[ v24 p521 ]
24:0521(59)CA
The decision of the Authority follows:
24 FLRA No. 59
DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
SOUTHEAST REGIONAL OFFICE
ATLANTA, GEORGIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-1138
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent, the Charging Party (the Union), and the General
Counsel to the attached Decision of the Administrative Law Judge. The
issue is whether the Respondent violated section 7116(a)(1) of the
Federal Service Labor-Management Relations Statute (the Statute) by (1)
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; and (2) requiring another employee to
participate in the "examination." The Authority finds that the
Respondent did not commit an unfair labor practice as alleged.
II. Background and Judge's Decision
A special agent in the Respondent's Office of Internal Affairs
received a report that an employee, Ms. Franken, may have compromised an
ongoing investigation concerning a firearms dealer by telling the
dealer's wife about the investigation. As part of the investigation
into the allegation, the special agent contacted another employee, Ms.
Then, who was a coworker of Franken and who had reported overhearing the
telephone conversation during which Franken allegedly compromised the
investigation.
Then was interviewed by the special agent about the allegation. Then
was also asked to call Franken so that the special agent could monitor
and tape record her answers to questions related to the internal
investigation. Then asked what would happen if she refused to make the
call and she was told that she would have to explain her refusal to her
supervisor and that the matter could ultimately reach the Director.
Fearing that refusal could adversely affect her, Then agreed to make the
call.
The special agent supplied the questions for Then to ask Franken
during the conversation. Franken denied compromising the investigation
concerning the firearms dealer. When Franken accused Then of asking the
questions for someone else, Then denied the accusation.
The Office of Internal Affairs reported the findings of the
investigation to the Assistant U.S. Attorney, who concluded that there
was insufficient evidence to warrant prosecution. The Assistant U.S.
Attorney recommended that the Respondent proceed with the matter
administratively. After further internal investigation, which is not in
dispute here, Franken was cleared of any wrongdoing. Franken was,
however, cautioned in writing about discussing investigative matters
with persons outside the Agency. The investigative materials remain on
file with the Respondent.
The Judge concluded that the telephone conversation between Then and
Franken constituted an "examination" and that Franken's right to request
Union representation under section 7114(a)(2)(B) of the Statute had been
violated. The Judge found, therefore, that the Respondent had violated
section 7116(a)(1) as alleged. The Judge also found that the Respondent
violated section 7116(a)(1) when it required Then to participate in the
telephone conversation because its actions interfered with Then's right
under section 7102 to assist the Union, which had a right to be
represented at the examination of Franken. The Judge recommended an
Order requiring the Respondent to cease and desist engaging in the
unfair labor practices and to post a notice in Respondent's District
Office in Jacksonville, Florida, to that effect. The Judge denied the
General Counsel's request for "expungement" of the investigative file.
The Judge also found no reason to restore the status quo ante because
the incident had caused no harm to Franken's career.
III. Positions of the Parties
The Respondent argues that the Judge erred in concluding that section
7114(a)(2)(B) applies in a criminal investigation, and that even if that
section applies in such an investigation, no violation occurred in this
case because of the surreptitious nature of the investigation. The
Respondent also excepts to the Judge's finding that it interfered with
Then's right under section 7102 to assist the Union.
The Union and the General Counsel filed exceptions also. They argue
that the Respondent should be required to post the notice of the unfair
labor practice nationwide rather than in the Jacksonville District
Office only, and that, in addition, the investigative file should be
expunged.
IV. Analysis and Discussion
A. Criminal Investigations
In Department of the Treasury, Internal Revenue Service, Jacksonville
District and Department of the Treasury, Internal Revenue Service,
Southeast Regional Office of Inspection, 23 FLRA No. 108 (1986), we held
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. For the reasons stated in
Internal Revenue Service, Jacksonville District, we reach the same
conclusion here.
B. Whether the Conversation Was an "Examination"
Internal Revenue Service, Jacksonville District involved the agency's
monitoring and taping of a telephone conversation between a taxpayer and
an agency employee concerning possible wrongdoing on the part of the
employee. In view of the Congressional intent concerning section
7114(a)(2)(B), we stated that "the presence of a union representative is
utterly incongruous with the surreptitious nature of the agency's
surveillance activities." Slip op. at 4. We found in that case that:
(1) there was no direct questioning or examination of the employee by
agency management, (2) management's involvement was limited to
monitoring the conversation, (3) the employee was unaware that the
questions and his answers were monitored, (4) the employee did not feel
compelled to answer the questions, and (5) management played a "passive
role" in the conversation. We concluded that the monitoring of the
conversation did not constitute an "examination" within the meaning of
section 7114(a)(2)(B).
