21:0240(33)CA - INS, San Diego, Cal. And AFGE, Local 2544 -- 1986 FLRAdec CA
[ v21 p240 ]
21:0240(33)CA
The decision of the Authority follows:
21 FLRA No. 33
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
(15 FLRA 383)
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit,
which directs the Authority to issue an appropriate order directing the
Respondent agency to cease and desist from certain unfair labor
practices.
II. History of the Case
A. The Authority's Decision
On July 24, 1984, the Authority issued its Decision and Order in U.S.
Immigration and Naturalization Service, San Diego, California, 15 FLRA
383 (1984), adopting the Decision of its administrative Law Judge that
the respondent had not violated the Stature by denying the request of
Gregory Reed, a unit employee, for union representation at an
investigatory interview, or by conducting the interview despite the
denial of Reed's request. As stated by the Judge, and adopted by the
Authority, the grant of immunity to Reed by the respondent was
sufficient to dispel any reasonable fear of disciplinary action.
B. The Court's Opinion
On December 24, 1985, the Court issued its opinion in American
Federation of Government Employees, Local 2544 v. FLRA, 79 F.2d 719
(Judge Starr dissenting). The Court, while accepting the Authority's
standard for determining "reasonable belief," found that the record
evidence failed to support the conclusion adopted by the Authority that
the employee could not reasonably have believed that disciplinary action
might result from the interview. Thus, the Court, reversed the
Authority's conclusion and remanded the case for the issuance of an
appropriate order.
III. Conclusion
The Authority accepts the Court's opinion as the law of the case and,
consistent with that opinion, finds that the Respondent, by denying the
request of unit employee Gregory Reed for union representation at an
investigatory interview of the employee on April 9, 1981, and by
conducting the interview despite the denial of employee Reed's request,
failed to comply with section 7114(a)(2)(B) of the Statute and thus
violated section 7116(a)(1) and (8) of the Statute. Accordingly, we now
issue the following order:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Immigration and Naturalization Service, San Diego,
California, shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee to take part in an
examination in connection with an investigation (investigatory
interview) or conducting such an examination or interview, without
representation by the employee's exclusive bargaining representative, if
such representation has been requested by the employee, and if the
employee reasonably believes that the examination or investigatory
interview may result in disciplinary action against such employee.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at all facilities of the U.S. Immigration and Naturalization
Service, San Diego, California, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Regional Commissioner
responsible for such facilities, or a designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C. April 7, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT require any bargaining unit employee to take part in an
examination in connection with an investigation (investigatory
interview) or conduct such an examination or interview, if such
representation has been requested by the employee, and if the employee
reasonably believes that the examination or investigatory interview may
result in disciplinary action against such employee.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
---
(Activity)
Dated: ---
---
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with any of
its provisions, they may communicate directly with the Regional Director
of the Federal Labor Relations Authority, Region VIII, whose address is:
350 South Figueroa Street, 10th Floor, Los Angeles, California 90071,
and whose telephone number is: (213) 894-3805.