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UNITED STATES DEPARTMENT OF AGRICULTURE, FARM SERVICE AGENCY
KANSAS CITY, MISSOURI |
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and
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NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 264, DENVER, COLORADO
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Case No. DE-CA-60399 |
Mr. James R. Ellison
For Respondent Farm Service Agency
Katherine R. Shanabrook, Esquire
For Respondent Office of Inspector General
Ms. Kathleen MacKenzie
For the Charging Party
Charlotte A. Dye, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq. (1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns: (a) whether
the Office of Inspector General refused to permit a Union
representative to actively assist an employee at an examination, in
violation of §§ 16(a)(1) and (8) of the Statute; and (b) if the
Union representative were denied the right to actively assist an
employee, whether Respondent Farm Service Agency violated §§
16(a)(1) and (8) because it requested the investigation and/or
because a component of the Department of Agriculture, OIG, engaged
in conduct which interfered with the protected rights of employees
of FSA, another component of the Department of Agriculture.
This case was initiated by a charge filed on February 16, 1996
(G.C. Exh. 1(a)), which named as the charged activity or agency,
"USAD, CFSA". By Order dated May 9, 1996 (G.C. Exh. 1(c)), the case
was transferred, pursuant to § 2429.2 of the Regulations, 5 C.F.R.
§ 2429.2, to the Dallas Region. On August 1, 1996, a first Amended
Charge was filed (G.C. Exh. 1(d)), which changed the named activity
or agency to, "USDA, FSA & OIG". The Complaint and Notice of
Hearing issued on August 30, 1996 (G.C. Exh. 1(f)) and set the
hearing for November 7, 1996, pursuant to which a hearing was duly
held on November 7, 1996, in Kansas City, Missouri, before the
undersigned. All parties were represented at the hearing, were
afforded full opportunity to be heard, to introduce evidence
bearing on the issues involved, and were afforded the opportunity
to present oral argument which Counsel for the Office of Inspector
General exercised. At the conclusion of the hearing, December 9,
1996, was fixed as the date for mailing post-hearing briefs, which
time subsequently was extended on timely motion of the Charging
Party, to which General Counsel did not object but to which
Respondents Farm Service Agency and Office of Inspector General did
object, for good cause shown, to January 9, 1997. Respondent Farm
Service Agency, Respondent Office of Inspector General and General
Counsel each timely mailed an excellent brief, received on, or
before, January 13, 1997. On January 22, 1997, General Counsel
mailed an extensive Motion to Strike Portions of Respondents'
Briefs, received on January 27, 1997; and on February 3, 1997,
Office of the Inspector General mailed an equally extensive
Response to Counsel for the General Counsel's Motion to Revoke
Portions of Respondents' Briefs, received on February 7, 1997. For
reasons set forth hereinafter, General Counsel's Motion to Strike,
is denied; however, certain errors on the part of Counsel for
Office of the Inspector General have been noted. All briefs,
motions and responses have been carefully considered and on the
basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings and
conclusions:
PRELIMINARY MATTER
General Counsel's Motion to Strike
A. General Counsel moved to strike the statement, on page 3
of Respondent Farm Service Agency's Brief (hereinafter, "FSA") and
on page 2 of Respondent Office of the Inspector General's
(hereinafter, "OIG") Brief, that, "They interviewed . . . other FSA
employees for an OIG investigation", for the reason that the "fact"
is not included in the record. While not cited by any party, the
record does support the statement, e.g.,
Tr. 125; 142.
B. General Counsel moved to strike the statement on page 3
of Respondent OIG's brief, "that at this point, Bowman requested
and was allowed to contact another union official . . . ." The
statement sought to be stricken is foursquare supported by the
record. What General Counsel presumably intended to challenge was
the relation of the proceeding two sentences which indicate that
Mr. Bowman signed the "waiver"(2)
before he requested and was granted a caucus to call. I am aware
that General Counsel's witnesses testified that Mr. Bowman did not
sign this warning notice (Res Exh. 2) until after the caucus; but
OIG'S witnesses testified that he signed the notice at the outset,
before the caucus. The record shows that Mr. Bowman's concern, and
his request for a caucus, arose when, he asserted, OIG told him and
his Union representative that, because she was not an attorney, she
could not speak during the examination of Mr. Bowman. i.e., ". . . since I thought I had a right to a union
representative and since I wasn't . . . sure about what was going
on, I asked if we could have a caucus . . . ." (Tr. 42).
C. General Counsel is entirely correct that the record
shows no request to confer on February 15. Therefore, OIG's
statement that, ". . . Bowman's request to confer with Miller on
February 15th were not restricted" (OIG's Brief, p.5) was, indeed,
the statement of a non-fact. I am well aware that it is without
meaning and, because the statement is meaningless, it is not
necessary to strike the statement.
D. General Counsel moves to strike the statement on page 5
of OIG's Brief that, "Rubey de Guerrero then informed McKenzie
[sic] that she was going to put McKenzie [sic] on hold . . . ."
General Counsel may be correct that the record does not show that
Ms. MacKenzie was told she was going to be
put on hold; but the record certainly shows that she was put on
hold. For example, Ms. Rubey de Guerrero testified, ". . . I had to
put her on hold while she was talking, in an effort to go up to my
supervisor . . . so that we could continue the conversation with
Ms. MacKenzie together" (Tr. 95); ". . . I told her [Ms. MacKenzie]
that I needed to have my supervisor present during this
conversation, and that's when I put her on hold . . . ." (Tr. 106);
". . . so she [Ms. Rubey de Guerrero] came up to my office, and we
put Ms. MacKenzie on the speaker-phone." (Tr. 139). It might be
inferred that Ms. MacKenzie was told she was being put on hold; but
in any event, in context, the statement is not misleading, has no
bearing on the disposition of this matter and will not be
stricken.
E. General Counsel moves to strike the last sentence of the
last paragraph of n.4 on page 6 of OIG's Brief, namely, "General
Counsel was permitted to cross-examine ASAC Sidener . . . ."
