[ v41 p1370 ]
The decision of the Authority follows:
41 FLRA No. 106
Before Chairman McKee and Members Talkin and Armendariz.
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 General Counsel filed an opposition to the Respondent's exceptions and cross-exceptions to the Judge's decision.
The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to afford the Union an opportunity to be present during telephone interviews of a bargaining unit employee conducted by one of the Respondent's attorneys in preparation for a Merit Systems Protection Board (MSPB) hearing; and that the Respondent violated section 7116(a)(1) of the Statute by failing to assure one employee that no reprisal would take place if the employee refused to participate in the interview, and by not obtaining that employee's participation on a voluntary basis.
The Judge concluded initially, as a procedural matter, that the Authority was not barred from considering the complaint under section 7116(d) of the Statute. On the merits, the Judge concluded that the telephone interviews constituted formal discussions under section 7114(a)(2)(A) of the Statute and that the Respondent violated section 7116(a)(1) and (8) of the Statute when it failed to afford the Union an opportunity to attend. He also found that although an agency is required to afford a union the opportunity to attend such interviews, once it has done so the agency may compel an employee to participate. Accordingly, the Judge recommended that the Authority dismiss the allegations that the Respondent violated the Statute by requiring one employee to participate in the interview.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find no prejudicial error was committed. We affirm those rulings. After consideration of the Judge's decision and the entire record, and for the reasons which follow, we adopt the Judge's findings, conclusions and recommended Order, except as modified below.
The facts, which are set out fully in the Judge's decision and are basically not in dispute, are summarized here. In January 1988, bargaining unit employee Gary Dekoekkoek was removed from his position with the Respondent. He appealed his termination to the MSPB and was represented in that appeal by Ted Merrill, Business Agent for the Union. Prior to the hearing, Teruo Sakota, an official of the Respondent, called Stella Smith, a unit employee, to his office and asked her if she wanted to be questioned on the Dekoekkoek case. She indicated she did not want to be involved and was excused. Later that day, however, Sakota informed her that she must be questioned. Smith was told that Pat Geffner, an attorney for the Respondent, would be questioning her about the case. Sakota called Geffner on the telephone, put Smith on the line, and then left the office while Geffner spoke to Smith.
During the telephone interview, Geffner introduced herself, explained that she would be asking questions about the Dekoekkoek case and directed Smith to answer the questions to the best of her ability. The conversation, which lasted about 5 minutes, concerned one of the incidents that had led to Dekoekkoek's removal.
Two other unit employees were also summoned by their supervisors to be questioned about the Dekoekkoek case by Geffner. As in Smith's case, the interviews were conducted over the telephone and the employees were alone in a supervisor's office during the call.
Sometime later Geffner called Merrill, who was representing Dekoekkoek, told him that she had spoken with some unit employees and gave him a list of the seven unit employees she had interviewed. Although the record specifically shows only that three employees were interviewed by telephone, the Judge inferred from Merrill's testimony that all seven in fact had been interviewed by Geffner by telephone.
On March 16, 1988, Merrill filed a motion with the MSPB, asking that the seven employees be excluded from testifying because they had been interviewed by Geffner without union representation in violation of section 7114(a)(2)(A) of the Statute. The MSPB denied the motion without explanation.
III. Administrative Law Judge's Decision
As a preliminary matter, the Respondent moved to dismiss the complaint for lack of jurisdiction. Because the interviews involved an appeal before the MSPB, the Agency argued that section 7116(d) of the Statute, which states that issues which can properly be raised under an appeals procedure cannot be raised as unfair labor practices, bars the Authority from considering any unfair labor practices based on issues that could have been raised before the MSPB. The Judge denied the motion, stating that the MSPB had not decided the issue of whether the interviews were formal discussions under the Statute and that the MSPB had no jurisdiction to decide unfair labor practice issues. The Judge noted that the issues before MSPB were completely different from the issues set forth in the complaint in this proceeding.
Turning to the merits of the case, the Judge noted that, under existing Authority precedent, interviews with bargaining unit employees in preparation for third-party hearings are formal discussions if the requisite elements of formality are present (citing Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987) (McClellan I); Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 31 FLRA 541 (1988) (F.E. Warren)). The Judge found that the elements were present in this case, noting particularly that the interviews concerned a grievance, that they were conducted by a high level management official, they were called by advance notice, they lasted up to an hour, there was a specific agenda, and the employee's attendance was mandatory.
