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U.S. Federal Labor Relations Authority

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13:0156(34)CA - Customs Service, Region VIII, San Francisco, CA and NTEU -- 1983 FLRAdec CA

[ v13 p156 ]
The decision of the Authority follows:

 13 FLRA No. 34
 Charging Party
                                            Case No. 9-CA-20118
                            DECISION AND ORDER
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practice alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 Charging Party (the Union) filed exceptions to the Judge's Decision and
 a brief in support thereof.
    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 in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommendation that
 the complaint be dismissed.
    IT IS HEREBY ORDERED that the complaint in Case No. 9-CA-20118 be,
 and it hereby is, dismissed.  
 Issued, Washington, D.C., September 28, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                                       Case No.: 9-CA-20118
    Gary B. Landsman, Esq.
       For the Respondent
    Patricia Jeanne Howze, Esq.
       For the General Counsel
    David S. Handsher, Esq.
       For the Charging Party
                         Administrative Law Judge
                           Statement of the Case
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute (herein called the Statute or Act).  It stems from a
 first amended charge filed on February 25, 1982 by National Treasury
 Employees Union (herein called the Union) against U.S. Customs Service,
 Region VIII, San Francisco, California (herein called Respondent).  /1/
    The Complaint and Notice of Hearing, predicated on said amended
 charge, was issued on February 26, 1982 by the Acting Regional Director
 for the Federal Labor Relations Authority, San Francisco, California
 Region.  It was alleged therein, in substance, that on or about December
 14, 1981, Respondent met with bargaining unit employee Walter Lisowski
 re his testimony at the arbitration hearing on the grievance of unit
 employee Chester Lewandowski;  that the Union was not advised of the
 meeting nor given an opportunity to attend;  that Respondent failed to
 comply with Section 7114(a)(2)(A) of the Statute by conducting a formal
 discussion with a unit employee re a grievance and did not provide the
 Union with notice or an opportunity to attend - all in violation of
 Section 7116(a)(1), (5), and (8) of the Statute.
    Respondent's answer, dated March 19, 1982, admitted that the meeting
 occurred on December 14, 1981, as alleged, but denied it constituted a
 formal discussion and that Respondent violated the Statute as averred in
 the Complaint.
    A hearing was held before the undersigned on June 16, 1982 at San
 Francisco, California.  All parties were represented at the hearing.
 Each was afforded full opportunity to be heard, to adduce evidence, and
 to examine as well as cross-examine witnesses.  Thereafter briefs were
 filed with the undersigned which have been duly considered.  /2/
    At the hearing the parties entered into a written Stipulation of
 Facts (Joint Exhibit 2), which, together with the transcript and other
 exhibits, shall constitute the entire record herein.  Accordingly, based
 on the said Stipulation of Facts, as well as the exhibits herein, I make
 the following findings and conclusions:
                             Findings of Fact
    1.  At all times material herein the Union has been, and still is,
 the certified collective bargaining representative of the following
 employees in an appropriate unit:
          "All nonprofessional employees assigned to the Headquarters
       office, and to Regions I, II, III, IV, V, VI, VII, VIII and IX of
       the U.S. Customs Service, excluding all professional employees,
       all employees assigned to the Office of Investigations and the
       Office of Internal Affairs, management officials, employees
       engaged in Federal personnel work in other than a purely clerical
       capacity, confidential employees, guards and supervisors."
    2.  Both Union and Respondent are parties to a collective bargaining
 agreement covering the aforesaid unit of employees.  The said agreement,
 which became effective on April 18, 1980 for a period of two years,
 contained a negotiated grievance procedure.  Under Article 31 (Grievance
 Procedure), Section 3(1) thereof, a grievance includes any complaint by
 any bargaining unit employee concerning any matter relating to the
 employment of the employee.  The aforesaid bargaining agreement also
 contains, under Article 32, an arbitration procedure wherein a party,
 dissatisfied with final decision under the grievance procedure, may
 invoke arbitration and obtain a hearing thereon.  /3/
    3.  On or about August 25, 1981 the Union filed a grievance under the
 negotiated grievance procedure, as aforesaid, on behalf of bargaining
 unit employee Chester Lewandowski.  In accordance with Article 32 of the
 aforementioned agreement, arbitration was invoked by the Union and a
 hearing was scheduled for December 16, 1981.
    4.  The arbitration concerned a disciplinary suspension of
 Lewandowski by Respondent.  Prior thereto bargaining unit employee
 Walter Lisowski, pursuing his duties as a non-supervisory Customs
 Assignment Inspector, engaged in a disputed conversation re an upcoming
 overtime assignment.  Management based its disciplinary action of
 Lewandowski upon Lisowski's version of that disputed conversation which
 the latter reported to management.  The employer considered Lisowski's
 testimony as necessary to its case.
