[ v10 p97 ]
10:0097(23)CA
The decision of the Authority follows:
10 FLRA No. 23
UNITED STATES AIR FORCE,
2750TH AIR BASE WING HEADQUARTERS,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1138, AFL-CIO
Charging Party
Case No. 5-CA-715
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THE JUDGE FURTHER FOUND THAT THE RESPONDENT HAD NOT
ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND RECOMMENDED
DISMISSAL OF THE COMPLAINT WITH RESPECT TO THEM. THEREAFTER, THE
RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND RECOMMENDED
ORDER, AND THE GENERAL COUNSEL FILED EXCEPTIONS WITH RESPECT TO THE
RECOMMENDED ORDER.
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. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS MODIFIED HEREIN.
THE JUDGE RECOMMENDED DISMISSAL OF THE COMPLAINT AS TO MEETINGS
BETWEEN EMPLOYEE PIERCE AND HER SUPERVISOR, COL. CHASON, ON MARCH 24 AND
APRIL 9, 1980. THE RECORD FULLY SUPPORTS THE JUDGE'S RECOMMENDATIONS IN
THIS REGARD AND, NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS THERETO,
SUCH RECOMMENDATIONS ARE HEREBY ADOPTED.
THE JUDGE ALSO FOUND THAT A MEETING BETWEEN PIERCE AND CHASON ON MAY
1, 1980, WAS A CONTINUATION OF AN INVESTIGATORY MEETING BETWEEN THEM
WHICH BEGAN ON APRIL 22 BUT WAS INTERRUPTED SO THAT PIERCE COULD ARRANGE
TO HAVE HER UNION REPRESENTATIVE PRESENT, AND, UNDER THE CIRCUMSTANCES,
RESULTED IN A DENIAL OF HER PREVIOUS REQUEST FOR UNION REPRESENTATION
CONTRARY TO THE REQUIREMENTS OF SECTION 7114(A)(2)(B). /1/ HE THEREFORE
FOUND A VIOLATION OF SECTION 7116(A)(1) AND (8) OF THE STATUTE. /2/ THE
AUTHORITY DISAGREES.
AS FOUND BY THE JUDGE, THE APRIL 22 MEETING FOCUSED ON CHASON'S
INQUIRY CONCERNING THE PROPRIETY OF PIERCE'S ABSENCE FROM HER DUTY
STATION ON THE PREVIOUS DAY, AND WAS TERMINATED WHEN SHE REQUESTED UNION
REPRESENTATION UPON BEING QUESTIONED. ON MAY 1, NOT HAVING HEARD FROM
PIERCE, CHASON CALLED HER INTO HIS OFFICE AND ASKED HER TO READ ENTRIES
HE HAD TYPED ON HER AIR FORCE FORM 971, ENTITLED "SUPERVISOR'S RECORD OF
EMPLOYEE," AND OFFERED TO ANSWER ANY QUESTIONS SHE MIGHT HAVE REGARDING
THOSE ENTRIES. CHASON DID NOT ASK FOR ANY DEFENSE TO THE NOTATIONS, NOR
DID HE SOLICIT ANY INFORMATION FROM PIERCE. FURTHER, PIERCE DID NOT
REQUEST UNION REPRESENTATION AT THAT MEETING.
UNDER THE CIRCUMSTANCES, THE AUTHORITY FINDS THAT THE MAY 1 MEETING--
IN CONTRAST TO THE APRIL 22 INQUIRY-- WAS NOT AN "EXAMINATION . . . IN
CONNECTION WITH AN INVESTIGATION" WITHIN THE MEANING OF SECTION
7114(A)(2)(B) SUCH AS WOULD ENTITLE PIERCE TO UNION REPRESENTATION UPON
REQUEST. THUS, CONTRARY TO THE JUDGE'S INTERPRETATION OF THE UNDISPUTED
FACTS, THE AUTHORITY FINDS THE EVIDENCE DOES NOT SUPPORT A FINDING THAT
THE MAY 1 MEETING WAS A "CONTINUATION" OF THE INVESTIGATION OF APRIL 22,
NOR DOES THE RECORD SUPPORT A FINDING THAT THE MAY 1 MEETING, STANDING
ALONE, WAS AN EXAMINATION WITHIN THE MEANING OF SECTION 7114(A)(2)(B).
THE MEETING OF MAY 1 WAS CONNECTED TO THIS EARLIER MEETING ONLY BY
CHASON'S STATEMENT IN HIS MEMO OF MAY 1 REFERRING TO THE APRIL 22
REQUEST FOR UNION REPRESENTATION AND A NOTATION IN THAT MEMO THAT "I
HAVE WAITED UNTIL TODAY FOR THE MEETING AND COULD WAIT NO LONGER TO
BRING HER COUNSELING UP TO DATE." IN VIEW OF THE FACTS THAT NO
INFORMATION WAS SOUGHT FROM PIERCE AT THE MAY 1 MEETING, AND THAT SHE
WAS NOT ASKED TO MAKE ANY EXPLANATION OR DEFENSE OF HER ALLEGED
PERFORMANCE DEFICIENCIES, IT IS CONCLUDED THAT THE MAY 1 MEETING WAS A
COUNSELLING SESSION DURING WHICH SHE WAS MADE AWARE OF PERFORMANCE
DEFICIENCIES WITHOUT BEING SOLICITED FOR ADDITIONAL INFORMATION, AND
THUS WAS REMEDIAL RATHER THAN INVESTIGATORY IN NATURE. SEE INTERNAL
REVENUE SERVICE, DETROIT, MICHIGAN, 5 FLRA NO. 53(1981); UNITED STATES
DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, 8 FLRA NO. 72(1982).
ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE RESPONDENT DID NOT VIOLATE
SECTION 7116(A)(1) AND (8) OF THE STATUTE UNDER THE FOREGOING
CIRCUMSTANCES, AND SHALL ORDER THAT THE COMPLAINT BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-715, BE, AND
IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., SEPTEMBER 17, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DAVID W. KERBER, ESQ.
FOR THE RESPONDENT
SANDRA J. LEBOLD, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT
OF AN UNFAIR LABOR PRACTICE CHARGE FILED SEPTEMBER 23, 1980, WITH THE
FEDERAL LABOR RELATIONS AUTHORITY. CONSEQUENTLY, ON NOVEMBER 25, 1980,
THE REGIONAL DIRECTOR, REGION 5, OF THE AUTHORITY, ISSUED A COMPLAINT
ALLEGING THAT RESPONDENT UNLAWFULLY REFUSED THE REQUEST OF NINA M.
PIERCE THAT SHE BE REPRESENTED BY THE UNION AT EXAMINATION AND
COUNSELING SESSIONS ON OR ABOUT MARCH 24, APRIL 9, AND MAY 1, 1980.