General Counsel is correct only as to the incorrect attribution by
OIG. It was Ms. MacKenzie, not General Counsel, who cross-examined
Mr. Sidener about the statement (Tr. 147-148). OIG was both sloppy
and negligent in her writing. Indeed, even in her Response there is
no appreciation of her error of attribution.
With respect to the principal thrust of n.4, which was the
rejection of Respondent Exhibit 4, Counsel is wrong on several
grounds. First, Respondent Exhibit 4, for identi-fication,
purported to be a "Memo of Conversation" by Mr. Sidener; but it was
offered through Ms. Rubey de Guerrero, not Mr. Sidener, and while
it purported to be a record of conversation, it went well beyond
his telephone conversation with Ms. MacKenzie. Without the
opportunity to examine Mr. Sidener concerning his memorandum, the
offer of the exhibit through Ms. Rubey de Guerrero was rejected.
Although Mr. Sidener was later called as a witness, Respondent
Exhibit 4 for identification was not re-offered as an exhibit.
Second, Respondent Exhibit 4 for identification most definitely was
not rejected, as OIG, states, ". . . because the Judge had already
found Sidener's testimony credible . . . ." This would have been an
impossibility inasmuch as Mr. Sidener had not testified. Third,
OIG's assertion that it should have been admitted because it was
"consistent with his testimony . . . ." is not entirely correct.
Mr. Sidener testified, "I looked at the OIG directive that covered
this, and I think I looked up the specific statute. I don't
remember particularly a Department of Justice guideline . . . ."
(Tr. 147). Nevertheless, because n.4 is, in essence, a request for
reconsideration of the rejection of Respondent Exhibit 4, for
identification, it will not be stricken.
F. General Counsel moves to strike the reference on page 7
of OIG's Brief of the sentence, "In the interest of judicial
economy and to preserve this issue for appeal, OIG incorporates by
reference the statutory interpretations and legal arguments made by
the Government in their briefs in those cases, and in the pending
appeal of . . . 50 F.L.R.A. 601, taking the position that an OIG is
not subject to the Weingarten provision of the FSLMRS." I fully
agree with OIG that § 2423.16 of the Regulations, 5 C.F.R. §
2423.16, relied upon by General Counsel, does not apply. This
statement appears in OIG's argument and is wholly proper.
G. General Counsel moves to strike a portion of OIG's
argument, on page 8, because OIG asserts that Ms. Miller, ". . .
when asked if she was permitted 'to
indicate . . . how Bowman should answer,' she responded, 'No.'". It
is true that on page 69 of the transcript, the word is "committed",
i.e., "And were you committed to indicate .
. . how Mr. Bowman should answer?" In context, it clearly appears
that the word "committed" is a typographical error and that it
should have been "permitted". See, also, in this regard, page 66 of
the transcript. Had OIG moved to correct the transcript to
substitute "permitted", I would have granted the motion; but,
instead, OIG simply argues that when asked if she was permitted and
then quotes the transcript as set forth above. As such, it is
proper argument and will not be stricken.
H. General Counsel moves to strike portions of OIG's
argument on pages 8, 9 and 16 concerning OIG's representation of
Ms. Miller's testimony. This is argument and legitimate contentions
which will not be stricken.
I. General Counsel moves to strike the sentence on page 11
of OIG's brief, "The General Counsel argues that Miller's ability
to assist Bowman was restricted because Rubey de Guerrero reminded
Miller that Miller was not an attorney." This is part of OIG's
argument; was what Ms. MacKenzie stated was told her (Tr. 21); was
what Mr. Bowman testified was stated (Tr. 41); was what Ms. Miller
testified she was told (Tr. 63); and is asserted by General
Counsel, e.g., ". . . Counsel for
Respondent OIG . . . places undue importance on the fact that
Miller was not an attorney, to whom they would have granted more
opportunity to participate. It is clear . . . that they believe
that, because Miller is not an attorney, de Guerrero and Schnieders
were entitled to require Miller to save any questions . . . until
the end of the interview. . . ." (General Counsel's Brief, p. 15).
Because it is legitimate argument, it will not be stricken.
J. General Counsel moves to strike OIG's argument on page
12, that, ". . . neither Bowman nor Miller ever complained to the
OIG agents about the attorney comment . . . ." Because they made no
complaint, there, indeed, is no reference in the transcript; but it
is legitimate argument and will not be stricken.
K. General Counsel moves to strike the final paragraph on
page 14, continuing through the first two lines of page 15,
concerning the argument that, "The credibility of the special
agents' testimony . . . was corroborated . . . ." General Counsel
is quite correct that the proffered statement, Respondent Exhibit 3
for identification, was rejected. Mr. Sidener instructed the two
agents on February 15, 1996, to ". . . document whatever they were
engaged in with respect to how actively the representative could
participate." (Tr. 143); but they did not. The statement of April
12, 1996 (Res Exh. 3 for identification), was neither a spontaneous
nor even a contemporary record of the February 14-15 examination.
Rather, it was prepared nearly two months after the fact and fails
to corroborate their credibility. Indeed, the notes, which each Ms.
Rubey de Guerrero and Ms. Schnieders took, and which could have
corroborated their testimony, were not produced. For example, Ms.
Rubey de Guerrero testified that from her notes she could tell
where Ms. Miller attempted to answer for Mr. Bowman (Tr. 116). Both
Mr. Bowman and Ms. Miller denied that Ms. Miller ever attempted to answer for Mr. Bowman or ever interrupted; but the notes were not offered to
corroborate Ms. Rubey de Guerrero's testimony. In like manner, Ms.
Schnieders testified that, " . . . I was trying to write, take down
notes, and I would start to write down something, and then she
[Miller] would answer. She was answering, and I didn't know whether
to write, you know, Miller said this, and I remember it was very
unorganized at that time. . . ." (Tr. 132). Her notes, however
unorganized, would have corroborated her testimony and that of her
fellow agent, but were not produced.