At the time of the hearing, the Authority had not addressed the question of whether a telephone conversation could constitute a formal discussion under the Statute. The Judge noted a pending case concerning almost the identical factual circumstances in which another judge had found telephone interviews were not formal discussions.(1) However, in the instant case, the Judge concluded that where the elements of formality are present, the mere fact that the interviews are conducted by telephone will not alter their character as formal discussions. Accordingly, he found that the Agency violated section 7116(a)(1) and (8) by not affording the Union the opportunity to be present at the interviews.
With respect to the issue of whether the Agency was obligated to assure the employee of the voluntary nature of the interview, the Judge found that in these circumstances there was no such obligation. In this case, one employee, Stella Smith, expressed reservations about the interview, but was told by her supervisor that she had to speak with the Agency attorney. The Judge noted Authority precedent that agency interviews with bargaining unit employees in preparation for third-party proceedings must be conducted in a noncoercive atmosphere and that the agency must give the employee appropriate warnings to assure the employee that participation is voluntary. For this principle, the Judge cited Internal Revenue Service and Brookhaven Service Center, 9 FLRA 930 (1982) (Brookhaven). (2) The Judge also stated that in F.E. Warren, the Authority "implied" that the Brookhaven warnings continue to apply even though the Authority had concluded that the Union had a right to attend these interviews. The Judge noted, however, that in F.E. Warren the Authority had found no violation even though the employee was not given the Brookhaven warnings. The Judge opined that the right of the union to be present is the shield against coercion, that an employee may be compelled to speak, subject to the condition that statements made may not be used in criminal proceedings, and, therefore, that Brookhaven warnings are inappropriate if the union is permitted to be present. Accordingly, the Judge found that the Agency did not violate the Statute by failing to give Stella Smith the Brookhaven warnings.
IV. Positions of the Parties
A. Respondent's Exceptions
The Respondent first renews its jurisdictional argument. The Respondent contends that the Authority is without jurisdiction in this case because the allegation is based on issues that can properly be raised under a statutory appeals procedure, specifically as part of an appeal to the MSPB. The Respondent first claims that the matter has, in fact, been adjudicated by the MSPB pursuant to the Union's motion to prohibit the unit employees who had been interviewed without representation from testifying in the MSPB proceeding, which the MSPB Administrative Judge denied. In that regard, the Respondent also notes that the Union filed a petition for review of the Administrative Judge's entire decision, including the motion to bar testimony, to the full MSPB and that that petition was denied. Finally, the Respondent contends that the MSPB does consider allegations of employer misconduct, including unfair labor practices, as affirmative defenses in employee appeals of serious disciplinary actions under the MSPB's jurisdiction (citing Gragg v. United States Air Force, 13 MSPR 296 (1982) and other cases).
In its second exception, the Respondent contends that the telephone interviews were not formal discussions under section 7114(a)(2)(A) of the Statute. The Respondent first takes issue with the Judge's finding that the interviews were mandatory. It then asserts that there are "vast differences between face-to-face encounters and telephone conversations." Respondent's Brief at 4. It contends that the potential for coercion is much greater in a face-to-face encounter. The Respondent also claims that the Judge erred in his finding that the Respondent's attorney took notes during the interviews. In addition, the Respondent objects to the Judge's finding that the employee's supervisors were "in attendance," arguing that the supervisors left the employees alone during the actual telephone conversation. Further, the Respondent claims that the fact the interviews took place in the supervisor's office is of no consequence, asserting that there is no evidence that the telephone calls could not have been conducted elsewhere if the employees had so requested. Objecting to the Judge's finding that the meetings were not spontaneous because there was formal advance notice, the Respondent contends that there was no advance scheduling of the meeting and that the employees could have returned the calls at another time from another place. Finally, the Respondent denies that there was a formal agenda for the interviews, claiming that only the general subject matter was predetermined and that the questions posed by Geffner were "open-ended." Respondent's Brief at 12.