A HEARING WAS HELD ON JANUARY 14, 1981, IN DAYTON, OHIO. ALL PARTIES
WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES AND TO
INTRODUCE EVIDENCE. POST-HEARING BRIEFS HAVE BEEN FILED AND CONSIDERED.
UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND
THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
FINDINGS OF FACT
THE CHARGING PARTY IS THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE
UNIT OF EMPLOYEES AT THE FACILITIES OF RESPONDENT. THE PARTIES ARE
SUBJECT TO THE MASTER LABOR AGREEMENT BETWEEN THE AIR FORCE LOGISTICS
COMMAND AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
EXECUTED ON APRIL 3, 1979, AND IN EFFECT AT THE TIME THIS DISPUTE AROSE.
NINA M. PIERCE IS A SECRETARY IN THE AIR FORCE INSTITUTE OF
TECHNOLOGY, WRIGHT-PATTERSON AIR FORCE BASE. SHE HAS WORKED FOR THE AIR
FORCE FOR APPROXIMATELY TWENTY-SIX YEARS. SINCE JUNE 1979, SHE HAS BEEN
EXECUTIVE SECRETARY TO COL. LLOYD R. CHASON, DIRECTOR OF EDUCATIONAL
PLANS AND OPERATIONS AND THE THIRD RANKING OFFICER OF THE INSTITUTE.
COL. CHASON'S POSITION IS ROUGHLY EQUIVALENT IN THE CIVILIAN WORLD TO
THAT OF VICE-PRESIDENT FOR ACADEMIC AFFAIRS. HE HOLDS A MASTERS DEGREE
AND A PH.D. IN PSYCHOLOGY AND IS A BOARD CERTIFIED PSYCHOLOGIST.
PRIOR TO WORKING FOR COL. CHASON, MS. PIERCE WORKED IN THE SCHOOL OF
ENGINEERING WHERE, BECAUSE OF CERTAIN UNPLEASANT PERSONAL RELATIONSHIPS
WHICH HAD DEVELOPED AND BECAUSE OF HER STATED FEAR FOR "HER PHYSICAL
BEING," TRANSFERRED TO WHAT TURNED OUT TO BE COL. CHASON'S OFFICE.
WITH A FEW MINOR EXCEPTIONS, HER RELATIONSHIPS IN HER NEW OFFICE WERE
UNREMARKABLE UNTIL SHE SUFFERED A FALL ON SOME ICE WHICH OCCURRED IN
DECEMBER OF 1979. AFTER A SIX WEEK RECUPERATION, SHE RETURNED TO WORK
IN JANUARY OF 1980. COL. CHASON DESCRIBED HER UPON RETURN AS "AN
ENTIRELY DIFFERENT PERSON". FOR THE NEXT TWO WEEKS OR SO, COL. CHASON
FOUND HIS OFFICE TO BE IN A STATE OF DISRUPTION AND HE SAW A "REMARKABLE
CHANGE IN HER JOB PERFORMANCE". IN ORDER TO GIVE HER TIME TO ADJUST TO
HER NEW JOB AND LATER, TO RECOVER FROM HER TRAUMATIC INJURY, COL. CHASON
DELAYED COUNSELING OF MS. PIERCE. HOWEVER, AFTER CONVENING A MEETING OF
ALL THE SECRETARIES IN THE OFFICE DURING THE LAST WEEK OF JANUARY AND
ASKING FOR THEIR FULL COOPERATION IN RETURNING THE OFFICE TO EFFICIENT
ORDER, COL. CHASON DECIDED THAT BECAUSE OF THE COMPLAINTS OF SEVERAL
OTHERS CONCERNING HER PERFORMANCE, HE WOULD ANNOTATE COMMENTS ON MS.
PIERCE'S AIR FORCE FORM 971, "SUPERVISOR'S RECORD OF 'EMPLOYEE". AFTER
DOING SO, HE CALLED HER INTO HIS OFFICE ON FEBRUARY 6 TO SHOW HER THE
COMMENTS. /3/
MS. PIERCE DID NOT REQUEST UNION REPRESENTATION AT THIS MEETING ON
FEBRUARY 6; HOWEVER, SHE MET A FEW DAYS LATER WITH BETTY JEAN CARROLL,
A UNION VICE-PRESIDENT, WHO SHOWED HER ARTICLE 5 OF THE CONTRACT AND
TOLD HER THAT IT WAS HER RIGHT TO HAVE A UNION REPRESENTATIVE AT ANY
MEETING THAT SHE FELT WAS GOING TO LEAD TO DISCIPLINARY ACTION, THAT SHE
MUST REQUEST THE REPRESENTATION AND THAT MANAGEMENT HAD NO
RESPONSIBILITY TO OFFER IT. ON SEVERAL OCCASIONS AFTER THIS
CONVERSATION, MS. PIERCE WOULD CALL MS. CARROLL TO TELL HER THAT SHE HAD
ASKED FOR UNION REPRESENTATION BUT THAT IT HAD BEEN DENIED. MS. CARROLL
WOULD THEN TELL MS. PIERCE THAT IF COL. CHASON ATTEMPTED TO ENGAGE HER
IN CONVERSATION DURING THE MEETING, THEN SHE DID INDEED HAVE THE RIGHT
TO UNION REPRESENTATION DURING SUCH A MEETING, PROVIDED MS. PIERCE
BELIEVED THE MEETING WOULD LEAD TO DISCIPLINARY ACTION.
ON MARCH 17, 1980, COL. CHASON GAVE MS. PIERCE HER ANNUAL PERFORMANCE
APPRAISAL. SHE BECAME QUITE UPSET SINCE IT WAS THE WORST APPRAISAL THAT
SHE HAD EVER RECEIVED. SHE STATED THAT HER UNION REPRESENTATIVE WAS
REQUIRED TO BE PRESENT AND SHE THEN HURRIEDLY LEFT THE ROOM. /4/
THE "COUNSELING" SESSION ON MARCH 24, 1980, BECAME THE INITIAL FOCUS
OF THE INSTANT COMPLAINT. COL. CHASON HAD CERTAIN ITEMS TYPED UP ON MS.
PIERCE'S AF FORM 971 AND THEN CALLED HER INTO HIS OFFICE TO COUNSEL HER
ON THOSE ITEMS. THE ITEMS ON THE AF FORM 971 PERTAINED TO DEFICIENCIES
OBSERVED BY COL. CHASON HIMSELF. HE TOLD HER THAT HE WOULD ANSWER ANY
QUESTIONS WHICH SHE MIGHT HAVE. /5/ SHE DISAGREED WITH THE NOTATIONS.
COL. CHASON DID NOT ASK HER ANY QUESTIONS NOR DID HE SOLICIT ANY
INFORMATION FROM HER. /6/ SHE DID NOT REQUEST UNION REPRESENTATION /7/
BUT SHE DID STATE AT THE END OF THE MEETING, "YOU WILL HEAR FROM MY
UNION REPRESENTATIVE."