Nevertheless, the statement is argument and, while it will be
accorded only the weight it deserves, it will not be stricken.
1. Respondent OIG is
subject to the Statute
The United States Department of Agriculture is an Executive
agency within the meaning of § 3(a)(3) of the Statute and its
Office of the Inspector General, Kansas City, Missouri, was, for
the reasons well stated by the Authority, in Headquarters National Aeronautics and Space
Administration Washington, D.C. and
National Aeronautics and Space Adminis-tration, Office of the
Inspector General, Washington, D.C. (hereinafter referred to
as, "NASA"), 50 FLRA 601, 612-619 (1995), a
representative of United States Department of Agriculture, within
the meaning of § 14(a)(2)(B) of the Statute, in conducting the
investigatory interview herein. I understand Respondent's position
but can not agree. I find nothing in United States
Nuclear Regulatory Commission v. FLRA, 25 F.3d 229 (4th Cir.
1994)(hereinafter, "NRC"), to the contrary. True, the Fourth
Circuit Court of Appeals held that it was not permissible to
subject investigatory interviews conducted by the Inspector General
to contractual limitation through negotiations between the agency
and its union, but the Court fully recognized, and agreed with, the
decision of the Third Circuit Court of Appeals, Defense Criminal Investigative Service v. FLRA, 855
F.2d 93 (3d Cir. 1988)(hereinafter, "DCIS"), that DCIS, ". . .
which is the equivalent of the Inspector General within the Defense
Department, was a representative of the Department of Defense, and
therefore, the employees' statutory rights to have union
representatives present during an agency invesgation, see 5 U.S.C. § 7114(a)(2), apply . . . ." (25 F.3d at
235). I find the decision of the Court in NRC thoroughly sound. Beyond doubt, were investigations
of the Inspector General subject to collective bargaining, the
independence of the Inspector General, which the Inspector General
Act, 5 U.S.C. App. 3 § 1, et seq. sought to
assure, would have been compromised; but that is a far cry from
concluding that, the statutory Weingarten
right [420 U.S. 251, 260-261 (1975)] of § 14(b)(2)(B) do not apply
to investigative interviews of bargaining unit employees conducted
by the Inspector General [IG]. The § 14(b)(2)(B) rights are
statutory rights wholly independent of collective bargaining.
With all deference, I find the decision of the District of
Columbia Circuit Court of Appeals, in United
States Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir.
1994, reh'g den'd 1995), for reasons well
stated by the Authority in NASA,
supra, unsound and unpersuasive. Offices of
the Inspector General plainly are not independent agencies. To the
contrary, they are employees of the particular agency, here the
Department of Agriculture, and are under the general supervision of
the agency head. Representation of an employee by the union
pursuant to § 14(a)(2)(B) of the Statute, protects the employee
but, as the Authority has noted in NASA,
does not impinge in the slightest on the independence of the IG to
conduct investigations.(3)
U.S. Department of Labor, Mine Safety and Health
Administration, 35 FLRA 790, 805 (1990).
2. Respondent OIG violated §§
16(a)(1) and (8)
A. FACTS
Mr. Richard Bowman is a management analyst for the Farm Service
Agency (hereinafter, "Farm Service") and is President of NTEU
Chapter 264 (Tr. 38). At a negotiating meeting with Farm Service on
Friday, February 2, 1996, Mr. Bowman had in his possession, and
displayed, Purchase Order documents. By letter dated February 7,
1996, Mr. Jim R. Ray, Acting Director, Farm Service, requested that
the Office of Inspector General conduct, ". . . a full
investigation" into the matter of Mr. Bowman's possession of
Purchase Order documents and the disappearance, on February 5,
1996, of ". . . the entire file involving these documents. . . ."
(G.C. Exh. 2). On February 13, 1996, Mr. Bowman was told by his
supervisor, Ms. Mary Treese, to call the OIG (Tr. 39), which he did
and an appointment was made for the following afternoon, February
14, 1996 (Tr. 39, 40). Mr. Bowman called Ms. Patricia Miller, Chief
Steward, and asked her to go with him as his representative (Tr.
39).
The interview began, as scheduled, on the late afternoon of
February 14, 1996, at the Office of the Inspector General (Tr. 80),
and in particular in the Office of Special Agent James Midenhall
who was out of town (Tr. 40, 82). The interview was conducted by
Special Agency Stacy Rubey de Guerrero and Special Agent Jill Renee
Schnieders (Tr. 80, 118). Mr. Bowman was accompanied by Ms. Miller
(Tr. 40, 61). I agree with Respondent OIG that, "The bottom line in
this case is credibility." (Respondent OIG's Brief, p. 13). Rarely
has testimony of witnesses been more divergent. For example, Mr.
Bowman stated that he and Ms. Miller were escorted by Ms. Rubey de
Guerrero to a nearby break area for their caucus and from where he
called Ms. Kathleen MacKenzie, an NTEU Field Representative, in
Denver, Colorado (Tr. 43, 46, 47). Ms. Miller said that Mr. Bowman
asked for a caucus; that it was granted; and that during the caucus
Mr. Bowman called Ms. MacKenzie and talked to her (Tr. 63-64); but
she did not mention having gone to a break area for the caucus
and/or for the telephone call. Special Agents Rubey de Guerrero and
Schnieders testified that they left Mr. Midenhall's office; that
Mr. Bowman and Ms. Miller had their caucus in Mr. Midenhall's
office; that they, Bowman and Miller, never left the office (Tr.
85, 86, 104, 113, 115, 119, 120). Ms. Rubey de Guerrero said she
did not know whether Mr. Bowman and/or Ms. Miller had made a call
from Mr. Midenhall's office (Tr. 113).(4) Mr. Bowman and Ms. Miller said that they
talked to Ms. MacKenzie during the caucus (Tr. 43, 164) and Ms.
