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47 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE

UNITED STATES BORDER PATROL

EL PASO, TEXAS

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

NATIONAL BORDER PATROL COUNCIL

(Charging Party/Union)

6-CA-00799

6-CA-01078

_____

DECISION AND ORDER

March 25, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions. The Merit Systems Protection Board (MSPB) filed a statement as amicus curiae. The Respondent and the General Counsel filed responses to MSPB's statement.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying the Union the opportunity to be represented at the taking of two depositions in preparation for MSPB hearings. The complaint alleges that the two depositions constituted formal discussions within the meaning of section 7114(a)(2)(A) of the Statute.⁽¹⁾

The Judge found that the Respondent violated section 7116(a)(1) and (8) of the Statute, as alleged, and recommended that the Authority take appropriate remedial action.

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 that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we conclude for the reasons discussed below that the Respondent did not commit the unfair labor practices alleged in the complaint. Accordingly, we will dismiss the complaint.

II. Background

The facts, more fully set forth in the Judge's decision, are summarized below.

A. Case No. 6-CA-00799

On April 23, 1990, the Respondent suspended unit employee Robert Marren without pay for 33 days for alleged unacceptable conduct.⁽²⁾ Marren appealed his suspension to MSPB and alleged, among other things, that the Respondent's action constituted discrimination against him based on a handicapping condition. On May 9, the Respondent issued a Notice of Deposition, notifying Marren that the Respondent intended to depose him regarding his appeal. See 5 C.F.R. § 1201.72 and § 1201.73. "At this juncture compliance with a discovery request is voluntary between the parties." Judge's Decision at 2. However, MSPB regulations provide that a party must answer a request for discovery by complying with or objecting to the request and that a party's failure to cooperate with discovery enables the requesting party to file with the MSPB a motion to compel discovery.

Marren objected to the deposition and informed the Respondent that he would not attend the deposition. The Respondent then filed with the MSPB a motion to compel discovery pursuant to MSPB regulations. The matter was considered by an MSPB administrative judge, who ordered Marren to submit to discovery on June 4. If Marren had failed to obey the administrative judge's order, the judge had authority to impose a variety of sanctions against Marren, including dismissing his appeal or precluding him from introducing testimony or other evidence in support of his case.

By letter of May 30, 1990, the Respondent notified Marren that "'for purposes of clarification and in an overabundance of caution' Marren was given the right to be represented by the Union or a representative of his choice at the scheduled deposition." Id. at 3 (quoting Respondent's letter; footnote omitted).

Marren was deposed on June 4 in a conference room at the Respondent's facilities. Marren appeared pro se, "although he also appeared with . . . a personal representative authorized under the parties' collective bargaining agreement." Id. Also present was the Union's representative. After the parties announced their appearances on the record, the Respondent's representative informed the Union's representative and Marren's personal representative that "their participation in the matter would be that of an observer." Id. The Union's representative remained silent during the deposition because he considered himself barred from making statements or comments.

The deposition took approximately 2 hours and "was conducted by [the Respondent's representative] asking questions and Marren responding to them under oath [with] a verbatim transcription made by a court reporting service." Id. At one point during the deposition, Marren requested an opportunity to talk to his representatives prior to answering a question. The Respondent's representative stated that he wanted Marren "'only to answers [sic] the question that I gave him truthfully and to the best of his ability at this time. He can come back and answer it again if he wants after he talks to his representative.'" Id. at 4 (quoting Transcript at 54-55). Marren then answered the question and the parties took a break, after which the deposition continued. After the taking of the deposition, Marren filed an objection with the MSPB concerning "the conduct of the deposition regarding [the Respondent's] treatment of [the] Union representative." Id. at 5. The MSPB ruled that no harmful error had occurred and mitigated Marren's suspension from 33 days to 30 days.

B. Case No. 6-CA-01078

On June 18, Marren filed with the MSPB an appeal of his performance rating and alleged, among other things, that the Respondent's action constituted discrimination against him based on a handicapping condition. In late July, the Respondent sent Marren a Request for Deposition, notifying him that an oral deposition would be taken from him on August 3 regarding his appeal. The Respondent also sent a copy of the request to the Union.

