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The decision of the Authority follows:
13 FLRA No. 5 BUREAU OF GOVERNMENTAL FINANCIAL OPERATIONS, HEADQUARTERS Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER 202 Charging Party Case No. 3-CA-2646 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practice alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Exceptions to the Judge's Decision were filed by the Respondent, and an opposition was filed by the Charging Party. 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 only to the extent consistent herewith. The Administrative Law Judge, upon concluding that interviews of unit employees as witnesses in preparation for hearing before the Merit Systems Protection Board (MSPB) are formal discussions of grievances within the meaning of section 7114(a)(2)(A) of the Statute, found that the Respondent herein violated section 7116(a)(1) and (8) of the Statute by virtue of its failure to notify the Charging Party of a pre-trial interview of an employee held prior to his appearance at an MSPB hearing involving a fellow employee. The Authority disagrees. Subsequent to the issuance of the Judge's Decision, the Authority issued its Decision in Internal Revenue Service and Brookhaven Service Center, 9 FLRA No. 132 (1982), wherein it concluded, in general, that "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," did not constitute formal discussions within the meaning of section 7114(a)(2)(A). /1A/ Based on the entire record and for the reasons expressed in Internal Revenue Service, the Authority finds that the Respondent did not violate section 7116(a)(1) and (8) of the Statute by not affording the Charging Party the opportunity to be present at a pre-MSPB hearing interview between the Respondent's representative and a bargaining unit employee. The complaint shall, therefore, be dismissed in its entirety. ORDER IT IS HEREBY ORDERED that the complaint be, and it hereby is, dismissed. Issued, Washington, D.C., September 15, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 3-CA-2646 Arthur S. Rosenzweig, Esquire For the Respondent Patricia Eanet Dratch, Esquire For the General Counsel Patricia Armstrong, Esquire For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.Section 7101, et seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11, 1981, 5 C.F.R. Chapter XIV, Part 2411, et seq. Pursuant to a charge filed on July 2, 1981, by the National Treasury Employees Union and NTEU Chapter 202 (hereinafter called the NTEU or Union), a Complaint and Notice of Hearing was issued on March 22, 1982, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Bureau of Government Financial Operations, Headquarters (hereinafter called the Respondent or BGFO), violated Section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (hereinafter called the Statute or Act), by virtue of its actions in holding a formal discussion with an employee without notifying the Union and giving it an opportunity to be present. A hearing was held in the captioned matter on April 27, 1982, in Washington, D.C. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The Respondent and the Union submitted post-hearing briefs on May 27, 1982, which have been duly considered along with the General Counsel's closing argument made on the record. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact conclusions and recommendations. Findings of Fact The Union, the charging party herein, is the exclusive bargaining representative of the Respondent's "non-professional non-supervisory general schedule (GS) and wage grade (WG) employees. . . ." On December 20, 1980, Mr. James Lewis, a Sorting and Review Clerk, witnessed an altercation between Philip Murphy, a fellow employee, and his supervisor Eleanor Johnson. Although not entirely clear from the record, it appears that because of the altercation Respondent decided to terminate Mr. Murphy's employment. Therefore, Mr. Murphy appealed his removal to the Merit Systems Protection Board which set the matter down for hearing in August 1981. On June 8, 1981, Mr. John Maus, an attorney assigned to represent Respondent in the scheduled MSPB hearing, along with Labor Relations Specialists Harold Howard and Robert Johnson interviewed all the people "that had given statements in the (Respondent's) investigative file." Upon finishing the interviews with the employees who had previously given statements, Mr. Maus decided to interview Mr. Lewis, because he, Mr. Maus, was aware that Mr. Lewis was going to be called by the Union as a witness in the MSPB hearing. According to Mr. Maus, whose testimony is corroborated by Mr. Johnson, he had Mr. Johnson call up Mr. Lewis and tell him to report to Mr. Johnson's office. When Mr. Lewis entered Mr. Johnson's office, Mr. Maus identified himself and told Mr. Lewis that they were investigating the December 20, 1980, incident between Mr. Murphy and Ms. Johnson. Mr. Maus then proceeded to ask Mr. Lewis a number of questions concerning the events of December 20, 1980, and made notes thereon. Mr. Lewis testified that upon