[ v23 p876 ]
The decision of the Authority follows:
23 FLRA No. 108 DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHEAST REGIONAL OFFICE OF INSPECTION Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 4-CA-40568 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The Charging Party (the Union) filed an opposition to the exceptions. The issue is whether the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by conducting an "examination" of an employee in conflict with the employee's right to request union representation under section 7114(a)(2)(B) of the Statute. The Authority finds that the Respondent did not commit an unfair labor practice as alleged. II. Background and Judge's Decision As part of an investigation into the manner in which a Revenue Officer handled a tax collection manner, the Respondent's inspector arranged to have the taxpayer discuss the issue with the Revenue Officer in phone conversations initiated from the taxpayer's home. Unknown to the Revenue Officer, the conversation was monitored and taped by the Respondent. The information obtained from the phone conversations was eventually used in disciplinary action brought against the Revenue Officer. The Judge decided that the phone conversations constituted an "examination," that the Revenue Officer's right to request union representation under section 7114(a)(2)(B) of the Statute had been violated, and that the use of the investigative technique thus violated section 7116(a)(1) of the Statute, as alleged. As a remedy, the Judge recommended an order which would require the Respondent to rescind the disciplinary action and to reconsider the basis for such action without referring to the information obtained from the phone conversations. III. Positions of the Parties The Respondent argues that it did not commit the violation alleged in the complaint because the investigation at issue was in connection with a criminal matter and section 7114(a)(2)(B) was not intended to be applicable to criminal investigations. As part of this argument, it also implicitly argues that application of section 7114(a)(2)(B) to preclude it from using such investigative techniques would interfere with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Respondent also disputes the Judge's recommended remedy. The Union supports the Judge's Decision. IV. Analysis and Discussion A. Rights under Section 7114(a)(2)(B) Section 7114(a)(2)(B) of the Statute provides that in any examination of a unit employee by an agency representative in connection with an investigation, the employee shall have the right to have a union representative present if the employee reasonably believes that the examination may result in disciplinary action and requests representation. The legislative history of this section discloses that Congress' purpose in enacting section 7114(a)(2)(B) was to create representation rights for Federal employees equivalent to the rights provided employees by the National Labor Relations Board (NLRB) in interpreting the National Labor Relations Act (NLRA). See 124 Cong. Rec. 29184 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, H.R. Comm. Print 96-7, 96th Cong., 1st Sess. 926 (1979), where Congressman Udall explained that the purpose of the House bill provisions which led to enactment of section 7114(a)(2)(B) was to reflect the Supreme Court's decision in NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975), in which the Court deferred to the NLRB's interpretation of the NLRA. See also Internal Revenue Service v. FLRA, 6711 F.2d 560, 563 (D.C. Cir. 1982), enforcing Internal Revenue Service, Washington, D.C., 4 FLRA 237 (1980) (holding that under section 7114(a)(2)(B), whether an employee has a reasonable belief that discipline may result from an examination is determined, as under Weingarten, by an objective test). The Senate/House conferees recognized, however, that the right might evolve differently under the Statute than under the NLRA, and accordingly stated their intent that the evolution of decisions interpreting the right in the private sector would not necessarily be determined for the Federal sector. Civil Service Reform Act: Conference Report, H.R. Rep. No. 1717, 95th Cong., 2d Sess. 156 (1978), reprinted in Legislative History at 824. B. Whether section 7114(a)(2)(B) is applicable to examinations arising out of criminal investigations Section 7114(a)(2)(B) refers to "any examination" of an employee . . . in connection with "an investigation" (emphasis added). The Conference Report essentially tracks the statutory language. Conference Report, H.R. Rep. No. 1717, 95th Cong., 2d Sess. 156 (1978) reprinted in Legislative History at 824. Congress was undoubtedly aware that, unlike the private sector, many Federal agencies (including the Respondent) conduct criminal investigations that sometimes (as here) include their own employees. Section 7114(a)(2)(B), however, does not exclude or refer in any way to criminal investigations. Accordingly, it is our view that Congress intended section 7114(a)(2)(B) to apply to all examinations in connection with all investigations, not just to examinations of employees in connection with non-criminal matters. Our conclusion is buttressed by the practice in the Postal Service wherein the NLRB has applied Weingarten rights to the examination of postal employees, who are governed by private sector labor law, in connection