Marren was deposed on August 3 in a conference room at the Respondent's facilities. Although he again appeared pro se, Marren "was accompanied by his designated personal representative . . . ." Id. Also present was the Union's representative. At the beginning of the deposition, Marren asked the Respondent's representative whether Marren's representatives were going to be permitted to participate in the proceeding. The Respondent's representative replied that it was her understanding that Marren's representatives were there "strictly as observers and would not be participating." Id. at 6. Marren objected to this position, claiming that it was a denial of his right to representation. Marren then asked if he would be able to confer with the Union representative. The Respondent's representative told Marren that he could not confer with the Union representative. Thereafter, the Union representative remained silent during the deposition, which took approximately 55 minutes, because he considered himself barred from participation during the deposition.

III. Administrative Law Judge's Decision

Before the Judge, the General Counsel contended that the June 4 and August 3 depositions taken by the Respondent were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute and that the Respondent's conduct of excluding the Union representative from participating in the depositions and its denial of Marren's June 4 request that he be permitted to confer with his Union representative violated the Statute. The Respondent asserted that the Union's right of representation was not applicable in this situation, and, in any event, the Union was not entitled to be present at the depositions under section 7114(a)(2)(A) of the Statute. The Respondent also asserted that during the June 4 deposition, its representative nevertheless complied with the requirements of the Statute.

Citing Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370 (1991), petition for review filed, No. 91-70640 (9th Cir. Oct. 23, 1991) (VA Long Beach) and other Authority precedent, the Judge noted that 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) (NTEU I). The Judge stated that in NTEU I, the court held that: (1) under the Statute, a union has the right to be represented when an agency interviews a bargaining unit employee scheduled to testify on behalf of another employee at a hearing before the MSPB; (2) an MSPB appeal is a "grievance" within the meaning of the Statute and a union has an interest in the proceeding on its own behalf, apart from the employee's interest in being represented, which is recognized in the Statute; and (3) a union is assured a role in statutory appeals procedures where the criteria of section 7114(a)(2)(A) are met, as long as no conflict exists between the rights of the union and the rights of the aggrieved employee.

In the instant case, the Judge found that no conflict was shown to exist between the Union exercising its representational rights to participate in Marren's deposition and Marren's individual rights. Further, the Judge found that both depositions "contained all the requisite elements set forth in section 7114(a)(2)(A) and Respondent's conduct in failing to permit the Union representative to participate in those meetings violated the Statute." Id. at 8. In this regard, the Judge found that: (1) the Union was not given the opportunity to participate, and, therefore, to be represented at, the depositions; (2) the taking of Marren's depositions by Respondent's attorneys constituted discussions within the meaning of section 7114(a)(2)(A); (3) the circumstances under which the depositions were taken demonstrated that the meetings were formal within the meaning of section 7114(a)(2)(A); (4) the Respondent's representatives participated in both depositions; and (5) Marren's appeals of his suspension and his performance rating were complaints related to his employment and, accordingly, constituted grievances within the meaning of section 7114(a)(2)(A). The Judge also rejected the Respondent's contention that during the June 4 deposition, its representative nevertheless complied with the requirements of the Statute by giving Marren and the Union representative an opportunity to confer after Marren answered a question that the Respondent's representative had asked him.

Consequently, the Judge concluded that the Respondent violated section 7116(a)(1) and (8) of the Statute as alleged and recommended that the Respondent be ordered to take appropriate remedial action.

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent filed six exceptions to the Judge's decision. These exceptions are summarized below.

1. First Exception

The Respondent contends that the Judge erred in assuming that the Authority has jurisdiction to decide which persons have the right to appear in an MSPB appeal procedure, given the fact that the MSPB, pursuant to its exclusive statutory authority, has promulgated regulations defining the extent of such rights. According to the Respondent, a finding that the Authority has jurisdiction to determine who has a statutory right to be present and actively participate in an MSPB proceeding "is flatly inconsistent with Congress' action in granting exclusive jurisdiction to the MSPB under" 5 U.S.C. §§ 1204(a)(1) and (h), 7121(e) and (f), 7513(d) and 7701. Exceptions at 13. The Respondent also asserts that such a finding is inconsistent with 5 U.S.C. § 7701(a)(2), which grants parties in an MSPB proceeding the right to designate a personal representative, and 5 U.S.C. § 1204(b)(2), which gives the MSPB exclusive jurisdiction to administer its discovery proceedings. Additionally, the Respondent contends that because one of Marren's appeals was filed pursuant to the individual right of appeal to the MSPB provided by 5 U.S.C. §§ 1214(a)(3) and 1221, the Judge's assumption of jurisdiction is also inconsistent with those statutes.