As in Internal Revenue Service, Jacksonville District, we conclude
here that a finding of a violation would necessitate an expansion of
employee rights that is inconsistent with section 7114(a)(2)(B) and with
the Agency's right under section 7106(a)(1) to determine the internal
security practices which it will use to investigate alleged wrongdoing
by its employees. In fact, it would effectively eliminate the use of
surveillance involving questioning of employees as an investigative
technique. We do not believe that such a result would be inconsistent
with Congressional intent.
Although the Agency supplied the questions for Then to ask Franken
during the conversation, its involvement in the conversation itself was
limited to monitoring. Also, Franken was unaware that the conversation
was monitored and did not feel compelled to answer the questions. In
essence, the only differences between this case and Internal Revenue
Service, Jacksonville District are that (1) the Agency here actually
supplied the questions to be asked during the conversation and (2) the
questions were asked by an employee rather than by a member of the
public. These are insufficient bases upon which to distinguish the two
cases. Consistent with Internal Revenue Service, Jacksonville District,
therefore, we conclude that the surreptitious monitoring of the
conversation between Franken and Then was not an examination within the
meaning of section 7114(a)(2)(B).
C. Interference with Section 7102 Rights
As discussed above, the Union had no right under the Statute to be
represented during the monitored conversation. Accordingly, Then's
right under section 7102 to assist the Union was not violated.
The Agency placed Ms. Then in a very awkward situation in order to
obtain her cooperation in the investigation of Ms. Franken. Although
the Agency's actions did not violate the Statute, we encourage the
Agency and others in like circumstances to seek other means, whenever
possible, to accomplish their internal security and law enforcement
functions in the future. It is our view that actions which foster
employee management relations based on trust and cooperation are
preferred for the most effective and efficient conduct of the Agency's
business.
V. Conclusion
Pursuant to section 2423.29 of the Authority's regulations, we have
reviewed the rulings of the Judge made at the hearing, find that no
prejudicial error was committed, and affirm those rulings. We have
considered the Judge's decision, the exceptions to that Decision, and
the entire record. We adopt the Judge's findings and conclusions only
to the extent that they are consistent with this decision.
We conclude that in the circumstances of this case Respondent did not
interfere with, restrain, or coerce employees Franken or Then in the
exercise of their rights under section 7114(a)(2)(B) of the Statute. We
will, therefore, dismiss the complaint. In view of our conclusion, we
do not pass upon the merits of the Judge's recommended remedial order.
ORDER
The complaint in Case No. 4-CA-1138 is dismissed in its entirety.
Issued, Washington, D.C., December 17, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 4-CA-1138
DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL,
TOBACCO, AND FIREARMS, SOUTHEAST REGIONAL
OFFICE, ATLANTA, GEORGIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Michael Sitcov, Esq.
For the Respondent
Steven P. Flig, Esq.
For the Charging Party
Linda J. Norwood, Esq.
For the General Counsel
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This proceeding arises under the Federal Service Labor-Management
Relations Statute (5 U.S.C. Section 7101 et seq.) and the Final Rules
and Regulations issued thereunder (5 C.F.R. Section 2423.14 et seq.).
It is based on a complaint issued by the Regional Director of Region IV,
Federal Labor Relations Authority, alleging that Respondent violated
Section 7116(a)(1) of the Statute by conducting a covert telephone
examination of an employee which precluded her from exercising her
Section 7114(a)(2)(B) right to request the presence of a union
representative. The complaint alleges further that Respondent violated
Section 7116(a)(1) by requiring another employee to participate in the
covert examination, in which she questioned her colleague in what is
termed a consensually monitored telephone call, i.e., one in which a
party has consented to government eavesdropping.
A formal hearing was held in Jacksonville, Florida on March 15, 1983.
All parties were afforded full opportunity to examine witnesses, to
introduce evidence and file briefs. On the basis of the entire record,
including my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions and recommendations.
Findings of Fact
The National Treasury Employees Union (the Union) is the exclusive
bargaining representative for a unit which includes Respondent's
professional, general schedule, and wage grade employees located in its
Southeast Region.
The Respondent, the Bureau of Alcohol, Tobacco and Firearms (ATF), is
the branch of the Department of the Treasury responsible for the
enforcement of Federal Statutes regulating the alcohol, tobacco and
firearms industries. The Office of Regulatory Enforcement at ATF
investigates and inspects members of the industry for compliance with
federal regulation. The Office of Criminal Enforcement tries to prevent
illegal traffic in alcohol, firearms and tobacco. The Bureau maintains
its internal integrity by means of the Office of Internal Affairs, an
"in-house" branch which is charged with investigating misconduct and
criminal violations by ATF employees. Bargaining unit employees Colleen
Then and Sania Franken worked in the Jacksonville, Florida, Regulatory
Enforcement Division of ATF in March and April of 1981.
