32:0222(37)CA - - Navy, Charleston Naval Shipyard, Charleston, SC and FEMTC of Charleston - - 1988 FLRAdec CA - - v32 p222
[ v32 p222 ]
The decision of the Authority follows:
32 FLRA No. 37
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE NAVY
CHARLESTON NAVAL SHIPYARD
CHARLESTON, SOUTH CAROLINA
FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF CHARLESTON, AFL-CIO
DEPARTMENT OF THE NAVY
CHARLESTON NAVAL SHIPYARD
CHARLESTON, SOUTH CAROLINA
FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF CHARLESTON, AFL-CIO
Case Nos. 4-CA-70427
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority under section 2429.1(a) of our Regulations, based on the parties' stipulation of facts. The consolidated complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by (1) refusing to provide the Federal Employees Metal Trades Council of Charleston, AFL-CIO (FEMTC or Union), an opportunity to be present during an examination within the meaning of section 7114(a)(2) of the Statute and, (2) instead insisting that a representative of a different union be present. The complaint also alleged that the Respondent violated section 7116(a)(1), (5) and (8) by refusing to provide information to the FEMTC in accordance with section 7114(b)(4) of the Statute.
We conclude that the Respondent improperly denied the FEMTC an opportunity to be represented at the examination in violation of section 7116(a)(1) and (8). Our conclusion is based on the wording, nature and purpose of section 7114(a)(2)(B). We further conclude that the Respondent improperly denied the FEMTC's request for information in violation of section 7116(a)(1), (5) and (8). That conclusion is based on the finding that the information was necessary for the FEMTC to effectively carry out its representational responsibilities and otherwise met the requirements of section 7114(b)(4).
The FEMTC represents a unit of various employees employed at the Charleston Naval Shipyard. Employee Franklin Blackburn occupies the position of Machinist Training Leader, which position is located in the unit represented by the FEMTC. From about September 30, 1985, through November 10, 1986, Blackburn was detailed to the position of Industrial Engineering Technician. The technician position is in a unit represented by the American Federation of Government Employees, Local 1864, AFL-CIO (AFGE).
During the time Blackburn was on detail, he and his supervisor, F. E. Murray, discussed a call Blackburn made concerning the Respondent's Waste, Fraud and Abuse (WFA) program.(1) Thereafter, Murray asked Blackburn about a memorandum the latter wrote about WFA. During the latter conversation, Blackburn used language which Murray found to be offensive.
On November 4 and again on November 5, Murray attempted to meet with Blackburn. Blackburn refused to meet without a Union representative. On November 5, Murray ordered Blackburn to return to his former position. Effective November 10, Blackburn's detail was officially ended and he was returned to his position in the FEMTC unit. On November 18, Murray completed a Report of Disciplinary Offense, the form used to initiate an investigation into an incident to determine if discipline is warranted.
During the period between November 10, 1986, and January 2, 1987, Blackburn was either on leave or the Respondent did not hold investigatory or disciplinary meetings due to impending holiday closings and curtailed operations. On January 5, 1987, Blackburn received a "Notification to Attend," which advised him that he could have an AFGE representative present at the investigative discussion concerning his conduct of November 3-5, 1986. On January 9, 1987, Blackburn arrived at the meeting accompanied by Donald Wilson, the Chief Steward of the FEMTC. Wilson was asked to leave by Robert Cheverie, the Respondent's Shipyard Production Superintendent Mechanical, based on the Respondent's view that representation by AFGE was appropriate since the conduct which was the subject of the discussion took place while Blackburn was on detail to a position in the unit represented by AFGE. Cheverie was the second level supervisor over the AFGE bargaining unit position occupied by Blackburn while on detail and the fourth level supervisor over Blackburn's position in the FEMTC unit. After Wilson left, the Respondent attempted to contact an AFGE representative to attend the meeting. Unable to do so, the Respondent cancelled the meeting.
