[ v14 p334 ]
The decision of the Authority follows:
14 FLRA No. 59 DEPARTMENT OF JUSTICE BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3696, COUNCIL OF PRISON LOCALS Charging Party Case No. 4-CA-1227 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 alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent 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 adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge found that the Department of Justice, Bureau of Prisons, Federal Correctional Institution (the Respondent) violated Section 7116(a)(1) and (8) of the Statute /1/ when it conducted a strip search of C. R. Arnold, an employee in a bargaining unit exclusively represented by American Federation of Government Employees, Local 3696, Council of Prison Locals (the Charging Party or the Union), without permitting representation of Arnold by the Charging Party. She determined that such a search, even absent oral interrogation, was an "examination" within the meaning of section 7114(a)(2)(B) of the Statute. /2/ The Authority does not reach that issue because it is concluded in the circumstances presented that the employee withdrew his request for union representation, a prerequisite under Section 7114(a)(2)(B)(ii) to such representation. Officials at the Respondent's Butner, N.C. Correctional Facility had been informed that Arnold, a guard at that facility, was trafficking with inmates. An inmate passed a marked $20 bill to Arnold in accordance with a prearranged plan, and on the morning of August 10, 1981, Arnold was called into the personnel office in connection with the investigation of that matter. Arnold was advised of his right to remain silent and of his right to have a representative of his Union present. He was given a written statement of those rights and he signed that statement. At that point in time, Arnold requested Union representation. Management agents immediately attempted to contact the specific individuals Arnold requested as Union representatives, and called several before Union Second Vice President Presley was called at his house. Presley's daughter answered and informed management's agent that Presley had gone to bed. When so informed, Arnold stated that Presley should not be bothered. Almost immediately, Presley called back to say that he was on his way back to the Activity, and, as found by the Judge, Arnold was aware of that fact. At that point, Arnold stated to the management officials that they should go ahead with "it," which the Judge found referred to the expected oral interrogation, without waiting for Presley to arrive. When Arnold made that statement, a management official told him to step behind a partition in order to be strip searched. Arnold replied, "All right, I don't have anything to hide." The strip search was conducted, Arnold dressed and left the building, and met Presley in the parking lot. Less than twenty minutes had elapsed since Presley was first called. At no time was Arnold interrogated in connection with his strip search. It is clear that, while Arnold initially sought Union representation before an expected oral interrogation, he subsequently withdrew that request. Thus, when informed that Presley, the last on his list of proposed representatives, had gone to bed, Arnold stated that Presley should not be bothered. Even when told that Presley was on his way, Arnold told management to go ahead with "it," meaning the interrogation. Then, when informed that he was to be strip searched, Arnold willingly submitted to the search. Arnold knew that Presley could be on the scene in ten minutes or less; nevertheless, by his words and actions, he withdrew the request for representation by his exclusive representative. Accordingly, without passing upon whether Arnold otherwise would have been entitled to union representation, the Authority concludes that the Respondent did not fail to comply with section 7114(a)(2)(B) of the Statute since a request for representation is a prerequisite to any obligation under that section. /3/ It follows that the Respondent did not violate section 7116(a)(1) and (8) of the Statute as alleged. ORDER IT IS ORDERED that the complaint in Case No. 4-CA-1227 be, and it hereby is, dismissed. Issued, Washington, D.C., April 26, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 4-CA-1227 Robert M. Wilansky, Attorney for Respondent Regina N. Kane, Attorney for the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO, Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp. V, 1981), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the "Statute," and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. Pursuant to a charge filed by the Charging Party on September 14, 1981 and amended on September 28, the Regional Director of Region IV of the Federal Labor Relations Authority (hereinafter, the "Authority") investigated and, on January 27, 1982, issued the complaint initiating this proceeding. On February 2, 1982, the complaint was withdrawn "in view of policy considerations raised by its allegations." See GC 1(f). /4/ On July 26, 1982, it was reissued. The complaint alleges that on or about August 10, 1981, Respondent's agents, at its Butner, North Carolina, facility, conducted a strip search of bargaining unit employee C. R. Arnold, in connection with an investigation concerning alleged trafficking in contraband with inmates, that the employee reasonably believed that the strip search could lead to disciplinary action against him, that he requested a union representative be present at said strip search, and that, notwithstanding this request, Respondent's agents refused to permit a representative of the Union /5/ to be present during the conduct of the strip search. The complaint alleges that, by these acts, Respondent has failed and refused, and is continuing to fail and refuse, to comply with Section 7114(a)(2)(B) of the Statute, and thereby violates Sections 7116(a)(1) and (8) of the Statute. /6/ Respondent admits that its agents conducted a strip search of C. R. Arnold on or about August 10, 1981, in connection with an investigation concerning alleged trafficking in contraband with inmates. However, it denies that any statutory violations occurred in connection with the search. Specifically, Respondent denies that the search was an "examination," within the meaning of Section 7114(a)(2)(B), that the employee reasonably believed that the strip search could lead to disciplinary action against him, that the employee requested a representative of the Union be permitted to be present at the strip search, or that its agents refused such a request. The case was heard on February 15, 1983, in Durham, North Carolina. The Respondent and the General Counsel appeared, adduced evidence, and examined witnesses. A brief dated April 15 was submitted by the General Counsel, and one dated April 18 by Respondent. These submissions were in compliance with an order dated March 9, which extended the briefing time to April 18, pursuant to a request of the General Counsel, concurred in by the Respondent, and without objection from the Charging Party. Based upon the record made in this proceeding, my observation of the demeanor of the witnesses, and the briefs, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact 1. It is admitted that the Charging Party is a "labor organization," within the meaning of the Statute and, during all times material herein, has been and is now the exclusive representative of a bargaining unit of employees employed at Respondent's prison facility at Butner, North Carolina. 