Christopher Columbus Hilton, a firearms dealer, had been under
investigation for several years by Criminal Enforcement when, on April
8, 1981, Special Agent for Internal Affairs Gary Mugridge received a
report that Sania Franken told Hilton's wife that he was under
investigation. If the allegation was true, Franken was guilty of the
crime of compromising an ongoing investigation.
On April 9, 1981, Agent Mugridge traveled from Atlanta to
Jacksonville where he interviewed Ron Mitchell, Special Agent assigned
to the Criminal Enforcement office in Jacksonville, and Robert Griffith,
the Resident Agent in charge of ATF's Criminal Enforcement office in
Jacksonville. In the interview with Mitchell, Mugridge learned that on
March 18, 1981, Colleen Then, a friend and co-worker of Franken's had
reported to Mitchell that she had overheard a telephone conversation
between Franken and a friend in which Franken had discussed the criminal
investigation of Hilton's firearms activities. /1/ Mitchell had
reported this allegation to Resident Agent Griffith who, in turn, had
reported it to his supervisor. Griffith's supervisor reported the
allegation to the Office of Internal Affairs.
In the afternoon of April 9th, Mugridge called Then at home and tried
to arrange to interview her that night. She refused due to health
problems, but agreed to meet with him the next day. On April 10, Then
met with Griffith and Mugridge in Griffith's office. She was told the
purpose of the interview was to discuss the allegation that an ongoing
investigation had been compromised and that she, although not the
subject of the investigation, was a witness and had to answer
job-related questions under oath, as required by the ATF Manual 8600.
Mugridge took a dry run through the questions he intended to ask Then
about Franken's alleged compromise of the investigation. He then
questioned her under oath with the tape recorder on.
Mugridge next asked Then to call Franken so that he could monitor and
tape record her answers to questions related to the internal
investigation. Then balked at the request and asked what would happen
if she refused to make the call. She was told that she would have to
explain her refusal to her supervisor and that this could ultimately
reach the Director. She was given 10 to 15 minutes to think over the
request. Fearing that her refusal to cooperate could cost her her job,
Then agreed to make the phone call.
Mugridge wrote out questions for Then to ask Franken. She was told
to keep constant eye contact with Mugridge during the taping of the
conversation. She reached Franken by phone on the job at the Castleton
Beverage Corporation. The conversation began with a friendly exchange
about what was going on at work. Eventually, Then asked Franken about a
recent phone call she had overheard while at Franken's house. Franken
revealed that it had been Ruth Monger who had called her. (Monger was
in Franken's LaMaze class and was married to a gun dealer). Franken
told Then that Monger had mentioned that Christopher Hilton had been
arrested by local authorities in a precious metal scheme. While Franken
admitted saying to Monger that if Hilton knew the metal was stolen, he
deserved whatever trouble he got, she denied discussing the matter any
further with Monger. Franken expressed dismay at the questions Then was
posing, and accused her of asking them for someone else. Then assured
Franken that no one was telling her to ask the questions, explaining
that she was wondering about them because Criminal Enforcement personnel
had questioned her about the regulatory investigations of Hilton.
Internal Affairs viewed the investigation as a criminal one up to
this point, but the information derived from the phone call would have
been used in connection with any disciplinary action against Franken.
When Internal Affairs reported the findings of the investigation, the
Assistant U.S. Attorney concluded that there was insufficient evidence
to warrant prosecution and recommended that ATF proceed with the matter
administratively.
More than a week later, Mugridge called Franken from Atlanta to
arrange for an interview in Jacksonville to discuss the allegations made
against her. The interview was scheduled for April 20, 1981. Franken
tried to arrange to have a union representative accompany her. However,
the representative could not attend, and she agreed to the interview
without him. Mugridge informed Franken of the nature of the interview,
placed her under oath and recorded her responses. He asked questions
similar to those Then had asked during the phone call on April 10.
Franken's answers corresponded with those she had given during the
surreptitiously monitored phone conversation and corroborated her
previous statements that she had not disclosed to Monger or to anyone
else anything pertaining to the investigation of Christopher Hilton.
Franken was ultimately cleared of any wrong-doing. On September 18,
1981, Dee Flynn, her third level supervisor, wrote a letter to Franken
informing her that the integrity investigation was complete. But, while
"clearing" her, Flynn cautioned Franken against discussing ATF matters
with persons outside of the agency. The investigative materials remain
on file with Respondent.
Discussion and Conclusions
Section 7114(a)(2)(B) grants unit employees the right to union
representation during investigative interviews where they have
reasonable cause to fear discipline and request such representation.
/2/ This case presents the following questions with respect to the
application of that Section:
(1) Does it apply at all to criminal investigations?