In its third exception, the Respondent disputes the Judge's conclusion that the Union had a right to be present at the interviews based on its contention that pre-trial investigations fall within the attorney work-product doctrine and the attorney-client privilege. With regard to the former, the Respondent contends that its attorney would have been hampered in her investigation if the Union had been present. The Respondent contends that, without the Union in attendance, the employees confided in the Respondent's attorney. It argues that it has "the right to conduct its pre-hearing investigations without the 'interference' of its opposing counsel . . . ." Id. at 13. For this proposition, the Respondent cites Hickman v. Taylor, 329 U.S. 495 (1947). The Respondent also asserts that, as attorney work product, the information obtained in the pre-hearing investigations is protected under Exemption (b)(5) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5), and under the Privacy Act, 5 U.S.C. § 552a. The Respondent also contends that the discussions are protected by the attorney-client privilege, citing Upjohn v. United States, 449 U.S. 383 (1981).
The Respondent's fourth exception is that the Judge erred by ruling that the Respondent's right to impose and enforce a duty on its employees to account for the performance of their duties is predicated on affording the Union an opportunity to be present. The Respondent relies on its governing statute, 38 U.S.C. § 3311, which it claims empowers the Respondent "to make investigations and examine witnesses upon any matters within the jurisdiction of [the Respondent,]" and on 38 C.F.R. § 0.735-21(f), which requires the Respondent's employees to "furnish information and testify freely and honestly in cases respecting employment and disciplinary matters." It asserts that its right to require an employee to account is unconditional and that requiring Union presence is inconsistent with that right. In this regard, the Respondent cites court and MSPB decisions for the proposition that an employee's right to remain silent attaches only where there is a reasonable belief that the statements will be used in a criminal proceeding.
In its final exception, the Respondent argues that the Judge erred in finding that the discussions concerned a grievance under section 7114(a)(2)(A) of the Statute. The Respondent argues that in NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986), the court held that a union is not the exclusive representative for bargaining unit employees in matters outside of the negotiated grievance procedure, including MSPB proceedings. Accordingly, the Respondent contends that as the Union is not obligated to represent employees before the MSPB, the discussions were not grievances under the Statute. The Respondent suggests that the Authority should reexamine its contrary precedent, which is based on an earlier decision of the Court of Appeals for the District of Columbia Circuit.
B. General Counsel's Opposition and Cross-Exceptions
The General Counsel contends that the Judge properly found that the interviews constituted formal discussions under the Statute. In support of the claim that the meetings were mandatory, the General Counsel notes that the Judge specifically credited testimony that unit employee Smith, after raising objections to participating, was told that she must talk to the Respondent's attorney. The General Counsel also contends that many of the Respondent's arguments concern the question of whether the interviews were coercive in nature rather than addressing the proper issue of formality. The General Counsel contends that employees were given formal advance notice by their supervisors that the interviews would occur and that the topic of the interviews would be the Dekoekkoek case. Citing McClellan I, 29 FLRA at 603, the General Counsel contends that the term "agenda" refers to a subject matter to be discussed, not a specific set of predetermined questions.
With regard to the Respondent's claim that the meetings did not concern a grievance, the General Counsel claims that the Authority has held on several recent occasions that statutory appeals, such as those to the MSPB, constitute grievances under section 7114(a)(2)(A) of the Statute (citing, among other cases, Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465, 471 (1988) (DOL, Office of the Assistant Secretary)).
The General Counsel denies that providing the Union with the opportunity to attend interviews of bargaining unit employees conducted by the Respondent's representatives in preparation for third-party proceedings violates the attorney-client privilege or the attorney-work product doctrine. The General Counsel first contends that the attorney-client privilege is not affected because the unit employees are not clients of the Respondent's attorney. Rather, the General Counsel asserts, they are "adverse witnesses aligned with the party opponent." General Counsel's Brief at 6. Further, the General Counsel argues that the Union's presence at such interviews does not affect the attorney's work product because the attorney's legal theories, litigation strategies or thought processes would not be disclosed.
In its Cross-Exceptions, the General Counsel objects to the Judge's conclusion that if the Union is given an opportunity to attend the interviews, Brookhaven warnings need not be given. The General Counsel asserts that the Authority held in F.E. Warren that the obligations under Brookhaven exist in addition to the duty to provide the Union with an opportunity to attend the interviews under section 7114(a)(2)(A) of the Statute.
