[ v15 p383 ]
15:0383(80)CA
The decision of the Authority follows:
15 FLRA No. 80
U.S. IMMIGRATION AND NATURALIZATION
SERVICE, SAN DIEGO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2544
Charging Party
Case No. 8-CA-1195
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed. Exceptions were filed by the General
Counsel and the Charging Party.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendation that the complaint
alleging a violation of section 7116(a)(1) and (8) of the Statute be
dismissed. /1/
ORDER
IT IS ORDERED that the complaint in Case No. 8-CA-1195 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Richard T. Linnemann, Esq.
For the Respondent
Patricia F. Mayer, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute or Act). It is based on a
charge filed on July 1, 1981 by American Federation of Government
Employees, AFL-CIO, Local 2544 (herein called the Union), against United
States Immigration and Naturalization Service, San Diego, California
(herein called the Respondent).
A Complaint and Notice of Hearing, based on said charge, was issued
on October 31, 1981 by the Regional Director for the Federal Labor
Relations Authority, Los Angeles, California Region. The said Complaint
alleged, in substance, that on or about April 9, 1981 Respondent failed
to comply with 5 U.S.C. 7114(a)(2)(B)(i)(ii) by denying the request of
employee Gregory Reed for union representation during the conduct by
Respondent's agents of an investigatory interview of said Reed, as well
as conducting the interview, despite the denial of such request - all in
violation of Section 7116(a)(1) and (8) of the Statute herein.
Respondent filed an answer dated November 20, 1981 in which it
admitted Reed was denied union representation as alleged, but it averred
that the employee was granted immunity from administrative or
disciplinary action based on his answers in connection with said
investigation, and thus Reed was not entitled to such representation.
The alleged violations of Section 7116(a)(1) and (8) of the Statute were
denied in Respondent's answer.
A hearing was held before the undersigned on March 22, 1982 at San
Diego, California. All parties were represented thereat, and each was
afforded full opportunity to be heard, to adduce evidence, and to
examine as well as cross-examine witnesses. Thereafter briefs were
filed which have been duly considered. /2/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. Respondent operates border patrol sectors with stations at
various locations throughout the United States. The station involved in
this proceeding is located at Tucson, Arizona. Employed thereat are 25
patrol agents and 3 supervisors. A regional commissioner is responsible
for the operation of particular sectors, and said individual reports to
the Commissioner of the Immigration and Naturalization Service.
2. At all times material herein the Union has been, and still is,
the exclusive representative of employees assigned to the Border Patrol
Sectors, including the Border Patrol Agents stationed at Tucson,
Arizona. /3/
3. The Office of Professional Responsibility (OPR) is the internal
investigative branch of the U.S. Immigration and Naturalization Service.
It is responsible for investigating alleged misconduct on the part of
employees of INS. The Director of OPR reports to the Commissioner of
the Service.
4. Conduct of the Border Patrol Agents is regulated by provisions
contained in the Operations Instructions of the Service - 287.10, (G.C.
Exhibit No. 3) which sets forth the obligations of the employees to
report any acts of misconduct committed by fellow agents. The
Instructions also refers to disciplinary action which could be taken
against employees who fail to report such misconduct.