ON APRIL 8, 1980, COL. CHASON WROTE A MEMORANDUM TO MS. PIERCE
REQUESTING THAT SHE REPORT TO THE DEPARTMENT OF OCCUPATIONAL MEDICINE
SERVICES FOR A MEDICAL INTERVIEW IN ORDER TO "ASSIST ME IN MY
DETERMINATION AS TO WHETHER YOU CAN PERFORM YOUR JOB." MS. PIERCE
RESPONDED THAT SHE WAS NOT SICK, DID NOT NEED AN EXAMINATION, AND HAD A
NUMBER OF SICK DAYS SAVED UP.
COL. CHASON HAD MORE NOTES TYPED UP ON THE FORM 971 JUST PRIOR TO THE
APRIL 9 MEETING WITH MS. PIERCE. THEY BECAME THE SECOND SUBJECT OF THE
COMPLAINT IN THIS MATTER. HE GAVE HER A COPY OF THE FORM 971, ASKED HER
TO READ THE INFORMATION AND TOLD HER THAT IF SHE HAD ANY QUESTIONS, HE
WOULD ANSWER THEM. HE DID NOT ASK HER ANY QUESTIONS BUT SHE VOLUNTEERED
A VEHEMENT DENIAL OF ONE OF THE ITEMS ON THE FORM. COL. CHASON IN NO
WAY RESTRICTED HER RIGHT TO MAKE STATEMENTS AND WAS OPEN TO WHATEVER
INFORMATION SHE VOLUNTEERED. /8/
ON APRIL 22, 1980, COL. CHASON ASKED MS. PIERCE TO COME INTO HIS
OFFICE TO DISCUSS AN INCIDENT ON APRIL 21 WHICH CONCERNED HER ABSENCE
FROM HER DESK AND DOCUMENTATION OF TIME CARDS. AT THIS MEETING, COL.
CHASON BEGAN TO ASK MS. PIERCE CERTAIN QUESTIONS ABOUT WHAT HAD TAKEN
PLACE THE PREVIOUS DAY. SHE REQUESTED UNION REPRESENTATION AND COL.
CHASON IMMEDIATELY TERMINATED THE INTERVIEW AND AGREED TO HAVE MS.
PIERCE ARRANGE FOR MS. CARROLL'S PRESENCE AT A LATER TIME. ALTHOUGH
COL. CHASON HAD PREVIOUSLY ARRANGED FOR MS. CARROLL'S PRESENCE AT A
MEETING ON MS. PIERCE'S GRIEVANCE, HE FOR SOME REASON, LEFT IT THIS TIME
TO MS. PIERCE TO GET IN TOUCH WITH MS. CARROLL AND ARRANGE FOR HER
RELEASE. THAT ARRANGEMENT WAS NEVER MADE.
ON MAY 1, 1980, COL. CHASON CALLED MS. PIERCE INTO HIS OFFICE FOR A
CONTINUATION OF THE APRIL 22 MEETING AND TO SHOW HER FURTHER NOTATIONS
ON HER FORM 971. IN A MEMO FOR RECORD, DATED MAY 1, 1980, COL. CHASON
REFERRED TO MS. PIERCE'S APRIL 22 REQUEST FOR UNION REPRESENTATION AND
NOTED, "I HAVE WAITED UNTIL TODAY FOR THE MEETING AND COULD WAIT NO
LONGER TO BRING HER COUNSELING UP TO DATE. I LEARNED TODAY THAT SHE
MADE NO ATTEMPT TO SCHEDULE THE MEETING WITH A UNION REPRESENTATIVE."
COL. CHASON ASKED HER TO READ THE ENTRIES AND OFFERED TO ANSWER ANY
QUESTIONS SHE MIGHT HAVE. AFTER LOOKING OVER THE ENTRIES, SHE COMMENTED
ON HIS ATTITUDE TOWARDS HER. HE DID NOT ASK FOR ANY DEFENSE TO THE
NOTATIONS ON THE FORM, NOR DID HE SOLICIT ANY INFORMATION FROM HER. SHE
DID NOT REITERATE HER REQUEST FOR UNION REPRESENTATION. /9/
IN THE MONTHS FOLLOWING, MS. PIERCE WAS TWICE REQUESTED AND ONCE
ORDERED TO UNDERGO A FITNESS-FOR-DUTY EXAMINATION. HER REFUSAL TO
COMPLY RESULTED IN A REPRIMAND ON JULY 14, 1980, AND A FIVE-DAY
SUSPENSION ON DECEMBER 17, 1980.
CONCLUSIONS
THE INITIAL QUESTION IN THIS CASE IS WHETHER THE MEETINGS BETWEEN MS.
PIERCE AND COL. CHASON ON MARCH 24, APRIL 9, AND MAY 1, 1980, WERE
EXAMINATIONS IN CONNECTION WITH AN INVESTIGATION WITHIN THE MEANING OF 5
U.S.C. 7114(A)(2)(B). THAT SECTION PROVIDES, IN PERTINENT PART:
AN 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--
(I) THE EMPLOYEE
REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY
ACTION AGAINST THE
EMPLOYEE; AND (II) THE EMPLOYEE REQUESTS REPRESENTATION.
THE LEGISLATIVE HISTORY OF THIS SECTION, WHICH IS PART OF TITLE VII
OF THE CIVIL SERVICE REFORM ACT OF 1978, CLEARLY DEMONSTRATES THAT ITS
PURPOSE WAS TO BRING TO FEDERAL SECTOR EMPLOYEES THOSE RIGHTS ACCORDED
TO PRIVATE SECTOR EMPLOYEES BY THE NATIONAL LABOR RELATIONS ACT AND THE
DECISION OF THE UNITED STATES SUPREME COURT IN NLRB V. J. WEINGARTEN,
INC., 420 U.S. 251; 95 S.CT. 959; 88 LRRM 2689(1975). /10/ IN
WEINGARTEN THE SUPREME COURT HELD THAT UNDER THE TAFT-HARTLEY ACT, AN
EMPLOYEE HAS A RIGHT TO UNION REPRESENTATION AT AN INVESTIGATORY
INTERVIEW WHEN THE EMPLOYEE REASONABLY BELIEVES THAT THE INVESTIGATION
WILL RESULT IN DISCIPLINARY ACTION AND WHEN THE EMPLOYEE REQUESTS THAT A
UNION REPRESENTATIVE BE PRESENT.
