[ v16 p794 ]
The decision of the Authority follows:
16 FLRA No. 109 ARMY AND AIR FORCE EXCHANGE SERVICE ROCKY MOUNTAIN AREA EXCHANGE FORT CARSON, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345 Charging Party Case No. 7-CA-30472 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 in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision. 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 be dismissed, because the employee involved withdrew his request for union representation. See Department of Justice, Bureau of Prisons, Federal Correctional Institution, 14 FLRA No. 59 (1984). ORDER IT IS ORDERED that the complaint in Case No. 7-CA-30472 be, and it hereby is, dismissed. Issued, Washington, D.C., December 13, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- ARMY AND AIR FORCE EXCHANGE SERVICE, ROCKY MOUNTAIN AREA EXCHANGE, FORT CARSON, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345 Charging Party Case No. 7-CA-30472 Daniel Minahan, Esq. For the General Counsel Carolyn Rains For the Charging Party Luther G. Jones, III, Esq. For the Respondent Before: ELI NASH, Jr. Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. Upon an unfair labor practice charge filed by the American Federation of Government Employees, Local 1345, AFL-CIO (herein referred to as the union), on July 8, 1983 and amended on September 30, 1983, against the Army and Air Force Exchange Service, Rocky Mountain Area Exchange, Fort Carson, Colorado (herein referred to as respondent), the General Counsel of the Authority, by the Regional Director for Region 7, issued a Complaint and Notice of Hearing on September 30, 1983, alleging that since on or about June 30, 1983, respondent violated section 7116(a)(1) and (8) /1/ of the Statute by failing to afford the union an opportunity to be represented during the entirety of an investigative interview conducted by respondent's security personnel with a unit employee, Herbert Foster. Respondent's Answer denied the commission of any unfair labor practices. A hearing on the Complaint was conducted on November 9, 1983 in Colorado Springs, Colorado, at which time all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses, and argue orally. Briefs were filed by respondent and Counsel for the General Counsel. Upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following findings of fact, conclusions of law, and recommendation: Findings of Fact A. Background - Investigation of Mobile Sales Clerks The union represents bargaining unit employees of the respondent as part of a consolidated bargaining unit of Army and Air Force Exchange Service (AAFES) employees. Employees at respondent's Food Warehouse are among those represented by the union. The Food Warehouse is a five to ten minute drive from the Main Exchange at Fort Carson. At all times material herein, no union steward worked there nor was any union steward specifically assigned to represent Food Warehouse employees. Four mobile sales clerks/truck drivers, are employed at the Food Warehouse. They are Herbert Foster, Eugene O'Donnell, Cecil Teal and Robert Willoughby. Each of the sales clerks/drivers stocks his truck with food items from the warehouse and sells those items at various stops on the base. The sales clerks/drivers are paid a commission consisting of 10 percent of their sales. From October 1982 through January 1983, respondent conducted an audit of its mobile sales clerks/truck drivers which revealed weaknesses in their cash and inventory controls. As a result, respondent's General Manager, Roger Cohen, directed Security and other personnel to conduct a spot check of the truck drivers and to conduct investigative interviews with them. No spot checks had been performed on mobile sales operations in about 10 years. On June 27, 1983, respondent's investigative personnel indeed conducted a spot-check on each of the four truck drivers. Each was stopped at a point along his route and told to step out while the truck's money and merchandise were counted. B. Interviews Following Investigation 1. June 29, 1983 Interviews Janet Scruggs, from respondent's Security Division, interviewed all four mobile sales clerks/truck drivers. Scruggs was assisted by an exchange detective Keith Boettiger. The interviews began on June 29, 1983, and were conducted in the office of Charles Ercinas, the Manager of the Food Warehouse. When the interviews began, Scruggs was totally aware of the results of the spot check, which showed that two employees including Foster, had discrepancies in their cash and inventory controls. On June 29, 1983, drivers Teal and Willoughby were summoned individually to Ercinas' office to be interviewed by Scruggs and Boettiger. Drivers O'Donnell and Foster were not interviewed until the following day. According to Scruggs, Teal responded to her questions regarding the spot check and, at a certain point during the interview, he "said something that incriminated him." Scruggs, only then, asked Teal if he wanted a union representative. Teal said he did; therefore, Scruggs instructed Boettiger to call for a union representative. Boettiger reached union Vice-President Marlene Moosman, who works at the Main Exchange. Moosman requested to talk to Scruggs. Whereupon, Moosman asserted she needed time to reach the Food Warehouse and that 24 hour notice was required before interviewing an employee. After some discussion, Moosman agreed to come to the Food Warehouse. Scruggs and Boettiger stopped questioning Teal until Moosman arrived about 30 minutes later. At Moosman's request, Scruggs permitted Moosman to confer privately with Teal for about ten minutes. When the interview resumed, Moosman asserted that if Boettiger remained, another union representative was entitled to be present. Scruggs conceded and told Boettiger to leave. Scruggs' continued examination of Teal lasted another 25 to 30 minutes. Before resuming the interviews, however, Scruggs contacted respondent's legal office for advice on the rights of the union and employees. Scruggs allegedly was informed that she should wait a reasonable amount of time before conducting an interview once a union representative was called, though she was not told that any certain amount of time was reasonable or unreasonable. She was also advised that it was not necessary to have two union representatives present when two representatives of management interviewed an employee. 