(2) Does it apply to investigations into matters affecting an
agency's internal security, as opposed to mere misconduct?
(3) Does it apply where the employee fails to request
representation because the surreptitious nature of the inquiry
concealed the fact that an agency investigation was in progress?
(Put another way, may the otherwise legal investigative technique
of the consensually monitored telephone call be lawfully used
where the subject employee is in a collective bargaining unit?)
In addition, the question is posed whether it is violative of Section
7116(a)(1) to require an employee to engage in a management-monitored
interrogation of a fellow employee, disguised as a personal
conversation, so as to deprive the latter of her Section 7114(a)(2)(B)
rights?
Respondent contends that Section 7114(a)(2)(B) protections should not
apply to criminal investigations. Noting the lack of any reference to
the matter in the legislative history, it argues that Congress' silence
on the matter indicates that it did not intend to interfere with
effective criminal law enforcement, and certainly did not intend to
delegitimitize certain investigative techniques solely for employees who
happen to be represented by unions.
The short answer to this is that the FLRA has already ruled that
Section 7114(a)(2)(B) applies to criminal investigations which may
result in administrative disciplinary action. In Lackland Air Force
Base Exchange, Lackland Air Force Base, Texas and American Federation of
Government Employees, Local 2911, AFL-CIO, (5 FLRA 473), the Authority
held that when an agent of an employer participates in the investigation
of a bargaining unit employee accused of a crime, he cannot deny the
employee union representation if it is requested. 5 FLRA 473, 485
(1981). In that case, not only did the employer's agents question one
employee accused of cash register manipulation, but they also remained
present while independent investigative agents interrogated the employee
and used the work product of the criminal investigation for their own
administrative purposes. While the Authority did not explicitly address
whether or not Section 7114(a)(2)(B) protections apply to criminal
investigations, the ruling makes it clear that employees subject to
administrative action based on evidence acquired in criminal
investigations are entitled to union representation if they request it.
/3/
A convincing rationale for such a holding has, in my view, been
elaborately articulated by the National Labor Relations Board. In U.S.
Postal Service and Eddie J. Jenkins, 241 NLRB 141, it considered whether
the Weingarten rights of employees should be recognized in a criminal
investigation. /4/ The Board there rejected the contention that an
employee's waiver of his Miranda /5/ right to counsel in a criminal
investigation constituted a waiver of the Weingarten right to union
representation in context where the investigation led to discipline. In
doing so the Board noted the significant differences in foundation and
scope of the two rights, and concluded that the employee's Weingarten
rights were "unaffected by any rights he may also have possessed or been
accorded under Miranda." Among the differences it observed were that,
while an attorney's Miranda role calls for whole-hearted advocacy of his
client, whose interests may not be subordinated to the general interests
of bargaining unit employees, the Union representative's Weingarten role
is far less adversarial and involves the rights of the union as well as
the employee. Thus, while the representative's function is to assist
the employee who may be "too fearful or inarticulate to relate
accurately the incident being investigated, or too ignorant to raise
extenuating factors," /6/ unlike a lawyer he may not thwart the
investigation, and he may properly elicit facts favorable to the
employer. Moreover, he may subordinate the interests of the individual
to those of the group, for example by using information gathered in the
interview to discourage a nonmeritorious grievance. In terms of
effectiveness, the Board noted that while an attorney would be skilled
in criminal law, the union representative should be more conversant with
contract and other employment rights and relevant grievance or
arbitration decisions -- in short with the law of the shop. As I read
it, the Board essentially concluded that the right to counsel in a
criminal investigation is not the equivalent of, and therefore cannot be
a substitute for, the right to union representation.
The Board concluded that exclusion of a union representative from a
criminal investigation, coupled with the potential for use of the fruits
of such investigation in the imposition of discipline, would effectively
nullify rights recognized in Weingarten and Section 7114(a)(2)(B). I
perceive no reason (except in circumstances where union officialdom is
implicated in criminal conduct), why the Board's approach is not wholly
fitting in the federal sector. Accordingly, I conclude that
management's right to so conduct criminal investigations must yield to
representation rights set forth in Section 7114.
Respondent presses another, very similar argument, but one which
presents considerations which are absent in the private sector. It
asserts that any holding that Section 7114 precludes the use of
consensually monitored conversations is an unwarranted interference with
management rights recognized in Section 7106. That section provides
that ". . . nothing in this chapter shall affect the authority of . . .
(management) . . . to determine . . . (its) internal security
practices."