The Respondent asserts that rather than choosing to appeal his suspension and performance rating through the parties' negotiated grievance and arbitration procedure, Marren chose a statutory appeal procedure in which the Union has no standing as the exclusive representative of unit employees. Because the Union has no function as the exclusive representative in the MSPB proceedings, the Respondent asserts that section 7114 of the Statute is not applicable and that procedural matters relating to the MSPB appeals are solely within MSPB's jurisdiction. Further, the Respondent contends that to the extent that actions of the MSPB could have an effect on other members of the bargaining unit, the MSPB has recognized this possibility and established procedures in 5 C.F.R. § 1201.34 under which a union may move to intervene in an MSPB proceeding.

The Respondent contends that the Judge's reliance on VA Long Beach does not establish that the Authority has jurisdiction in the instant case. The Respondent contends that unlike the depositions in the instant case, none of the interviews found to constitute formal discussions in VA Long Beach were conducted pursuant to any MSPB statutory or regulatory procedure. Further, the Respondent contends that the instant case, unlike VA Long Beach, involves the extent of an exclusive representative's rights, if any, in a proceeding which is in the exclusive jurisdiction of the MSPB.

Additionally, the Respondent argues that if the Judge is correct that an MSPB discovery proceeding can constitute a formal discussion under section 7114(a)(2)(A) of the Statute, then it would follow that an MSPB hearing and certain U.S. District Court proceedings could also constitute formal discussions at which a union would have a right, as exclusive representative, to appear. In the Respondent's view, section 7114(a)(2)(A) of the Statute does not give unions such a right. In short, the Respondent argues that "the Authority has no jurisdiction which overlaps that of the MSPB with regard to control over who has standing, or may be given standing to appear in their own right, in MSPB proceedings." Id. at 20 (emphasis in original).⁽³⁾

2. Second Exception

The Respondent contends that even if the Authority has jurisdiction to adjudicate an unfair labor practice complaint regarding who may appear in an MSPB proceeding, the Judge erred in ruling that section 7114(a)(2)(A) of the Statute gave the Union, acting as the exclusive representative, any right to be present at Marren's depositions. Noting that the Judge relied on NTEU I for his conclusion in this regard, the Respondent asserts that NTEU I "is not only distinguishable from the instant case, but, is currently, in any event, bad law." Id. at 26. The Respondent contends that NTEU I involved an interview, as opposed to a deposition, of a unit employee as a prospective witness conducted by an agency attorney in connection with his preparation for a pending MSPB hearing. Further, the Respondent contends that inasmuch as the U.S. Court of Appeals for the Federal Circuit held in Reid v. Department of Commerce, 793 F.2d 277, 283 (Fed. Cir. 1986) (Reid) that a union has neither a right nor an obligation, acting in its capacity as the exclusive representative, to represent a unit employee before the MSPB in an appeal, "then it follows that it could have no right granted by section 7114(a)(2)(A) to be present as the exclusive representative no matter how 'formal' the MSPB proceeding concerned--including the discovery proceeding at issue here." Id. (emphasis in original).

The Respondent asserts that its position that NTEU I is no longer good law is also supported by, among other decisions, the decision of the District of Columbia Circuit in National Treasury Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986) (NTEU II). According to the Respondent, the court held in NTEU II that where a unit employee elects to use the MSPB's appeal procedure, section 7114(a)(5) of the Statute precludes the employee's union from attempting to control that procedure.⁽⁴⁾ The Respondent asserts that the decisions in NTEU II and Reid demonstrate that the decision in NTEU I was incorrect because it was based "on the erroneous assumption that an exclusive representative had a right under section 7114(a)(2)(A) to be represented, qua exclusive representative--that is[,] to appear as the party of interest--in any statutory appeal proceeding involving a unit employee, including MSPB proceedings." Id. at 34.

