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13:0164(35)CA - Labor, Employment Standards Administration and James Brown -- 1983 FLRAdec CA

[ v13 p164 ]
The decision of the Authority follows:

 13 FLRA No. 35
 Charging Party
                                            Case Nos. 2-CA-745 
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in certain unfair labor practices alleged in the consolidated complaint,
 and recommending that the complaint be dismissed in its entirety.
 Thereafter, the General Counsel filed exceptions to the Judge's Decision
 and the Respondent filed an opposition thereto.
    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 recommended order.
    The Authority agrees with the Judge's conclusion that the Respondent
 did not violate the Statute on January 20 by directing a unit employee
 to answer inquiries concerning his whereabouts on January 7 although he
 was unaccompanied by a Union representative.  Section 7114(a)(2)(B)
 requires that an exclusive representative be given the opportunity to be
 represented at "any examination of an employee . . . in connection with
 an investigation" where the employee "reasonably believes that the
 examination may result in disciplinary action" and "the employee
 requests representation." As noted by the Judge, the Respondent had
 postponed the meeting on three prior occasions due to the employee's
 failure to secure Union representation, or to explain his failure to do
 so.  In addition, before the January 20 meeting, the Respondent
 specifically notified the Union that the employee was having difficulty
 in obtaining a Union representative and was advised that such
 representation would be arranged.  Nevertheless, on January 20, the
 employee again appeared without a Union representative and provided no
 indication of when he would be able to attend with a representative, if
 ever.  Under the foregoing circumstances, wherein the Respondent had
 taken every reasonable step to ensure that the Union had an opportunity
 to represent an employee who had requested such representation, the
 Authority finds that the Respondent did not violate section 7116(a)(1)
 and (8) of the Statute by proceeding with the January 20 meeting.
    IT IS ORDERED that the consolidated complaint in Case Nos. 2-CA-745,
 2-CA-765 and 2-CA-771 be, and they hereby are, dismissed.  
 Issued, Washington, D.C., September 29, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                                       Case Nos.: 2-CA-745, 2-CA-765,
    Sheila K. Cronan, Esq.
          For the Respondent
    James Brown
          Pro Se
    Steven Sharfstein, Esq.
          For the General Counsel, FLRA
         Administrative Law Judge
                           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. 7101
 et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the
 Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
 C.F.R.XIV, 2410 et seq.
    James Brown, an individual, (hereinafter called Brown and/or the
 Charging Party) filed a charge in Case No. 2-CA-745 on January 12, 1981,
 a charge in Case No. 2-CA-765 on January 21, 1981 and a charge in Case
 No. 2-CA-771 on February 5, 1981 alleging that Department of Labor,
 Employment Standards Administration (hereinafter called Respondent
 and/or DOL-ESA) violated the Statute.  On March 30, 1981 the General
 Counsel of the FLRA, by the Director of Region 2, issued an Order
 Consolidating Cases, Complaint and Notice of Hearing alleging that
 Respondent violated Sections 7116(a)(1) and (8) of the Statute by
 denying Brown's request to be represented at meetings conducted by
 DOL-ESA.  Respondent filed an answer denying that it violated the
    A hearing in this matter was conducted before the undersigned in New
 York, New York.  The General Counsel of the FLRA, Respondent and
 Charging Party were represented and afforded full opportunity to be
 heard, to examine and cross-examine witnesses, to introduce evidence and
 to argue orally.  Post hearing briefs were filed and have been fully
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
                             Findings of Fact
 A. Background
    At all times material herein Respondent and the National Council of
 Field Labor Locals, American Federation of Government Employees, AFL-CIO
 (hereinafter called the Union) were parties to a collective bargaining
 agreement covering a collective bargaining unit composed of all
 Department of Labor employees throughout the nation in field duty
 stations.  The Charging Party, is an employee of Respondent's Office of
 Contract Compliance Programs (OFCCP), New York Area Office, 60 Hudson
 Street, New York City and is a member of the collective bargaining unit.
  At all times material herein Brown's immediate supervisor was Module
 Supervisor Leroy Gillead and the City Area Office Director of the New
 York Area Office of OFCCP was Harry Anbarlian.  The New York Area Office
 was divided into four modules, each headed by an Equal Employment
 Opportunity Supervisor or Module Supervisor.
    On January 7, 1981 Brown had a morning appointment with an FLRA
 investigator.  /1/ On January 7, 1981, prior to his leaving his office,
 Brown was approached by Gillead at 9:00 or 9:15 a.m. and Gillead
 reminded Brown of the appointment with the FLRA.  Brown attended a staff
 meeting and then assembled the material for the investigation.  At about
 10:20 a.m. Gillead asked Brown why Brown had not yet left and Brown
 explained that he had to assemble certain material.  Brown arrived at
 the FLRA office at about 10:30 a.m. and left at about 11:30 a.m.  /2/
 with an amended charge which, after lunch, Brown served on Respondent's
 Regional Administrator, Mr. Mercurio, at the Regional Office at 1515
 Broadway.  Brown returned to his own office at about 3:30 p.m. and
 advised Gillead that he, Brown, had another appointment with the FLRA
 investigator the next morning, January 8, 1981 to continue the
 investigation.  Gillead asked Brown what time Brown had returned to the
 office and Gillead advised Brown that Brown had to account for his time
 that day.