2. June 30, 1983 Interview of Mobile Sales Clerk/Driver Foster During the afternoon of Thursday, June 30, 1983, Scruggs and Boettiger continued interviews at the Food Warehouse. By that time, O'Donnell and Foster had learned from Teal the general nature of the questions asked him by Scruggs and Boettiger on the previous day. Boettiger approached O'Donnell near the end of O'Donnell's shift and took him to Ercinas' office for his interview. When O'Donnell requested a union representative, Boettiger called Lois Esposito, a personnel clerk in respondent's Personnel Office. After talking with Esposito, Boettiger returned and stated that it would be some time, since the union representative would be delayed. Scruggs also spoke directly with Esposito after Boettiger, and Esposito told her "I'll see what I can do." After 15 to 20 minutes in Ercinas' office, O'Donnell volunteered that he wanted to proceed with the interview without a union representative. O'Donnell's interview lasted 15 to 20 minutes. When leaving the interview O'Donnell saw Foster and told him that a union representative was on the way. Foster also was approached by Boettiger near the conclusion of his shift. When Boettiger told Foster that security wanted to see him in Ercinas' office, Foster stated he wanted to be accompanied by a union representative. Boettiger thereupon informed Foster that a union representative had already been called. After O'Donnell's interview, Foster was called into Ercinas' office, where he renewed his request for a union representative. Like O'Donnell before him, Foster waited with Scruggs and Boettiger for about 15-20 minutes. The parties stipulated that Foster reasonably believed the impending interview might result in disciplinary action against him. Personnel clerk Lois Esposito recalls Scruggs asking her to get a union representative to the Food Warehouse on June 30, 1983. According to a letter from the union to respondent dated March 10, 1983, if no steward is assigned to a particular area, Marlene Moosman or, in her absence, Mary McRae or Clara Benson were to be contacted for representational purposes. Esposito claims to have telephoned Moosman at the Main Exchange. She says union steward Mary McRae answered. According to Esposito, she told McRae that a union representative was needed at the Food Warehouse and McRae responded that she would take care of it. According to Esposito it was not until she called McRae again, and not until McRae explained how busy she was that Esposito told McRae that "they were holding up an interview until a union rep got to the Food Warehouse." Mary McRae testified that she received a written message that someone had called for a union representative at the Food Warehouse. McRae admits she took no steps to respond to the message for about 30 minutes, since June 30, 1983, was, as was generally known, a military payday. She was very busy and in fact, was waiting on a customer during those 30 minutes. According to McRae, she received a second written message about 30 minutes after the first; it stated that a union representative was needed at the Food Warehouse. There is no dispute that a union steward must receive his or her supervisor's permission to be released on official time for representational activities. Therefore, McRae asked her supervisor if she could be released. Her supervisor refused since it was payday, but suggested to McRae that she call Clara "Mickey" Benson, another union steward. McRae then called Benson at home and Benson agreed to leave immediately for the Food Warehouse. /2/ Esposito claims that about 30 minutes after speaking with McRae, she called McRae again, at Scruggs' request. According to her, McRae stated that Moosman was sick and that there was no way her supervisor would let her go. Nonetheless, Esposito says McRae assured her that a union representative would be furnished. Esposito did not relay this information back to Scruggs. However, McRae received a phone call from Boettiger 15 to 20 minutes after she spoke with Benson. She then informed Boettiger that Benson was on the way to the Food Warehouse. Clara Benson arrived at the Food Warehouse some 20 minutes after receiving McRae's phone call, and some 10 to 15 minutes after Scruggs began questioning Foster without the presence of a union representative. According to Foster, Scruggs' suggested that they would wait a reasonable amount of time and if no one was there, she would go ahead with the investigation. A few minutes later, Scruggs said, "No one is here, so we'll begin." Foster simply shrugged his shoulders and said "okay," meaning, according to Foster, "I'll leave it up to you." /3/ Foster never stated he wanted to proceed without a union representative. Neither was he told that he could leave without being questioned. In fact, Scruggs maintained that Foster was required to answer the questions put to him. Prior to Benson's arrival, Scruggs requested Foster sign a paper saying he had been advised of his rights and acknowledging that anything he said might be used against him. The document he signed was not introduced into evidence nor did Benson see it. Foster was then questioned as to whether he had placed additional merchandise on his truck without his supervisor's knowledge after the control form was prepared. He was asked whether he had carried food past the employees or sneaked food out the side door. He was also asked if he knew he was selling spoiled food. However, Foster was not questioned concerning whether he altered his inventory control form without his supervisor's knowledge until after Benson arrived. Foster apparently answered all questions as fully as he possibly could. When Benson