    5.  On or about December 14, 1981 Lisowski, who was stationed as an
 inspector at the Seattle/Tacoma Airport, was told by his immediate
 supervisor to report to the federal building at Seattle, Washington that
 day to meet with Sterl Miller and Jack Hammegar.  The record reflects
 that, at all times material herein, Miller was Respondent's Director,
 Labor Relations Office, San Francisco Region - a position having no line
 authority over bargaining unit positions;  that Hammegar, at all such
 times, was Respondent's Director of Inspection and Control, Seattle
 District - a position having line authority over Lisowski (his 4th level
 supervisor) and other bargaining unit positions.
    6.  The purpose of the meeting, to be attended by Lisowski, Miller,
 and Hammegar, as aforesaid, was to enable Miller, who would serve as
 Respondent's representative at the arbitration hearing on December 16,
 1981, to prepare for said hearing by having a discussion with Lisowski.
 The said representative proposed to conduct an interview of Lisowski to
 ascertain or confirm facts within the knowledge of said employee re his
 disputed conversation with Inspector Lewandowski and the report of the
 incident submitted to Lisowski to management.
    7.  The interview was conducted on December 14, 1981 as scheduled.
 The only people present thereat were Sterl Miller, Jack Hammegar and
 Walter Lisowski.  The Respondent did not notify the Union of the
 interview nor allow Erick Lick, who was the Union Steward and its
 representative assigned to the Seattle, Washington federal building, or
 any other representative, to be present during the meeting.
    8.  At the commencement /4/ of the aforesaid interview Miller told
 Lisowski that management wanted to call him as a witness at the
 scheduled arbitration hearing;  that questions to be asked that day
 would be like those asked at the hearing;  that it was voluntary for
 Lisowski to answer these questions at the interview;  that no reprisals
 would be taken if Lisowski refused to answer any of the questions at the
    9.  Miller had asked Lisowski if he would agree to be a witness at
 the arbitration hearing, and Lisowski agreed to do so.  After being
 informed by Miller of the information set forth in paragraph 8 above,
 Lisowski agreed to answer questions put to him at the interview and to
 testify at the forthcoming arbitration hearing.  Whereupon, Miller
 questioned Lisowski re the incident being arbitrated on December 16,
 1981.  No questions were related to internal Union business, and the
 interview or meeting lasted about 15 minutes.
    10.  The arbitration hearing was held, as scheduled, on December 16,
 1981 and Lisowski testified thereat as a witness for management.
    The issue posed for determination herein is as follows:  did the
 interview, which Respondent conducted with employee Walter Lisowski in
 preparation for an arbitration hearing involving disciplinary suspension
 of another unit employee, constitute a "formal" discussion requiring the
 employer to provide the Union an opportunity to be represented thereat?
    Under Section 7114(a)(2)(A) of the Statute an exclusive bargaining
 representative must be given an opportunity to be represented 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." In the instant case it is conceded that no
 notification was given to the Union re the interview management held on
 December 14, 1981 with Lisowski, nor was the bargaining representative
 allowed to attend and be represented.  Thus, if the meeting between
 Respondent's officials, Miller and Hammegar, and Lisowski may be deemed
 a "formal" discussion, a failure to allow the Union to be represented
 thereat will run afoul of 7114(a)(2)(A) and be violative of Section
 7116(a)(1), (5), and (8) of the Statute.  Department of Health,
 Education and Welfare, Region IV, Atlanta, Georgia, et al. 5 FLRA No.
    The lead case in the public sector involving the particular issue
 raised herein is Internal Revenue Service and Brookhaven Service Center,
 9 FLRA No. 132.  Two different situations were involved therein.  In one
 instance the bargaining representative had filed an unfair labor
 practice charge against the respondent employer.  Counsel for the latter
 met with employee Diane Frisina in order to prepare for the forthcoming
 hearing.  He advised the employee of his intentions;  that he desired to
 ask her about the facts in the case;  that she was not obliged to speak
 to him;  and there would be no reprisal against her in any event.  They
 discussed the facts re the unfair labor practice proceeding, but Frisina
 refused to give a written statement or testify at the hearing.  Counsel
 did not notify the Union of the meeting.
    In the second situation the respondent employer decided it would be
 necessary to call two employees as its witnesses at a forthcoming
 arbitration hearing.  The employer's representative, Elliot Carlin,
 advised William White, the union's Associate General Counsel, of his
 intention.  Moreover, Carlin told the Associate General Counsel that he
 planned on interviewing one of these employees beforehand.  White
 requested that a union representative be present at any meeting between
 Carlin and the employees, but his request was denied.  The employer's
 officials met separately with each employee.  He told the individuals
 that there was no requirement to speak with him;  that the purpose of
 the interview was to prepare respondent's case for the arbitration
 hearing;  that no reprisal would be taken against the employees if they
 chose not to be interviewed;  that each could have a representative
 present if so desired.  Each agreed to be interviewed and neither
 requested the presence of a union representative.