2. It is admitted that Respondent is an "agency," and that the following persons were "supervisors" and/or "management officials," within the meaning of the Statute, during the period here relevant: Paul Hungerford . . . . Chief Correctional Supervisor Alexander Howard. . . . Personnel Officer George Snyder . . . . . Personnel Management Specialist Otis Ogden. . . . . . . Correctional Supervisor Wayne Pearson . . . . . Correctional Supervisor 3. It is admitted and established that on August 10, 1981, Respondent, at its Butner, North Carolina, facility, by its agents Otis Ogden and Wayne Pearson, in the presence of Paul Hungerford, Alexander Howard and George Snyder, conducted a strip search of bargaining unit employee C. R. Arnold in connection with an investigation concerning alleged trafficking in contraband with inmates. 4. C. R. Arnold had been an employee of Respondent for 13 years prior to his resignation in August 1981. He worked first at the prison in Atlanta, Georgia, and then, from July 1978 to August 1981, at the one in Butner, North Carolina. In December 1980, he received a Sustained Superior Performance Award. In August 1981 he was a Senior Correctional Officer working with inmates. His first-line supervisor was Lt. Ogden. His second-line supervisor was Capt. Hungerford. His third-line supervisor was Associate Wardens Hayes and Tolfrey. His fourth-line supervisor was Warden Emery. 5. Right before the 5:00 a.m. count procedure on August 10, 1981, /7/ Officer Arnold discovered a $20 bill in his lunch bucket, hidden under some pay slips. He suspected that someone had "planted" it on him (TR 19). He did not know who. He cut it up and disposed of it in the commode. 6. At 6:00 a.m., Capt. Hungerford was informed, before he came to work, that an inmate had passed a marked $20 bill to Officer Arnold, in accordance with a prearranged plan. 7. The prearranged plan had been put into effect after Capt. Hungerford had been informed, by a "reliable informant," (TR 223) who was an inmate, that Officer Arnold had brought certain items, such as inhalers, whiskey, and skin creams, into the institution for him in exchange for money. The inmate told Capt. Hungerford that he was now angry at Officer Arnold and wanted to "inform" (TR 223) on him. 8. Between 7:45 a.m. and 8:00 a.m., Capt. Hungerford and Lts. Ogden and Pearson assembled in the Personnel Office in order to confront Officer Arnold as he left the institution at the conclusion of his shift. Present also in the Personnel Office were Cathy Parrott, a Personnel Assistant, the Personnel Officer, Mr. Howard, and Personnel Specialist, Mr. Snyder. The Personnel Office is next to the front door of the institution and is divided by partitions formed by two sets of 15-foot high file cabinets with an opening in between. Ms. Parrott sits in front of the partitions, near the door. Mr. Howard and Mr. Snyder sit behind the partitions with Mr. Snyder to the left and Mr. Howard to the right, as one enters the Personnel Office. 9. At 8:05 a.m., Officer Arnold approached the front door of the institution and was asked by Capt. Hungerford, accompanied by Lt. Pearson, to step into the Personnel Office. Officer Arnold raised no objection and did as he was asked to do. 10. Officer Arnold was told by Capt. Hungerford that "information" had been received that Officer Arnold "was traffic(k)ing with inmates" (TR 23). 11. In the presence of all those mentioned in finding 8, supra, Capt. Hungerford read to Officer Arnold from a form and then asked Officer Arnold to sign it, which he did. The form is called a "Non-Compelled Testimony Rights Form" (RI) and reads as follows: YOUR RIGHTS You are about to be questioned as part of an investigation being conducted into allegations that you have been involved in misconduct. Because the allegations might cover criminal misconduct on your part as well as violations of FPS regulations, you are being advised of your rights in this matter. -- You have a right to remain silent if your answers tend to incriminate you in a criminal matter. -- Anything you say may be used as evidence both in an administrative proceeding or any future criminal proceeding involving you. -- If you refuse to answer the questions posed to you on the ground that the answers may tend to incriminate you, you cannot be discharged solely for remaining silent. However, your silence can be considered in an administrative proceeding for the evidentiary value that may be warranted by the facts surrounding your case. -- You must answer truthfully and fully all questions which the answers to would not tend to incriminate you in a criminal matter. -- If you are a member of the bargaining unit and you believe your rights are being threatened, you may request the presence of a representative. If you desire a representative no further questioning will take place until your representative is present. However, if your representative is not available within a reasonable period of time, questioning may proceed without a representative being present. Do you understand each of your rights and responsibilities listed above? . . . . 12. Mr. Howard then asked Officer Arnold if he wanted a union representative. Officer Arnold replied that he did. This occurred at about 8:10 a.m. Officer Arnold first requested the union president, Mr. Clem, and then Mr. Goggin. Neither was available. Mr. Snyder and Ms. Parrott called several other active union members, but could not locate them. Finally, Officer Arnold requested Robert Presley, the Union's second vice-president and a Senior Officer Specialist at the Butner facility. Officer Presley had also been a union steward for some five years. 