with criminal investigations. See United States Postal Service, 241 NLRB 141 (1979); United States Postal Service, 254 NLRB 703 (1981). Further, Weingarten itself involved the investigation of an employee accused of criminal acts. Finally, we find that applying section 7114(a)(2)(B) rights to examinations in connection with criminal investigations would not interfere with the right of management to determine its internal security practices under section 7106(a)(1) of the Statute. The presence of a Union representative at an examination does not interfere with management's right to insist that the employee be responsive, or its right to decide the scope of the examination, or the extent of the Union's legitimate role as a representative. See Weingarten, 420 U.S. at 261; Office of Personnel Management, Washington, D.C. 17 FLRA 302 (1985); Norfolk Naval Shipyard, 9 FLRA 458 (1982). We find that section 7114(a)(2)(B) applies to requests by an employee for union representation at an examination by an agency representative in connection with a criminal investigation. We conclude that this result (1) comports with the language of section 7114(a)(2)(B) and the intent of Congress, (2) is consistent with the Supreme Court's explanation of the parameters of the right to representation in Weingarten, /1/ and (3) does not conflict with management's legitimate prerogatives or its right to determine its internal security practices. C. Whether the Respondent interfered with the employee's rights under section 7114(a)(2)(B) of the Statute The Authority concludes that the telephone surveillance at issue here, involving the agency's monitoring of phone calls of an employee suspected of having engaged in improper or illegal conduct does not constitute an examination within the meaning of section 7114(a)(2)(B). As discussed above in section A, the legislative history of section 7114(a)(2)(B) establishes that its incorporation in our Statute was for the purpose of granting to Federal employees the same rights to representation in employer examinations held by private sector employees set forth in the Supreme Court's Weingarten decision. The Court in Weingarten was not addressing those facets of a criminal investigation such as a telephone surveillance in which it is essential to the success of the surveillance for the employee to be unaware that his conversation is being monitored. In fact, the presence of a Union representative is utterly incongruous with the surreptitious nature of the agency's surveillance activities. In contrast, in Weingarten, the Court was concerned with the right of an employee to have "the assistance of his union representative in a confrontgation with his employer" (emphasis added). Weingarten at 260. In the Court's view, "(a) single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors" (emphasis added). Id. at 262-63. In these circumstances, the Court concluded "(a) knowledgeable union representative could assist the employer by eliciting favorable facts and save the employer production time by getting to the bottom of the incident occasioning the interview. Id. at 263. In this case, there was no direct questioning or examination of the employee by agency management. Management's involvement was limited to monitoring the conversation between a Revenue Officer and a taxpayer. Moreover, the conversations took place without the employee being aware that the questions and his answers were being monitored. Thus, at no time during these conversations did the employee feel compelled to respond to questions posed by the taxpayer. Although an officer of the agency may have precipitated the taxpayer's action, there was no direct interaction between the employee and agency management since it was the taxpayer who initiated the talks and elicited information. Thus, we find that the monitoring here, in which management played the passive role of listening rather than participating in the conversations, does not constitute an "examination of any employee . . . by a representative of the agency in connection with an investigation" within the meaning of the Statute but rather is a form of surveillance. The General Counsel's allegation encompasses an expansion of employee representational rights that is inconsistent with section 7114(a)(2)(B) and unduly interferes with management's right under section 7106(a)(1) of the Statute to investigate alleged wrongdoing by its employees and determine internal security practices. It would produce the anomalous prohibition that agencies could not engage in unannounced surveillance of allegedly dishonest employees as an investigative technique without first informing the employee of what was being done and providing an opportunity to request representation. We do not believe that Congress intended such an unlikely result. Based on the analysis set forth above we conclude that the monitoring of the conversation between the IRS agent and the taxpayer did not constitute an "examination" within the meaning of section 7114(a)(2)(B) of the Statute. Given this conclusion, there is no basis to find that the agency violated section 7116(a)(1) of the Statute as alleged in the complaint. V. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and affirms those rulings. The Authority has considered the Judge's Decision, the exceptions to that Decision, the opposition to the exceptions, the positions of the parties, and the entire record, and adopts the Judge's findings and conclusions only to the extent consistent with this decision. We conclude that the Respondent, in the circumstances of this case, did not interfere with, restrain, or coerce employee Miller in the exercise of any of his rights under section 7114(a)(2)(B) of the Statute, and we shall dismiss the complaint. In view of this conclusion, we do not pass upon the merits of the Judge's recommended remedial order. ORDER IT IS ORDERED that the complaint in Case No. 4-CA-40568 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., October 31, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 4-CA-40568 DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHEAST REGIONAL OFFICE OF INSPECTION Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Regina N. Kane, Esquire For the General Counsel Robert M. Finer, Esquire For the Respondent Timothy C. Welsh, Esquire For the Charging Party Before: BURTON S. STERNBURG 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. Section 7101 et seq. and the Rules and Regulations issued thereunder. Pursuant to a charge filed on July 24, 1984, by the National Treasury Employees Union (hereinafter called the NTEU or Union), a Complaint and Notice of Hearing was issued on August 20, 1985, by the Regional Director for Region IV, Federal Labor Relations Authority, Atlanta, Georgia. The Complaint alleges that the Department of the Treasury, Internal Revenue Service, Jacksonville District and the Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection (hereinafter called Respondent or IRS), violated Section 7116(a)(1) of the Federal Service Labor-Management Relations Statute, hereinafter called the Statute), by utilizing a third party to conduct a wire tapped telephone examination of bargaining unit employee Steven W. Miller in such a manner as to preclude Mr. Miller from exercising his Section 7114(a)(2)(B) right to request the presence of a union representative. A hearing was held in the captioned matter on October 1, 1985 in Daytona Beach, Florida. All parties were afforded the opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The Charging Party, Respondent and General Counsel submitted post-hearing briefs on December 2, 1985, which have been duly considered. /2/ Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, /3/ conclusions, and recommendations. Findings of Fact The NTEU is the exclusive representative "of certain employees of the Department of the Treasury." Included in the unit are a number of employees working in the IRS, Jacksonville, Florida, District Office, which encompasses, among other areas, the Daytona Beach, Florida, Field Office. Mr. Steven W. Miller was employed as an Internal Revenue Officer in Daytona Beach, Florida and as such was included in the unit represented by the NTEU. Among Mr. Miller's duties as a Revenue Officer was the collection of funds from delinquent taxpayers. Sometime in April 1983, Mr. George Edwards, Mr. Miller's group supervisor, contacted Mr. Robert Dan Clark, Jr. an inspector with the IRS Internal Security Division /4/ in Jacksonville, Florida, and informed him that he had reason to believe that Mr. Miller may have mishandled a "collection" which had been assigned to him. Mr. Edwards further informed Mr. Clark that he had also received information that Mr. Miller might be "personally or socially acquainted with the taxpayer." /5/ Mr. Clark subsequently initiated an investigation of the matter and determined that the delay in the collection of delinquent taxes from Taxpayer A was based on false information appearing on a certain form in the taxpayer's file which indicated that Taxpayer A had been unemployed at the time in question. Inasmuch as Taxpayer A had in fact been employed at the time and denied giving false information to the contrary to Mr. Miller, who was a friend of a co-worker of Taxpayer A, it was incumbent on Mr. Clark to determine who in fact was responsible for the false information on the form, Mr. Miller or Taxpayer A. Envisioning an "obvious response" from an inquiry to Mr. Miller, that the document "truly reflects what she, Taxpayer A, told him," Mr. Clark was of the opinion that the best way to resolve any credibility dispute was to monitor a telephone conversation on the matter between Taxpayer A and Mr. Miller. On March 30, 1984, at 8:52 a.m. and 9:20 a.m. pursuant to arrangements with Mr. Clark, Taxpayer A placed two telephone calls from her residence to Mr. Miller at the Internal Revenue Office located in Daytona Beach, Florida. Both the telephone calls were monitored and recorded by Mr. Clark and fellow inspector Mailoux. Taxpayer A consented to the wire taps. The transcripts of the two telephone conversations reveal that Taxpayer A discussed the subject matter of the investigation, namely the false information concerning her work status and elicited damaging testimony from Mr. Miller concerning the false information on the IRS form. At no time during the telephone conversations was Mr. Miller informed that the conversations were being initiated by, and monitored by, IRS representatives. Similarly, Mr. Miller was never informed of his right to Union representation. Mr. Clark testified that the use of wire taps was an extremely valuable tool in which to resolve credibility both for and against IRS agents who have been accused by taxpayers of various indiscretions