The Respondent also asserts that the Authority should return to its previous position, from which it departed after the court issued its decision in NTEU I, that a matter ceases to be a grievance within the meaning of section 7114(a)(2)(A) once the aggrieved employee chooses to pursue the matter through a statutory appeal procedure rather than through the negotiated procedure. In this regard, the Respondent contends that the decision of the U.S. Court of Appeals for the Ninth Circuit in Internal Revenue Service Center, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983) represents the correct reading of the term "grievance" in section 7114(a)(2)(A).

3. Third Exception

The Respondent contends that even assuming for the sake of argument that the Authority has jurisdiction over this case and that a union has a right, acting as the exclusive representative, to appear in some MSPB proceedings, the Union had no right to be present at the depositions in this case because section 7114(a)(2)(A) is not applicable to discussions carried out pursuant to MSPB or Equal Employment Opportunity Commission (EEOC) procedures. Noting the Authority's decisions in U.S. Department of Justice, Bureau of Prisons Federal Correctional Institution, Ray Brook, New York, 29 FLRA 584 (1987), petition for review denied, 865 F.2d 1283 (D.C. Cir. 1989) and U.S. Government Printing Office, 23 FLRA 35 (1986) (GPO), the Respondent asserts that "agencies which act as third[-]party adjudicators, such as the EEOC and the MSPB, are privileged to establish their own regulations and procedures pursuant to statute[]" and MSPB regulations do not provide any role in MSPB proceedings for the exclusive representative acting as exclusive representative. Id. at 38.

4. Fourth Exception

The Respondent also argues that even if the Union was entitled to be represented at the depositions under section 7114(a)(2)(A), the Judge erred in ruling that the Union was not granted that right when the Respondent allowed the Union representative to be present at the depositions. Noting the court's statement in NTEU I that a union's right in a statutory appeal is more restricted than it would be in a proceeding under a negotiated grievance procedure, the Respondent asserts that "it is impossible to conceive of any purpose consistent with [section] 7114(a)(2)(A) for providing active [U]nion participation in such a discussion. Rather, any arguable interest of the [U]nion, qua exclusive representative, could be served by merely allowing a [U]nion representative to be present." Id. at 45.

The Respondent contends that the Judge erred in stating that a union representative, acting for the exclusive representative rather than for the appellant in an MSPB proceeding, has a statutory right to discuss a question with a pro se deponent before the deponent answers the question. Asserting that nothing in the Federal Rules of Civil Procedure, which are referenced in MSPB regulations, gives even an appellant's own personal representative the right to consult privately with his client before the client answers a question at a deposition, the Respondent contends that section 7114(a)(2)(A) "could not reasonably be interpreted as giving the exclusive representative (representing itself) greater rights in this regard than the employee or the employee's own personal representative would have under MSPB procedures." Id. at 46. The Respondent further asserts that in the June 4 deposition, its representative did allow Marren and the Union representative to consult prior to the conclusion of the deposition and gave Marren the right to amend his statement based on that consultation. Thus, the Respondent argues that even if section 7114(a)(2)(A) applied in the instant case, the Respondent fully complied with its provisions.

5. Fifth Exception

The Respondent claims that the Judge erred by stating, in dicta, that the parties' collective bargaining agreement authorized the appearance of a personal representative. The Respondent argues that the Judge's statement is irrelevant to the issues in the case and is unsupported by the parties' collective bargaining agreement. The Respondent requests that the Judge's statement be stricken from the final decision or expressly not adopted by the Authority.

6. Sixth Exception

Finally, the Respondent contends that the Judge incorrectly concluded that the depositions at issue in this case were "formal" within the meaning of section 7114(a)(2)(A) of the Statute. The Respondent repeats its contention that the Authority should return to its pre-NTEU I position that interviews held in preparation for litigation are not formal, and argues further that even under the NTEU I standard, the depositions in this case were not formal. In this regard, the Respondent asserts that: (1) no supervisors were involved in the taking of the depositions; (2) the depositions did not involve any element of coercion; and (3) the depositions were initiated not by management, but by the MSPB.