As in the case of suspected crimes, I conclude that the right to use
this particular investigative technique must yield to the employee/union
rights recognized in Section 7114. Section 7106 clearly renders the
substance and scope of internal security practices nonbargainable. /7/
It is, perhaps, arguable that the techniques used in investigating
suspected internal security violations are, like the rules themselves,
under the umbrella which leaves them unaffected by other provisions "of
this chapter." But to do so is to read by implication into Section 7106
an intention by Congress to remove such investigative procedures from
the reach of another provision of the Act which expressly recognizes the
right of employees to union representation at investigatory interviews
in which the risk of discipline reasonably inheres.
In the effort to square, or balance, the rights recognized in Section
7106 with those recognized in Section 7114, as well as this law with
criminal laws, it must be acknowledged that this recommended resolution
will, on occasion, significantly impair management's right to protect
its mission, its property, and its personnel against crimes, and
internal security breaches which fall short of crimes. A grant of
immunity from discipline, which might in other circumstances justify a
refusal to accord union representation, is of course, foreclosed in the
case of a consensually monitored conversation. /8/ Where this ruse is
deemed vital to a successful investigation, its use would appear to be
limited to those cases where other law enforcement of internal security
agents (who are not "representatives of the agency" subject to Section
7114), are available and authorized to make the investigation. Where
the agency is alone charged with such investigative powers, and the
criminal and administrative aspects of misconduct are inseparable, the
use of the technique would be precluded absent the possibility of some
acceptable arrangement for observing a use immunity which is not
disclosed to the suspect. To permit an agency to operate without such
restrictions would, as the Labor Board noted, effectively nullify rights
explicitly set forth in Section 7114. Although I conclude that such
rights attach in internal security investigations as well as criminal
investigations, I do so in the belief it is by no means certain that
Congress intended such a result or that the enforcement of other laws
should be subordinated to the apparent commands of this one. Having
given the matter some thought, I think it is useful to set forth those
reservations.
First, this result appears anomalous in the light of the early
legislative history. It was the House which first addressed this
question, on which the Senate was silent in its original bill. HR 3793
provided that an employee could not be required to answer questions
during an investigation of misconduct which could lead to suspension,
removal or reduction in rank or grade unless first advised in writing of
the fact of the investigation, the nature of the alleged misconduct, and
the right to a representative of his choice. (Legislative History of
the Federal Service Labor-Management Relations Statute, Title VII of the
Civil Service Reform Act of 1978, 96th Congress, 1st Sess., Committee on
Post Office and Civil Service, Committee Print No. 96-7, p. 230).
Should such rights be violated, Section 7171(c) provided its own
sanction: "(a)ny statement made by or evidence obtained during
questioning of an employee . . . may not be used as evidence in the
course of any action for suspension, removal or reduction in rank or pay
subsequently taken against the employee" (Legislative History, supra, p.
231). In the Committee's Report (Legislative History, supra, pp.
647-648) it was noted that the sanction set forth in Section 7171(c):
is similar to the exclusionary rule in criminal law, although
certain differences should be noted. First, the phrase "statement
made or evidence obtained during questioning" (emphasis supplied)
reflects the Committee's intention that only evidence obtained (1)
at the time of the questioning and (2) from the employee, may not
be used in a subsequent adverse action. Evidence obtained other
than through the questioning of the employee, even if such
evidence was uncovered due to a lead developed during the
questioning, could be used provided, of course, that it was
otherwise competent.
Thus the only reference to criminal law went to the fruits of the
questioning, in a way which conflicts with criminal law concepts barring
the use of the fruits of the "poisoned tree." And, of course, the very
notion of requiring the represented employee to answer questions is
inconsistent with the privilege against self-incrimination. In
conference all these matters were eliminated. The word "discipline" was
substituted for misconduct with certain specific and serious
consequences; the references to the requirement that questions be
answered and to the inadmissibility of evidence gathered in the absence
of representation were dropped; the requirement that the employee be
informed of the nature of the investigation and his right to
representation was removed; and "investigation" was modified so as to
encompass "any examination . . . in connection with an investigation . .
." (Legislative History, supra pp. 823 and 824). There is no hint of
Congress's intention with respect to the interface of criminal and
administrative investigations.
Thus, the House demonstrated its concern for employee rights during
investigations, whereas the Senate did not. But the House proposed to
do so in a manner which did not fully recognized the rights of a
criminal suspect. /9/ After meeting with the Senate, which initially
showed no such concerns, a statute was fashioned which literally applies
to any examination in connection with an investigation aimed at a unit
employee.