entering Mr. Johnson's office the three individuals present only identified themselves by name not affiliation and that he was under the impression that they represented the Union. Subsequently, when he, Mr. Lewis, noticed that the questions being propounded were "slanted against Mr. Murphy," he stopped answering the questions. Whereupon, the individuals identified themselves as agents of the Respondent and informed him that "it would be in the best interest of everybody if he cooperated, but he did not have to." Thereafter, he answered a few more questions. According to Mr. Lewis, during the meeting which lasted some 20 to 30 minutes, he was asked how he felt about the incident and his impressions of Mr. Murphy and Ms. Johnson. /1/ Discussion and Analysis The sole issue to be decided herein is whether a pre-trial interview of a potential union witness in preparation for a scheduled hearing before the Merit Systems Protection Board is a formal discussion within the meaning of Section 7114(a)(2)(A) of the Statute to which the Union must be accorded notice and an opportunity to attend. The Union and the General Counsel, relying primarily on the Authority's decision in Internal Revenue Service, Fresno Service Center and NTEU, 7 FLRA No. 54, and the Assistant Secretary's decisions in U.S. Air Force, McClellan AFB, California, and Local 1857, AFGE, AFL-CIO, A/SLMR No. 830, 7 A/SLMR 350; and Internal Revenue Service, South Carolina District and NTEU, A/SLMR No. 1172, 8 A/SLMR 1370, would answer the question in the affirmative. The Respondent, on the other hand, noting the pending decision of Administrative Law Judge Mason in U.S. Department of Treasury, United States Customs Service, Region V and NTEU, Case No. 6-CA-237, March 20, 1981, wherein Judge Mason found pre-trial witness interviews in connection with unfair labor practice proceedings not to be formal discussions within the meaning of 7114(a)(2)(A) of the Statute, would answer the question in the negative. Respondent takes the position that Section 7114(a)(2)(A) involves only discussions concerning labor relations and is not applicable to adversary proceedings initiated under the MSPB pursuant to the discretion accorded employees by Section 7121(e)(1) of the Statute. Finally, Respondent takes the position that the meeting was not a discussion and that at best it was an examination in connection with an investigation within the meaning of Section 7114(a)(2)(B), wherein the Union was only entitled to attend if the employee reasonably believed that discipline was in the offing and requested union representation. In this latter context the Respondent points out that "there was no reasonable basis for believing that he (Mr. Lewis) would be disciplined" and "no indication that Mr. Lewis requested representation prior to, or during, the meeting." Section 7114(a)(2)(A) which is similar in all pertinent respects to Section 10(e) of Executive Order 11491, as amended, 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 conditions of employment. Both a literal reading of the above cited section of the Statute and the existing case precedent make it clear that in order for a violation to be established herein it must be shown that (1) the meeting was formal, (2) a discussion occurred between representatives of management and a bargaining unit employee, and (3) the subject matter concerned a grievance or any personnel policy. Inasmuch as the meeting involved herein was called by management, held away from Mr. Lewis' work area in Respondent's office and marked by the taking of notes by the high level agency representatives, I find that the meeting to be "formal." Internal Revenue Service, Fresno Service Center; U.S. Air Force McClellan AFB, California; and IRS, South Carolina, supra. With respect to the second item, i.e. whether the meeting was a discussion between representatives of management and a bargaining unit employee, as noted above, Respondent takes the position that there was no "discussion" as defined in Webster's Seventh New Collegiate Dictionary since there was no informal debate or formal treatment of a topic. Respondent would also distinguish the facts of the instant case from IRS, Fresno Service Center, supra, since the interview or meeting in Fresno concerned a meeting between the EEO complainant and management and not as here a meeting between a possible witness and management. Inasmuch as Mr. Lewis was only a witness and not the party-in-interest as in Fresno, there was neither possibility of settlement of the adverse action nor any foreseeable impact on existing conditions of employment. Although Respondent has correctly set forth the Webster Dictionary definition of "discussion" and the record evidence indicates that the meeting with Mr. Lewis would more aptly fall within the definition of "interrogation", i.e. to question formally and systematically, I am constrained, upon the basis of existing case precedent, to find that the meeting with Mr. Lewis was indeed a "discussion" between representatives of management and a bargaining unit employee