5. The general practice, as followed by OPR investigators who are
investigating alleged misconduct, is to interview agents regarding the
allegations, write a report of their findings, and submit same to the
regional and central offices. The interviewers also reach conclusions
regarding their findings, and they make recommendations as to whether
disciplinary action should be taken. Disciplinary measures are
determined by the Deputy Chief Patrol Agent at the sector level. /4/
6. In the spring of 1981 certain allegations were made concerning
possible misconduct on the part of the Border Patrol Agents at Tucson,
Arizona. The alleged misconduct involved the following: (a) failure by
an agent, who was allegedly drinking, to make a report of the theft of a
Border Patrol vehicle by a Border Patrol Agent; (b) drinking at the
Tucson Patrol Sector; (c) sexual activities by Patrol Agents with
females which occurred on the premises during a drinking party. /5/
7. Arrangements were made for four OPR investigators to interview
the Patrol Agents allegedly involved in such misconduct at Tucson during
March and April, 1981. Seven such agents at Tucson were to be
interviewed by the OPR representatives. Respondent notified the Patrol
Agents, in writing, that they were required to appear before OPR
investigators at an administrative investigation and give testimony
regarding alleged misconduct as specified. /6/
8. On April 9, 1981 Patrol Agent Gregory Reed reported for duty at
the Tucson Sector. His supervisor directed him to report to the sector
headquarters and talk to OPR representatives. En route thereto Reed met
Marvin J. Foust, President of the Union. Since Reed assumed /7/ the OPR
men would be questioning him as to the alleged misconduct by fellow
agents, he asked Foust to come along and act as his union
representative. At headquarters they met OPR investigators Anthony
Medici and Patrick Comey who informed Reed they wished to take a
statement from him as a witness to alleged misconduct by other Patrol
Agents. Medici and Comey asked why Foust was present, and Reed replied
that Foust was his union representative. The OPR investigators stated
that Reed would be given immunity from disciplinary action; that the
statement would not be used as a basis for any such discipline, although
the immunity did not extend to criminal violations. They informed Reed
that, in view of the immunity, he could not have a union representative
present at the interview. Further, Reed was advised that if he refused
to give a statement freely and voluntarily, he could be charged with
insubordination. Reed continued to declare that he wanted union
representation.
9. Since neither Reed nor Foust ever heard of the immunity to be
given the employee, and had not received anything in writing prior to
April 9, Foust left to call the Union's Vice-President. Upon his return
to the room, Foust attempted to accompany Reed during the investigation
but was told to leave. The employee repeated his request for union
representation. It was denied and Reed agreed to give a statement under
protest. /8/
10. After Foust departed from the room Medici and Comey commenced
their investigation which took the form of questions posed to Reed and
answers elicited from him. All of such queries and responses, as well
as comments made by the participants, were taped. /9/ At the outset the
OPR representatives informed Reed they desired to take his statement
regarding his knowledge of the October 13, 1980 incident in which
unauthorized civilian females were at the Tucson, Arizona Sector
Headquarters, their possible sexual activity with Border Patrol Agents
thereat, and the consumption of alcoholic beverages at the time by the
agents and the said civilian females. The OPR men also stated to Reed,
in part, as follows:
"No administrative proceedings will be instituted against you
on the basis of any statement you make in the interview.
Therefore, any statement you make relative, make at this time
relative to the aforementioned allegations of misconduct and the
fruits thereof will not be used against you in any administrative
proceeding initiated by the Service."
11. The interview of Reed lasted about one hour. While it was in
progress Foust spoke to Deputy Chief Patrol Agent Edwin W. Barnette and
related what had transpired. Barnette stated that Medici and Comey
could not grant administrative immunity; that Barnette was the
disciplinary officer, and the OPR representatives had no authority to
grant the immunity. Whereupon Barnette, accompanied by Foust, went to
confer with OPR Associate Deputy Director Howard Dobbs. The Union
representative asked Dobbs to show him something in writing which would
support OPR's right to grant administrative immunity. Dobbs showed
Foust a page in a book which made reference to such immunity. /10/ The
Associate Deputy Director went into the interviewing room. He asked
Reed if use immunity had been explained to him and that he was not a
subject of the investigation. Reed acknowledged this had been done.
12. In respect to the basis for granting administrative immunity to
Patrol Agent Reed, OPR official Dobbs testified that he relied upon the
memorandum dated June 26, 1979 addressed to PRR Investigators from OPR
Director Paul N. Kirby. This memo (Respondent's Exhibit No. 4) set
forth an example of a recent investigation whereat a witness feared
possible disciplinary action if he testified, and the witness therefore
invoked "Weingarten". /11/ Kirby's memo explained that "use immunity"
was granted the individual, thus removing the "Weingarten" entitlement.
Dobbs further testified that he also relied upon a document
(Respondent's Exhibit No. 5) which he considered to be a "bargaining
proposal" by management regarding granting immunity to a witness who has
a reasonable basis for believing his testimony may subject him to
disciplinary action. He deemed that this represented management's
position in this regard.