etc. He further testified that denying the IRS the use of such investigative aids, would impede their work. Discussion and Conclusions The General Counsel and the Charging Party take the position that the monitored telephone conversations constituted a Section 7114(a)(2)(B) interview wherein Mr. Miller should have been provided the opportunity to request representation. Inasmuch as Respondent's action in surreptitiously monitoring the telephone conversation was designed to interview Mr. Miller without his knowledge, Respondent knowingly and intentionally deprived Mr. Miller of his Section 7114(a)(2)(B) right to request representation. In such circumstances Respondent violated Section 7116(a)(1) of the Statute. Respondent urges dismissal of the complaint on the ground that there is no evidence in the record indicating that Mr. Miller would have requested representation if he had been made aware of the fact that his conversations were being monitored. Additionally, Respondent urges dismissal on the ground that the legislative history does not establish that the so-called "Weingarten" rights to representation were intended to apply to criminal investigations.' Before Section 7114(a)(2)(B) of the Statute becomes applicable it must be shown (1) that an examination is being conducted, (2) in connection with an investigation, (3) that the employee involved reasonably believes that the examination may result in discipline and (4) the employee requests representation. With respect to (1) and (2) above it is clear that the monitored telephone calls from Taxpayer A to Mr. Miller were intended to be an examination in connection with an investigation to determine who was responsible for the false information appearing on the IRS form. If in fact it could be determined from such telephone calls that Mr. Miller was the guilty party there is no doubt that discipline would result. /6/ In this latter connection the transcript of the telephone conversation indicates that Mr. Miller was concerned about what action would be taken by Respondent if it concluded that he was responsible for the false information. Finally, with regard to the last element, i.e. employee request for representation, while it is true as contended by Respondent that the record is devoid of any evidence indicating that Mr. Miller would have requested representation, I find that under all the circumstances herein, Respondent is foreclosed from relying upon the absence of such evidence. Having purposely deprived Mr. Miller of knowledge of the examination, Respondent can hardly defend its actions on the ground that there is no evidence of a request for representation when, due to Respondent's surreptitious behavior, Mr. Miller was clearly not aware of the fact that an examination was being conducted and as a consequence was deprived of the opportunity to request representation. To insist at this late date, i.e. subsequent to a notice of proposed suspension based on damaging testimony elicited during the wiretapped conversations, that Mr. Miller take the stand and attest to the fact that he would have requested representation if he had known that an examination was being conducted is absurd. This is particularly true when one of the requested remedies is the suppression of the testimony secured by Respondents through the wiretap. Concerning Respondent's second ground for dismissal, i.e., that Section 7114(a)(2)(B) of the Statute is not applicable to criminal investigations, I find that the Authority has found to the contrary. Thus, in Lackland Air Force Base, Texas, and American Federation of Government Employees, Local 2911, AFL-CIO, 5 FLRA 473, 485, the Authority affirmed the Administrative Law Judge's conclusion that employee was entitled to union representation during the course of an examination to determine whether or not the employee was guilty of a crime. The Administrative Law Judge noted that since the examination was conducted jointly by the Respondent's managers and Respondent's independent criminal investigative branch, the employee was entitled to union representation at all interviews, criminal and administrative alike. While Respondent acknowledges the Authority's decision in Lackland Air Force Base, supra, it takes the position that it is not controlling since the issue of the applicability of Section 7114(a)(2)(B) to criminal investigations was not specifically discussed. According to Respondent, since the legislative history is silent on the matter, there was no intention of Congress to include criminal investigations within the representational rights accorded employees under Section 7114(a)(2)(B) of the Statute. Respondent's argument in this latter regard was raised and thoroughly treated by Chief Administrative Law Judge John H. Fenton in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Southeaast Regional Office, Atlanta, Georgia, and NTEU, Case No. 4-CA-1138, OALJ-84-03, October 21, 1983. To the extent that Judge Fenton found after an exhaustive analysis of the legislative history, that Section 7114(a)(2)(B) applies to any investigation which may reasonably lead to discipline, I agree. In reaching this latter conclusion I adopt, Judge Fenton's well reasoned analysis of the legislative history. Accordingly, having failed to allow Mr. Miller the opportunity to exercise his Section 7114(a)(2)(B) rights, I find that the Respondent has interfered