MacKenzie said that Mr. Bowman and Ms. Miller called her on the
afternoon of February 14 (Tr. 22, 35). Although the testimony of
Bowman, Miller and MacKenzie concerning their conversation during
the caucus is not contradicted directly, I am not convinced that
the conversation took place during the caucus. There is no doubt
that Ms. Miller and Mr. Bowman talked to Ms. MacKenzie on the night
of February 14; but it doesn't ring true that she talked to them on
the afternoon of the 14th during the caucus. They unquestionably
called for her during the caucus (see, Ms. Schnieders' testimony,
". . . I believe that Rick had contacted somebody but couldn't get
through to him." (Tr. 129)); however, had they talked to her,
everything in Ms. MacKenzie's manner and attitude, which appeared
to be militant and assertive when she believed rights of employees
were being trampled, showed a disposition to act and I can not
escape the conviction that she would have called the IG agents
immediately. That she called the IG office after 9:00 p.m. on the
14th (Tr. 31) strongly suggests that she did not talk to Mr. Bowman
and Ms. Miller until then. That she was "up in arms" over the
refusal of the IG to permit Ms. Miller to actively represent Mr.
Bowman plainly appears in her call, as soon as she arrived at her
office on February 15 (Tr. 31), and her statements to Ms. Rubey de
Guerrero (Tr. 23, 24, 95) and to Rubey de Guerrero's supervisor,
Mr. Ronald L. Sidener (Tr. 24-25, 139).
Ms. Rubey de Guerrero and Ms. Schnieders testified that when
they withdrew from Mr. Midenhall's office for Mr. Bowman's and Ms.
Miller's caucus, they, Rubey de Guerrero and Schnieders, went to
the office of their supervisor, Mr. Sidener, to, ". . . update him
on the progress of the investigation . . . ." (Tr. 85, 119).
Indeed, Ms. Schnieders stated, "Went into his office and Stacy
[Rubey de Guerrero] at that time discussed with him what had just
taken place, and they looked at the IG manual and the Weingarten
rule." (Tr. 119). But Mr. Sidener testified that on the way to the
mens room he saw Ms. Rubey de Guerrero and Ms. Schnieders in the
corridor chatting and he stopped and spoke to them briefly (Tr.
138). According to Mr. Sidener, on February 15, Ms. MacKenzie gave
him a citation of law (Tr. 139); he asked if he could look it up
and call her back; that he looked up the law and called Ms.
MacKenzie back (Tr. 139); and that, at that time, February 15, he,
". . . looked at the OIG directive that covered this, and I think I
looked up the specific statute. I don't remember particularly a
Department of Justice guideline, but I looked at whatever we had
available so that I could talk to you [MacKenzie] . . . ." (Tr.
147). Again, Mr. Sidener insisted that they, Rubey de Guerrero and
Schnieders, were, ". . . standing there chatting" (Tr. 146) when he
went by them and spoke to them briefly on the 14th. (Tr. 146).
Mr. Bowman testified that Ms. Miller never told him not to
answer any question; never tried to answer for him; and never
interrupted (Tr. 51). Ms. Miller testified that she said nothing
during the examination on February 14 (Tr. 65); and that she never
disrupted the examination of Mr. Bowman (Tr. 66). Ms. Rubey de
Guerrero testified, "Ms. Miller continued to interrupt me several
times, as far as jumping in and advising Mr. Bowman not to answer
the question, and on several occasions, she would attempt to answer
the question herself . . . it was becoming disruptive to my
interview, and so I told Mr. Bowman that Ms. Miller was here as his
union representative and I had no problem with that, but she was
not here as his attorney, and I could not allow her to tell him not
to answer the questions or to attempt to answer the questions for
him . . . ." (Tr. 84). Ms. Schnieders stated, "The interview took
place, and Stacy -- Ms. Miller continued to interrupt, and she
would ask Mr. Bowman that perhaps he shouldn't answer that question
or was answering for him, and that she was not an attorney -- she
was not acting as an attorney; she was a union rep and that they
could confer at any time." (Tr. 119); ". . . It just got very
chaotic. I remember I was trying to write, take down notes, and I
would start to write down something, and then she would answer. She
was answering, and I didn't know whether to write, you know, Miller
said this, and I remember it was very unorganized at that time"
(Tr. 131-132). Ms. Rubey de Guerrero stated that she could tell
from her notes where Ms. Miller attempted to answer (Tr. 116); but
as noted earlier, neither her notes nor Ms. Schnieders' notes were
offered in evidence and I do draw the adverse inference that the
notes would not have supported their testimony.
Mr. Bowman testified that he did not sign the "Employee
Warning-Administrative/Noncustodial" statement (Res. Exh. 2) until
after the caucus (Tr. 41-42, 46, 47); but Ms. Rubey de Guerrero
insisted that it was signed at the outset (Tr. 81); and Ms. Miller
agreed (Tr. 63). Ms. Schnieders did not say. And so it went. The
divergence continued, but these examples illustrate the breadth of
their disagreement.
The salient and controlling question is what Ms. Rubey de Guerrero told Ms. Miller concerning her presence at the examination on February 14, and when she made her statement. Mr. Bowman testified that at the outset, before his examination began, Ms. Rubey de Guerrero asked Ms. Miller if she was an attorney and when Ms. Miller said she was not, Ms. Rubey de Guerrero told her, ". . . as a courtesy, they would allow her to stay there, but that she couldn't participate in any way and that we couldn't confer and we couldn't discuss anything . . . and then she stressed that it was just as a courtesy that she was allowing her to stay." (Tr. 41). Mr. Bowman continued, ". . . And so I asked that, since I thought I had a right to a union representative and since I wasn't, you know, sure about what was going on, I asked if we could have a caucus, so that we could decide and call my union field rep. Q Who's that? A It's Kathleen MacKenzie. Q Well, why didn't you -- I mean, you stated that you didn't really know what was going on. You know, why didn't you understand what was going on? What was the -- A I had talked with Kathleen the night before, and it was my understanding when we went there that Pat Miller could be my union representative and she could, you know, help me with the answers and represent me in the whole proceeding." (Tr. 42).