within the meaning of Section 7114(a)(2)(A) of the Statute. In reaching this conclusion I rely on the Assistant Secretary's decisions in U.S. Air Force McClellan AFB, California and IRS, South Carolina, supra. In McClellan, Respondent's counsel, upon receiving a list of potential witnesses to be called in the plaintiff's behalf at an arbitration hearing to be held the following day, scheduled a meeting in the personnel office the morning of the day of the hearing for purposes of interviewing three witnesses on the list whose testimony he was unaware of. In finding 19(a)(6) and (1) violation predicated upon Respondent's failure to afford the Union the opportunity to be present at the interviews, the Assistant Secretary stated, in pertinent part, as follows: In the instant case, I find that the Complainant, as the exclusive representative of the employees in the unit, had a legitimate interest in being represented at the interviews of the unit employees involved which were conducted in connection with the processing of a pending grievance. Thus, clearly, the information discussed could potentially have affected the disposition of the pending grievance. Moreover, in my view, under the circumstances herein, including the fact that the witnesses interviewed were those of the grievant, the Complainant's representational responsibility, which under Section 10(e) of the Order extends to all employees in the bargaining unit, outweighed any impact its presence during the interviews might have had on the Respondent's preparation of its case for arbitration. Similarly, in IRS, South Carolina, supra, the Assistant Secretary found a 19(a)(6) and (1) violation predicated upon Respondent's action in interviewing a unit employee witness a week before a scheduled arbitration hearing without affording the Union the opportunity to be present at the interview. In reversing the Administrative Judges decision to the contrary, the Assistant Secretary disagreed with the Administrative Judges determination that the case was distinguishable from McClellan on the grounds that the interview was held a week before the scheduled arbitration hearing and the witness was not listed as a potential witness for the Plaintiff. In the Assistant Secretary's opinion, the distinctions between McClellan and the subject case were immaterial. Thus, the Assistant Secretary concluded in pertinent part as follows: In my view, when an employee who is a member of the bargaining unit at all times material to a pending grievance is interviewed by management representatives concerning the events surrounding the grievance, Section 10(e) of the Order grants the exclusive representative the right to be represented at such a formal discussion. As the Assistant Secretary stated in the McClellan case, cited above, an exclusive representative has a legitimate interest in being represented at the interviews of unit employees conducted by management in connection with the processing of a pending grievance, and the representational responsibilities conferred by Section 10(e) of the Order in this regard outweigh any impact its presence might have on management's preparation of its case for arbitration. Turning to the last element of Section 7114(a)(2)(A), i.e. whether the discussion concerned grievances or any personnel policy or practice, I find, based primarily on the Authority's decision in IRS, Fresno Service Center, that the interview of Mr. Lewis, which has been found above to be a "formal discussion", did concern "grievances or any personnel policy or practice." In IRS, Fresno, supra, the Authority concluded that "grievances" cognizable under Section 7114(a)(2)(A) of the Statute were not to be limited to only those grievances which had their genesis in the existing collective bargaining agreements. In line with its conclusion in Fresno the Authority found that an EEO complaint fell within the statutory definition of "grievance" even though it was being processed under another statute which contained an appeals procedure that was separate and apart from the one established by the collective bargaining contract between the agency and the union. Inasmuch as the Fresno decision of the Authority makes it clear that a "grievance" encompasses any complaint involving or impacting on working conditions, irrespective of the ultimate forum which will decide the merits of the complaint, it follows that the adverse action involved herein falls within the statutory definition of a grievance as defined by the Authority. Like the EEO complaint in Fresno, the adverse action herein will impact upon the unit employees since the ultimate issue to be decided by MSPB is what constitutes insubordination and what is the proper penalty for the type of insubordination underlying the adverse action. Accordingly, as interviews of witnesses in connection with the processing of grievances have been found by the Assistant Secretary to constitute "discussions" and since the Authority has defined "grievances" to encompass or include any complaints by unit employees, irrespective of whether