    Later, on January 7, Brown went to Anbarlian's office to talk to him.
  They discussed primarily a time and attendance matter and I find that
 Anbarlian did not tell Brown that Brown could not have Union
 representation at future meetings.  /3/
    On January 8, 1981, during the morning, Brown returned to the FLRA
 investigator and continued that investigation.  Gillead and Anbarlian
 scheduled a meeting for January 8, 1981, on Brown's return, for the
 purpose of asking Brown to account for his time on January 7.  Gillead
 advised Brown he could bring his Union representative.  Brown arrived at
 the meeting without a Union representative and requested additional
 time.  Anbarlian rescheduled the meeting for January 8, 1981, advising
 Brown that he could utilize two hours before the meeting to meet with
 the Union representative.
    On January 9, 1981 Anbarlian was advised that Union Shop Steward
 Barbara Ricks had been removed as Shop Steward.  Brown advised Anbarlian
 that he wished to have the meeting postponed because of the
 unavailability of the Union Steward.  Anbarlian agreed and the meeting
 was postponed and rescheduled for January 12, 1982.  Brown indicated he
 would try to get Union representation.  Anbarlian advised Brown that it
 was important that Gillead and Anbarlian knew of Brown's whereabouts.
 B.  January 12, 1982 Meeting
    On January 12, 1982 Anbarlian called Brown during the morning and
 told him to come down to the meeting.  Anbarlian, Gillead and Brown met
 in Anbarlian's office.  When Brown arrived he indicated that he didn't
 have a Union representative.  Anbarlian told Brown that the meeting had
 already been postponed a few times and that Anbarlian and Gillead
 wanted, and were entitled, to know where Brown was on January 7, 1981.
 Brown insisted that he wanted Union representation and refused to
 answer.  Anbarlian advised Brown that they would have to charge Brown
 AWOL for the unaccounted for time on January 7.  Anbarlian stated that
 they had to know where Brown was.  Brown stated that it was management's
 fault that he could not get Union representation.
    After this meeting Anbarlian called Respondent's labor officer, Susan
 Horwitz, and advised her that Brown was having difficulty obtaining a
 Union representative.  Horwitz then called Shirley Shivers-Hays, Union
 Executive-Vice President and advised Shivers-Hays about the problems
 Brown was having obtaining union representation.  Shivers-Hays advised
 Horwitz that Shivers-Hays would contact Brown and arrange for Union
 representation.  A few minutes later Union President Peter Richardson
 called Horwitz.  Horwitz advised Richardson of her recent conversation
 with Shiver-Hays.  Richardson indicated that he would speak with
 Shiver-Hays.  C. January 20 Meeting
    On January 19, 1981 Gillead advised Brown that Anbarlian wanted to
 see Brown the next day, January 20, 1981, to discuss, among other things
 Brown's whereabouts on January 7, 1981 and that Brown should bring his
 Union representative.  Brown arrived at the meeting with Gillead and
 Anbarlian without a Union representative.  The meeting concerned three
 topics, a pay and leave problem, continued work performance counselling
 and Brown's whereabouts on January 7.  Brown, when questioned about his
 whereabouts and use of time on January 7, requested Union
 representation.  Anbarlian insisted that the meeting continue since it
 was important for Gillead and Anbarlian to know Brown's whereabouts on
 January 7.  Brown, rather briefly, recounted his whereabouts.  Gillead
 questioned Brown concerning the times he left the office and went to
 lunch on January 7.  Gillead also asked whether Brown had checked in and
 out on January 7, as required by the collective bargaining agreement and
 Gillead also asked Brown whether Brown had misrepresented the time for
 the scheduled January 8 FLRA investigation.  The meeting was, at least
 in part, heated.  D.  January 29 Meeting
    On January 29, 1981 there was an employee meeting concerning work in
 Anbarlian's office.  Brown continued the discussion until about 1:55
 p.m.  Brown left for lunch at the conclusion of the discussion and
 returned from lunch at about 2:35 p.m.  /4/ Mr. Gillead questioned Brown
 as to when he returned from lunch and why he had been so late.  Brown
 explained that he had been at the meeting until 1:55 p.m.  Gillead
 indicated that Brown had no permission for a late lunch and would Brown
 like to talk annual leave.  Brown indicated that he would not and that
 he was going to see Anbarlian.  The meeting lasted less than five
 minutes.  With respect to this meeting I credit Mr. Gillead that Brown
 did not ask for a Union representative.  In addition to the demeanor of
 the witnesses, the nature and brevity of the meeting made it highly
 unlikely that Brown would have specifically requested a Union
                        Discussion and Conclusions
    Section 7114(a)(2)(B) of the Statute provides that an exclusive
 bargaining representative 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 meetings of January 12 and 20, 1981 between Brown and Gillead and
 Anbarlian were within the purview of Section 7114(a)(2)(B) because they
 were examinations of an employee by agency representatives in connection
 with an investigation of Brown's whereabouts.  Further Brown reasonably
 believed these meetings could result in his discipline and he asked for
 Union representation.  cf. Internal Revenue Service, Detroit, Michigan,
 5 FLRA No. 53 (1981);  Lackland Air Force Base Exchange, 5 FLRA No. 60
 (1981);  U.S. Department of Navy, U.S. Marine Corps, Marine Corps
 Logistics Base, 4 FLRA No. 54 (1980);  and Internal Revenue Service,
 Washington, D.C. and Hartford District Office, 4 FLRA No. 37 (1980).