B. General Counsel's Opposition to the Respondent's Exceptions

The General Counsel asserts that the Respondent's exceptions essentially repeat the arguments made by the Respondent to the Judge. With regard to the Respondent's argument that section 7114(a)(2)(A) of the Statute does not give a union any rights in an MSPB discovery proceeding, the General Counsel contends that the Authority has held that interviews by agency representatives with unit employees in preparation for third-party proceedings in which the union has an adversary role are formal discussions and that an interview with a unit employee, conducted by an agency representative in preparation for an MSPB hearing, constitutes a formal discussion concerning a grievance under section 7114(a)(2)(A). Further, the General Counsel argues that the evidence in this case "clearly establishes that the two depositions at issue in this matter were formal meetings within the meaning of section 7114(a)(2) of the Statute." Opposition at 2-3. The General Counsel requests that the Authority adopt the Judge's findings that the Respondent conducted formal discussions without affording the Union the opportunity to be represented, in violation of the Statute.

C. MSPB's Statement

The MSPB states that it "strongly opposes" the Judge's determination that an MSPB discovery proceeding is a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. MSPB's Statement at 3. The MSPB argues that it "alone has exclusive jurisdiction to determine who has a right to be present at a proceeding conducted pursuant to its statutory and regulatory authority." Id. Accordingly, the MSPB states that it "concurs with the position of the [Respondent] that the FLRA does not have jurisdiction to decide matters which might interfere with the MSPB's statutory authority to conduct proceedings and hear appeals." Id. The MSPB requests that the Authority reverse the Judge's decision.

D. Respondent's Response to MSPB's Statement

The Respondent notes that "[i]n its statement, the MSPB did not directly state which of its regulations would be interfered with if the Authority were to adopt the [Judge's] conclusion that the Authority has the right to determine who shall be present in an MSPB proceeding." Respondent's Response at 2. The Respondent maintains that the "MSPB was no doubt relying on the Authority's holding in" GPO. Id. The Respondent also asserts that "a cursory examination of MSPB regulations reveals that the [Judge's] decision would directly interfere with [5 C.F.R.] §§ 1201.31, 1201.34, 1201.52 and 1201.71." Id. at 4. The Respondent contends that its conduct in this case was sanctioned by the MSPB, and if the Authority rules that the Respondent's conduct constituted an unfair labor practice, the Authority "would be, in effect, overturning not only the ruling of the MSPB but the regulations of the MSPB." Id.

E. General Counsel's Response to MSPB's Statement

The General Counsel asserts that the Authority has jurisdiction to decide the unfair labor practice issue presented in this case because the Authority has exclusive jurisdiction over unfair labor practice complaints under the Statute. The General Counsel also asserts that the Judge's decision in this case would not interfere with the MSPB's authority to conduct proceedings and hear appeals. The General Counsel contends that any remedial order of the Authority in this case "would not compel the MSPB to act in a certain manner or cease from taking any sort of action. Rather, any remedial relief in this case would only involve the Respondent." General Counsel's Response at 2.

According to the General Counsel, "this is not a case where there is any conflict between MSPB regulations and 5 USC 7114(a)(2)(A)." Id. The General Counsel states that MSPB regulations provide that "'[d]epositions may be taken by any method agreed upon by the parties[,]'" and "would certainly not prohibit a union representative from attending and participating in such a deposition interview." Id. (quoting 5 C.F.R. § 1201.75). The General Counsel also notes that 5 C.F.R. § 1201.74, "which concerns orders for compelling discovery and motions for the appearance of non-parties," provides that an administrative judge of the MSPB may, where appropriate, order any condition or limits concerning the conduct or scope of the discovery proceeding. The General Counsel asserts that there is no evidence in the record, and the MSPB has not asserted, that the MSPB prohibited Union participation in the depositions. The General Counsel argues, therefore, that as there is no evidence or contention by the MSPB or the Respondent that the Union appeared at the depositions in contravention of an MSPB order, "an Authority decision . . . in this case would have no impact upon the MSPB's claimed authority to determine who has a right to be present at its proceedings." Id. at 3.