THE HOUSE OF REPRESENTATIVES VERSION OF THE CIVIL SERVICE REFORM ACT
WAS H.R. 11280. IN REFERRING TO THE LANGUAGE OF H.R. 11280 AS REPORTED,
AND NOT SPECIFICALLY TO THE LANGUAGE OF THE "UDALL SUBSTITUTE" AS
PASSED, THE COMMITTEE REPORT EXPLAINED THE PROVISIONS OF SECTION 7114 AS
FOLLOWS:
. . . IT (THE EXCLUSIVE REPRESENTATIVE) HAS THE RIGHT TO BE GIVEN THE
OPPORTUNITY TO BE
REPRESENTED AT . . . (2) ANY DISCUSSION BETWEEN AN EMPLOYEE AND AN
AGENCY REPRESENTATIVE IF
THE EMPLOYEE REASONABLY BELIEVES HE MAY BE THE SUBJECT OF A
DISCIPLINARY ACTION (WHEN AN
EMPLOYEE IS INTERVIEWED BY A SUPERVISOR CONCERNING ALLEGED ABUSE OF
LEAVE OR INTERROGATED BY
THE AGENCY'S INTERNAL SECURITY DIVISION CONCERNING ALLEGED
IRREGULARITIES IN A TRAVEL VOUCHER)
. . . /11/
THE SENATE VERSION, S. 2640, CONTAINED NO COMPARABLE PROVISION AS
THAT VERSION SOUGHT TO CODIFY THE PROVISIONS OF EXECUTIVE ORDER 11491
WHICH CONTAINED NO COMPARABLE RIGHT. /12/
THE CONFERENCE COMMITTEE OF THE HOUSE AND THE SENATE ALTERED THE
PROVISION IN TWO RESPECTS. FIRST, THE REQUIREMENT THAT THE EMPLOYEE BE
NOTIFIED PRIOR TO CERTAIN INVESTIGATORY INTERVIEWS OF THE RIGHT TO
REPRESENTATION WAS CHANGED SO THAT EMPLOYEES WOULD BE NOTIFIED OF THAT
RIGHT BY THE AGENCY ONLY ONCE A YEAR. SECOND, THE CONFEREES AMENDED THE
PROVISION TO GIVE THE LABOR REPRESENTATIVE THE RIGHT TO AMEND THE
PROVISION TO GIVE THE LABOR REPRESENTATIVE THE RIGHT TO BE PRESENT AT
"ANY EXAMINATION OF AN EMPLOYEE . . . IN CONNECTION WITH AN
INVESTIGATION . . . " RATHER THAN THE RIGHT TO BE PRESENT AT "ANY
INVESTIGATORY INTERVIEW". THE REPORT DID NOT SEEK TO REPUDIATE THE
WEINGARTEN RATIONALE FOR THE PROVISION, AND IT WAS SILENT AS TO THE
REASON IT SUBSTITUTED THE WORDS "EXAMINATION . . . IN CONNECTION WITH AN
INVESTIGATION" FOR "INVESTIGATORY INTERVIEW". THE REPORT SAID ONLY THAT
THE "CONFEREES RECOGNIZE THAT THE RIGHT TO REPRESENTATION IN
EXAMINATIONS MAY EVOLVE DIFFERENTLY IN THE PRIVATE AND FEDERAL SECTORS,
AND SPECIFICALLY INTEND THAT FUTURE COURT DECISIONS INTERPRETING THE
RIGHT IN THE PRIVATE SECTOR WILL NOT NECESSARILY BE DETERMINATIVE FOR
THE FEDERAL SECTOR." /13/ IN VIEW OF THE FACT THAT THE SENATE VERSION
DID NOT CONTAIN A PROVISION FOR REPRESENTATION RIGHTS, IT WOULD APPEAR
THAT THE CONFEREES WERE AGREEING TO PROVIDE NO MORE TO FEDERAL SECTOR
EMPLOYEES THAN WAS PROVIDED TO THOSE IN THE PRIVATE SECTOR UNDER
WEINGARTEN AND, THAT SHOULD THOSE PRIVATE SECTOR RIGHTS BE BROADENED BY
JUDICIAL DECISION, THEY WOULD NOT NECESSARILY BE BROADENED EQUALLY IN
THE FEDERAL SECTOR. /14/
REGARDLESS OF THE SIGNIFICANCE ONE MAY ATTACH TO THE APPEARANCE OF
THE WORD "EXAMINATION" IN THIS PROVISION OF THE STATUTE, THE RIGHT TO
REPRESENTATION IS DEPENDENT UPON THE EXISTENCE OF AN "INVESTIGATION".
THIS IS WHAT WEINGARTEN WAS ALL ABOUT. THE EMPLOYEE IN THAT CASE WAS
INTERROGATED IN ORDER TO DETERMINE WHETHER SHE HAD PAID THE FULL PRICE
FOR THE AMOUNT OF CHICKEN SHE HAD PURCHASED. THE SUPREME COURT STATED:
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. A
KNOWLEDGEABLE UNION
REPRESENTATIVE COULD ASSIST THE EMPLOYER BY ELICITING FAVORABLE
FACTS, AND SAVE THE EMPLOYER
PRODUCTION TIME BY GETTING TO THE BOTTOM OF THE INCIDENT OCCASIONING
THE INTERVIEW. /15/
INDEED, RIGHT IN SECTION 7114 CONGRESS RECOGNIZED THE DISTINCTION
BETWEEN AN INVESTIGATORY PROCEEDING AND A MEETING WITH AN EMPLOYEE FOR
OTHER PURPOSES. SECTION 7114(A)(2)(A) GIVES AN EXCLUSIVE REPRESENTATIVE
THE RIGHT TO BE PRESENT AT "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 CONDITIONS OF EMPLOYMENT." REPRESENTATIVE
CLAY, WHO INTRODUCED FOR HIMSELF AND REPRESENTATIVE FORD THE FORERUNNER
OF TITLE VII, COMMENTED ON SECTION 7114(A)(2)(A) AS FOLLOWS:
IN THE UDALL SUBSTITUTE 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-- UNLESS COVERED BY SUBSECTION (7114(A)(2)(B)). /16/
WHAT REPRESENTATIVE CLAY RECOGNIZED WAS THAT CERTAIN INFORMAL
COUNSELING IS NOT INVESTIGATORY, BUT THAT SHOULD EVEN AN INFORMAL
COUNSELING SESSION BECOME INVESTIGATORY, WEINGARTEN RIGHTS ATTACH. THE
COURTS HAVE ALSO RECOGNIZED THAT IT IS NOT SOLELY THE PROSPECT OF
DISCIPLINE WHICH GIVES RISE TO THE REPRESENTATIONAL RIGHT, BUT RATHER IT
IS THE PRESENCE OF THE INVESTIGATORY ELEMENT. /17/ NLRB CASES SINCE
WEINGARTEN HAVE ABANDONED ANY DISTINCTION BASED ON THE LABELLING OF AN
INTERVIEW AS INVESTIGATORY OR DISCIPLINARY /18/ AND HAVE FOCUSED ON
WHETHER THE EMPLOYER HAS REACHED A FINAL DECISION ON ANY ACTION TO BE
TAKEN AND IS MERELY INFORMING THE EMPLOYEE OF THAT DECISION. /19/ THE
LINE DRAWN BY REPRESENTATIVE CLAY WAS SIMILARLY RECOGNIZED BY THE NLRB
IN BATON ROUGE WATER WORKS /20/ AS FOLLOWS:
IF THE EMPLOYER ENGAGED IN ANY CONDUCT BEYOND MERELY INFORMING THE
EMPLOYEE OF A PREVIOUSLY
MADE DISCIPLINARY DECISION, THE FULL PANOPLY OF PROTECTIONS ACCORDED
THE EMPLOYEE UNDER
WEINGARTEN MAY BE APPLICABLE. THUS, FOR EXAMPLE WERE THE EMPLOYER TO
INFORM THE EMPLOYEE OF A
DISCIPLINARY ACTION AND THEN SEEK FACTS OR EVIDENCE IN SUPPORT OF
THAT ACTION, OR TO ATTEMPT
TO HAVE THE EMPLOYEE ADMIT HIS ALLEGED WRONGDOING OR TO SIGN A
STATEMENT TO THAT EFFECT, OR TO
SIGN STATEMENTS RELATING TO SUCH MATTERS AS WORKMEN'S COMPENSATION .