13. Officer Presley was located at home, about 8:15 a.m., by Mr. Snyder. He had just come off the midnight-to-8:00 a.m. shift and had gone to bed, but not to sleep. Mr. Snyder so informed Mr. Howard. All present in the Personnel Office could have overheard him, although Officer Arnold could not recall overhearing that Officer Presley had been called and had gone to bed. Officer Presley's 12-year-old daughter had received the call and went to tell her father that he had been called by the Personnel Office. Officer Presley put on his pants and immediately called the institution. Mr. Snyder answered the phone when Officer Presley called back, and told him that Mr. Howard wanted him to represent Officer Arnold. Officer Presley responded that he would be there in five to ten minutes. Mr. Snyder so informed Mr. Howard. All present in the Personnel Office could have overheard him. Officer Arnold was told that Officer Presley was "coming in" (TR 53); and Officer Arnold knew how close he lived to the institution. Officer Presley left his home at about 8:20 a.m. At normal speeds, it takes him about 10 minutes to drive to the institution. As he arrived at the institution, he saw Officer Arnold coming down the sidewalk. He was "surprised" that Officer Arnold would be out of the institution "that quick" and checked his watch. It showed 8:28 a.m. The 8:15 a.m. call to Officer Presley, and the 8:28 a.m. exit time of Officer Arnold from the institution were firmly established through the testimony of Officer Presley. His testimony was given in a positive manner and was based on long experience, as a law enforcement officer, in estimating time, the checking of his watch, and the routine he follows each day. 14. Between the 8:15 a.m. call to Officer Presley and the 8:28 a.m. exit of Officer Arnold from the institution, the strip search of Officer Arnold was conducted. Including checking all his clothing, coat, lunch box, shoes, wallet and the actual body search, the whole process took about 10 minutes. (Compare the estimate of Lt. Pearson, who conducted the strip search, along with Lt. Ogden, (TR 159) with the time frame established by the testimony of Officer Presley, as set forth in finding 13, supra. At the time of the search, Officer Arnold could not be sure that something else had not been planted on him that he had not found. 15. A strip search is ordinarily a "stressful ordeal" (TR 220). Officer Arnold's mood throughout the time spent in the Personnel Office, and immediately after was described as follows: a. Officer Presley, who saw him as he exited the institution, described him as "upset," "tired," "want(ing) to go home" and "sleep on it," "distraught, red faced, nervous, talking fast" (TR 83, 84). b. Lt. Pearson described him as "very jovial at the time (when the names of union representatives were being mentioned, before the strip search) very cooperative" (TR 132-133) and "laughing and joking" and "a very light atmosphere on his part" (TR 142-143). During the strip search, Officer Arnold exhibited "slight nervousness" (TR 147), but was "not distraught," and was no more "red in the face" than usual (TR 148). He observed a "(s)light trembling of the hands, during the strip search (TR 148). Officer Arnold was observed "talking the whole time" he was in the Personnel Office (TR 155). c. Mr. Howard testified that Officer Arnold was not "jovial," was "anxious" but not "very nervous," not "jittery," and not "all red in the face" (TR 191). Mr. Howard assumed that Officer Arnold was "somewhat frightened" (TR 191). Mr. Howard opined that Officer Arnold did not seem "too concerned" about getting a union representative for himself (TR 166). D. Capt. Hungerford heard "(j)ust lighthearted conversation" between Officer Arnold and the two lieutenants conducting the strip search (TR 220). Capt. Hungerford opined that the strip search was not stressful for Officer Arnold "(b)ecause he is lighthearted and he jokes and he doesn't take anything very seriously" (TR 220). Capt. Hungerford was told by Officer Arnold, after the strip search, that it "wasn't a big deal" and that "(h)e'd been through it before" (TR 220). 16. Based upon the above accounts of Officer Arnold's mood throughout his stay in the Personnel Office, his circumstances at the time, the ordinary stressfulness of a strip search, and his prior long and recently-honored career as an employee of Respondent. I find that Officer Arnold had reason to fear that something besides the $20 bill had been planted on him, that he was upset, distraught, tired, nervous, humiliated, and unable to think straight. His appearance, to some, of joviality, lightheartedness, and unconcern about receiving union representation, was a bluff, made so that he might appear innocent of the charge against him. Any lightheartedness he may have felt certainly would have vanished when he realized a strip search was to occur. See the details of the strip search, set forth at TR 28. 17. There is dispute as to whether Officer Arnold told his assembled supervisors not to bother Officer Presley and, after learning that he was on his way to the prison, to go ahead with "it," without waiting for Officer Presley to arrive. Officer Arnold testified that he "kept looking for Mr. Presley to come" and made no mention of the union representative, after requesting one and up until the time of the search (TR 29). He denied telling anyone present at the strip search to tell Officer Presley "not to bother coming in," or that he did not need a union representative or the aid of Officer Presley (TR 30). Mr. Howard, Lt. Pearson, and Capt. Hungerford all testified to the effect that Officer Arnold, before the strip search, stated, first, not to bother Officer Presley, upon learning that he had already gone to bed, and then, not to wait for Officer Presley and to go ahead with "it," after learning that Officer Presley was on his way. See TR 135, 150-151, 171-173, 191, 192, 216-217, 219, 237, 238-239, 240 and 247-248. All three sounded positive of their recollection, as to this point; and they corroborate each other. I find that Officer Arnold, being talkative, too tired and distraught to think straight, and trying to appear unconcerned about the whole matter, did make these statements (not to bother Officer Presley and to go ahead with "it"), but simply could not recall them. /8/ 18. After Officer Arnold told his assembled supervisors to go ahead with "it," without waiting for Officer Presley, the strip search began, with Capt. Hungerford telling him "step over here," for a strip search (TR 235, 27). Officer Arnold replied: All right, i don't have anything to hide" (TR 32). 