with, restrained and coerced Mr. Miller in violation of Section 7116(a)(1) of the Statute. Having found that Respondent violated Section 7116(a)(1) of the Statute by virtue of its action in depriving Mr. Miller of his Section 7114(a)(2)(B) rights to union representation, it is hereby recommended that the Authority issue the following order designed to effectuate the purposes and policies of the Statute. /7/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that Department of the Treasury, Internal Revenue Service, Jacksonville District and Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection shall: 1. Cease and desist from: (a) Engaging in investigatory interviews of bargaining unit employees, which may lead to disciplinary action, by means of consensually monitored telephone calls which conceal the fact that an investigation is underway, and thus operate to deprive employees of the right to request and receive representation by the National Treasury Employees Union, their exclusive collective bargaining representative. (b) Using or relying upon in any internal disciplinary proceeding the transcript and/or information derived from, any consensually monitored telephone call made by an undisclosed agent of management which conceals the nature and purpose of the telephonic investigation and/or examination and precludes the affected employee from requesting Union representation. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) To the extent that management may have relied upon information derived from monitored telephone calls made by an undisclosed agent of management which concealed the nature and purpose of the telephonic investigation and/or examination, reevaluate any internal discipline imposed, taking care to exclude from such deliberations the information surreptitiously obtained through the monitored telephonic investigation. (b) Post at its Jacksonville, Florida, District Office and Southeast Regional Office of Inspection facilities copies of the attached notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by authorized representatives, 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 insure that said notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director for Region IV, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. /s/ BURTON S. STERNBURG Administrative Law Judge Dated: December 30, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) For a discussion of extensions of Weingarten in the private sector, see C. J. Morris (ed.), The Developing Labor Law: Vol. I, 151-54 (2d ed. 1983) and J. Harper II, S. Logothetis, & H. Datz (eds.), The Developing Labor Law: Second Edition, First Supplement, 32-35 (1985). (2) In the absence of any objection, Respondent's Motion To Correct the Transcript, should be, and hereby is, granted. (3) The facts, for the most part, are not in dispute. (4) Mr. Clark described his duties as follows: "Conduct investigations which may be either criminal or non-criminal. These investigations generally impact upon the integrity of IRS, normally concerning violations or suspected violations of U.S. Criminal Code or the Internal Revenue Code, Title 18 and Title 26. Normally involving suspected attempts to interfere with proper functioning by employees or persons outside the service, by threats and assault, bribery, impersonations, conflict of interest. We also conduct some investigations of an administrative type nature or non-criminal type cases involving suspected misconduct by IRS employees." (5) The parties agreed that the taxpayer's name would not be disclosed. Accordingly, the taxpayer will be referred to as "Taxpayer A." (6) In fact the telephone interview did lead to a proposed suspension for Mr. Miller. APPENDIX 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT interfere with, restrain or coerce any bargaining unit employee in the exercise of the Statutory right to be represented by the National Treasury Employees Union during an investigatory interview which may reasonably lead to discipline, by conducting a monitored examination through another individual who is an undisclosed agent of management, thus concealing the nature and purpose of the interrogation and precluding the opportunity for Union representation. WE WILL NOT use in any internal disciplinary proceedings transcripts, and/or information derived from any consensually monitored telephone calls made by an undisclosed agent of management which conceals the nature and purpose of the telephonic investigation and/or examination and precludes the affected employee from requesting union representation. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce any employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, to the extent that we have relied upon information derived from telephone calls made by an undisclosed agent of management which concealed the nature and purpose of the telephonic investigation and/or examination, re-evaluate any internal discipline imposed, taking care to exclude from such deliberations the information surreptitiously obtained through the monitored telephonic investigation. (Agency or Activity) Dated: . . . By: (Signature) 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 the Regional Director of the Federal Labor Relations Authority, Region IV, whose address is: 1776 Peachtree Street, N.W., Suite 501, North Wing, Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324.