    The Authority concluded that the meetings with the employees in the
 Brookhaven Service Center case, supra, were not formal discussions
 within the meaning of Section 7114(a)(2)(A) of the Statute.  It stated
 that these meetings were, in truth, fact-gathering sessions;  that
 management was merely seeking information to aid in the preparation of
 its cases for prosecution before a third-party neutral, in the same
 manner as the exclusive representative might gather facts prior thereto.
  Under these circumstances, the Authority maintained, the agency was not
 required to give the bargaining representative an opportunity to be
 present, and its failure to do so did not constitute an unfair labor
 practice.  /5/ The rationale adopted in the cited case was adhered to in
 United States Department of the Treasury, United States Customs Service,
 Region V, 9 FLRA No. 134 (involving interviews with employees to gather
 facts for unfair labor practice hearing).
    The Union herein attempts to distinguish the instant matter from the
 recent decisions handed down by the Authority.  It contends that in both
 previous cases management conducted interviews in order to ascertain
 necessary facts, whereas the Respondent herein already knew the facts
 prior to the interview.  Further, the Union would distinguish instances
 where a bargaining representative ascertains facts from those where
 management interviews an employee.  It adverts to the inability of the
 union to order a supervisor, during working hours, to have the employee
 report to the union office.
    Upon due consideration I am constrained to conclude that the asserted
 dissimilarities among these cases are distinctions without a difference.
  Respondent's representative Miller conducted the same type of interview
 of Lisowski as took place in the Brookhaven Service Center and U.S.
 Customs Service case, supra.  In essence, management sought to interview
 Lisowski in order to discuss the facts concerning that employee's
 conversations with Inspector Lewandowski - all in preparation for
 calling Lisowski as a witness at the arbitration hearing scheduled for
 December 16, 1981.  In the cited cases management interviewed employees
 in order to verify factual data and present the individuals as witnesses
 on behalf of the employer in forthcoming hearings.  While the Union
 herein might not welcome the holding by the Authority in the Brookhaven
 Service Center and U.S. Customs Service cases, I deem the facts therein
 equitable to those in the case at bar.  Accordingly, I find that said
 decisions are determinative of the issue raised in the instant matter
 and conclude the interview management held with Lisowski was not a
 formal discussion under 7114(a)(2)(A) of the Statute.  Therefore
 Respondent was not obliged to permit the Union herein to be represented.
  Its failure to do so was not violative of Section 7116(a)(1), (5), and
 (8) as alleged.
    Accordingly, and in view of the foregoing, I recommend the Authority
 adopt the following Order:
    It is hereby ordered that the Complaint in Case No. 9-CA-20118 be,
 and it hereby is, dismissed.
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 Date:  October 22, 1982
          Washington, D.C.
 --------------- FOOTNOTES$ ---------------
    /1/ The said amended charge also named U.S. Customs Service,
 Washington, D.C. as a party against whom it was filed.  However, the
 complaint herein is limited to U.S. Customs, Region VIII, San Francisco,
    /2/ In a motion dated September 8, 1982 the General Counsel moved the
 undersigned to remand this case to the Regional Director for withdrawal
 of the Complaint based on recent Authority decisions in Internal Revenue
 Service and Brookhaven Service Center, 9 FLRA No. 132, and U.S.
 Department of the Treasury, U.S. Customs Service, Region V, 9 FLRA No.
 134.  The undersigned issued an Order To Show Cause on September 14,
 1982 why such motion should not be granted.  A Response to said Order To
 Show Cause was filed with the undersigned on October 1, 1982 by the
 Charging Party.  The latter, in opposing the said Motion, contended
 there are factual distinctions between the case at bar and the
 Brookhaven case, supra.  Further, it asserts the circumstances herein
 call for a different conclusion, and that the interview by Respondent
 met the criteria of a "formal" discussion.  In view of those
 contentions, and since the Charging Party indicates it desires to
 preserve its rights of appeal, the undersigned hereby denies the General
 Counsel's Motion to remand the case for withdrawal of the Complaint.
    /3/ Under Article 32 arbitration may be invoked only by the Union or
 the employer.
    /4/ Respondent's representative had previously identified specific
 and general questions he intended to ask the employee.  Miller had a few
 written notes with him at the interview.
    /5/ In its decision the Authority pointed out that such
 fact-gathering sessions may not be conducted without limitation.  Thus,
 its questioning must not be coercive, and the employee must be assured
 no reprisal will ensue if he refuses to participate in the session.  In
 the case at bar no allegation is made in the complaint, nor is it
 contended, that Respondent engaged in coercive questioning in violation
 of 7116(a)(1) of the Statute.  Moreover, it is conceded that the
 employee was assured his participation was voluntary and no reprisal
 would follow if he refused to answer any questions.