The General Counsel contends that inasmuch as Marren requested the presence and participation of a Union representative at his deposition, "it cannot be said that the Union's institutional rights affected, prejudiced or interfered with any individual appellant's right granted by MSPB's regulations to process their appeal." Id. Further, as to MSPB's argument that it has exclusive jurisdiction to determine who has a right to be present at a proceeding conducted pursuant to its statutory and regulatory authority, the General Counsel asserts that "the statutory provisions regarding unfair labor practices and formal discussions set forth a Congressional policy which would take precedence over any regulatory [scheme] or interpretation of a regulatory scheme of the MSPB." Id. In this regard, the General Counsel contends that section 7114(a)(2)(A) of the Statute "created a statutory right which cannot be defeated or rescinded by the regulations of any other agency which may conflict with that congressionally mandated right." Id. at 4. Therefore, the General Counsel argues that "any [section] 7114(a)(2)(A) right of an exclusive representative to attend formal discussions, being a statutory right[,] would take precedence over any procedural regulation or interpretation of that regulation." Id.

V. Analysis and Conclusions

The complaint alleges that the two depositions of Marren in this case constituted 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 give the Union the opportunity to be represented at those discussions. For the reasons discussed below, we find that the depositions constituted formal discussions under section 7114(a)(2)(A) of the Statute. However, we further find that the Respondent satisfied its obligation under section 7114(a)(2)(A) to give the Union the opportunity to be represented at the discussions. Accordingly, we conclude that the Respondent did not commit the unfair labor practices alleged in the complaint.

A. Preliminary Matters

The Respondent and the MSPB contend that the Judge erred in assuming that the Authority has jurisdiction to resolve the unfair labor practice complaint in this case. According to the Respondent and the MSPB, the Authority has no jurisdiction to decide which persons have the right to appear in an MSPB appeal procedure because the MSPB, pursuant to its exclusive statutory authority, has promulgated regulations defining the extent of such rights. We find that nothing in the MSPB's regulations limits our authority to determine, as authorized by the Statute, whether an agency has committed an unfair labor practice in the course of conducting a formal discussion in preparation for MSPB proceedings. See generally NTEU I and VA Long Beach.⁽⁵⁾ Moreover, even where, as here, the alleged formal discussions were conducted in connection with an MSPB proceeding, we find nothing in MSPB regulations precluding an agency from complying with its obligations under section 7114(a)(2)(A) of the Statute when an alleged formal discussion is conducted in connection with such a proceeding. Accordingly, we reject the above-noted arguments.

The Respondent also excepts to the Judge's finding that Marren's "personal representative authorized under the parties' collective bargaining agreement" was present at the depositions. Judge's Decision at 3. The Respondent asserts that the statement is "erroneous" and "unsupported dicta." Exceptions at 47. The Respondent requests that the statement be "struck from the final decision or expressly not adopted by the Authority." Id. However, the record supports the Judge's finding that the parties' agreement authorized Marren's personal representative to be present at the depositions. See Transcript at 27; Respondent's Brief to the Administrative Law Judge at 8, 10; General Counsel's Brief to the Administrative Law Judge at 4, 6. The Respondent's exception constitutes mere disagreement with the Judge and provides no basis for rejecting the Judge's finding.

B. The Depositions Were Formal Discussions under Section 7114(a)(2)(A)

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. VA Long Beach, 41 FLRA at 1379.

In agreement with the Judge, we find that the depositions conducted by the Respondent in preparation for MSPB proceedings 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, including MSPB proceedings, are formal discussions. See, for example, VA Long Beach, 41 FLRA at 1379 and cases cited therein. In so holding, the Authority has followed the court's decision in NTEU I. As noted by the Judge, in NTEU I 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).

We find that nothing in the record or in the arguments presented compels a different conclusion in this case.⁽⁶⁾ Accordingly, for the reasons stated fully by the Judge, we find that the depositions in this case were formal discussions and that, therefore, under section 7114(a)(2)(A), the Union was entitled to be given the opportunity to be represented at those discussions.

C. The Respondent Satisfied Its Obligation under Section 7114(a)(2)(A) to Give the Union the Opportunity to Be Represented at the Depositions

Having found that the depositions constituted formal discussions under section 7114(a)(2)(A), we must next determine whether the Union was given an opportunity to be represented at the discussions.