Conclusions
General Counsel contends that the refusal by Respondent to allow
employee Gregory Reed to have a union representative present at the
investigative interview on April 9, 1981 was violative of Section
7116(a)(1) and (8) of the Statute. It posits this contention on the
right accorded such employee under Section 7114(a)(2)(B)(i) of the
Statute, as well as the decisional law enunciated in NLRB v. Weingarten,
supra (footnote 11). With respect to the immunity from any disciplinary
action based on Reed's statement, which was accorded him by Respondent,
the General Counsel insists it should not serve as a tenable defense to
the denial of union representation at the interview. Apart from
maintaining that no statutory or regulatory authority supports the grant
of immunity, it is argued that a "Weingarten" right must be deemed
separate and distinct from an offer of immunity; that though Reed
consented to the investigation and did not remain silent, he did not
waive his right to representation. Thus, asserts the General Counsel,
the immunity would never alleviate a reasonable fear of discipline and
can have no effect upon the employee's right to a representation as set
forth in NLRB v. Weingarten, supra.
It is the position of Respondent that, by virtue of the express
assurances given Reed before the investigation, no rights of the
employee were infringed. The employer insists the immunity accorded the
Patrol Agent-- no disciplinary action toward him based on his answers or
the fruits thereof-- necessarily removes any fear of discipline on the
part of the employee. Since the latter cannot reasonably believe the
examination may result in disciplinary action, no right exists as to
representation. Thus, the refusal to permit his union representative to
attend the investigation on April 9, 1981 was not violative of the
Statute.
Thus, the central and primary issue is posed as follows: whether a
grant by the employer of administrative immunity to an employee from
disciplinary action, as a result of his answers during an examination,
negates a reasonable fear of such discipline so as to disentitle the
employee to union representation thereat.
In the public sector rights of representation vest under Section 7114
of the Statute. It is provided under 7114(a)(2) as follows:
"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."
The employee's right to union representation, under this statutory
provision was examined by the Authority in Internal Revenue Service,
Washington, D.C., and Internal Revenue Service, Hartford District
Office, 4 FLRA No. 37 (1980). The Authority adopted the rationale set
forth by Administrative Law Judge Salvatore Arrigo in the cited case
concerning the crucial determination as to whether an employee
"reasonably believes" he faces discipline due to the examination by an
employer. Judge Arrigo concluded that it must be determined if the
interview was one in which the risk of discipline reasonably inheres.
The test, therefore, is whether in light of external evidence a
reasonable person would decide that disciplinary action might result
from the examination. Adopting the standard set forth in the Weingarten
case, supra, the Authority has held that whether reasonable grounds
exist for fearing ultimate discipline directed toward an employee must
depend upon objective considerations. It cannot be based upon the state
of mind of the employee or his subjective feelings in this regard.
The U.S. Court of Appeals, District of Columbia Circuit, in enforcing
on February 12, 1982 (No. 80-2423) the Authority's decision in the
Hartford case, supra, adopted the view that in determining whether a
fear of discipline exists-- so as to justify union representation-- one
must rely upon external evidence, and not individual motivations, as the
touchstone for such determination. In this respect, the Court embraced
the conclusions reached by the 5th Circuit Court of Appeals in Lennox
Industries, Inc. v. NLRB, 637 F.2d 340, 106 LRRM 2687 that if the
interview is designed to elicit information which might reasonably
result in discipline-- either immediately or at sometime in the future--
a union representative is required if requested. In this respect, it is
not determinative whether disciplinary action is "probable" or
"seriously considered".
It thus becomes important, as well as decisive, to determine herein
whether Patrol Agent Reed could have "reasonably believed" that
disciplinary action toward him might result from the April 9 interview.
A factor is present in the instant case which did not appear in either
Weingarten or Hartford. Respondent /12/ declared to Reed, and included
such declaration in the taped interview, that the employee would be
given immunity from disciplinary action based on his disclosures during
the examination. The Patrol Agent was assured, after he requested union
representation, that none of the information contained in the statement
given by him on April 9, would be used against him in any administrative
proceeding initiated by the Service. Accordingly, the request for union
representation was deemed unnecessary and denied.
While no grant of immunity was made in the Hartford case, it is noted
that the 5th Circuit Court of Appeals made passing reference to such
factor. The Court, in concluding that Revenue Officer Robert Daley
could have reasonably feared discipline as a consequence of the
interview to which he was subjected and denied union representation,
commented as follows:
"Furthermore, Daley could not be assured that he would not be
subject to discipline as the result of the interview. In this
context, the statements of the inspectors that Daley was not the
subject of the interview, and that the interview was aimed at
another party, could not eliminate the risk that Daley might be
placed in jeopardy as a consequence of something he said to them."