Ms. Miller testified that after Mr. Bowman introduced her as
his union representative, Ms. Rubey de Guerrero stated this was an
official investigation and Mr. Bowman had to cooperate and asked
Mr. Bowman to sign a statement, which he did, and Ms. Rubey de
Guerrero then told her, "A They told me that I was only there as a
courtesy; since I was not an attorney, I could not talk or confer
with him during the interview. Q How did you respond . . . A I
didn't say anything. Rick responded. Q And what did Rick do? A Rick
asked for a caucus." (Tr. 63).
Ms. Rubey de Guerrero testified that Ms. Miller had interrupted
her questioning of Mr. Bowman several times by, ". . . jumping in
and advising Mr. Bowman not to answer the question, and on several
occasions, she would attempt to answer the question herself.";
that, "A Well, at that point, it was becoming disruptive to my
interview, and so I told Mr. Bowman that Ms. Miller was here as his
union representa-tive and I had no problem with that, but she was
not here as his attorney, and I could not allow her to tell him not
to answer the questions or to attempt to answer the questions for
him -- I needed to hear the questions in his own words; that was
extremely important -- and that I had no problem with them
consulting, they could consult with each other at any time they
wanted -- I would leave the room -- but that I needed to have Mr.
Bowman answer the questions himself." (Tr. 84). Ms. Rubey de
Guerrero continued, stating, ". . . after I told him I needed to
hear his answers, I couldn't have Ms. Miller answering for him,
they wanted to consult with each other, and so Agent Schnieders and
I left the office that we were in and shut the door behind us."
(Tr. 85). Ms. Rubey de Guerrero further stated, ". . . In my mind,
if there had been an attorney there, I probably would have allowed
a little more leeway as far as the attorney jumping in and advising
the client not to answer, and I would have done this believing an
attorney-client privilege in that area. And so I would have given
that attorney more leeway, assuming that privilege." (Tr. 88).
Ms. Schnieders testified, ". . . The interview took place, and
Stacy -- Ms. Miller continued to interrupt, and she would ask Mr.
Bowman that perhaps he shouldn't answer that question or was
answering for him, and Stacy at that time then asked that she not
answer the questions for him, and that she was not an attorney --
she was not acting as an attorney; she was a union rep and that
they could confer at any time. Q Did they request -- did Mr. Bowman
or Ms. Miller ever request the opportunity to confer? A No. At that
time, after Stacy said that, we asked if they wanted to confer, and
they said that they did, so we both got up and left the room, and
they visited." (Tr. 119).
I credit the testimony of Mr. Bowman and of Ms. Miller, namely,
that before the interrogation of Mr. Bowman began, Ms. Rubey de
Guerrero told Mr. Bowman and Ms. Miller that Ms. Miller would be
allowed to remain but that, as she was not an attorney, she could
not participate, i.e., she could not talk
or confer with him during the interview. I further credit Mr.
Bowman's testimony that Ms. Rubey de Guerrero, when she allowed Mr.
Bowman and Ms. Miller to caucus, told them that she was doing this
as a courtesy; but this wasn't going to be how the examination was
going to be conducted (Tr. 43). I do not credit the testimony of
either Ms. Rubey de Guerrero or of Ms. Schnieders in this regard
and specifically reject their assertion that Ms. Miller had been
disruptive of the investigation and/or that Ms. Rubey de Guerrero's
statement was provoked by Ms. Miller's disruptive conduct; and I
further specifically reject their assertion that Ms. Rubey de
Guerrero ever said they could consult each other any time they
wanted. I do not doubt, and accordingly credit the testimony of Ms.
Rubey de Guerrero and Ms. Schnieders to the effect that Mr. Bowman
was instructed that he must answer all questions. I have credited
the testimony of Mr. Bowman and Ms. Miller in this regard for a
number of reasons, including the following: First, each Mr. Bowman
and Ms. Miller categorically denied that Ms. Miller ever
interrupted or ever attempted to answer for Mr. Bowman; and each
stated that Ms. Rubey de Guerrero's statement was made before the
interrogation of Mr. Bowman had begun, which is precisely when such
"ground rules", as, that the person being examined must answer each
question and must answer in his/her own words, would be set
forth.
Second, Mr. Bowman and Ms. Miller told Ms. MacKenzie that Ms.
Rubey de Guerrero told them that Ms. Miller would be allowed to
remain at the investigation but, because she was not an attorney,
she could not participate; that is what Ms. MacKenzie testified,
without contradiction, she told Ms. Rubey de Guerrero on the 15, ".
. . I identified myself and said that I was calling because I was
concerned that she was confused about the instruction that they had
given to Pat Miller that she could not speak because she was not an
attorney. . . ." (Tr. 24); and when Ms. Rubey de Guerrero declined
to talk to Ms. MacKenzie without her supervisor, this is what Ms.
MacKenzie told Mr. Sidener, Ms. Rubey de Guerrero's supervisor, as
she testified, "I identified myself. I said it made no difference
whether or not Pat was an attorney; they had the same rights as a
union representative, whether or not you were an attorney . . .
this interview, I said, was a Weingarten interview and cited him
the section of the statute, said why I thought the Weingarten right
applied, and then again said that the representative actually does
have the right to speak; she has the right to ask questions; she
has the right to help clarify questions and answers; she has the
right to confer with the witness; and she has the right to suggest,
you know, things that they might look at. She, of course, does not
have the right to answer for the witness . . . But he did not -- he
also was not receptive. He said, We didn't violate anything,
because we allowed her to be in the room . . . ." (Tr. 25) Mr.
Sidener did not deny what Ms. MacKenzie testified she told him,
and, indeed, by inference, confirms it. He testified, I told her
[MacKenzie] that I thought we were doing the right thing . . . ."