. . THE EMPLOYEE'S RIGHT
TO UNION REPRESENTATION WOULD ATTACH. IN CONTRAST, THE FACT THAT THE
EMPLOYER AND EMPLOYEE
THEREAFTER ENGAGED IN A CONVERSATION AT THE EMPLOYEE'S BEHEST OR
INSTIGATION CONCERNING THE
REASONS FOR THE PREVIOUSLY DETERMINED DISCIPLINE WILL NOT, ALONE,
CONVERT THE MEETING TO AN
INTERVIEW AT WHICH THE WEINGARTEN PROTECTIONS APPLY.
I CONCLUDE THAT UNDER THE STATUTE, THE RIGHT TO UNION REPRESENTATION
DOES NOT EXTEND TO A COUNSELING SESSION WHICH IS NOT INVESTIGATIVE IN
NATURE AND WHICH IS HELD TO INFORM THE EMPLOYEE OF DEFICIENCIES IN WORK
PERFORMANCE OR OF A PREVIOUSLY MADE DETERMINATION TO IMPOSE DISCIPLINE.
EVEN THOUGH DEFICIENCIES IN WORK PERFORMANCE MAY ULTIMATELY RESULT IN
SOME SORT OF DISCIPLINE, THE STATUTE RECOGNIZES THAT AN INFORMAL FORUM
OUGHT TO BE AVAILABLE WHEREIN EMPLOYERS AND EMPLOYEES MAY REACH AN
UNDERSTANDING OF WHAT IS EXPECTED FROM EACH OTHER WITHOUT HAVING TO
RESORT TO CONFRONTATION, ON THE ONE HAND, OR "PINK SLIP" NOTIFICATION,
ON THE OTHER. WHERE A DECISION TO DISCIPLINE HAS ALREADY BEEN MADE AND
THE EMPLOYER IS NOT SEEKING TO GAIN INFORMATION FROM THE EMPLOYEE IN
ORDER TO MAKE THAT DETERMINATION, THE EMPLOYEE DOES NOT NEED A
REPRESENTATIVE TO "GET TO THE BOTTOM OF THE INCIDENT" OR TO "RAISE
EXTENUATING FACTORS" BECAUSE, UNDER THESE CIRCUMSTANCES, THE EMPLOYER
HAS MADE ITS FINDINGS OF FACT AND HAS COME TO ITS CONCLUSION AS TO THE
ACTION IT WISHES TO TAKE.
TURNING TO THE FACTS OF THIS CASE, IT IS CLEAR THAT THE COUNSELING
SESSIONS ON MARCH 24 AND APRIL 9, 1980 WERE NOT THE TYPE TO WHICH THE
RIGHT OF REPRESENTATION ATTACHES. THE PURPOSE OF EACH OF THESE SESSIONS
WAS TO INFORM MS. PIERCE OF THE NOTATIONS WHICH HAD ALREADY BEEN MADE ON
THE FORM 971. AT NEITHER SESSION DID COL. CHASON ASK ANY QUESTIONS OF
MS. PIERCE OR, IN ANY OTHER MANNER, SOLICIT INFORMATION. THE FACT THAT
SHE VOLUNTEERED A DENIAL OF ONE ITEM AT THE APRIL 9 SESSION IS OF NO
MOMENT. COL. CHASON HAD MADE UP HIS MIND TO DOCUMENT THE 971 AND CALLED
THE MEETING WITH THE FIRM INTENTION NOT TO ALTER THAT WHICH HE HAD
WRITTEN PRIOR TO THE MEETING.
THE MEETING ON MAY 1, 1980, HOWEVER, IS A DIFFERENT MATTER. THAT
MEETING HAD ITS GENESIS IN THE APRIL 22 MEETING AT WHICH COL. CHASON
SOUGHT TO DETERMINE THE FACTS OF WHAT HAD TAKEN PLACE ON APRIL 21
REGARDING TIME CARDS. THE MAY 1 MEETING WAS A CONTINUATION OF THE APRIL
22 MEETING WHICH HAD BEEN INTERRUPTED FOR THE PURPOSE OF ALLOWING MS.
PIERCE TO ARRANGE TO HAVE HER UNION REPRESENTATIVE PRESENT. ALTHOUGH IT
IS NOT CLEAR WHETHER COL. CHASON ACTUALLY CONTINUED TO QUESTION MS.
PIERCE ON THE SAME SUBJECTS WHICH HAD BEEN COVERED AT THE APRIL 22
MEETING, HIS MEMORANDUM TO THE RECORD OF MAY 1 REVEALS THAT HE DID
INQUIRE INTO HER INTENT TO ATTEND A MEDICAL INTERVIEW. IN ANY EVENT,
SINCE THE MAY 1 MEETING WAS CALLED TO CONTINUE THE PRIOR INTERROGATION,
WHICH EVEN COL. CHASON APPARENTLY RECOGNIZED WAS SUBJECT TO THE RIGHT OF
UNION REPRESENTATION, THE RIGHT TO UNION REPRESENTATION ATTACHED TO THE
CONTINUED MEETING ON MAY 1.