19. There is a dispute as to whether Officer Arnold realized that a strip search was to be made before he made the statement about not waiting for Officer Presley, and to go ahead with "it." Officer Arnold claims that he did not realize the intent to strip search him until told to "step over here." see TR 27. The Non-Compelled Testimony Rights Form, which he had just signed, states "You are about to be questioned." See finding 11, supra. It says nothing about a strip search. Capt. Hungerford at first testified that he had did not believe that he had mentioned a strip search to Officer Arnold before telling him "step over here." See TR 234 and 235. Then he changed his testimony and stated: "I believe that when we completed the Compelled Testimony Rights that we did state . . . you know, it is my intention to search you" (TR 236). Mr. Howard testified that even he did realize a strip search was going to occur until he actually observed it himself, and that Officer Arnold could have been in the same position. See TR 181-182. Lt. Pearson testified that Officer Arnold was not told that a strip search would occur until just before it happened, and that this was after Officer Arnold said there was no reason to get Officer Presley out of bed. See TR 145-146. Carl Swick, a Labor Relations Specialist for Respondent testified that, at an arbitration hearing, in August 1981, he cross-examined Officer Arnold on the issue of the strip search. The arbitration concerned a claim that Officer Arnold had been involuntarily terminated as a result of the strip search here at issue, and a five-day suspension he would have served, had he not resigned. Mr. Swick testified that Officer Arnold testified that "he was told that (Capt. Hungerford and Lt. Pearson) wanted to search him" (TR 257-258) and, further, that he told him "to go ahead with the search, that there was no reason to get Mr. Presley up and have his come in" (TR 259). Mr. Swick did not display a good memory or appear confident of the accuracy of his recollection. See, e.g. TR 255. 20. I find that Officer Arnold did not know that he was going to be strip-searched until after he had told his supervisors not to wait for Officer Presley, and that his statement about going ahead with "it" referred to the questioning, not the strip search. I base this upon the testimony of Officer Arnold, Lt. Pearson, and Mr. Howard, who appeared far surer of their testimony, on this point, than Capt. Hungerford or Mr. Swick. See finding 19, supra. 21. At the time of the strip search in the Personnel Office, Ms. Parrott had been asked to leave and had locked the door to the Personnel Office. Assistant Warden Tolfrey came into the Personnel Office during the search. Lt. Pearson did the body search. Lt. Ogden searched the possessions of Officer Arnold. Capt. Hungerford, Mr. Howard, and Mr. Snyder were in attendance during the search. 22. Nothing incriminating was found during the search of Officer Arnold's body and possessions. Officer Arnold did not know whether he was going to be questioned, after the search, and commented that "Presley should be here by now" (TR 29). Capt. Hungerford replied: "you don't need one now" (TR 30) and told Officer Arnold that he was free to go. During the time Officer Arnold was detained, no oral interrogation took place. 23. Mr. Howard testified that he would have stopped the process if any questions had been put to Officer Arnold, until a union representative arrived, but that union representation was not a "necessity" for a strip search (TR 177-178). 24. It would have been an act of insubordination for Officer Arnold to have declined to step into the Personnel Office, sign the form, and submit to the strip search. Had Officer Arnold refused, Capt. Hungerford would have brought in the FBI to arrest him. 25. Officer Presley had represented another employee who was also strip-searched, sometime during the three-month period preceding August 1981. Officer Presley was present at the strip search. After a discussion between Officer Presley and the employee, they agreed that it would be best if the employee resigned, which he did. The strip search revealed nothing; but Capt. Hungerford showed the employee some incriminating pictures of the employee receiving money from an inmate. The search was conducted in the belief that the employee was bringing marijuana into the prison. Discussion and Conclusions A. Section 7116(a)(1) of the Statute makes it an unfair labor practice for an agency to "interfere with, restrain, or coerce" any employee in the exercise of that employee's right under the Statute. 5 U.S.C. 7116(a)(1). One of these protected rights is the employee's right to union representation at any investigatory examination conducted by agency management. Specifically, Section 7114(a)(2)(B) of the Statute provides that: An exclusive representative of an appropriate unit 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. Analysis of this statutory provision reveals that four conditions precedent must be met before the vesting of a Section 7114(a)(2)(B) right. First, the meeting between agency management and the bargaining unit employee must constitute an "examination." Second, the examination must be in connection with an investigation. Third, the employee must reasonably believe that discipline could result from the meeting. And, fourth, the employee must request representation. The preponderance of evidence in the instant case supports a finding that all four of these conditions were met. Thus, Respondent's proceeding with the examination, in the form of the strip search, without the union representative present, violated Section 7114(a)(2)(B) of the Statute. 1. Taking the conditions precedents seriatum, the strip search of Officer Arnold, even though unaccompanied by any oral interrogation, constituted an "examination" in connection with an investigation, within the meaning of Section 7114(a)(2)(B). The simplest dictionary definition of the word "examination" encompasses the strip search here involved. See, e.g. page 459 of The Random House College Dictionary, which includes in its definition of "examination": "1. the act of examining; inspection; inquiry; investigation." The act of strip searching Officer Arnold was an "inspection," pure and simple. Respondent would limit the dictionary definition of "examination" to only those acts of examination which encompass oral interrogation; and it relies upon legislative history in support of its position. See RBr 5-15. Much of the legislative history relied upon by Respondent is cited in Internal Revenue Service, Detroit, Michigan, 5 FLRA No. 53 (1981, hereinafter, "IRS Detroit"), wherein the Authority affirmed the decision of Judge Devaney which, at pages 7-12, cites extensively from this history. The legislative history of how the term "examination" became a part of the Statute is obscure. Statements emanating from the House of Representatives indicated that the right to union representation during investigations of employees for misconduct was based upon NLRB v. Weingarten, Inc., 420 U.S. 251 (1975, hereinafter Weingarten) a decision which upheld a decision of the National Labor Relations Board that an employer violated the right of an employee to union representation under Section 7 of the National Labor Relations Act, which protects the right of