERNING GENERAL CONDITIONS OF EMPLOYMENT ONLY WHEN A CHANGE IN
WORKING CONDITIONS IS INVOLVED.
/6/ THE CHARGING PARTY REQUESTED AN OPPORTUNITY TO FILE A REPLY TO
OPM'S BRIEF ON OR BEFORE JANUARY 26, 1981. THE REQUEST WAS GRANTED BUT
NO REPLY BRIEFS WERE FILED.
/7/ STIPULATIONS RELATING TO PRIOR SETTLEMENT EFFORTS HAVE BEEN
IGNORED.
/8/ THE EIGHT CIRCUIT DID NOT QUESTION THE BOARD'S INTERROGATION
RULES.
/9/ HER TESTIMONY WAS FULLY CORROBORATED BY EMPLOYEE KIKER WITH
RESPECT TO THE LATTER'S INTERVIEW. IN CONTRAST, EMPLOYEES WHITE AND
CHANDLER TESTIFIED THAT NO "ASSURANCES" WERE GIVEN BY BRIGMAN DURING
THEIR INTERVIEWS. WHITE EVEN STATED THAT SHE TOLD HIM HE HAD TO ANSWER
THE QUESTIONS. I AM CONVINCED ON THE BASIS OF THE TESTIMONIAL DEMEANOR
OF ALL THESE WITNESSES THAT BRIGMAN'S VERSION OF THE FACTS REPRESENTS
THE TRUTH, THAT CHANDLER COULD NOT REMEMBER WHAT HAPPENED AND THAT WHITE
ENGAGED IN FABRICATION AT THE HEARING.
/10/ WHITE AND CHANDLER HAD PREVIOUSLY ASKED HER OPINION ABOUT THE
UNION'S RIGHT TO ATTEND SUCH AN INTERVIEW. SHE TOLD THEM BOTH THE UNION
HAD NO SUCH RIGHT AND SUBSEQUENTLY OBTAINED THEIR COOPERATION ON A
VOLUNTARY BASIS AFTER CLARIFYING THIS "PROCEDURAL" POINT.
/11/ I NEED NOT DECIDE WHETHER A TRULY COERCIVE INTERVIEW WOULD
VIOLATE SEC. 7118 AND SEC. 7116(A)(8).
/12/ THE CHARGING PARTY'S ARGUMENT THAT AN UNFAIR LABOR PRACTICE
COMPLAINT CONSTITUTES A "GRIEVANCE" AS DEFINED BY SEC. 7103(A)(9) FOR
PURPOSES OF THE STATUTE IS SO TOTALLY DEVOID OF MERIT THAT NO FURTHER
DISCUSSION IS NECESSARY.
/13/ IT IS NOT SERIOUSLY ARGUED THAT THE MEETINGS CONCERNED PERSONNEL
POLICIES OR PRACTICES.
/14/ ALTHOUGH NOT DISPOSITIVE OF THIS ISSUE, THE RECORD DOES NOT
REVEAL ANY CONNECTION BETWEEN THE INTERVIEWS IN QUESTION AND THE
ULTIMATE REMEDY GRANTED BY THE AUTHORITY IN 4 FLRA NO. 42(1980).
/15/ IT IS NOTED THAT THE GENERAL COUNSEL'S POSITION WOULD LEAD TO
THE ANOMALOUS RESULT WHEREIN THE UNION COULD BE REPRESENTED AT SUCH
INTERVIEWS ONLY WHERE "GENERAL" WORKING CONDITIONS WERE INVOLVED, AND
WOULD HAVE NO SEC. 7114(A)(2)(A) RIGHTS IN CASES WITHOUT "GENERAL"
IMPACT. IN CONTRAST, THE UNION HAS THIS RIGHT IN ALL "GRIEVANCE" CASES
REGARDLESS OF THE ABSENCE OF IMPACT ON GENERAL WORKING CONDITIONS. U.S.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, PITTSBURGH
DISTRICT, PITTSBURGH, PENNSYLVANIA, A/SLMR NO. 498, 5 A/SLMR 208(1975).