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The decision of the Authority follows:
44 FLRA No. 65
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER, DENVER, COLORADO
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2241
DECISION AND ORDER
April 10, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.
The complaint alleges 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 interviews of bargaining unit employees conducted by the Respondent in preparation for an arbitration hearing.
The American Federation of Government Employees (AFGE) is the exclusive representative of a nationwide consolidated unit of employees at the Department of Veterans Affairs Medical Center (VAMC), Denver, Colorado. Local 2241, an agent of AFGE, represents unit employees at the Denver VAMC.
On January 8, 1991, the Respondent's Assistant Chief of Pharmacy telephoned four unit employees and scheduled each for an interview with Douglas Doane, an attorney in the VA Office of District Counsel. Doane, acting on behalf of the Respondent, interviewed each employee to determine whether the employee had relevant information to support the Respondent's position in an upcoming grievance arbitration hearing involving the Respondent's termination of a unit employee. The interviews were held in the office of the Chief of Pharmacy, about 75 feet away from the unit employees' immediate work site. Each interview lasted about 15 minutes. During the interviews, Doane took notes and asked the employees questions relevant to the arbitration hearing. Doane conducted the interviews without affording the Union notice and an opportunity to attend.
III. Positions of the Parties
A. General Counsel
The General Counsel contends that Doane's interviews with the four unit employees were formal discussions under section 7114(a)(2)(A) of the Statute and, therefore, the Respondent was required to provide the Union with notice and an opportunity to be represented at the interviews. The General Counsel argues that the Authority's decision in Veteran Administration Medical Center, Long Beach, California, 41 FLRA 1370 (1991) (VAMC, Long Beach) petition for review filed sub nom. Department of Veterans Affairs Medical Center, Long Beach, California v. FLRA, No. 91-70640 (9th Cir. Oct. 23, 1991), is dispositive of the issues in this case.
The Respondent argues that it did not commit the alleged unfair labor practice because: (1) 38 U.S.C. § 3311 empowers the Respondent "to make investigations and examine witnesses upon any matters within the jurisdiction of [the Respondent;]" (2) the interviews were not formal discussions within the meaning of section 7114(a)(2)(A) of the Statute because they did not concern a grievance; (3) the Union's presence at the interviews is precluded by the attorney work product doctrine and the attorney-client privilege; and (4) the information obtained in the interviews 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.
IV. Analysis and Conclusions
The Authority has repeatedly held that interviews by agency representatives of bargaining unit employees in preparation for third-party proceedings in which the union has an adversary role are formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. See, for example, Department of Veterans Affairs, Department of Veterans Affairs Medical Center, Denver, Colorado, 44 FLRA No. 35 (1992), VAMC, Long Beach, 41 FLRA at 1379; Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 594, 604-05 (1990). See also National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) (court held that an interview of unit employees, conducted by the agency in preparation for a Merit Systems Protection Board hearing, constituted a formal discussion). In VAMC, Long Beach, we rejected the same arguments made by the Respondent here concerning 38 U.S.C. § 3311, the attorney work product privilege, the attorney-client privilege, the Freedom of Information Act, and the Privacy Act. 41 FLRA at 1381-84. We also rejected the argument that interviews such as the ones in this case do not concern a grievance, within the meaning of section 7114(a)(2)(A) of the Statute. Id. at 1380.
We find nothing in the record of this case that compels a different result here than that reached in VAMC, Long Beach. Therefore, for the reasons set forth more fully in VAMC, Long Beach, we conclude that the interviews between Doane and the four unit employees were formal discussions, within the meaning of section 7114(a)(2)(A) of the Statute, and that 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.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Veterans Affairs, Department of Veterans Affairs Medical Center, Denver, Colorado, shall:
l. Cease and desist from:
(a) Conducting formal discussions with employees in the bargaining unit exclusively represented by the American Federation of Government Employees, Local 2241, without affording the Union prior notice and the opportunity to be represented at such formal discussions.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured them 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 2241 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, Denver 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.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT conduct formal discussions with employees in the bargaining unit exclusively represented by the American Federation of Government Employees, Local 2241, without first affording the Union prior notice and the opportunity to be represented at such formal discussions.
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, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204 and whose telephone number is: (303) 844-5224.
(If blank, the decision does not have footnotes.)