Between January 12, 1987, and February 27, 1987, Blackburn was on leave for military purposes. On or about February 27, Blackburn received another "Notification to Attend" an investigative discussion regarding the events of November 3, 1986. The Notification advised Blackburn that he could have an AFGE representative present. On or about March 9, 1987, Blackburn attended the discussion accompanied by Wilson, the FEMTC Chief Steward. Cheverie asked Wilson to leave and he did leave. Present at the meeting were Blackburn, Murray, Cheverie and M. B. Langley, an Administrative Support Assistant. At the meeting, the Respondent read the report of disciplinary offense to Blackburn and gave Blackburn an opportunity to respond, which he did. Blackburn also read a prepared statement. Thereafter, on or about April 6, 1987, the Respondent issued a proposed 5-day suspension based on Blackburn's insubordination. The charge of insubordination was based on the events of November 3-5, 1986, specifically, Blackburn's conduct with Murray, his supervisor at the time. Blackburn forwarded a copy of the suspension notice to Chief Steward Wilson and authorized the release of records and performance evaluations to Wilson for future use.
On or about May 4, Wilson made a written request to the Respondent for "Instruction(s) Implementing the Waste, Fraud and Abuse (WFA) Program, i.e., OPNAV, SECNAV, DOD, etc." Wilson advised the Respondent that the information was being requested in order to determine whether the documents provided protection from reprisal for employees who made WFA complaints and also to respond to the proposed suspension. The request for the information was denied after Wilson indicated that he wanted the information in the capacity of Blackburn's union representative rather than as a personal representative. The parties stipulated that the information sought is normally maintained in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel or training to management officials or supervisors relating to collective bargaining.
III. Positions of the Parties
A. The General Counsel
The General Counsel argues that the Respondent violated section 7116(a)(1) and (8) of the Statute by refusing to allow an FEMTC representative to be present at an examination within the meaning of section 7114(a)(2)(B) notwithstanding the facts that Blackburn: (1) reasonably believed that disciplinary action could result; and (2) requested FEMTC representation. In support of its position that the FEMTC was the appropriate representative to attend the examination, rather than AFGE as specified by the Respondent, the General Counsel asserts that the right to representation arises at the time an examination takes place. In this case, the examination took place after Blackburn was returned to his position in the FEMTC unit.
The General Counsel asserts that the right to representation is designed to provide assistance to an employee by a knowledgeable union representative in an examination in connection with an investigation. Since Blackburn regularly worked in the FEMTC unit, the General Counsel asserts that it is reasonable to infer that the FEMTC representative was a knowledgeable representative who could assist Blackburn. According to the General Counsel, AFGE had no connection with the November events which gave rise to the examination other than simply representing the unit to which Blackburn had been detailed. Finally, the General Counsel argues that after Blackburn properly requested FEMTC representation, FEMTC had its own statutory right to be present. This argument is based on the wording of section 7114(a)(2) of the Statute, which states, in relevant part, that "[a]n exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at . . . any examination of an employee in the unit. . . ." By excluding FEMTC from the examination, the General Counsel maintains that the Respondent interfered with FEMTC's right to be present and also prevented FEMTC from fulfilling its duty to represent the interests of "all employees in the unit" as provided for in section 7114(a)(1) of the Statute.
Next, the General Counsel argues that the Respondent's refusal to provide the information as requested under section 7114(b)(4) of the Statute violated section 7116(a)(1) and (8).(2) The General Counsel notes that the parties stipulated that the requested information is normally maintained by the Respondent in the regular course of business, that the information is reasonably available, and that the information did not constitute guidance, advice, counsel or training for management officials or supervisors relating to collective bargaining. Therefore, the only remaining qualification to be met for the release of the information is whether the information was "necessary" for full and proper discussion, understanding and negotiation within the scope of collective bargaining.
The information requested by the FEMTC concerned the Respondent's WFA program. The information was being sought in order to defend against Blackburn's proposed discipline since the letter proposing the discipline made reference to Blackburn's call regarding a possible waste, fraud and abuse situation. Therefore, the General Counsel argues that the information sought was "necessary" because it was directly related to the Union's intended use and to a matter covered within the scope of collective bargaining.
B. The Respondent
The Respondent claims that it did not deny Blackburn union representation at an examination in connection with an investigation. Rather, the Respondent argues that it twice advised Blackburn of his right to be represented by an AFGE representative and, in fact, attempted to secure an AFGE representative on Blackburn's behalf. The Respondent notes that its action is consistent with situations where bargaining unit employees who are detailed to supervisory positions are summoned to investigative discussions. In such cases, no union representation is allowed by the Respondent, a position with which the Charging Party is in agreement, according to the Respondent.