The General Counsel argues that the Respondent's regulation requiring that employees cooperate in investigations is not applicable to the circumstances of this case. The General Counsel contends that interviews conducted in preparation for an adversary hearing are not "investigations." The General Counsel argues that the Respondent had completed its investigation before it had determined that discipline was appropriate. In that regard, the General Counsel notes that the MSPB prohibits the raising of new allegations during its proceedings. The General Counsel further asserts that even though the Respondent's attorney evaluates the strength of the case to determine if settlement is appropriate, her interviews do not constitute de novo factual investigations. The General Counsel requests that the Authority find that the Respondent violated section 7116(a)(1) by not assuring employee Stella Smith that her participation in the interview was voluntary.
V. Analysis and Conclusions
A. The Authority Has Jurisdiction Over This Case
We agree with the Judge that this case is properly before the Authority and not barred by section 7116(d) of the Statute. Section 7116(d) provides in pertinent part that:
(d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. . . .
The Respondent claimed before the Judge and in its exceptions that the matter could be, and in fact was, raised before the MSPB and is therefore barred from being raised as an unfair labor practice. To the contrary, the matter raised before the MSPB was the propriety of the underlying disciplinary action taken by Respondent. Although the MSPB ruled on the Union's motion to exclude the testimony of bargaining unit employees on the ground that they were interviewed without the presence of the Union, the MSPB made no findings regarding whether the Respondent's conduct constituted an unfair labor practice. The MSPB does not have jurisdiction to decide unfair labor practices under the Statute. Barnes v. Small, 840 F.2d 972, 981 (D.C. Cir. 1988); Kuahine v. Department of the Navy, 4 MSPR 346 (1980).
We recognize that the MSPB will consider illegal actions by agencies, such as unfair labor practices, as affirmative defenses in actions properly brought before it. See Gragg v. United States Air Force, 13 MSPR 296 (1982). In so doing, however, it addresses only the prejudice to the appellant/employee, and not whether there have been violations of the rights of the union or the employees subject to the interviews. The issues here, which concern the Union's right to be present at formal discussions and the rights of unit employees to be free from coercion, were not, and could not have been, brought before the Board. See Internal Revenue Service, Western Region, San Francisco, California, 9 FLRA 480 (1982) (consideration by MSPB of whether employee/appellant, represented by a union attorney, was entitled to information alleged to be relevant to a disciplinary action did not and could not constitute a determination as to the union's right to the same information under section 7114(b)(4) under the Statute). See generally Bureau of the Census, 41 FLRA 436, 446-47 (1991) (to determine whether a complaint is barred by section 7116 of the Statute, Authority examines whether the subject matter of the unfair labor practice charge is the same, in terms of the factual predicate and theory, as the subject matter of a grievance).
Accordingly, we conclude, as did the Judge, that section 7116(d) does not deprive us of jurisdiction in this matter.
B. The Telephone Interviews Were Formal Discussions under Section 7114(a)(2)(A)
In agreement with the Judge, we find that the telephone interviews conducted by the Respondent's attorney were formal discussions under section 7114(a)(2)(A) of the Statute. The Authority has repeatedly held that interviews by agency representatives with bargaining unit employees in preparation for third-party proceedings in which the union has an adversary role are formal discussions. See, for example, McClellan I, 29 FLRA at 603; F.E. Warren, 31 FLRA at 550-52; McClellan II, 35 FLRA at 604-05. In so holding, the Authority has followed the decision of the U.S. Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985). In that case the court found that an interview with bargaining unit employees, conducted by the agency in preparation for an MSPB hearing, constituted a formal discussion concerning a grievance under section 7114(a)(2)(A). Further, in McClellan II, we found that such interviews are not removed from the scope of section 7114(a)(2)(A) simply because the interview is conducted over the telephone instead of in person. 35 FLRA at 605.