The purpose of providing a union with the right to be represented under section 7114(a)(2)(A) is to give the union an opportunity to safeguard its institutional interests and the interests of employees in the bargaining unit. See, for example, National Labor Relations Board, 46 FLRA 107, 111 (1992); U.S. Department of Defense, Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 37 FLRA 952, 961 (1990); Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA 747, 754 (1990); and Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 598 (1987). The right to be represented at formal discussions generally means more than merely the right to be present. See U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania, 38 FLRA 671, 677 (1990); and U.S. Nuclear Regulatory Commission, 21 FLRA 765, 768 (1986) (NRC) (the unions' right to be represented at meetings between management and unit employees on a planned reorganization and compressed work schedules included the right of the union representatives to "comment, speak, and make statements"). However, we agree with the court that when formal discussions occur in the course of statutory appeals procedures, "the union's institutional role . . . is obviously more restricted than its role in a negotiated grievance procedure." NTEU I, 774 F.2d at 1188. Moreover, "[c]omments by a union representative must be governed by a rule of reasonableness, which requires that there be respect for orderly procedures . . . ." NRC, 21 FLRA at 768. Therefore, in determining the extent of a union's right to have its representative participate in a formal discussion, the Authority will consider "the purpose of the meeting conducted by the agency representative(s) and all of the surrounding circumstances . . . ." Id.

In this case, the depositions taken in preparation for MSPB proceedings were conducted by the Respondent pursuant to 5 C.F.R. § 1201.72.⁽⁷⁾ Under 5 C.F.R. § 1201.72(c), parties before the MSPB may use one or more of the methods of discovery provided under the Federal Rules of Civil Procedure (Federal Rules). These methods are: (1) depositions upon oral examination or written questions; (2) written interrogatories; (3) production of documents or things or permission to enter upon land or other property, for inspection and other purposes; (4) physical and mental examinations; and (5) requests for admission. Fed. R. Civ. P. 26. As the depositions in this case were conducted pursuant to 5 C.F.R. § 1201.72(c) and as that regulation references the methods of discovery under the Federal Rules, it is appropriate to examine the requirements for depositions found in Rule 30 of the Federal Rules concerning depositions upon oral examination.

Rule 30(a) provides that after the commencement of an action, any party may take testimony by deposition upon oral examination. Fed. R. Civ. P. 30(a). Rule 30(d) provides that a party or the deponent may move to terminate or limit the examination in certain circumstances. Fed. R. Civ. P. 30(d). Rule 30(c) provides in part that parties may object to the manner of the taking of the deposition and to the evidence presented. Fed. R. Civ. P. 30(c). Accordingly, Rule 30 contemplates that only the deponent or parties to proceedings have the right to participate in depositions conducted pursuant to that rule.

The Federal Rules, "although not controlling in procedures before the [MSPB], provide a general guide to [MSPB] discovery practices." Roth v. Department of Transportation, 54 MSPR 172, 176 (1992) (where the MSPB found that the judge "properly looked to Fed. R. Civ. P. 37" for guidance in ruling on a motion for sanctions against a party failing to appear for a deposition). See also West v. Department of Transportation, 20 MSPR 194 (1984) (where the MSPB used Rule 30 of the Federal Rules as guidance); Pedersen v. Department of Transportation, 9 MSPR 195, 199 (1981) (where the MSPB reversed the presiding official's decision denying a deposition motion because that decision was "contrary to the principles of the Federal Rules of Civil Procedure"). Because the depositions in this case were conducted under 5 C.F.R. § 1201.72, which references the Federal Rules, we see no reason in this case to depart from the general practice reflected in MSPB regulations and case law that parties are to use the Federal Rules as guidance and instruction when conducting depositions under 5 C.F.R. § 1201.72(c). Accordingly, in these circumstances, we will look to the Federal Rules to determine the reasonableness of the conduct of the nonparty Union representative attending the depositions. As we noted above, Rule 30 of the Federal Rules contemplates that only the deponent or parties or their representatives have the right to participate in depositions conducted under the Federal Rules.⁽⁸⁾ Therefore, to foster "respect for orderly procedures[,]" we find that the Union, as neither a party to the MSPB proceedings nor a party's representative, would not have been permitted under the Federal Rules to participate in the taking of the depositions or in objecting to the manner in which the depositions were conducted. NRC, 21 FLRA at 768 (the conduct of a union representative attending a formal discussion "must be governed by a rule of reasonableness, which requires that there be respect for orderly procedures"). However, nothing in Rule 30 or 5 C.F.R. § 1201.72 precluded the Union from being present at the depositions in this case.⁽⁹⁾