The Respondent also argues that its conduct in denying Chief Steward Wilson information he had requested did not constitute a failure to comply with section 7114(b)(4) of the Statute. According to the Respondent, since the FEMTC had no representational rights or responsibilities in this case, the information requested was not necessary within the meaning of section 7114(b)(4).
C. The General Counsel and the Respondent
Both the General Counsel and the Respondent cite the Authority's decision in Nuclear Regulatory Commission, 29 FLRA 660 (1987) (Member Frazier concurring in part and dissenting in part). That case, which will be addressed more fully in the Analysis section below, addressed the union's right under section 7114(a)(2)(A) of the Statute to be present at a formal discussion concerning a proposed settlement of an employee's Equal Employment Opportunity (EEO) complaint.
There are two issues presented in this case: (1) whether the Respondent violated section 7116(a)(1) and (8) of the Statute by denying the FEMTC an opportunity to be represented at the March 9 examination of employee Blackburn; and (2) whether the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by denying FEMTC's request for information. Each issue will be addressed separately.
A. The Examination
The General Counsel argues that since Blackburn was in the FEMTC unit on the date of the examination, FEMTC was entitled to be represented. We agree. Our conclusion is based on the wording, nature and purpose of section 7114(a)(2)(B) of the Statute.
Section 7114(a)(2)(B) provides that an exclusive representative of an appropriate unit shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action and the employee requests representation. The event triggering the right to representation is an "examination of an employee in the unit." At the time of the examination Blackburn was in the FEMTC unit; the exclusive representative of that appropriate unit is FEMTC. Nothing in the plain wording of the section supports the conclusion that "the unit" referred to in section 7114(a)(2)(B) means the bargaining unit which encompasses an employee's position at the time of the events which are the subject of the examination.
Previous decisions of the Authority have traced the evolution of section 7114(a)(2)(B). See Department of the Treasury, Internal Revenue Service, Jacksonville District and Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection, 23 FLRA 876 (1986). See also Internal Revenue Service, Washington, D.C., 4 FLRA 237 (1980) (Internal Revenue Service), enforced sub nom. Internal Revenue Service v. FLRA, 671 F.2d 560 (D.C. Cir. 1982). The purpose of section 7114(a)(2)(B) was to create representational rights for Federal employees similar to the rights provided 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 No. 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).
The right to representation at an examination is designed to protect an employee who is called in to a meeting with his employer in connection with an investigation. The Court in Weingarten, was concerned with the right of an employee to have "the assistance of his union representative in a confrontation with his employer" (emphasis added). 420 U.S. 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 such circumstances, the Court concluded that "[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 order to trigger the right to representation under section 7114(a)(2)(B), two elements must be present. First, the employee must request representation. See, for example, United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA 874 (1987) (Bureau of Prisons), Decision on Reconsideration, 29 FLRA 482 (1987); and Department of Labor, Employment Standards Administration, 13 FLRA 164 (1983). Second, the employee must have a reasonable belief that disciplinary action may result from the examination, which belief must be based on objective factors. See the discussions in the decisions of the Administrative Law Judges adopted by the Authority in Internal Revenue Service, 4 FLRA 237, 251-52; and Department of the Navy, Norfolk Naval Base, Norfolk, Virginia, 14 FLRA 731, 745-47 (1984) (Norfolk Naval Base). See also American Federation of Government Employees, Local 2544 v. FLRA, 779 F.2d 719 (D.C. Cir. 1985).
It is undisputed that the March 9 examination was an examination within the meaning of section 7114(a)(2)(B). It is further undisputed that Blackburn had a reasonable belief that disciplinary action could result from the examination and that he requested representation. Since the right to representation under section 7114(a)(2)(B) is designed to protect the employee and since Blackburn was employed in his position in the FEMTC unit at the time of the examination, it follows that FEMTC should have been afforded an opportunity to be represented and to represent Blackburn. Since the Respondent refused to permit a representative of FEMTC to attend the examination, the Respondent's conduct was inconsistent with section 7114(a)(2)(B) and, therefore, a violation of section 7116(a)(1) and (8).