arrived at Ercinas' office, she observed that Scruggs and Boettiger were examining Foster, and that Boettiger had already compiled some notes. Benson introduced herself as Foster's union representative and claimed that Boettiger should leave since it was established practice for there to be as many union representatives as management representatives present at such interviews. Scruggs responded that Boettiger would stay and Benson raised no further objections. /4/ When the examination continued, Scruggs reviewed with Foster the questions which he had been asked prior to Benson's arrival and proceeded to repeat many of those same questions for the duration of the examination. Benson assisted Foster by requesting that Scruggs and Boettiger ask one question at a time and by asking Foster a few questions herself in an effort to clarify or explain his statements. Benson never told Scruggs or Boettiger not to ask a question nor was Benson told that she was interfering with the interview. However, Scruggs did tell Benson that she was tired of arguing. The examination lasted for almost another 45 minutes after Benson arrived. At the conclusion, Scruggs indicated she would prepare a statement for Foster to sign. Benson protested that the union should be allowed to review it with him before he signed it. Nevertheless, Scruggs brought Foster the statement within a few days and, without giving the union an opportunity to review it, had Foster sign it. According to Scruggs, the inquiry into the inventory and cash control procedures at the Food Warehouse continued for a number of weeks after Foster was interviewed and was not closed until the middle of July 1983. Scruggs admittedly was not required to conclude her investigation by July 1, 1983, and that at the time she interviewed Foster, there was no reason to suspect he would destroy evidence, flee the jurisdiction or commit any other infraction if she did not interview him immediately. When asked what reason she had for proceeding to examine Foster without the requested union representative, Scruggs replied that she simply wanted to get it done. Scruggs also testified that she expected it would take a union representative only five to ten minutes to reach the Food Warehouse. Yet, she recalls that Moosman took around 30 minutes to get to the Warehouse to represent Teal the day previous to the Foster interview. Moreover, in her prior experience at other AAFES facilities, it was typically 20 to 30 minutes before a union representative would arrive to represent an employee. Finally, in Scruggs' experience at respondent's facility, it is not uncommon to have to wait an hour for a union representative. C. Action Taken Against Foster After Scruggs' investigation was completed, respondent's General Manager, Roger Cohen, notified Foster on July 27, 1983, that Foster would be separated from federal service. Cohen's notice of separation listed the numerical discrepancies between the inventory on Foster's truck and the inventory listed on his control sheet. The remaining specifications in the notice were: You had placed additional merchandise on your truck after the control form was prepared and without informing your supervisor. This showed evidence of intent to sell excess merchandise for which you would not be held accountable. This constitutes an act of dishonesty. and Following the spot check on 27 June 1983, you altered the portable mobile unit control form without your supervisor's knowledge . . . . This falsification of records to cover up the discrepancy exposed in the spot check constitutes a second act of dishonesty. These specifications may be correlated to the findings of Scruggs' investigation. Her findings, with respect to Foster, which were contained in a report submitted to Cohen, were as follows: a. That Foster admitted to putting merchandise on his truck without anyone's knowledge, knowing their procedures require all merchandise to be counted and recorded on the portable mobile unit control form. b. Foster made changes on his portable mobile unit control form without management's knowledge. c. That Foster attempted to sell 3 day old sandwiches which he admitted he knew he wasn't supposed to do. Scruggs testified that all of these findings were based on what she learned from Foster during her examination of him conducted on June 30, 1983. The union aided Foster's response to the notice of separation. It also drafted for the signature of his fellow truck drivers a statement to the effect that none of them had been trained in the agency's inventory control procedures. Additionally it represented Foster when he presented his oral reply to the notice of separation. Subsequently, Roger Cohen reduced the proposed separation to a 15 day suspension without pay. The specifications supporting the suspension were identical to those listed in support of Foster's removal; however, Cohen concluded that Foster's conduct resulted from poor judgement rather than a desire for personal gain. Foster was then suspended and lost two weeks pay and any commission he would have earned on his sales during that time. Prior to the suspension, Foster had never been disciplined or counseled. Conclusions The General Counsel contends that respondent was required under section 7114(a)(2)(B), once it elected to grant employee Foster's request for a union representative, to stay the interview until a union representative arrived to participate. The General Counsel also urges that NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) is the controlling precedent to be followed here. Accordingly, once a valid request for a union representative has been made, the burden shifts to the employer to (1) grant the request, (2) discontinue the interview or, (3) offer the employee the choice of meeting without a representative or no meeting at all. The respondent roundly asserts that it took every reasonable step to ensure that the union had an opportunity to be present in order to represent an employee who had requested representation. Department of