employees to "engage in . . . concerted activities for . . . mutual aid or protection." See pages 644 and 926 of the 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 (hereinafter referred to as "Legislative History"). At Legislative History 926 is set forth the remarks made by Representative Udall, on September 13, 1978 (124 Cong.Rec. H9624, daily ed.), in support of a substitute amendment. See Legislative History 907. At Legislative History 644 is set forth the statement made in House Report No. 95-920, 95th Cong., 2d Sess., that H.R. 3793 "extends to Federal employees the same protection already available to employees in the private sector under the National Labor Relations Act," and cites Weingarten. In considering Weingarten's applicability to this case, several points must be recognized. First, the National Labor Relations Act has no express provision for union representation during employer investigations for misconduct. Secondly, Weingarten uses general language of broad impact. The particular factual situation involved in Weingarten was that of an employee of a retail store being interrogated about taking money from a cash register, requesting union representation, and being denied such representation. The Supreme Court concluded that the Board's interpretation of Section 7 was a "permissible" one (420 U.S.at 266-267) and one that "effectuate(d) the most fundamental purposes of the Act"-- "to eliminate the 'inequality of bargaining power between employees and employers.'" See 420 U.S.at 261-262. Although the Supreme Court was dealing with the particular facts in Weingarten, i.e., an investigatory interview, it speaks more generally of concern for: "A single employee confronted by an employer investigating whether certain conduct deserves discipline . . . ." Id. at 262-263. Certainly, Officer Arnold was such an employee. At the strip search, he was confronted by his first, second, and third line supervisors. The search of his clothes, lunch bucket, and wallet was performed by his first-line supervisor, and not by some disinterested third party. He was asked to sign a form indicating that evidence obtained from him might be used against him in a "criminal proceeding" and of his "incriminating" himself. See finding 11, supra. He had just been informed by his second-line supervisor that the supervisor had information that he had been trafficking with inmates, a "serious offense" as Respondent acknowledges (RBr 29). If Officer Arnold had refused to cooperate, the FBI would have been called in to arrest him. A more "confront(ational)" situation could hardly be postulated. The Supreme Court spoke of an employee in a confrontation with his employee being "too fearful and inarticulate . . . or too ignorant" to deal with the situation (id. at 263) and the "assist(ance) which a "knowledgeable union representative" could render. 420 U.S.at 263. In the instant case Officer Arnold was a "fearful" employee. Shortly before the confrontation, he had found a suspect $20 bill hidden in his lunch bucket. As it turned out, the $20 bill had been planted on him by an inmate, upon the instructions from Officer Arnold's second-line supervisor. Though "talkative" throughout his ordeal in the Personnel Office, no evidence was adduced to show that he was able to speak with clarity and effectiveness about his situation. Instead, he engaged in "laughing and joking" in what was admittedly a "stressful ordeal". See finding 15, supra. Also, he was not shown to be knowledgeable about his rights, under the union contract, one of which was "the right to being matters of personal concern to the attention of appropriate management officials" (Jt 1.4, Article 6b). Officer Presley fits perfectly the description of a "knowledgeable union representative." He was a union vice-president. He could have advised Officer Arnold of his contractual rights which, presumably, would have included the right to have the Warden intervene in the actions of her subordinates, which were being taken against a long-time employee to whom she had recently given a Sustained Superior Performance Award. Officer Presley could also have objected to so many persons being present for the strip search, the humiliation of which is graphically described at page 28 of the transcript. He could have objected to any unnecessary roughness in the conduct of the body search, or careless handling of Officer Arnold's wallet and other personal possessions. He could also have acted as a reassuring presence for Officer Arnold, and perhaps gotten Officer Arnold to relate the finding of a $20 bill in his lunchbox, and thus assisted Respondent in "getting to the bottom of the incident occasioning the (strip search)." See Weingarten, id at 263. Officer Presley had recently represented another employee at a strip search and had persuaded that employee to resign, after discussing with the employee all of the facts. Officer Presley would have been capable of assisting both the employee and the employer in a confrontational situation-- an investigatory interview in Weingarten and an investigatory strip search here. Thus, to the extent that the legislative history teaches that Section 7114(a)(2)(B) extends a Weingarten-type of right to Federal employees, it lends no support to Respondent's arguments, for the strip search, basically, was a Weingarten-type of situation. Respondent also relies upon the fact that the language of the congressional reports and bills which preceded the bill ultimately explained in the conference report and adopted, spoke in terms of Weingarten-type of rights when "questioning" employees, "interrogation" of employees, employees "answer(ing)" questions, "investigatory interviews" and "discussion between an employee and an agency representative." See RBr 7-12. The fact is, however, that the bill actually adopted uses a much broader term-- "any examination"-- and rejected a House bill using the narrower term "any investigatory interview." The only reliable explanation for this action is to be found in Conference Report No. 95-1717 of October 5, 1978, which states that: House sections 7114(a)(2) and (3) give a labor organization . . . the right to be present at the employee's request at any investigatory interview of an employee by an agency if the employee reasonably believes that the interview may result in disciplinary action against the employee. In addition, the House bill requires the agency to inform the employee of his right of representation at any investigatory interview of an employee concerning "misconduct" which "could reasonably lead" to suspension, reduction in grade or pay, or removal. The Senate bill contains no comparable provisions. The conferees agreed to adopt the wording in the House bill with an amendment deleting the House provision requiring the agency to inform employees before certain investigatory interviews of the right to representation, and substituting a requirement that each agency inform its employees annually of the right to representation. The conferees further amended the provision so as to give the labor representative the right to be present at any examination of an employee by a representative of the agency in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee. 