Second, it is difficult to see, as noted above, how the discrete
interests of criminal law enforcement and the maintenance of
administrative discipline and controls can be harmonized. Often the two
aspects of misconduct are inseparable. There is of course no problem
where the law enforcement or internal security agents are not employed
by the agency, but are nevertheless empowered to conduct the
investigation. Such agents would not be hobbled by Section 7114, which
applies to "representatives of the agency." The same may be true of
agents employed by a "wholly autonomous" investigative arm of a
Department, over which the agency has no control. /10/ But where the
agency is required to make the investigation, in a bargaining unit, the
use of a consensually monitored conversation would appear to be
precluded, absent recognition of self-imposed constraints or isolation
of the agency's investigative arm. It will serve no useful purpose to
speculate further about such matters. Suffice it to say that
elimination of an otherwise lawful investigative technique will have a
harmful effect on the process of protecting property and preventing
corruption in government, and that acknowledgement of such consequences
is a necessary ingredient in the effort to determine what Congress
intended and how Section 7114 should be interpreted in the light of
other Sections of this Statute as well as other laws.
In sum, I find no real guidance in the legislative history, and find
confusing in the Statute itself the combination of a free hand for
management respecting internal security practices and a clearly stated
right to representation in any investigation which may reasonably lead
to discipline. I am persuaded by the explicit treatment accorded the
latter that it must prevail.
Having addressed the two threshold questions, I now consider whether
Respondent violated Franken's rights based on Section 7114(a)(2)(B) and
Section 7116(a)(1) of the Statute. To establish non-compliance with
Section 7114(a)(2)(B), the General Counsel must show that the
examination was investigatory in nature, that the employee reasonably
believed he was subject to disciplinary action, and that the employee
requested union representation.
As for the first criterion, even though Then, not Mugridge,
questioned Franken, I conclude that the conversation between Then and
Franken was an "examination . . . in connection with an investigation."
The questions Mugridge told Then to ask were designed to elicit
information from Franken which could cast light on the allegations made
against her. It is irrelevant that these questions were not asked by
Mugridge directly. Reluctantly, Then served as an undercover agent or
mouthpiece for Mugridge. The information elicited from Franken could
have been used against her in a disciplinary action just as surely as if
Mugridge had arranged to interview her at the District office.
With respect to the second and third criteria, Franken was precluded
from forming any beliefs about the possibility of disciplinary action
because of the covert nature of the interrogation. Had she known what
was underway, she would have certainly confronted the prospect of
disciplinary action. But the need for this was concealed. She could
not reasonably be expected to assert her rights in the circumstances.
For this reason, as well, it cannot be said that she waived her rights.
The concealment of the examination constituted a deprivation of
Franken's right to seek the Union's assistance. By depriving Franken of
her Section 7114(a)(2)(B) rights, ATF interfered with her exercise of a
"right under this chapter" in violation of Section 7116(a)(1). /11/
Finally, the Complaint alleges that Mugridge "ordered, directed and
forcefully adjured" Then to interrogate Franken in his behalf, thus
intefering with, restraining and coercing her in the exercise of her
Section 7102 rights in violation of Section 7116(a)(1). More
particularly, General Counsel argues that Respondent thereby interfered
with Then's right to refrain from conduct which violated Franken's
Section 7114(a)(2)(B) right to request Union representation.
Respondent, picking up on the language of Section 7102, contends that
its requirement that Then assist it in ascertaining the facts about a
possibly compromised criminal investigation did not affect her right to
"form, join or assist any labor organization" or to bargain collectively
through the Union.
Respondent's argument, of course, misses the General Counsel's point,
and appears to be based on the fact that the interrogation did not focus
on the Union activities of Franken. /12/ No party advances a case in
point respecting the proposition that an employee enjoys a protected
right to avoid participation in an unfair labor practice. The dearth of
such precedent, from a half-century of labor law litigation, for what
would appear to be an obvious infringement of rights, gives one pause
respecting whether a tenable theory exists, or whether it has been
deemed pointless to fashion one because an employee in Then's
circumstances would, in any event, be fully protected as an incident to
the protection of Franken's rights. /13/
General Counsel relies on a line of Labor Board cases where that
agency has "protected" supervisors who were discharged for refusing to
carry out orders to violate the rights of employees. /14/ General
Counsel asserts that the Court there held that the company "attempted to
force a supervisor to participate in the commission of an unfair labor
practice, in violation of Section 8(a)(1)," and argues that if an
individual not protected by the Statute cannot legally be forced to
commit an illegal act, a fortiori a protected employee cannot legally be
required to do so.
I regard that line of cases as wholly inapposite. They involve no
allegation or finding that the supervisors' rights were infringed.
Rather, they involve reinstatement of supervisors who did not obey such
orders, as a necessary incident of the Board's power to fashion
effective remedies. The rights protected were those of the employees
(the Frankens there involved), and truly effective vindication of those
rights required that the supervisors' insistence or respecting them be
itself respected. Then, as Respondent's agent, would be entitled to the
same kind of protection, even if she is viewed as not being engaged in
protected activity in such circumstances.