Labor, Employment Standards Administration, 13 FLRA 164, 165. Furthermore, respondent maintains that employee Foster waived the right to union participation in this matter. With regard to the latter argument, the facts reveal at least a tacit withdrawal of the request for representation by Foster prior to the examination commencing. The record plainly establishes that employee Foster reasonably believed that the impending interview might result in disciplinary action against him and also that he made two separate requests for representation by the exclusive representative prior to commencement of the interview. The Authority in Department of Justice, Bureau of Prisons, Federal Correctional Institution, 14 FLRA 334 (1984) considered the waiver question in Weingarten type situations and found that an employee may waive or withdraw the right to union participation in such an interview and that where such a withdrawal or waiver exists a respondent does 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 of the Statute. /5/ Consequently, a respondent would not violate section 7116(a)(1) and (8) of the Statute where it proceeded with an interview after an employee withdrew the request for representation. The instant record demonstrates that employee Foster was informed both by management official Boettiger and fellow employee O'Donnell that a union representative was on the way. Further, Foster had discussed the interview process with employee Teal, whose interview had taken place the previous day, and who had obtained for himself a union representative during the course of the interview. Furthermore, the interview took place late in the evening, at or around quitting time and everyone including Foster appeared eager to go home. In these circumstances, employee Foster was told that they would wait a few minutes for a union representative to arrive. A short time later, Foster was told by security specialist Scruggs, "no one is here, so we'll begin." Foster merely shrugged his shoulders and responded, "okay." According to Foster, his gesture meant, "I'll leave it up to you." It is my opinion that Foster's obedient acceptance of Scruggs' instruction to begin the interview constituted a withdrawal of his request for representation by the exclusive representative. During the course of waiting for the representative to arrive there is no suggestion that a representative would not be there to aid Foster in the presentation of his case. Neither is there any indication that Foster was asked to withdraw his right nor was he misled into thinking that the union was unavailable to assist him. Foster simply did not seek to preserve his right, even though he had been told on at least the two occasions above that a union representative was on the way. If he did not care to wait, an option which was certainly available, there is no alternative other than to find that his response of "okay," when he was fully aware that a union representative was on the way to assist him, constituted a waiver or withdrawal of the request for representation. /6/ In any event, it can be inferred from Foster's response that he was withdrawing his previous requests and relieving respondent, in my view, of waiting any longer for the exclusive representation to arrive. Since Foster was aware that a representative had been called and was on the way it is difficult to attach any other meaning to his response than that he was prepared to proceed without the exclusive representative. Therefore, the General Counsel failed to establish by a preponderance of the evidence, that respondent's proceeding before the union arrived at the interview constituted a failure to comply with Section 7114(a)(2)(B). Based on the above, it is found that respondent did not violate Section 7116(a)(1) and (8) by failing to afford the union an opportunity to be represented during the entirety of an investigative interview. Therefore, it is recommended that the Authority adopt the following: ORDER It is hereby ordered that the Complaint in Case No. 7-CA-30472, be and, it hereby is dismissed, in its entirety. ELI NASH, Jr. Administrative Law Judge Dated: July 9, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The General Counsel's unopposed Motion to Correct the Transcript is granted. /2/ McRae did not attempt to contact any other union stewards before calling Benson. It was the first time she had been asked to furnish a union representative to an employee outside the Main Exchange. Respondent called its Personnel Manager, Phillip Aucoin to testify that other union stewards were at work on June 30 and that each was less than a five minute drive from the Food Warehouse. Still, Aucoin confirmed that stewards must be released by their supervisors to perform representational duties on official time and he admitted that there is no way of knowing which of the stewards, if any, could have been released from their duties on June 30, 1983. /3/ Foster allegedly thought that if he insisted on waiting for a union representative to arrive before answering Scruggs' questions, he would be admitting guilt. /4/ Benson's assertion regarding equal numbers of union and management representatives is based on information supplied to her by other union representatives and on her own experience in processing employee grievances. Although Benson was questioned whether any rule required management to give the union 24 hour notice of investigative interviews, the record shows she asserted no such rule when she arrived at the Food Warehouse to represent Foster. /5/ Section 7114(a)(2)(B) provides: (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. /6/ Based on the above findings, it is unnecessary to pass on respondent's primary contention that it took every reasonable step to ensure that the union had an opportunity to represent an employee who had requested such representation. Moreover, in view of the above disposition it is likewise unnecessary to make a finding with regard to the General Counsel's request for a make-whole remedy in this case.