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. See Legislative History 823-824. Representative Ford, active in drafting the Statute, did make a post-enactment statement to the effect that the conferees replaced the term "investigatory interview" with "examination" which was "a much broader term that will encompass more situations." See 124 Cong.Rec. H13608, daily ed. Oct. 14, 1978 and Legislative History 995 and see also 183 and 211 et seq. However, this statement, being a post-enactment one, is recognized by the Authority as being entitled to "little weight." See IRS Detroit, 5 FLRA No. 53, and page 12, footnote 8 of the decision affirmed by the Authority in that case. Thus, the plain language of the Statute encompasses a strip search, as an "examination;" and this definition is not restricted by its legislative history. Also, holding that "any examination" enfolds into the right accorded by Section 7114(a)(2)(B) the strip search here conducted, accords with the concerns expressed by the United States Supreme Court in Weingarten, supra, which Respondent concedes was the inspiration for this section. See RBr 14. The fact that the parties' contract speaks only of a right to union representation "during periods of questioning of employees in matters which may lead to disciplinary matters" (see RBr 14 and Jt 1.25), does not diminish rights accorded by the Statute. Case law cited by Respondent at pages 15-20 of its brief is distinguishable and, to the extent that it represents law which has evolved under the National Labor Relations Act, is not to be slavishly followed by this Authority. See the Conference Report cited above, at page 14, which cautions that the "right to representation may evolve differently" in the private and Federal sectors and expresses the intent that private-sector law not be "necessarily determinative for the Federal sector." Respondent relies upon only one private-sector illustration-- an advice memorandum issued by the Associate General Counsel of the National Labor Relations Board in E.I. Du Pont De Nemours and Co., Case No. 4-CA-9762, 100 LRRM 1633 (2/27/29), wherein he concluded that a Weingarten-type right did not attach to the "routine search" of an employee's car by a plant security guard. The search was in accordance with plant procedures, that cars not be moved until the end of shifts. The employee involved was leaving the parking lot early. Employees of the plant consent to the possibility of car searches when they accept employment and before they receive parking stickers. The Associate General Counsel recognized that "both the search and the interview are means by which the Employer seeks information, and the mere fact that the Employer proceeds by way of visual inspection rather than by way of oral interrogation is not a critical difference under Weingarten" (100 LRRM at 1633). However, the Associate General Counsel concluded that "the imposition of the Weingarten requirement would constitute an impermissible interference with legitimate employer prerogatives," which the Weingarten decision expressly precludes. Under Weingarten, the employer is free to deny the request for union representation, stop the means being used to obtain information, and carry on his inquiry by other means. Id. at 258. In the Du Pont matter, the "focus" of the investigation was on "whether there were goods in the car evidencing misconduct" (100 LRRM at 1634). Also here, the focus of the investigation was on whether the $20 bill was on Officer Arnold's person or in his belongings. Thus, to have stopped the strip search could also be said to have interfered with Respondent's unchallenged right to conduct a strip search of a prison guard. But here the union representative had already been called by management, and was expected to arrive shortly. Any "infringement" would have been slight. Thus, this Authority should not follow the path taken by the Associate General Counsel of the Board in the Du Pont matter, and instead, hold that the slight infringement upon management's prerogatives (to wait a few minutes for the union representative to arrive when no need for haste was shown) is justified in order to assure the employee of his rights under this Statute. At pages 18-19 of its brief, Respondent cites two decisions of this Authority for the proposition that the employer has the right to discontinue an examination and conduct its investigation through other sources-- Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA No. 37 (1980, and hereinafter "IRS, Hartford), affirmed 671 F.2d 560 (C.A.D.C., 1980). United States Air Force 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 9 FLRA No. 117, 9 FLRA 871 (1982 and hereinafter "Wright-Patterson"). This right is not contested, in this case. And the slight infringement upon management's prerogatives presented by the circumstances of this case, to conduct a strip search, does violence to neither of these decisions, which do not deal with this particular issue. In IRS Hartford a violation was found of Section 7114(a)(2)(B); but the focus was on how to determine whether an employee reasonably believed that discipline might result from an interview. In Wright-Patterson, no violation was found of Section 7114(a)(2)(4), based upon credibility findings and the conclusion that several meetings were conducted for the sole purpose of informing the employee of a decision already reached, and for counselling the employee and were, therefore, not "examinations," in the statutory sense. See 9 FLRA at 872. At pages 15 to 17 of its brief Respondent also discusses two cases wherein the General Counsel of the Authority declined to issue complaints. In one, union representation was denied to an employee asked to submit to a fitness for duty physical examination because of excessive absences due to illness. The employer would have allowed him to use his own private physician. This case is Defense Mapping Agency, Case No. 3-CA-1858 and is to be found on page 27 of Report on Casehandling Developments in the Office of the General Counsel, April 1, 1981 through June 30, 1981. The other case is Marine Corps Logistics Base, Barstow, California, Case Nos. 8-CA-1005, 1008, 1079, to be found on page 18 of Report of Casehandling Developments of the Office of the General Counsel, July 1, 1981 through September 30, 1981. In this case the General Counsel