(Tr. 140); ". . . I told her [MacKenzie] that I thought that we
were permitting the representative to be there. I may have made a
comparison between a lawyer being on a certain level and a
representative maybe being a less -- we would have a lower
expectation that a union representative would be as active as an
attorney . . . ." (Tr. 144); "Well, I would expect a union
representative to be less active in the advocacy role than an
attorney, and I would give a union representative less credibility
than I would an attorney." (Tr. 45).
Third, as noted previously, because Respondent OIG failed to
produce the notes of Ms. Rubey de Guerrero and/or of Ms.
Schnieders, I have drawn the inference that the notes would not
have supported their testimony that Ms. Miller interrupted the
interrogation and/or attempted to answer for Mr. Bowman.
Fourth, Ms. MacKenzie testified that she told Mr. Sidener that
the dispute could be resolved if he would write a letter stating
that, "In the future you will allow employees who are the subject
of investigatory interviews and who are covered by the bargaining
unit and who request union representation in Weingarten situations
to have union representatives that
participate." (Tr. 26)(Emphasis supplied); and that Mr.
Sidener responded, " . . . . No, I won't do that . . . ." (Tr. 26).
Mr. Sidener neither challenged nor denied Ms. MacKenzie's
testimony, which further demonstrates that Respondent OIG refused
to permit Ms. Miller, as Mr. Bowman's Union representative, to
actively participate in the investigatory interview of Mr.
Bowman.
Fifth, Ms. Rubey de Guerrero conceded that she told Mr. Bowman
and Ms. Miller that Ms. Miller was a Union repre-sentative and not
an attorney and because she was not an attorney could not allow her
to tell him not to answer questions or to answer for him (Tr. 84);
and stated that if Ms. Miller had been an attorney she would have
allowed more leeway because she believed, ". . . an attorney-client
privilege in that area." (Tr. 88). Ms. Schnieders also conceded
that Ms. Rubey de Guerrero told Ms. Miller she was not acting as an
attorney (Tr. 119); and Mr. Sidener admitted that when Ms.
MacKenzie complained about representation (Tr. 143), he told he
thought that were doing the right thing by permitting the Union
representative to be present (Tr. 140, 144), and made it clear that
OIG expected a union representa-tive to be less active than an
attorney (Tr. 144, 145) and that he gave a union representative
less credibility than an attorney (Tr. 145). The admitted
denigration of the role of a union representative and the pointed
instruction that the Union representative was not an attorney and
could not act as an attorney supports the accuracy of Mr. Bowman's
and of Ms. Miller's testimony that Ms. Rubey de Guerrero told Ms.
Miller that she would permit her to be present but, because she was
not an attorney, she could not participate in the interview.
B. CONCLUSIONS
Because the IG told Ms. Miller that, because she was not an
attorney, she could not participate in the interview, Respondent
OIG denied the Union representative the right, ". . . to take an
active role in assisting a unit employee in presenting facts in his
or her defense." (NASA, supra, 50 at 607); the Special Agent's instruction that
Ms. Miller could not participate, because she was not an attorney,
was tantamount to telling her to remain silent at an examination
which the Authority has found constituted, ". . . unduly aggressive
and intimidating behavior . . . ." (id.),
and by denying Ms. Miller, the Union representative, the right to
actively participate in the investigatory interview of Mr. Bowman,
pursuant to § 14(a)(2)(B) of the Statute, Respondent OIG violated
§§ 16(a)(1) and (8) of the Statute. Id. at
620; United States Department of Justice, Bureau
of Prisons, Safford, Arizona, 35 FLRA 431, 438-440 (1990);
cf. Bureau of Prisons,
Office of Internal Affairs, Washington, D.C. and Phoenix, Arizona
and Federal Correctional Institution, El Reno, Oklahoma, 52
FLRA No. 43, 52 FLRA 421 (1996).
As noted above, I have specifically rejected the assertion of
Ms. Rubey de Guerrero and of Ms. Schnieders that Ms. Rubey de
Guerrero ever told Mr. Bowman and Ms. Miller that they could
consult each other any time they wished. Nevertheless, the record
shows Mr. Bowman made only one request to caucus, when Ms. Rubey de
Guerrero told him Ms. Miller could not participate in any way (Tr.
41) and because he thought he had a right to a union representative
which was denied him (Tr. 42), he asked for a caucus and his
request was granted. Having been told that Ms. Miller could not
participate in the examination and that Mr. Bowman and Ms. Miller,
". . . couldn't discuss anything . . . ." (Tr. 41), the
examination, after the caucus, proceeded without comment by Ms.
Miller and the questioning of Mr. Bowman was competed on February
14 (Tr. 86). At the hearing, Ms. Miller stated that after the
caucus she "communicated" with Mr. Bowman by kicking his foot or
leg when he strayed from the question he had been asked (Tr.
66-67); but, inasmuch as neither Ms. Rubey de Guerrero nor Ms.
Schnieders was even aware of it, obviously Ms. Miller's action did
not interrupt the examination and did not inter with Mr. Bowman
answering the questions in his own words.
Mr. Bowman, on the evening of February 14, prepared a statement
of his testimony (Tr. 49) and Ms. Rubey de Guerrero and Ms.
Schnieders also prepared a statement of Mr. Bowman's testimony (Tr.
91-92); on the 15th, the statements were exchanged; portions of
each statement were incorporated into a final draft which was faxed
to Ms. MacKenzie (Tr. 23), thereafter, Mr. Bowman signed the
statement was given a copy, and the interview was concluded (Tr.
50, 51).