Whatever my doubts concerning the usefulness of creating two discrete
violations where the identical remedy would flow from one (not to use
employees -- or anyone else -- to so disguise an investigative interview
and thus circumvent Section 7114(a)(2)(B) protections), I find that
Then's rights were violated. Section 7102 gives her the right to assist
unions. Section 7114(a)(2)(B) grants unions the "opportunity to be
represented at . . . any examination . . . in connection with an
investigation" in circumstances present here, and gives Franken the
right to Union representation. Respondent, by requiring Then to
participate in conduct which precluded the exercise of such rights and
which was thus destructive of them, interfered with Then's Section 7102
right to assist the Union. Since the effect of Respondent's conduct was
deprivation of such rights, it is irrelevant that such purpose never
entered her mind.
Accordingly, I conclude that Respondent, by failing to observe the
rights set forth in Section 7114(a)(2)(B) interfered with, restrained
and coerced Then in violation of Section 7116(a)(1).
The Remedy
The General Counsel requests a nationwide posting on the ground that
the employees involved were relocated to Miami, Florida and California,
and that the violation "reaches to the very essence of employees'
guaranteed rights." While, clearly, neither of these is a recognized
reason for nationwide posting, I briefly considered the possibility that
such an approach was justified because the offending investigation
technique was one authorized by headquarters of the Office of Internal
Affairs as a national policy. However, the Authority has limited
posting to the location of the unfair labor practice, even where it was
committed pursuant to a nationwide policy promulgated by the respondent
union's president, noting the absence of any reason to conclude that
such policy would be continued after issuance of the Decision finding it
unlawful. /15/
General Counsel also requests "expungement of the voluminous file of
the investigation of Sania Franken, which was based on Respondent's
illegal actions occurring on the second day of Respondent's
investigation." /16/ If this request is limited to that part of the
investigation which was affected by the illegal interview, it would
involve only the tapes of the consensually monitored call to Franken,
the direct interview of her in which her Weingarten rights were
belatedly respected, and pages 10 and 12 of the investigative report,
which recaps those interviews. I have no authority to strike from such
record the earlier evidence, derived from other agents of the Bureau
(all of which originated with Then) which established that Then was
present during a telephone call in which Franken might have compromised
a criminal investigation. The illegal interrogation elicited Franken's
version: that the outsider to whom she spoke asked what she thought of
the arrest or conviction by County authorities, of a firearms dealer who
allegedly was trading in stolen gold. That was not a federal matter, so
that the conversation could have been perfectly innocent. But it was
also redolent with the suggestion that Franken and the outsider (who was
married to a man in the firearms industry) talked too much about the
former's employment. In the presence of such possibility, the Bureau
determined that a word of caution was in order. In the circumstances, I
conclude that I have the authority to order the letter of caution and
the three matters described above removed from Franken's file and
destroyed. However, I doubt that the efficacy of such a course, given
the fact that the early investigation indicated very serious misconduct,
and that the illegal interrogation and what followed it in the main
vindicated Franken. Were I to order expunged evidence tending to
exculpate her we would be left with a record strongly suggesting that
she had compromised an investigation by informing the suspect's wife.
The record, as it now stands, indicates that Then misunderstood the half
of a conversation she overheard, and that it was concernced with trading
in gold, a nonfederal matter. In my judgement, expungement of the
exculpatory matters disclosed in the illegal interrogation and its
aftermath would not serve a remedial purpose.
Accordingly, I recommend that the following order be entered:
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, Bureau of
Alcohol, Tobacco and Firearms, Southeast Regional Office, Atlanta,
Georgia, 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) Requiring any employee to place a telephone call to a
bargaining unit employee, and, in behalf of management to engage
in a covert investigatory interview designed to elicit information
which could lead to discipline, thus interfering with, restraining
and coercing the employee required to make the call in the
exercise of the right to assist the National Treasury Employees
Union in the exercise of its right, upon request, to be
represented at such examination.
(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) Post at its facilities at the Bureau of Alcohol, Tobacco
and Firearms, District Office, Jacksonville, Florida, 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.
(b) 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 by comply herewith.
JOHN H. FENTON
Chief Administrative Law Judge
Dated: October 21, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) It is not clear whether Then alleged Franken had spoken to
Hilton's wife or to someone else. Nevertheless, it is clear that
Mitchell and Trestik, a Regulatory Inspector, believed Franken had
spoken to Hilton's wife.
(2) Section 7114(a)(2)(B) provides that:
(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.
(3) Cf. U.S. Immigration and Naturalization Service, San Diego,
California, QALJ-82-123, where Judge William Naimark held that no
Section 7114(a)(2)(B) right attaches in an examination where the
employee has received a grant of immunity from discipline and therefore
cannot reasonably fear it.