or not such complaints are cognizable under the Statute, it follows that interviews of witnesses in preparation for a MSPB hearing are formal discussions of grievances within the meaning of Section 7114(a)(2)(A) of the Statute. /2/ Having found that the pre-trial interview of Mr. Lewis on June 8, 1981, constituted a formal discussion within the meaning of Section 7114(a)(2)(A) of the Statute, I further find that the Respondent violated Sections 7116(a)(1) and (8) of the Statute by virtue of its actions in failing to notify the Union of the June 8, 1981, meeting and affording it the opportunity to be present. Accordingly, I hereby recommend that the Authority issue the following Order designed to effectuate the purposes of the Statute. ORDER Pursuant to Section 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section 2423.29(b)(1), the Authority hereby orders that the Bureau of Government Financial Operations, Headquarters, shall: 1. Cease and desist from: (a) Conducting formal discussions between representatives of the agency and employees in the unit or their respective representatives concerning grievances or any personnel policy or practices without affording the National Treasury Employees Union or its representative the opportunity to be represented at such discussions. (b) Interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute by failing to afford the National Treasury Employees Union or its representatives the opportunity to be represented at formal discussions between representatives of the agency and employees in the unit or their respective representatives concerning grievances or any personnel policy or practices. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: (a) Notify the National Treasury Employees Union or its representative of, and afford it the opportunity to be represented at, formal discussions between representatives of the agency and employees in the unit or their respective representatives concerning grievances or any personnel policy or practices. (b) Post at the Bureau of Government Financial Operations Headquarters in Washington, D.C. 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 a responsible official of the Bureau of Government Financial Operations and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Bureau of Government Financial Operations shall take reasonable steps to insure that such 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 herewith. \ BURTON S. STERNBURG Administrative Law Judge Dated: August 2, 1982 Washington, D.C. APPENDIX 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 conduct formal discussions between representatives of the agency and employees in the unit or their respective representatives concerning grievances or any personnel policy or practices without affording the National Treasury Employees Union or its representative the opportunity to be represented at such discussions. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute by failing to afford the National Treasury Employees Union or its representative the opportunity to be represented at formal discussions between representatives of the agency and employees in the unit or their respective representatives concerning grievances or any personnel policy or practices. (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, Federal Labor Relations Authority, Region 3, 1111 18th Street, NW., Suite 700, Washington, D.C. 20036 and whose telephone number is (202) 653-8452. --------------- FOOTNOTES$ --------------- /1A/ In Internal Revenue Service the Authority also emphasized "that an agency may not conduct such fact-gathering sessions without limitation" and that certain necessary precautions which are set forth therein must be taken to preserve the rights of employees. However, in the instant case, the sole question before the Authority, as observed by the Judge, is whether the interview in question was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. /1/ Inasmuch as the complaint is limited solely to the failure of the Respondent to give the Union an opportunity to attend a formal discussion within the meaning of Section 7114(a)(2)(A) of the Statute, I need not, and do not, resolve the conflict in testimony with respect to whether or not Mr. Maus made it clear at the inception of the meeting with Mr. Lewis that he and the other men in the room were representing the Respondent. /2/ As noted above, my conclusions in this respect are predicated solely on existing case precedent. However, it should be noted that Judge Mason in U.S. Department of Treasury, Case No. 6-CA-237, supra, a pending case before the Authority, has reached a contrary conclusion with respect to the pre-trial interviews of witnesses. Although I subscribe to his position with respect to excluding pre-trial interviews from "formal discussions" within the meaning of Section 7114(a)(2)(A), for the reasons set forth in his decision, I feel that Section 7135(b) of the Statute obligates me to follow case precedent until such time as the Authority in its wisdom decides to effect a change therein.