Moreover, the said Court's decision noted the comparison to Spartan
Stores, Inc. v. N.L.R.B. 628 F.2d 953 (6th Cir. 1980). In the latter
case the employer told an employee, who was called to a meeting to
discuss a problem involving the "mess in the lunchroom" and damaged
vending machines, that he would not be disciplined as a result of the
meeting. The employee, who refused to participate in an interview
without his union steward, was discharged. The Court concluded that a
reasonable person in the employee's position would not have reasonably
feared that the conversation might result in his discipline. It
determined that to find a violation under the circumstances would
constitute an unwarranted expansion of the Weingarten doctrine beyond
the contours and limits established by the Supreme Court.
The dictum by the Circuit Court in the Hartford case, as well as the
holding in the Spartan case, supra, convinces me that an express
immunity against disciplinary action-- as a result of a statement made
by an employee-- relieves any reasonable fear of such discipline.
Applying such rationale as declared in the public sector, as well as the
holding of the cited case in the private sector, I am persuaded that, in
the case at bar, it cannot be said that the "risk of discipline
reasonably inheres". Inasmuch as the OPR agents specifically assured
/13/ Reed that no administrative proceeding would be taken against him
by reason of the interview, the employee had no basis to fear
disciplinary conduct. In this posture, and since Section 7114(a)(2) of
the Statute sets forth, as a sine quo non to union representation, that
a reasonable belief exists concerning disciplinary action, no right
inured to Reed for a union representative to be present on April 9.
In an effort to overcome the effect of the immunity given Reed
herein, the General Counsel makes several contentions. It argues that,
based on an analogy to be drawn from the decision in U.S. Postal Service
v. N.L.R.B. 241 NLRB No. 18, 100 LRRM 1520 (1979) the Weingarten right
to have a union representative present at an interview should be viewed
separately and distinctly from any offer of immunity. Further, general
Counsel asserts Respondent has not shown any statutory or regulatory
authority to support the validity of the immunity offered herein-- that
no legal support exists for the said immunity.
Having reviewed the U.S. Postal Service decision, I cannot subscribe
to the view that it supports General Counsel's position regarding the
separability of the "Weingarten" right from a grant of immunity. The
National Labor Relations Board held, in the Postal Service case, that by
signing a waiver of Miranda rights an employee did not waive his right
to union representation as enunciated in the Weingarten case. Such a
ruling is clearly understandable since Miranda involved criminal
proceedings which are not involved in the case at hand. Thus, the Board
correctly adverted to the "significant differences in the foundation and
scope of Miranda and Weingarten rights." We are concerned herein solely
with administrative discipline, and the immunity granted to Reed was
coextensive therewith. Thus, I reject the argument that, by analogy to
be drawn from the U.S. Postal Service case, the right to union
representation remains unaffected by any grant of immunity.
With respect to the argument that no statutory authority exists for
the granting of immunity, I am persuaded that specific authorization, by
way of statute or regulation, is not a requirement for the exercise
thereof. The statutory provisions (8 USC 1103(a)(b) which sets forth
the powers and duties of the Attorney General and the Commissioner /14/
of the Service include the power and right to control, direct and
supervise employees in the Service. Moreover, he is authorized "to
perform such acts as may be necessary for carrying out his authority"
under the Statute. The right to grant immunity is necessarily implicit
and inherent in the exercise of one's powers and duties on behalf of an
agency. Further, the directive of June 26, 1979 by the OPR Director is,
in my opinion sufficient authorization-- and more than an opinion as
asserted by General Counsel-- for the action taken by the investigators.
Since the granting of immunity to Reed, moreover, was approved and
adopted by Respondent, I am satisfied that it was not illusory as
maintained by General Counsel; that it was properly granted to the
employee and binding upon the grantor.