 Brown was therefore entitled to Union representation at these meetings.
 However, in the circumstances present in this case DOL-ESA did not deny
 Brown the right to such Union representation.  Quite to the contrary,
 DOL-ESA took every reasonable step to enable Brown to secure Union
 representation including postponing meetings a number of times and then
 contacting the Union to advise it that Brown was apparently encountering
 difficulty in securing union representation.  The record contains no
 evidence as to what steps, if any, Brown took to obtain Union
 representation.  At the January 12 meeting Anbarlian reminded Brown that
 the meeting had already been postponed so that Brown could secure Union
 representation.  Anbarlian told Brown that Respondent had a right to
 know where Brown was on January 7 and that if there was no explanation
 Brown could be charged with being AWOL.  Brown insisted on his right to
 Union representation and answered no questions.  The DOL-ESA
 representatives then did not insist that Brown answer nor did they
 pursue the matter and there is no evidence that Brown was in any way
 disciplined for failing to respond to Anbarlian's inquiry.
    At the January 20, meeting however, after a days warning that the
 meeting would be held, Brown again attended without Union
 representation.  On this occasion Respondent's representative did insist
 that Brown respond to their inquiries, even though Brown had no Union
 representative.  Brown did account for his time on January 7.
 Respondent did not at any time forbid Brown from bringing a Union
 representative and there is no showing that at any of the meetings Brown
 indicated precisely when, if ever, he would be able to attend a meeting
 with a Union representative.  In these circumstances Respondent did not
 deny Brown permission to be represented by the Union;  rather, after the
 numerous delays Respondent merely insisted that Brown account for this
 time on January 7.
    Accordingly it is concluded that, with respect to the January 12 and
 January 20, 1982 meetings, Respondent did not violate Section
 7114(a)(2)(B) of the Statute by denying Brown Union representation.
 Rather when Brown repeatedly failed to bring a union representative,
 Respondent insisted on continuing the examination.
    With respect to the January 29 meeting I need not reach the issue
 whether it was encompassed by Section 7114(a)(2)(B) of the Statute /5/
 because Brown did not request Union representation.  Thus Respondent did
 not fail to comply with its obligations set forth in Section
 7114(a)(2)(B) of the Statute.
    In light of the foregoing conclusions that Respondent did not fail to
 comply with Section 7114(a)(2)(B) of the Statute, it is concluded, that
 DOL-ESA did not violate Sections 7116(a)(1) and (8) of the Statute.
 Accordingly, I recommend that the FLRA adopt the following:
    It is hereby Ordered that the Consolidated Complaint in Case Nos.
 2-CA-754, 2-CA-765 and 2-CA-771, be and hereby is dismissed.
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 Dated:  April 29, 1982
          Washington, D.C.
 --------------- FOOTNOTES$ ---------------
    /1/ The FLRA was investigating the charge in Case No. 2-CA-709.  That
 charge, filed by Brown, alleged a refusal to permit Brown to have union
 representation in violation of Section 7114(a)(2)(B).  The charge in
 Case No. 2-CA-709 is not at issue in this proceeding and was withdrawn.
    /2/ Brown had left his briefcase containing relevant documents at
 home and therefore he made an appointment to meet the FLRA investigator
 again the next day, January 8, 1981, in the morning.
    /3/ In my findings, where there is a conflict, I credit Anbarlian's
 and Gillead's versions and do not credit Brown's.  Anbarlian and Gillead
 were more credible witnesses than Brown, not only because of their
 demeanor, but also because their testimony was more reasonable and
 consistent with the other occurrences.
    /4/ There was a dispute whether this was in violation of an
 inter-office memo that provides that lunch periods are to begin and end
 between 11:30 a.m. and 2:00 p.m.  The merits of this dispute are
 irrelevant to the instant case.
    /5/ If such a determination were necessary, I would conclude that
 this was the type of everyday supervisor-employee encounter that is not
 within the purview of Section 7114(a)(2)(B) of the Statute.