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16:0794(109)CA - Army and Air Force Exchange Service, Rocky Mountain Area Exchange, Fort Carson, CO and AFGE Local 1345 -- 1984 FLRAdec CA

[ v16 p794 ]
The decision of the Authority follows:

 16 FLRA No. 109
 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).
    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
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                              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
                           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
                             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
    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
    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
    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.
          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
    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,
    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.
    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
    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
    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
    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
    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:
    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
          (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.