Accordingly, and on the basis of the foregoing, I conclude that the
grant of immunity to Patrol Agent Gregory Reed by Respondent was
sufficient to dispel any reasonable fear of disciplinary action directed
toward him based on his statement at the April 9, 1981 interview. Thus,
since no need existed for union representation thereat, I find that the
denial thereof was not violative of Section 7114(a) and (8) of the
Statute. Therefore, I recommend the Complaint herein be dismissed in
its entirety.
WILLIAM NAIMARK
Administrative Law Judge
Dated: August 16, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Compare Department of the Navy, Norfolk Naval Base, Norfolk,
Virginia, 14 FLRA No. 97 (1984), wherein the Authority (Chairman Mahone
concurring) adopted the Judge's conclusion in the specific circumstances
of the case that the denial of an employee's request for union
representation at an investigative interview constituted a failure to
comply with section 7114(a)(2)(B) and therefore a violation of section
7116(a)(1) and (8) of the Statute, although the employee was told prior
to the meeting that no disciplinary action against him was then
contemplated, since the employee received no firm assurance that his
statements during the interview would not lead to disciplinary action
against him at a later date, and the employee otherwise had a reasonable
basis for fearing such discipline.
/2/ Subsequent to the hearing both parties filed a Motion to Correct
the Transcript. Thereafter, General Counsel filed an Opposition to
Respondent's Motion to Correct Transcript only insofar as it sought to
insert the words "San Clemente" after the word "the" at page 75, line 6
of the Transcript. It was contended the added words introduced new
evidence and went beyond the testimony of the witness. Since no
supporting proof has been furnished the undersigned that the testifying
witness used the designation "San Clemente" and it does not so appear in
the transcript, I shall deny Respondent's Motion to add "San Clemente"
after "the" on page 75, line 6. In all other respects Respondent's
Motion to Correct Transcript, as well as General Counsel's motion for
correction, are granted. The transcript is accordingly corrected as
reflected in Appendix attached to this decision.
/3/ The National Border Patrol Council of American Federation of
Government Employees, AFL-CIO executed a collective bargaining agreement
with U.S. Immigration and Naturalization Service on September 30, 1976.
This agreement, which has expired, covered the employees at the Tucson,
Arizona station. Since the Council lost a representation election on
June 1, 1979, Respondent avers it is subject to a question concerning
representation. In this respect, Respondent would challenge the Union's
right to negotiate with the agency although the dispute is still pending
before the Authority. Respondent does not, however, contend-- nor do I
conclude-- that these events affect the right of the Union to represent
the employees herein.
/4/ Record facts disclose that, in the past, an agent in Texas and an
El Centro, California agent had been disciplined for failing to report
misconduct of other employees.
/5/ The sole criminal allegation involved drinking on an Indian
reservation.
/6/ Notification to one of the Patrol Agents reflects he was advised
that his statement would not be used against him in a criminal
proceeding; that a willful failure to testify could result in
disciplinary action based on insubordination. Further notice to another
agent advised him of his right to be represented by the Union. It would
appear from the record herein that these notifications were also given
to the other Patrol Agents whose alleged misconduct was under
investigation.
/7/ No prior notice had been given Reed that he would be called as a
witness or that OPR planned to take his statement in regard to any
alleged misconduct.
/8/ The taped interview (page 2) includes a comment by the
interviewer that, since Reed agreed to submit to the interview, it was
not under protest. I am satisfied, and find, that such comments and
answers by Reed did not vitiate his request for union representation at
the interview.
/9/ The record thereof, as it pertains to the issues involved herein,
is set forth in Respondent's Exhibit No. 2.
/10/ This particular writing was, in essence, management's position
on granting use immunity, and is reflected in Respondent's Exhibit No.
4, infra.
/11/ Referring to the right of an employee to have union
representation during the course of his examination or interview. NLRB
v. J. Weingarten, Inc., 420 U.S. 251 (1975).
/12/ The Complaint herein alleges, and thereby concedes, that the OPR
investigators who granted immunity to Reed before taking his statement
were agents of Respondent and acting on its behalf at the time.
/13/ In its brief General Counsel describes the grant of immunity
herein as casual and haphazard. I disagree and conclude it was in clear
and express terms.
/14/ Under the Statute the Commissioner is charged with all the
responsibility and authority in the administration of the Service which
are conferred upon the Attorney General-- the individual charged with
its administration and enforcement.