THE NEXT QUESTION TO BE RESOLVED IS WHETHER MS. PIERCE REASONABLY
BELIEVED THAT THE MAY 1 MEETING MIGHT RESULT IN DISCIPLINARY ACTION
AGAINST HER. THE STANDARD TO BE APPLIED IS AN OBJECTIVE ONE, FOCUSSING
ON THE SURROUNDING CIRCUMSTANCES RATHER THAN THE EMPLOYEE'S SUBJECTIVE
STATE OF MIND. /21/
THE KEY OBJECTIVE FACT IN THIS CASE IS THAT COL. CHASON'S INQUIRY
CONCERNED THE PROPRIETY OF MS. PIERCE'S ABSENCE FROM HER DUTY STATION ON
APRIL 21. SINCE MS. PIERCE HAD NOT REQUESTED HIS PERMISSION FOR THAT
ABSENCE, HE CALLED THE CIVILIAN PERSONNEL OFFICE TO ASK THEM WHETHER AT
LEAST COURTESY REQUIRED THAT SHE INFORM HIM THAT SHE WOULD BE AWAY FROM
HER DESK FOR A PROTRACTED PERIOD OF TIME. THAT OFFICE REPLIED IN THE
AFFIRMATIVE. THEREFORE, HE CALLED HER INTO HIS OFFICE TO ASK HER WHAT
HAD TRANSPIRED ON THE TWENTY-FIRST. HE WAS "NOT SURE OF WHAT (HE)
NEEDED TO WRITE DOWN IN THE 971" AND HE TOLD HER THAT SHE SHOULD TELL
HIM WHEN SHE WAS GOING TO LEAVE HER DUTY STATION AND THAT "IT IS EVEN
CORRECT FOR YOU TO ASK MY PERMISSION TO DO SO, OTHERWISE YOU ARE ABSENT
WITHOUT MY PERMISSION FROM YOUR DUTY STATION." AT THIS POINT, MS. PIERCE
BECAME VERY UPSET AND REQUESTED UNION REPRESENTATION. COL. CHASON
IMMEDIATELY TERMINATED THE INTERVIEW SO THAT SHE COULD OBTAIN THAT
REPRESENTATION. OBVIOUSLY BOTH COL. CHASON AND MS. PIERCE KNEW THAT
ABSENCE WITHOUT LEAVE WAS AN INFRACTION OF RESPONDENT'S RULES OF CONDUCT
AND COULD LEAD TO DISCIPLINARY ACTION. COL. CHASON KNEW THAT HE MUST
TERMINATE THE INTERVIEW IMMEDIATELY SINCE HIS INQUIRIES TOOK IT OUT OF
THE PURVIEW OF A NONDISCIPLINARY COUNSELING SESSION. /22/ UNDER THESE
CIRCUMSTANCES, MS. PIERCE MIGHT REASONABLY BELIEVE THAT IF SHE WERE
FOUND TO BE ABSENT WITHOUT LEAVE FROM HER DUTY STATION, DISCIPLINARY
ACTION MIGHT BE TAKEN AGAINST HER. /23/ SINCE THIS WAS A REASONABLE
BELIEF ON APRIL 22, AND SINCE THE MAY 1 MEETING WAS A CONTINUATION OF
THAT MEETING, MS. PIERCE MIGHT REASONABLY BELIEVE THAT DISCIPLINE WOULD
RESULT FROM THE MAY 1 MEETING.
THE LAST QUESTION TO BE RESOLVED IS WHETHER MS. PIERCE REQUESTED
UNION REPRESENTATION AT THE MAY 1, 1980 MEETING. WHILE I HAVE FOUND, AS
A MATTER OF FACT, THAT SHE DID NOT MAKE A FURTHER REQUEST FOR UNION
REPRESENTATION ON MAY 1, I CONCLUDE, AS A MATTER OF LAW, THAT HER
REQUEST FOR UNION REPRESENTATION WHICH SHE MADE ON APRIL 22 WAS A
CONTINUING REQUEST BECAUSE THE MEETING ON MAY 1 WAS A CONTINUATION OF
THE APRIL 22 MEETING. BEFORE THAT MEETING WAS IN FACT CONTINUED,
RESPONDENT WAS BOUND TO HONOR HER ORIGINAL REQUEST FOR REPRESENTATION
UNLESS SHE VOLUNTARILY WITHDREW THAT REQUEST PRIOR TO THE CONTINUED
MEETING. THERE IS NO EVIDENCE ON THIS RECORD THAT SHE WITHDREW HER
REQUEST FOR REPRESENTATION AT ANY TIME.
ACCORDINGLY, I CONCLUDE THAT ONLY THE MEETING BETWEEN MS. PIERCE AND
COL. CHASON ON MAY 1, 1980, WAS AN EXAMINATION IN CONNECTION WITH AN
INVESTIGATION WITHIN THE MEANING OF 5 U.S.C. 7114(A)(2)(B); THAT MS.
PIERCE REASONABLY BELIEVED THAT THAT MEETING MIGHT RESULT IN
DISCIPLINARY ACTION AGAINST HER; THAT SHE REQUESTED REPRESENTATION AT
THAT MEETING; THAT HER REQUEST FOR REPRESENTATION WAS DENIED; AND THAT
THE FAILURE TO GRANT HER REQUEST FOR REPRESENTATION CONSTITUTED A
VIOLATION OF 5 U.S.C. 7116(A)(1) AND (8). THEREFORE, I RECOMMEND THAT
THE AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. 2423.29(B)(1), THE
AUTHORITY ORDERS (A) THAT THE COMPLAINT, INSOFAR AS IT ALLEGES A
VIOLATION OF THE STATUTE ON MARCH 24 AND APRIL 9, 1980, IS DISMISSED;
AND (B) THAT THE UNITED STATES AIR FORCE, 2750TH AIR BASE WING
HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
BASE, OHIO, SHALL:
1. CEASE AND DESIST FROM:
(A) REQUIRING MS. NINA M. PIERCE TO TAKE PART IN ANY EXAMINATION IN
CONNECTION WITH AN
INVESTIGATION WITHOUT UNION REPRESENTATION IF SHE REASONABLY BELIEVES
THAT THE EXAMINATION MAY
RESULT IN DISCIPLINARY ACTION AGAINST HER AND IF SHE REQUESTS SUCH
REPRESENTATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING 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
PURPOSE AND POLICIES OF THE STATUTE:
(A) EXPUNGE FROM MS. PIERCE'S AIR FORCE FORM 971 ALL ENTRIES
CONCERNING MEETINGS WITH
COL. LLOYD R. CHASON WHICH TOOK PLACE ON APRIL 22 AND MAY 1, 1980.
(B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE
SIGNED BY THE COMMANDER OF THE AIR FORCE LOGISTICS COMMAND AND SHALL
BE POSTED AND MAINTAINED
FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING
ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED. REASONABLE STEPS
SHALL BE TAKEN TO ENSURE
THAT THE NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THE ORDER.
ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 6, 1981
WASHINGTON, D.C.