We find that nothing in the record or in the arguments presented in the Respondent's exceptions compels a different result in this case. As the Judge correctly noted, in order to find that a union has a right to representation under section 7114(a)(2)(A) of the Statute, it must be shown that the following elements exist: (1) there must be a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA 747, 753 (1990). There is no dispute that the interviews constituted discussions between at least one representative of the Respondent and one or more bargaining unit employees. Further, and contrary to the Respondent's contention in its exceptions, there is no question but that the discussions concerned a "grievance." See U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584, 589-90 (1987) aff'd sub nom. American Federation of Government Employees, Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989) (the term "grievance" in section 7114(a)(2)(A) should be interpreted broadly and can encompass statutory appeals, including appeals to the MSPB). See also DOL, Office of the Assistant Secretary, 32 FLRA at 471. We reject the Respondent's contention that NTEU v. FLRA requires that we reexamine our precedent in this area. NTEU v. FLRA involved the scope of a union's duty of fair representation; it did not address the issue of what is encompassed by the term "grievance" in section 7114(a)(2)(A).
With regard to the formality of the meeting, the Judge properly found that the discussions satisfied a number of the indicia of formality deemed relevant by the Authority. See, for example, Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA 115, 118 (1982). The Judge specifically credited testimony indicating that employee Smith was informed in advance by her second-level supervisor that the interview with Geffner, one of the Respondent's attorneys, would take place and that Smith's presence was mandatory. Respondent's suggestions that the employees could have requested to take the calls at their desks or to postpone the conversations is unsupported in the record. Moreover, even if the employees could have postponed the precise time of the interviews, it is beyond doubt that the discussions were not spontaneous, but were planned in advance by the Respondent. Further, a discussion can be formal in the absence of a specific pre-established agenda. McClellan II, 35 FLRA at 604. Clearly, in this case the interviews were held to discuss a particular topic, the pending appeal of Gary Dekoekkoek. While the Respondent is correct in noting that the record does not indicate whether the Respondent's attorney took notes, the lack of evidence on that point does not affect the validity of the conclusion that the totality of the circumstances indicates that the discussions were formal. Id. Finally, as we noted in McClellan II, the mere fact that discussions take place by telephone does not remove them from the scope of section 7114(a)(2)(A) of the Statute, if, as here, the discussions otherwise meet the tests for formality. Id. at 605.
C. The Union's Presence at the Interviews Would Not Violate the Attorney Work Product Privilege or the Attorney-Client Privilege
The Authority addressed the question of whether the attorney work product privilege was affected by union presence during a management attorney's interview of unit employees in preparation for a third-party proceeding in McClellan II. There the Authority rejected a claim that such presence would effectively destroy management's right to prepare its defense. McClellan II, 35 FLRA at 608. The Authority found that allowing union representation did not preclude management representatives from interviewing bargaining unit employees in preparation for hearings, or creating documents for the agency's use which reflect the attorney's thoughts or impressions resulting from the interview. Id. at 607-08.
The same reasoning applies to the instant case. In determining only that the Union had a right to be present during telephone interviews that constitute formal discussions under the Statute, we have not required that the Respondent's attorney disclose anything about her thoughts, impressions, legal theories or litigation strategy. Moreover, we have not precluded the attorney from fully investigating her case through other means. Accordingly, as we did in McClellan II, we reject the Respondent's claim that union presence violates the attorney work-product privilege. For the same reasons, we do not view Hickman v. Taylor as applying to this case.
Further, we do not find that either the FOIA or the Privacy Act is applicable to pre-hearing investigations, as the Respondent contends. FOIA exemption (b)(5), cited by the Respondent, permits an agency to protect from disclosure "inter-agency or intra-agency memorandums or letters . . . ." 5 U.S.C. § 552(b)(5). The pre-hearing investigations at issue in this case involve no such written material. Similarly, the Privacy Act restricts the disclosure of records "contained in a system of records . . . ." 5 U.S.C. § 552a(b). As this case does not involve the disclosure of "records" within the meaning of the Privacy Act, it does not fall within the ambit of the Privacy Act. See American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 332-33 (1990), petition for review filed sub nom. U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, No. 91-1031 (D.C. Cir. Jan. 16, 1991).