determined that a random search of vehicles by military police, at the gates of the activity while vehicles were entering and exiting, was not an "examination" within the statutory meaning. Obviously, the General Counsel has determined otherwise, as to the situation here involved. This was not a "random" strip search, but one targeted on Officer Arnold according to a prearranged plan. And being the object of a strip search conducted in front of one's first, second, and third-line supervisors, and several other agents of management, and conducted to find information that could lead to one's dismissal and indictment, hardly compares to a physical examination conducted by one's own physician, presumably in the privacy of his office, that was to be done merely to determine fitness for duty. This Authority's decision in Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA No. 116, 6 FLRA 678 (1981), is of particular pertinence. In that case, the Authority affirmed the decision of Judge Burton S. Sternburg that, regardless of how a "meeting" is "titled" (a "counselling" session there, and a "strip search" here) "whenever the circumstances underlying a meeting make it reasonable to envision a discussion of an employee's conduct which could lead to discipline, the employee is entitled under Section 7114(a)(2)(B) of the Statute to union representation." See 6 FLRA at 686. This is an easily applied yardstick by which the agency can measure its statutory responsibility, and the employee can secure his or her statutory right. Here, agency management, before the strip search began, informed the employee that it had information that he "was trafficking with inmates," and that he was "about to be questioned" (findings 10 and 11, supra). To borrow the words of Judge Sternburg, as affirmed by this Authority, "it was reasonable to conclude under all the circumstances present herein that there would be a discussion of the reasons" for Officer Arnold's confrontation in the Personnel Office by his first, second, and third-line supervisors. See 6 FLRA at 686. As argued by the General Counsel, "even though the physical search of Arnold did not entail oral interrogation, it nonetheless constituted the core of an examination whose initial phase was commenced by Hungerford at 8:05 a.m., triggering Arnold's right to a Union representative at the examination's inception" (GBr 19). 2. With regard to the second condition precedent, the record evidence leaves no doubt that the strip search was an examination "in connection with an investigation." The announced purpose of the search was to ascertain whether Officer Arnold was guilty of trafficking with inmates. And agency management masterminded the scheme to plant and then to find, by means of the search, the $20 bill on Officer Arnold, or among his possessions. 3. With respect to the third condition precedent, the record also establishes that Officer Arnold "reasonably believe(d) that the examination m(ight have) result(ed) in disciplinary action against (him)." The test for establishing whether or not such a reasonable belief exists is an objective one which analyzes the totality of the circumstances, and not the employee's subjective state of mind. See IRS Hartford, supra, 4 FLRA No. 37, at page 11 of Judge Arrigo's decision, which was affirmed. Here, management had arranged for a marked $20 bill to be passed to Officer Arnold by an inmate with whom management admits it had reason to believe that Officer Arnold was trafficking in contraband. This is a "serious offense," as Respondent concedes, at page 29 of its brief. The FBI would have been called in, had Officer Arnold not been compliant about the investigation. The inmate hid the bill in Officer Arnold's lunch bucket, on August 10. The bill was found by Officer Arnold at 5:00 a.m., and was thereupon flushed down the toilet. When Officer Arnold went off duty, at 8:00 a.m., he was met by his second-line supervisor and another management agent and told to step into the Personnel Office. There, it was disclosed to him, by his second-line supervisor, that there was information that he was trafficking with inmates. Then, he was read his "rights," beginning with a statement: "You are about to be questioned as part of an investigation being conducted into allegations that you have been involved in misconduct . . . (that) might cover criminal misconduct as well as violations of fps regulations. . .." see finding 11, supra. Thus, when Officer Arnold was then asked if he wanted union representation, it was all too clear to him, an employee involved for 13 years in prison administration, that the examination about to begin might result in disciplinary action against him. Respondent argues that Officer Arnold could not have reasonably believed that the examination might result in disciplinary action because he himself testified that he had "nothing to hide," appeared to others to be "jovial" and "very cooperative" and not "distraught," engaged in "casual" and "lighthearted conversation," while waiting for the union representative, did not appear to be taking the matter seriously, and knew he had destroyed the $20 bill. See RBr 31-32. I have already found that Officer Arnold's joviality, etc. was a bluff, and that, in fact, he had reason to fear that something else may have been planted on him, and was distraught, upset, tired, nervous, and worried about his future career. See finding 16, supra. Even Respondent concedes that the evidence established that his hands were "trembling." See RBr 31. 4. Finally, the evidence is clear that Officer Arnold requested union representation, and thus met the fourth condition precedent for the vesting of the right to union representation. Once such a request is made, it need not be repeated. See page 12 of Judge Scalzo's decision which was affirmed by the Authority in Lackland Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA No. 60 (1981, hereinafter "Lackland"). B. Officer Arnold did not, as Respondent argues, "effectively and voluntarily surrender(ed) his 7114(a)(2)(B) right to representation." See RBr 20. In the first place, Officer Arnold did not waive any statutory right to union representation by signing the "rights" form cited fully in finding 11, supra. Nor does Respondent appear to so argue. See RBr 23. Secondly, a waiver of a statutory right must be "clear and unmistakable." See e.g., Department of the Treasury, United States Customs Service, Region 1, Boston, Massachusetts, and St. Albans, Vermont District Office, 10 FLRA No. 100, 10 FLRA 566, at 567 (1982). While I have found that Officer Arnold told his assembled supervisors not to bother Officer Presley, when he learned he had already gone to bed (finding 17, supra), there is no credible evidence that he told them to stop looking for someone else to