[ v15 p383 ]
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.