The Third Circuit Court of Appeals, in Defense
Criminal Investigative Service (DCIS), Department of Defense (DOD)
v. FLRA, 855 F.2d 93 (3d Cir. 1988), first noted that,
" . . .Section 7114(a)(2)(B) was adopted by Congress
in 1978 shortly after the decision in Weingarten [NLRB
v. Weingarten, Inc., 420 U.S. 251 (1975)] and purports
on its face to confer Weingarten rights on all federal
employees in a bargaining unit . . . ." (855 F.2d at 100),
and then set forth Mr. Justice Brennan's statement of the intended
role of a Weingarten representative in an
investigative interview:
'"The employer has no duty to bargain with the union
representative at an investigatory interview. The
representative is present to assist the employee, and may
attempt to clarify the facts or suggest other employees
who may have knowledge of them. The employer, however, is
free to insist that he is only interested, at that time,
in hearing the employee's own account of the matter under
investigation . . . .' 420 U.S. at 260 . . . ." (855 F.2d at
100).
The Authority has made it clear that, while the union
representative must be permitted to actively participate in an
examination under § 14(a)(2)(B), U.S. Customs
Service, Region VII, Los Angeles, California, 5 FLRA 297,
306 (1981); U.S. Department of Justice,
Immigration, and Naturalization Service, Border Patrol, El Paso,
Texas, 42 FLRA 834, 840 (1991), the " . . . representational
function of a Weingarten representative is
limited. Among other things, the employer may insist on hearing the
employee's own account of the matter under investigation and the
union's presence need not transform the examination into an
adversary proceeding . . . ." (NASA,
supra, at 618); " . . . an employer has a
legitimate interest and prerogative in achieving the objectives of
the examination . . . ." Federal Aviation
Administration, New England Region, Burlington,
Massachusetts, 35 FLRA 645, 652 (1990); ". . . management
may place reasonable limitations on the union's participation
during a § 14(a)(2)(B) investigation in order to prevent an
adversarial confrontation with that representative and to achieve
the objective of the examination . . .", Federal
Prison System, Federal Correctional Institution, Petersburg,
Virginia, 25 FLRA 210, 233 (1987); and may even reject a
designated representative when necessary to protect the integrity
of the investigation, id. at 228. Of
course, ". . . when an employee makes a valid request for union
representation in an investigative interview, the employer must:
(1) grant the request, (2) discontinue the interview, or (3) offer
the employee the choice between continuing the interview
unaccompanied by a union representative or having no interview . .
. .", Department of Defense, Defense Criminal
Investiga-tive Service, Defense Logistics Agency and Defense
Contract Administration Services Region, New York, 28 FLRA
1145, 1149 (1987), enf'd sub nom.
Defense Criminal Investigative Service (DCIS),
Department of Defense (DOD) v. FLRA, 855 F.2d 93 (3d Cir.
1988).
The 14(a)(2)(B) right applies to criminal investigations as
well as to non-criminal investigations, Department
of the Treasury, Internal Revenue Service, Jacksonville District
and Department of the Treasury Internal Revenue Service, Southeast
Regional Office of Inspection, 23 FLRA 876, 878-879 (1986),
but where, are here, the investigation is a non-criminal
investigation, government employees, if, as Mr. Bowman was (Res
Exh. 2), adequately informed: (a) that his replies, and their
fruits can not be used against him in a criminal case; and (b) that
he is subject to discipline, including discharge, for not
answering, Kalkines v. United States, 473
F.2d 1391, 1393 (Ct. Cl. 1973); Navy Public Works
Center, Pearl Harbor, Hawaii v. FLRA, 678 F.2d 97 (9th Cir.
1982); Weston v. Department of Housing and Urban
Development, 14 MSPR 321, 324 (1983); Goutee v. Veterans Administration, 36 MSPR 526 (1988);
National Treasury Employees Union, 9 FLRA
983, 986 (1982), may not with impunity refuse to answer. Moreover,
disclosures to a union representative in the course of representing
the employee in a disciplinary proceeding are protected,
U.S. Department of the Treasury, Customs Service,
Washington, D.C., 38 FLRA 1300 (1991).(5)
Respondent OIG displayed scant knowledge, and even less
understanding, of the role of a Weingarten
representative in an investigative interview. With a clearer
appreciation that the representational function is limited, the
Union represen-tative will cease to appear as an ogre to be
avoided. Whether the Weingarten
representative is, or is not, an attorney, the duties, the rights
and the limitations are the same.
3. Respondent Farm
Service Agency did not violate § 16(a)(1) or (8).
Respondent Farm Service was not present at the investigative
examination of Mr. Bowman (Tr. 54, 55). There is no organizational
relationship between Farm Service and the OIG (Res Exh.; Tr.
75-76); Farm Service has no authority to direct investigations
conducted by OIG (Tr. 154) and has no supervisory authority over
OIG (Tr. 154). OIG is not an agent of Farm Service.
Farm Service did request the investigation of Mr. Bowman's
unauthorized possession of confidential Purchase Order documents
and the disappearance of the file involving those documents (G.C.
Exh. 2); but once the request had been made, Farm Service had no
control whatever as to whether there would be an investigation and
if there were, its conduct (Tr. 137, 154, 155). A Farm Service
supervisor, Ms. Mary Treece, gave Mr. Bowman a "slip" to contact
OIG (Tr. 39, 55), which he did, and he made an appointment for the
following day (February 14)(Tr. 39) and Mr. Everett Asbury, Mr.
Bowman's Division Chief, another Farm Service supervisor, ". . .
told me [Bowman] to go over also" (Tr. 55). Farm Service approved
official time for Ms. Miller to represent Mr. Bowman (Tr. 68).
Farm Service had no involvement whatever with the investigative
examination of Mr. Bowman, was not present at the examination, had
no control or authority over the conduct of the investigation, and
had no control, supervision or authority over OIG. Indeed, Farm
Service had taken affirmative action to provide Mr. Bowman
representation by approving official time for Ms. Miller, Mr.
Bowman's chosen Union representative, to be present at his
examination. Because Farm Service did not conduct the
investigation, did not deny the Union representative the right to
actively participate in the examination, and had no control over
the OIG special agents who did deny the Union representation the
right to actively participate in the examination, Farm Service did
not violate either § 16(a)(1) or § 16(a)(8) of the Statute as
alleged and, accordingly, the allegations of the complaint against
Farm Service are hereby dismissed. Department of
the Treasury, Bureau of the Mint, U.S. Mint, Denver,
Colorado, Case No. 7-CA-876, 9 Adm. Law Judge Dec. Rep.