We have already noted that in NTEU I, the court held that a union's right of representation under section 7114(a)(2)(A) "is obviously more restricted" when a statutory appeals procedure is involved than when a negotiated grievance procedure is involved. NTEU I, 774 F.2d at 1188. As the instant case involves such a proceeding and concerns a formal discussion conducted pursuant to the discovery method noted above, we find that, based on these "surrounding circumstances[,]" the Union's right to representation in this case was served by providing the Union with prior notice and permitting the Union to be present at the depositions. NRC, 21 FLRA at 768. Accordingly, the Respondent did not violate section 7114(a)(2)(A) of the Statute by failing to allow the Union representative to actively participate in the depositions. We note that with respect to the extent of a union's right to participate in a formal discussion, this case is distinguishable from cases such as NTEU I and VA Long Beach because those cases involved interviews conducted by agencies preparing for MSPB proceedings and there is no indication that those interviews were conducted pursuant to any of the discovery methods in 5 C.F.R. § 1201.72(c) or the Federal Rules. Therefore, unlike the instant case, the conduct of participants at those interviews was not affected by 5 C.F.R. § 1201.72(c) or the Federal Rules.

For the foregoing reasons, we find that in the particular circumstances of this case, section 7114(a)(2)(A) did not require the Respondent to allow the Union representative to actively participate at the depositions. Accordingly, the Respondent complied with the requirements of section 7114(a)(2)(A) of the Statute when it provided the Union with prior notice of the depositions and allowed the Union to have a representative at the depositions. Therefore, we disagree with the Judge's conclusion that the Respondent violated the Union's right under section 7114(a)(2)(A) of the Statute to be represented at the depositions. Consequently, we will dismiss the complaint.

VI. Order

The complaint is dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Section 7114(a)(2)(A) provides that an exclusive representative of an appropriate unit:

shall be given the opportunity to be represented at . . . any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]

2. Unless otherwise indicated, all events occurred in 1990.

3. The Respondent also asserts that it is unclear whether the Judge's decision "rests entirely on Respondent's alleged interference with the Union's statutory right to represent itself in an MSPB proceeding, or rather whether, to some extent[,] he found that Respondent also interfered with Mr. Marren's individual rights under [the] Statute." Id. In our view, the complaint does not allege, and the Judge did not find, that the Respondent interfered with Marren's individual rights under the Statute. Accordingly, the Respondent's arguments in this regard have not been set forth above.

4. Section 7114(a)(5) of the Statute states:

The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from--

(a) being represented by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action; or

exercising grievance or appellate rights established by law, rule, or regulation;

except in the case of grievance or appeal procedures negotiated under this chapter.

5. We reject the Respondent's contention that NTEU I is no longer good law. The cases relied on by the Respondent in support of that contention did not involve a union's exercise of its right to be represented in formal discussions under section 7114(a)(2)(A) of the Statute and, therefore, do not demonstrate that NTEU I is no longer valid.

6. We reject the Respondent's argument that finding that the depositions in this case are formal discussions means that an MSPB hearing or certain Federal court proceedings could also constitute formal discussions. MSPB hearings and Federal court proceedings are not conducted by agency representatives but are controlled by administrative or Federal judges, whereas the depositions in this case were conducted by the Respondent.

7. These regulations were promulgated pursuant to 5 U.S.C. § 1204(h) (Supp. III) (1991).

8. Although the parties may stipulate to modify the procedures for depositions in certain circumstances, there is no evidence in this case that they agreed to do so. See Fed. R. Civ. P. 29.

9. We reject the Respondent's reliance on GPO to support its argument that section 7114(a)(2)(A) does not give the Union the right to be present at discussions carried out pursuant to MSPB or EEOC procedures. GPO arose in the context of whether the agency bypassed the union by negotiating an informal adjustment of a unit employee's EEO complaint and did not address the union's institutional right to be represented at formal discussions under section 7114(a)(2)(A) of the Statute.

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