As previously noted, both the Respondent and the General Counsel cite to the Authority's decision in Nuclear Regulatory Commission. In that case, an employee who was not in a bargaining unit filed an EEO complaint. Shortly thereafter, the employee was transferred into a bargaining unit position. At a subsequent meeting held to discuss the EEO complaint, the exclusive representative was not afforded an opportunity to be represented at what it viewed to be a formal discussion under section 7114(a)(2)(A). We found that the exclusive representative was not entitled to be represented at a formal discussion of a non-bargaining unit employee's complaint. We also found that since the employee was not in the bargaining unit at the time of the EEO complaint, since the complaint concerned matters that took place entirely outside the bargaining unit, and since the meeting concerned the possible settlement of an individual's complaint, the exclusive representative itself had no institutional interests in being represented at the meeting.
The Respondent relies on Nuclear Regulatory Commission, and National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) which was cited therein, to support its view that: (1) AFGE was appropriately the union to be given the opportunity to be represented since the events occurred when Blackburn was on detail to the AFGE unit; and (2) any possible impact on bargaining unit employees arising from the examination would have involved employees in the AFGE unit.
The General Counsel would not apply the rationale in Nuclear Regulatory Commission to the facts of this case. The General Counsel views the critical date for determining which union was to be afforded the opportunity to be represented as the date on which the examination occurred, not the date of the events giving rise to the examination.
The decision in Nuclear Regulatory Commission is not controlling in this case. That case concerned rights under section 7114(a)(2)(A) of the Statute. In Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987), we reaffirmed the view taken previously by the Authority that sections 7114(a)(2)(A) and 7114(a)(2)(B) establish separate rights to representation and that Congress intended the two provisions to serve distinct purposes. 29 FLRA at 600. In U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584 (1987), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 3882 v. FLRA, No. 87-1723 (D.C. Cir. Nov. 27, l987), we noted that the intent and purpose of section 7114(a)(2)(A) is to provide an exclusive representative with an opportunity to safeguard its interests and the interests of bargaining unit employees. 29 FLRA at 589.
In Nuclear Regulatory Commission, we looked to the status of the employee at the time of the events giving rise to the EEO complaint because section 7114(a)(2)(A) requires that a formal discussion be connected with a grievance of a bargaining unit employee or with any personnel policy or practices or other general conditions of employment affecting bargaining unit employees.
By contrast, the purpose and intent of section 7114(a)(2)(B) is to afford protection to an employee who is confronted by his or her employer at an examination in connection with an investigation. The right to representation is not contingent upon the subject matter of the examination--that is, whether it concerns a grievance, personnel policy or practice, or other general condition of employment. In fact, an examination may extend to such a matter as a criminal investigation, which might not otherwise fall within the ambit of a formal discussion. See, for example, Department of Defense, Defense Criminal Investigative Service; Defense Logistics Agency and Defense Contract Administration Services Region, New York, 28 FLRA 1145 (1987), petition for review filed sub nom. Defense Criminal Investigative Service, Department of Defense v. FLRA, No. 87-3758 (3rd Cir. Nov. 20, 1987). Since the right of representation at an examination is not contingent upon the subject matter of the examination, we conclude that Congress intended that the focus of the right under section 7114(a)(2)(B) be on the timing of the examination and, more particularly, the employee's need for protection due to the confrontational nature of the examination.
In light of the different purposes behind and wording of sections 7114(a)(2)(A) and 7114(a)(2)(B), the fact that the Authority looked to the non-bargaining unit status of the employee in the Nuclear Regulatory Commission case at the time of the events giving rise to the EEO complaint does not lead to a decision here that the date of the events gives rise to the examination rights, as the Respondent would suggest. Instead, we find, in agreement with the General Counsel, that the date of the examination is determinative of FEMTC's right to representation.
Having determined that the Respondent improperly denied the FEMTC the opportunity to be represented at the examination, we must next determine whether the Respondent's denial of FEMTC's request for information violated section 7116(a)(1), (5) and (8).
