15:0383(80)CA - INS, San Diego, CA and AFGE Local 2544 -- 1984 FLRAdec CA

[ v15 p383 ]
The decision of the Authority follows:

 15 FLRA No. 80
 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/
    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
    Administrative Law Judge
                           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
    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.
    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
    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
          (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 A