Nor do we find that the Union's presence at the interview would in any way violate the attorney-client privilege. Initially, we note that the attorney-client privilege is narrower in scope than the attorney work-product doctrine. See U.S. v. Nobles, 422 U.S. 225, 238 n.11 (1975); Hickman v. Taylor, 329 U.S. at 508 (memoranda, statements and mental impressions in issue in that case were found not to be protected by the attorney-client privilege). Further, in order for the attorney-client privilege to be implicated in these interviews there must be an attorney-client relationship between the Respondent's attorney and the unit employee being interviewed. The Respondent does not claim that its attorney represents the employees as individuals, but, rather, it states that they were representatives of the institutional client, the Agency.
The Respondent relies on Upjohn v. United States to support its claim that the attorney-client privilege is applicable to these interviews. In Upjohn v. United States, the Supreme Court held that the attorney-client privilege can be invoked to protect communications between an attorney representing a corporation and employees of that corporation concerning matters within the scope of the employees' corporate duties. Significantly, the attorney in Upjohn v. United States had engaged in the communications to enable him to give "sound and informed advice" to his client, the corporation. 449 U.S. at 390. In contrast, the employees in this case were not interviewed in their capacity as representatives of the Respondent, nor about actions they had taken in the course of their official duties. Further, the attorney was questioning them in order to prepare for litigation, not in order to give advice and counsel to her "client." In Hickman v. Taylor, the court stated with regard to the attorney-client privilege: "[T]he protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation." 329 U.S. at 508. Based on the foregoing, we conclude that Upjohn v. United States does not apply in the circumstances of this case. Accordingly, we do not find that the attorney-client privilege would be violated if the Union were allowed to attend such interviews.
D. The Respondent Violated Section 7116(a)(1) by Requiring an Employee to Participate in the Interview
Under its Brookhaven doctrine, the Authority requires that when management interviews employees "to ascertain necessary facts" in preparation for third-party proceedings, it must provide certain safeguards to protect employee rights under section 7102 of the Statute. 9 FLRA at 933. In Brookhaven, the Authority articulated those safeguards as follows: (1) management must inform the employee who is to be questioned of the purpose of the questioning, assure the employee that no reprisal will take place if he or she refuses, and obtain the employee's participation on a voluntary basis; (2) the questioning must occur in a context which is not coercive in nature; and (3) the questions must not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with the employee's statutory rights. Id. In F.E. Warren, the Authority concluded that the Brookhaven assurances need not be applied on a per se basis. Rather, the Authority will examine the circumstances of each case to determine whether employee participation was voluntary. 31 FLRA at 549. See also U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 36 FLRA 748, 770 (1990).
In this case, the evidence indicates that employee Smith did not participate voluntarily in the telephone interview with Geffner. Rather, the Judge credited Smith's testimony that initially she had refused to be questioned about the Dekoekkoek case because she ". . . did not care to get involved" and that she eventually agreed to the interview only because her supervisor told her that she "had no choice, that [she] had to be [questioned]." Judge's Decision at 3. In these circumstances, we conclude that management did not give the proper assurances, as required under Brookhaven, that Smith could refuse to participate in the interview and that there would be no reprisals taken against her if she chose not to participate. Further, the interview was conducted under circumstances that enhanced its coercive nature. Thus, the interview was conducted not by the employee's immediate supervisor but by a higher-level Agency official, an attorney from the Respondent's district office. Further, it took place in a supervisor's office, not at the employee's workplace. The fact that Smith's supervisor was not present during the interview tempers, but does not remove, the coerciveness inherent in the unfamiliar surroundings. Considering all the circumstances, we conclude that Brookhaven was not adhered to in this case. Accordingly, we conclude that the Respondent violated section 7116(a) of the Statute by failing to safeguard Smith's protected rights under Section 7102.
In so holding, we reject the Judge's conclusion that Brookhaven does not apply to situations where a union has been afforded the opportunity to be present and to represent the employee who is to be questioned. As the Respondent points out in its brief to the Authority, the Judge's finding in this regard is contrary to our decision in F.E. Warren, which held that fulfilling the requirements of the obligations under section 7114(a)(2)(A) cannot substitute for the Brookhaven safeguards. 31 FLRA at 545-46. As the Authority stated in F.E. Warren, the Brookhaven assurances are designed to safeguard the rights guaranteed by the Statute to employees, while unions are the beneficiaries of the representational rights accorded by section 7114(a)(2)(A). We will continue to apply this interpretation of the Statute.