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REQUIRE MS. NINA M. PIERCE TO TAKE PART IN ANY
EXAMINATION IN CONNECTION WITH AN INVESTIGATION WITHOUT UNION
REPRESENTATION IF SHE REASONABLY BELIEVES THAT THE EXAMINATION MAY
RESULT IN DISCIPLINARY ACTION AGAINST HER AND IF SHE REQUESTS SUCH
REPRESENTATION.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 5,
SUITE A-1359, W. JACKSON BOULEVARD, CHICAGO, ILLINOIS, 60604.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7114(A)(2)(B) OF THE STATUTE PROVIDES:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
. . . .
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
. . . .
(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
THE AGENCY IN
CONNECTION WITH AN INVESTIGATION IF--
(I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE; AND
(II) THE EMPLOYEE REQUESTS REPRESENTATION.
/2/ SECTION 7116(A)(1) AND (8) PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER(.)
/3/ ITEMS INCLUDED "LACK OF COOPERATION WITH OTHER SECRETARIES AND
OFFICERS; DISRUPTIVE BEHAVIOR AT WORK; MOODINESS; LACK OF
PROFESSIONAL DEMEANOR; LACK OF IDENTIFICATION WITH ORGANIZATION; HER
DESIRE TO CHANGE JOBS/ORGANIZATIONS".
ALTHOUGH MS. PIERCE WOULD CONNECT THIS FEBRUARY 6 COUNSELING SESSION
WITH HER VISIT THE IMMEDIATELY PRECEDING DAY WITH THE INSPECTOR GENERAL
SEEKING TO REGAIN HER OLD JOB, I DO NOT FIND ANY EVIDENCE IN THE RECORD
THAT COL. CHASON KNEW THEN OF HER MEETING WITH THE INSPECTOR GENERAL.
/4/ THE APPRAISAL LED TO A GRIEVANCE FILED BY MS. CARROLL ON MS.
PIERCE'S BEHALF. MS. CARROLL EXPLAINED TO COL. CHASON WHAT PROCEDURES
WERE NECESSARY FOR HIM TO IMPLEMENT IN ORDER TO GET MS. CARROLL RELEASED
FOR UNION ACTIVITY.
/5/ IN GENERAL, IT WAS ALSO COL. CHASON'S PRACTICE TO "CLEAR UP ANY
MISUNDERSTANDINGS" AT THESE MEETINGS. THE RECORD DOES NOT CONCLUSIVELY
SHOW WHETHER THAT PRACTICE OBTAINED AT THIS PARTICULAR MEETING.
/6/ ALTHOUGH MS. PIERCE WAS DESCRIBED AS ARGUMENTATIVE ON CERTAIN
OCCASIONS, SPECIFIC EVIDENCE OF AN ARGUMENT AT THIS SESSION IS WANTING.
/7/ ALTHOUGH I FIND THAT SHE DID CALL MS. CARROLL AND TOLD HER THAT
SHE DID ASK FOR UNION REPRESENTATION AND WAS DENIED IT, I CREDIT COL.
CHASON'S TESTIMONY THAT SHE DID NOT, IN FACT, MAKE THE REQUEST AT THIS
MEETING. ALTHOUGH MS. PIERCE MAY HAVE BEEN, AS COUNSEL FOR THE GENERAL
COUNSEL NOTICES, VISIBLY NERVOUS AND FRIGHTENED DURING HER TESTIMONY, I
ALSO FIND THAT SHE WAS AT VARIOUS TIMES DETACHED, DISTRACTED,
UNRESPONSIVE TO SPECIFIC QUESTIONING, AND CONFUSED AS TO FACTS. WHILE
BITS OF COL. CHASON'S TESTIMONY WERE SEEMINGLY CONTRADICTED BY
STATEMENTS PREVIOUSLY GIVEN TO AN AUTHORITY INVESTIGATOR, I ATTRIBUTE
THE DISCREPANCIES TO THE FACT THAT THE INTERVIEW WITH THE INVESTIGATOR
WAS DONE "COLD" AND THAT COL. CHASON WAS RESPONDING TO THE BEST OF HIS
ABILITY AT THAT TIME. AT THE HEARING, HOWEVER, HE HAD HAD THE
OPPORTUNITY TO REFRESH HIS RECOLLECTION FROM VARIOUS NOTES AND MEMORANDA
AND HE WAS CERTAIN IN HIS TESTIMONY AS WELL AS CREDIBLE IN GIVING IT.
/8/ I DO NOT CREDIT MS. PIERCE'S TESTIMONY THAT SHE REQUESTED UNION
REPRESENTATION, GOT UP, WENT DOWN THE HALL TO MAKE A CALL, BUT WAS
CALLED BY COL. CHASON SAYING THAT SHE WAS NOT ENTITLED TO
REPRESENTATION. I DECLINE TO MAKE THAT FINDING BASED ON HER DEMEANOR,
AS NOTED IN THE PRECEDING FOOTNOTE, AND BASED ON COL. CHASON'S TESTIMONY
TO THE CONTRARY. THE NOTATIONS ON THE FORM 971 CORROBORATE HIS
ASSERTION THAT HE DOCUMENTED ANY REQUEST FOR REPRESENTATION. ALTHOUGH
HE STATED TO AN AUTHORITY INVESTIGATOR THAT HE COULD NOT RECALL WHETHER
MS. PIERCE ASKED FOR UNION REPRESENTATION FOR THIS MEETING, I DO NOT
FIND THAT STATEMENT TO CONTRADICT HIS TESTIMONY AT THE HEARING THAT SHE,
IN FACT, DID NOT MAKE THE REQUEST. AS NOTED IN THE PRECEDING FOOTNOTE,
THE INTERVIEW WITH THE AUTHORITY AGENT WAS DONE "COLD" AND ONLY SHOWS
THAT AT THE PARTICULAR TIME OF THE INTERVIEW, COL. CHASON COULD NOT
RECALL WHETHER ANY REQUEST FOR REPRESENTATION HAD BEEN MADE. I DO NOT
DOUBT THAT SHE TOLD MS. CARROLL THAT SHE ASKED FOR REPRESENTATION.
/9/ AGAIN, AS NOTED IN FOOTNOTES 7 AND 8, I CREDIT COL. CHASON'S
VERSION OF THE FACTS ALTHOUGH I DO NOT DOUBT THAT MS. PIERCE TOLD MS.