represent him. While I have found that Officer Arnold, upon learning that Officer Presley was on his way, then told his supervisors to go ahead with "it" (finding 17, supra), I have also found that Officer Arnold did not realize that "it" was to be a strip search, and not the "questioning" he had been told was to occur. See finding 20, supra. At the time he made the statement to go ahead with "it," Officer Arnold knew that Officer Presley was already on his way to the prison to represent him, and that he lived only a short distance away. Thus, he was willing for the questioning to start. It is quite another thing to assume that he was clearly and unmistakably willing to submit to the indignity and possibly incriminating ordeal of a strip search, without the benefit of the union representation he had requested. Thus, it must be concluded that Officer Arnold did not clearly and unmistakably waive his right to union representation during the strip search, and that Respondent committed an unfair labor practice in conducting it before the union representative arrived on the scene. The parties raise a number of other issues, the resolution of which would serve only to lengthen, without altering, this decision. Accordingly, judicial restraint is exercised. Ultimate Findings and Recommended Order It is found that Respondent has engaged in unfair labor practices, as alleged in the complaint, and thereby violated 5 U.S.C. 7116(a)(1) and (8). Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C. 7118, the Authority hereby orders that Respondent shall: 1. Cease and desist from: (a) Conducting a strip search of any bargaining unit employees, in connection with an investigation, if the employee reasonably believes that the strip search may result in disciplinary action against the employee, and requests union representation, until such time as a union representative is present to represent the employee. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Give the American Federation of Government Employees, Local 3696, Council of Prison Locals, the opportunity to be present at any examination of an employee in the unit by a representative of the Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, in connection with an investigation, including a strip search, when the employee reasonably believes that the examination may result in disciplinary action against the employee, and the employee requests representation. (b) Post, at its facilities at Butner, North Carolina, copies of the Notice to All Employees, attached hereto as Appendix A, on forms to be furnished by the Regional Director, Region IV, Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Warden, and shall be posted and maintained by her for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Warden shall take all reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, 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. ISABELLE R. CAPPELLO Administrative Law Judge Dated: June 22, 1983 Washington, D.C. APPENDIX A 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 STATUTE We Hereby Notify Our Employees That: WE WILL give the American Federation of Government Employees, Local 3696, Council of Prison Locals, the opportunity to be present at any examination of an employee in the unit by a representative of the Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, in connection with an investigation, including a strip search, when the employee reasonably believes that the examination may result in disciplinary action against the employee, and the employee requests representation. WE WILL NOT fail and refuse to give the American Federation of Government Employees, Local 3696, Council of Prison Locals, the opportunity to be present at any examination of an employee in the unit by a representative of the Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina in connection with an investigation, including a physical or strip search, when the employee reasonably believes that the examination may result in disciplinary action against the employee and the employee requests representation. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the Federal Service Labor-Management Relations 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 IV, whose address is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta, Georgia 30309, and whose telephone number is: (404) 881-2324. --------------- FOOTNOTES$ --------------- /1/ 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(.) /2/ Section 7114(a)(2)(B) 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. /3/ See United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 9 FLRA No. 117 (1982), where the Authority held that no right to union representation arose under section 7114(a)(2)(B) of the Statute absent a request for such representation by the employee involved. /4/ The following abbreviations are used in this decision. "GC" refers to the exhibits of the General Counsel; "R" to that of the Respondent, and "Jt" to the joint exhibit of the parties. "TR" refers to the transcript. Corrections to the transcript are made pursuant to 5 CFR 2423.19(r) and appear in Appendix A to this decision. "GCBr" refers to the brief of the General Counsel, and "RBr" to that of Respondent. Multipage documents will be referenced by the exhibit number followed by a page or paragraph number. /5/ "Union" refers to the Charging Party. /6/ The statutory provisions are as follows: 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 requires representation. 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; . . . or (8) to otherwise fail or refuse to comply with any provision of this chapter. /7/ Unless otherwise specified, all events in these findings occurred on August 10, 1981. /8/ There is some conflict in the testimony as to whether a second call was made to Officer Presley, after Officer Arnold said not to bother him, to tell him not to come in. Officer Presley testified that no such call was made while he was still at home. However, he had a fan on in his bedroom and had turned down the phone bell so that it would not awaken him. Officer Presley also testified that after he returned home, his daughter told him that he had not received any calls while he was gone. Mr. Howard testified that such a call was made by Mr. Snyder, at his instruction, and that Mr. Snyder informed him that a "person" answered and said that Mr. Presley had already left. See TR 173-174, 192-193. Mr. Howard seemed positive about this fact and appeared to be a truthful witness. Mr. Snyder was not called as a witness. It is possible that someone in the house other than Officer Presley's 12-year-old daughter took the call. A wife and son also live with Officer Presley. See TR 77. I credit the testimony of Mr. Howard that a second call was made to Officer Presley.