(4) In Weingarten v. NLRB, 420 U.S. 251, which involved theft, the
Supreme Court sustained the NLRB's holding that employees have the right
to union representation during investigatory interviews which they
reasonably believe will result in discipline. The doctrine was
legislated for federal employees in Section 7114(a)(2)(B). While that
legislative history indicates that future private sector decisions
interpreting Weingarten were not to be "determinative for the Federal
Sector" (H.R. Rep. No. 95-1717, 95th Cong. 2d Sess. 155-156), the
Board's application of the doctrine (and review thereof by U.S. Courts
of Appeals) is a ready resource which ought not be ignored. Such
decisions provide a reasoned discourse, in a closely analogous area,
where hiyhly similar if not identical considerations of public policy
are involved. See Library of Congress v. FLRA, 112 LRRM 2897, 2901
(CADC).
(5) Miranda v. State of Arizona, 384 U.S. 436.
(6) Weingarten v. NLRB, 420 U.S. 251, 263.
(7) Mare Island Naval Shipyard, 12 FLRA No. 78.
(8) The same is, of course, true of any assurance that the answers
and their fruits would not be used in any criminal case, under the
holding of Kalkines v. U.S., 473 F.2d 1391 (Ct. Cl. 1973).
(9) Note that a federal employee can be discharged for not answering
a question if adequately informed that he is subject to discharge for
that reason and is granted a "use immunity," i.e., assurance that his
replies and their fruits will not be used against him in a criminal
case. Kalkines v. U.S., 473 F.2d 391 (Ct. Cl. 1973).
(10) See Department of the Treasury, Bureau of the Mint,
Administrative Law Judge Decisions Report No. 9. There Judge William
Devaney held that Section 7114 did to apply to Secret Service agents
investigating the theft of coins at the Mint.
(11) Respondent argues that even if Franken's Section 7114(a)(2)(B)
protections were circumvented during the monitored call, she was given
the opportunity to participate at the second interview with the aid of a
Union representative. Respondent argues further that since Franken
consented to be interviewed alone, this shows that no significant harm
occurred (in violation of the Statute) during the monitored phone call.
But Respondent's argument misses the point. It was too late for the
Union to provide Franken with effective representation. Franken had
already disclosed information to Mugridge which could have been used
against her in a disciplinary proceeding had it provided grounds for
such action. The horse was already out of the barn.
(12) I would agree with Respondent were we here concerned with
imposition of a requirement that Then participate in a fact-gathering
technique -- such as bugging, wire tapping, video or plain old-fashioned
surveillance of Franken -- designed to determine whether Franken was
compromising investigations. Such circumstances would not involve "an
examination," in the sense of an interview in which the risk of
discipline lies in the mouth of the suspect, and hence would not bring
into play the protections afforded by Weingarten.
(13) Labor Board cases exist finding unlawful efforts to enlist
employees in surveillance of the union activites of other employees,
although it is not made clear beyond doubt that the violation is
predicated on an infringement of the rights of the employees who were
asked to spy as opposed to those who were to be spied upon. See
Elder-Burman Stores Corp., 415 F.2d 1375 (C.A. 6); Sarkes Tarzian, Inc.
v. NLRB, 374 F.2d 734, 736 (C.A. 7).
(14) See, for example, Howard Johnson Co., v. NLRB, 112 LRRM 2904
(C.A. 1).
(15) National Treasury Employees Union, et al., 10 FLRA 519, 521.
Cf. VA Medical Center, Bath, NY, 12 FLRA 560, where posting was ordered
at headquarters and Bath.
(16) There is, of course, no occasion for restoration of the status
quo ante in the absence of damage to Franken's career. Arguably, she
suffered no discipline, as she was cleared of the "charge," or
suspicion, that she had divulged information concerning an active
investigation to the wife of the firearms dealer who was the subject of
the investigation. The letter from her superior announced that the
investigation did not "prove the allegations," and then added that
"there was apparent idle conversation concerning ATF which could have
been construed as important information concerning a possible
investigation. You are cautioned not to be guilty of any conversation
to persons outside the Bureau concerning any inspection or investigation
which deals with ATF matters." In my judgement this constituted a mild
form of discipline, potentially harmful to her career prospects, because
it suggests she was guilty of using poor judgement which could have
adversely affected the Bureau's law enforcement activities.
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 employee 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 interfere with, restrain, or coerce any employee in the
exercise of the right to assist the Union in the representation at an
investigatory interview of another employee, by requiring that employee
to act as an agent of management and by means of a covertly monitored
telephone call to elicit from the employee called information which
could be used in a disciplinary action against him or her.
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
Statute.
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 concerniny this Notice of compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region IV, whose
address is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta,
Georgia 30309, and whose telephone number is: (404) 881-2324.