CARROLL THAT SHE DID ASK FOR REPRESENTATION. I BELIEVE THAT AFTER THE
SEVERAL CONVERSATIONS MS. PIERCE HAD WITH MS. CARROLL, MS. PIERCE
BELIEVES THAT SHE MADE A PRACTICE OF ASKING FOR UNION REPRESENTATION AT
EACH MEETING SHE HAD WITH COL. CHASON. HOWEVER, ALTHOUGH SHE DID, ON
SEVERAL OCCASIONS END SUCH MEETINGS WITH THE PROMISE THAT COL. CHASON
WOULD HEAR FROM HER UNION REPRESENTATIVE, SHE COULD NOT SPECIFICALLY
STATE AS TO ANY PARTICULAR MEETING THAT SHE MADE A REQUEST FOR
REPRESENTATION. I DO NOTE THAT ON SOME OCCASIONS SHE WALKED OUT OF
MEETINGS WHEN SHE DID NOT HAVE A REPRESENTATIVE AND SHE THOUGHT SHE WAS
ENTITLED TO ONE. SHE WAS NOT ASKED WHY SHE DID NOT WALK OUT OF THE
MEETINGS AT ISSUE IF SHE WERE CERTAIN THAT SHE HAD A RIGHT TO A
REPRESENTATIVE.
/10/ ALL REFERENCES TO THE "LEGISLATIVE HISTORY" ARE TO LEGISLATIVE
HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, TITLE
VII OF THE CIVIL SERVICE REFORM ACT OF 1978, COMMITTEE PRINT NO. 96-97,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES
96TH CONG., 1ST SESS., NOVEMBER 19, 1979.
THE "UDALL SUBSTITUTE", ADOPTED BY THE HOUSE OF REPRESENTATIVES, WAS
THE SOURCE OF WHAT EVENTUALLY BECAME TITLE VII. CONGRESSMAN UDALL
SUBMITTED A SECTION BY SECTION ANALYSIS OF HIS SUBSTITUTE AND NOTED THAT
ITS PROVISIONS DIFFERED FROM WEINGARTEN "ONLY IN PROVIDING THAT THE
EMPLOYEE MUST BE INFORMED OF THE RIGHT OF REPRESENTATION PRIOR TO THE
COMMENCEMENT OF ANY INVESTIGATORY INTERVIEW CONCERNING MISCONDUCT WHICH
COULD REASONABLY LEAD TO SUSPENSION, REDUCTION IN GRADE OR PAY, OR
REMOVAL." LEGISLATIVE HISTORY AT P. 926.
/11/ HOUSE REPORT 95-1403, JULY 31, 1978, LEGISLATIVE HISTORY AT P.
694.
/12/ LEGISLATIVE HISTORY, PP. 464-465, 520, 577.
/13/ CONFERENCE REPORT, NO. 95-1717, OCTOBER 5, 1978; LEGISLATIVE
HISTORY, P. 824.
/14/ LITTLE WEIGHT CAN BE GIVEN TO GENERAL COUNSEL'S REFERENCE TO A
POST-ENACTMENT STATEMENT BY CONGRESSMAN FORD THAT THE TERM "EXAMINATION"
IS MUCH BROADER THAN "INVESTIGATORY INTERVIEW" AND WILL ENCOMPASS MORE
SITUATIONS; THE STATEMENT WAS NOT CONSIDERED BY THE CONGRESS IN ITS
DELIBERATIONS LEADING UP TO ENACTMENT.
/15/ 420 U.S. AT 262-263.
/16/ LEGISLATIVE HISTORY, P. 933. SEE ALSO, REPRESENTATIVE FORD'S
STATEMENT TO THE SAME EFFECT BUT WHICH FURTHER MODIFIES THE WORDS
"COUNSELING SESSIONS" BY THE ADDITION OF THE WORDS "REGARDING
PERFORMANCE". LEGISLATIVE HISTORY, P. 957.
/17/ ALFRED M. LEWIS, INC. V. NLRB, 99 LRRM 2841 (9TH CIR. 1978).
THE COURT QUOTED ONE COMMENTATOR AS FOLLOWS" "IF THE MEETING IS
DISCIPLINARY IN CHARACTER, BUT EXPLANATORY IN THE SENSE THAT THE
EMPLOYEE IS ONLY TOLD WHAT THE EMPLOYER INTENDS TO DO AND DOES NOT CALL
UPON THE EMPLOYEE TO DEFEND HIMSELF, NO REPRESENTATION NEED BE PROVIDED.
ID. AT 2846.
/18/ SEE, NLRB V. CERTIFIED GROCERS OF CALIFORNIA, 100 LRRM 3029 (9TH
CIR. 1978), DENYING ENFORCEMENT OF 94 LRRM 1279(1977).
/19/ SEE, MOUNT VERNON TANKER CO. V. NLRB, 549 F.2D 571; 94 LRRM
3054 (9TH CIR. 1977); BATON ROUGE WATER WORKS, 103 LRRM 1056(1979);
TEXACO, 105 LRRM 1239(1980); SOUTHWESTERN BELL TEL., 105 LRRM
1246(1980).
/20/ 103 LRRM AT 1058.
/21/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE
SERVICE, HARTFORD DISTRICT OFFICE, 4 FLRA 37(1980).
/22/ ARTICLE 5 OF THE COLLECTIVE BARGAINING AGREEMENT PROVIDES, IN
PERTINENT PART:
A. . . . DISCIPLINARY ACTION SHALL BE DEFINED AS ORAL ADMONISHMENT,
WRITTEN REPRIMANDS AND
SUSPENSIONS.
* * * *
C. NONDISCIPLINARY COUNSELING SESSIONS CONDUCTED BY SUPERVISORY
AND/OR MANAGEMENT
OFFICIALS WITH UNIT EMPLOYEES OR ENTRIES IN AIR FORCE FORM 971
RECORDING SUCH COUNSELING ARE
NOT CONSIDERED DISCIPLINE . . .
/23/ IN THE ABSENCE OF COL. CHASON'S INQUIRIES INTO THE FACTS TAKING
PLACE ON APRIL 21, THE MEETINGS ON APRIL 22 AND MAY 1 WOULD NOT HAVE
BEEN WITHIN THE AMBIT OF WEINGARTEN AND ITS PROGENCY. NOTWITHSTANDING
COUNSEL FOR THE GENERAL COUNSEL'S ASSERTION THAT COL. CHASON WAS
CONDUCTING AN INVESTIGATION INTO MS. PIERCE'S MENTAL WELL BEING, I FIND
NOTHING IN THE RECORD TO SUPPORT THE PROPOSITION THAT THE MEETINGS ON
APRIL 22 AND MAY 1 HAD ANYTHING TO DO WITH HIS DETERMINATION TO CONVINCE
HER TO TAKE A FITNESS-FOR-DUTY EXAMINATION; TO THE CONTRARY, I FIND
THAT HE HAD MADE THAT DETERMINATION LONG BEFORE THOSE TWO MEETINGS.
THEREFORE, I NEED NOT CONSIDER MS. PIERCE'S OTHER REASONS FOR FEARING
DISCIPLINE WHICH WERE NOT SPECIFICALLY CONCERNED WITH THE FACTORS WHICH
BROUGHT THESE TWO MEETINGS WITHIN WEINGARTEN.