Finally, we conclude that neither the Respondent's governing statute nor its regulation precluded it from applying the safeguards set forth in Brookhaven to Smith in the circumstances of this case. With regard to 5 U.S.C. § 3311, cited by the Respondent for the proposition that it had an unqualified right to interview the employees in this case, that section of the statute in fact governs the Respondent's authority to issue subpenas and thus has no application to the matter in dispute. We do not question the Respondent's power to subpena its employees to testify in the investigation of, and hearings in, pending cases.
Similarly, 38 C.F.R. § 0.735-21(f) is entitled "Furnishing testimony" and notifies employees that they will be subject to disciplinary action if they refuse to testify, conceal material facts or give willfully inaccurate testimony "in connection with an investigation or hearing[.]" The Authority's Brookhaven safeguards are not designed to permit employees to refuse to testify in hearings, to conceal material facts or to testify untruthfully. Nor are they applicable to situations involving actual investigations of workplace misconduct. In this regard, we agree with the Respondent's contentions that employees have a duty to account for their performance and conduct in disciplinary investigations. Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1159 (1990) (proposal establishing a blanket prohibition on the use of evidence obtained in interviews with employees excessively interferes with management's right to take disciplinary action). This case does not involve an investigation of misconduct, however. Rather, the Respondent's attorney was interviewing Smith and the other employees about a matter that had already been fully investigated and was about to be heard by the MSPB. Whatever the attorney's motives may have been in interviewing the employees -- strengthening the Agency's case before the MSPB, attempting to weaken the Union's case on behalf of the grievant, or exploring the desirability of settlement -- they could not at that stage of the proceedings have included investigation of a matter over which an employee had already been terminated. In these circumstances, the Authority's precedent is clear: an agency official may not engage in coercive discussions with its employees.(3)
The telephone interviews between the Respondent's attorney and the seven employees were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. The Union's presence at those interviews would not have violated the Respondent's attorney work product privilege or attorney-client privilege. Accordingly, the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to provide the Union with an opportunity to be represented at those interviews. Respondent further violated section 7116(a)(1) by conducting a coercive interview of an employee concerning a pending case before the MSPB.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Veterans Administration Medical Center, Long Beach, California shall:
l. Cease and desist from:
(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by the American Federation of Government Employees, Local 1061, AFL-CIO (the Union), concerning grievances or any personnel policies or practices or other general conditions of employment, including interviews in preparation for third-party hearings such as Merit Systems Protection Board proceedings, without first affording the Union prior notice and the opportunity to be represented at such formal discussions.
(b) Coercively questioning its employees concerning matters known to be at issue in scheduled third-party proceedings.
(c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 1061, AFL-CIO are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
WE WILL NOT conduct formal discussions with employees in the bargaining unit exclusively represented by the American Federation of Government Employees, Local 1061, AFl-CIO, concerning grievances or any personnel policies or practices or other general conditions of employment, including interviews in preparation for third-party hearings such as Merit Systems Protection Board proceedings, without first affording the Union prior notice and the opportunity to be represented at such formal discussions.
WE WILL NOT coercively question our employees concerning matters known to be at issue in scheduled third-party proceedings.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations 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 concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, of the Federal Labor Relations Authority, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA, 94103, and whose telephone number is (213) 484-4000.
(If blank, the decision does not have footnotes.)
1. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 9-CA-70343, 9-CA-70376 (McCLellan II). As will be discussed below, the Authority rejected the Judge's findings in that case and found the telephone interviews to be formal discussions. McCLellan II, 35 FLRA 594 (1990).
2. In Brookhaven, the Authority also held that the interviews were not formal discussions. As noted above, this holding has been reconsidered and is no longer followed. See McClellan I, 29 FLRA at 598-603.
3. As we state above, an agency always has the option of compelling an employee's testimony through subpenas. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA No. 72, slip op. at 34-35 (1991). Indeed, the Authority recently held that parties may negotiate an agreement to compel the participation in discovery prior to third-party proceedings of unit employees who would be witnesses in those proceedings. Id. (Provision 9).