As described in Section II of this decision, FEMTC requested "Instructions" concerning the WFA program. As explained by the Union, the information was being sought in order to determine whether the program provided protection against reprisals for employees filing complaints and to respond to Blackburn's proposed suspension. The Respondent denied the request based on its view that the information was not necessary in order for the FEMTC to fulfill its representational responsibilities since the FEMTC had no right to represent Blackburn in the first place.
Under section 7114(b)(4) of the Statute, an agency is required to furnish an exclusive representative of its employees, upon request, and to the extent not prohibited by law, information that is reasonably available and necessary for the union to effectively carry out its representational functions and responsibilities. See, for example, Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127, 141 (1987), and cases cited therein.
Here, the parties stipulated that the information sought is normally maintained in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel or training to management officials or supervisors relating to collective bargaining. The only remaining question is whether the information was necessary.
In our view, the Union demonstrated in its request that the information was necessary within the meaning of section 7114(b)(4). The stated purpose in requesting documents pertaining to the Respondent's WFA program was to determine whether the documents contained any protection for employees filing complaints under the program. Since Blackburn's telephone call to the WFA and his memorandum concerning the WFA program precipitated the events of November 3-5, 1986, and the March 9 examination, which itself was followed by the proposed 5-day suspension, the necessity for the information in order to enable the Union to effectively represent Blackburn has been shown. Accordingly, the Respondent's denial of the information violated section 7116(a)(1), (5) and (8) of the Statute.
To remedy the Respondent's unlawful conduct under section 7114(a)(2)(B), we shall order the Respondent to cease and desist from denying the FEMTC an opportunity to be represented at examinations in connection with investigations between FEMTC unit employees and representatives of the Respondent. We find that such an order is appropriate because the proposed suspension given to employee Blackburn was based on his insubordination, and was not related to the examination itself.
Our view is consistent with the approach taken by the NLRB in Weingarten cases. In Taracorp Industries, 273 NLRB 221, 221-23 (1984), the NLRB discussed appropriate remedies for violations of the right to representation at investigatory interviews. The NLRB indicated that when an employee is discharged or disciplined for engaging in union or other protected concerted activity, a make whole remedy, such as reinstatement and backpay is appropriate in order to place the employee in the position enjoyed prior to the discriminatory conduct. Likewise, when an employee is discharged or disciplined as the result of an act that was, in itself, an unfair labor practice, a make whole remedy is appropriate. However, in cases like this one, when an employee is discharged or disciplined for misconduct or any other nondiscriminatory reason, a make whole remedy is not available under Section 10(c) of the NLRA or the general remedial framework of the NLRA. The NLRB further determined that, independent of these restrictions, make whole remedies for Weingarten violations would be inappropriate because "there simply is not a sufficient nexus between the unfair labor practice committed (denial of representation at an investigatory interview) and the reason for the [disciplinary action] to justify a make whole remedy." 273 NLRB 223. The NLRB, therefore, concluded that an employee who is discharged or disciplined for cause is not entitled to reinstatement and backpay simply because that employee's Weingarten rights were violated.
We agree with the analysis and conclusion of the NLRB regarding remedies for Weingarten violations. We recognize, of course, that the Statute we administer does not contain a provision similar to Section 10(c) of the NLRA. However, we also are unable to "justify the imposition of a make-whole remedy where the employer's only violation is the denial of an employee's request for representation at an investigatory interview." 273 NLRB 222. Therefore, in this and future cases, a make whole remedy will not be ordered where the disciplinary action taken relates solely to employee misconduct independent of the examination itself.
By contrast, we recognize that in other situations, revocation of disciplinary action which flowed from the examination itself, or another make whole remedy, is appropriate. In Bureau of Prisons, for example, an employee was improperly suspended for refusing to submit a memorandum during the course of an examination at which the employee's request for union representation had been improperly denied. A make whole remedy was found to be appropriate because the discipline was based, in part, on the employee's exercise of protected activity. See also Norfolk Naval Shipyard, 14 FLRA 82 (1984) (in which restoration of lost wages and benefits was ordered for the improper denial of an employee's request for representation but no restoration was ordered for other lost wages and benefits flowing from the employee's refusal to obey lawful management directives); Norfolk Naval Base, 14 FLRA 731 (1984) (a letter of reprimand given to an employee ostensibly for refusing to attend an examination without union represe