April 30, 1982; Department of Defense, Defense
Criminal Investigative Service; Defense Logistics Agency and
Defense Contract Administration Services Region, New York,
28 FLRA 1145, 1148-1149, 1152, 1163 (1987), enf'd 855 F.2d 93 (3d Cir. 1988).
I am aware that the Authority in NASA,
supra, extended liability for the violation
of 14(a)(2)(B) to Headquarters, NASA, as well as OIG, stating, in
part, as following:
"We also find, contrary to the Judge, that NASA, HQ
violated section 7114(a)(2)(B) of the Statute and thus
committed unfair labor practices in violation of section
7116(a)(1) and (8) . . . .
"We conclude that holding NASA, HQ responsible for the
manner
in which its OIG conducts investigative interviews pursuant to
section 7114(a)(2)(B) fully effectuates the purposes of the Statute.
In reaching this conclusion, we recognize that the Authority has,
in similar circumstances, previously declined to hold an agency
headquarters responsible for the actions of its IG. U.S. Department
of Justice, Washington, D.C. and U.S. Immigration and Naturalization
Service, Northern Region, Twin Cities, Minnesota and Office of
Professional Responsibility, Washington, D.C. and National Border
Control Council, American Federation of Government Employees, 46
FLRA 1526, 1571 (1993) rev'd sub nom. But cf. U.S. Department of
Labor, Mine Safety and Health Administration, 35 FLRA 790 (1990)
(holding the Mine Safety and Health Administration liable for the
illegal actions of the Department's IG in a case where the Inspector
General was not charged).(6)
"However, the Authority also has noted in prior
decisions that
it is appropriate for agency headquarters with administrative
responsibility for the Office of Inspector General to advise IGs 'of
the pertinent rights and obligations established by Congress in
enacting the Federal Service Labor-Management Relations Statute. More
particularly, . . . investigators should be advised that they may not
engage in conduct which interferes with the rights of employees under
the Statute.' DOD, DCIS, 28 FLRA at 1151. It is with this objective
in mind--ensuring that the Office of Inspector General is advised by
its statutory superior of the obligation to comply with the
Statute--that we find the purposes underlying the Statute will be
effectuated by holding NASA, HQ liable for the actions of its
Inspector General. As set forth in this decision, despite a degree of
independence, the IG is nevertheless under the direct supervision of
the head of the agency. Accordingly, we will no longer follow
Authority precedent declining to hold an agency headquarters
responsible for the statutory violations of its Inspector General."
(50 FLRA at 621-622).
To be sure, the Authority noted in NASA,
" . . . the IG Act grants an IG a degree of freedom and
independence from the parent agency that employs him or her.
However, this statutory recognition of autonomy is not absolute,
and becomes nonexistent when the IG's purpose in 'conducting
interviews . . . is to solicit information concerning possible
misconduct of [agency] employees in connection with their work,'
and 'the information secured may be disseminated to supervisors
in affected subdivisions of the [agency] to be utilized by those
supervisors for [agency] purposes.' DCIS, 855 F.2d at 100." (50
FLRA at 615)
Nevertheless, to fail to comply with § 14(a)(2)(B), the entity to
be charged must have some relationship to the denial of an
opportunity to be represented at an examination of an employee by a
representative of the agency. Here, Farm Service had no
relationship whatever to the denial of Mr. Bowman's 14(a)(2)(B)
right to be represented. Farm Service most assuredly was not
"agency headquarters" and most assuredly was wholly without
"administrative responsibility for the Office of Inspector
General." Because Farm Service did nothing, actively or passively,
to deny Mr. Bowman his unfettered 14(a)(2)(B) right to active
representation, it did not fail to comply with 14(a)(2)(B) and it
did not violate § 16(a)(1) and (8) of the Statute.
Having found that the Office of Inspector General violated
§16(a)(1) and (8) of the Statute, it is recommended that the
Authority adopt the following:
Pursuant to § 2423.29 of the Authority's Rules and Regulations,
5 C.F.R. § 2423.29, and § 18 of the Statute 5 C.F.R. § 7118, it is
hereby ordered that the United States Department of Agriculture,
Office of Inspector General, Kansas City, Missouri, shall:
1. Cease and desist from:
(a) Failing and refusing to comply with the
requirements of §14(a)(2)(B) of the Statute, 5 U.S.C. §
7114(a)(2)(B), when conducting investigatory examinations of Farm
Service Agency employees pursuant to that section of the Statute,
which means, specifically, that Union representatives, when
requested in accordance with § 14(a)(2)(B), shall: (a) be permitted
to be present at any examination, whether criminal or non-criminal;
and (b) be granted the right to actively participate.
(b) In any like or related manner, interfering
with, restraining, or coercing Farm Service Agency 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) The Regional Inspector General, Kansas
City, Missouri, shall order the Regional Office of Inspector
General to comply with the requirements of § 14(a)(2)(B) of the
Statute, 5 U.S.C. § 7114(a)(2)(B), when conducting any
investigatory examination of Farm Service Agency employees, whether
criminal or non-criminal; and the Regional Inspector General shall
further, specifically, order every employee who conducts such
investigatory examinations that the Union representative, when
requested in accordance with § 14(a)(2)(B): (a) shall be permitted
to be present at the examination; and (b) shall be granted the
right to actively participate in the examination.
(b) Post at its facilities in Kansas City,
Missouri, and at all facilities in the Region where employees of
the Farm Service Agency are employed, 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 Regional
Inspector General, Office of Inspector General, United States
Department of Agriculture, Kansas City, Missouri, and shall be
posted and maintained for 60 consecu-tive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notice to employees are customarily posted. Reasonable step
shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Sufficient numbers of signed Notices, set forth in
sub-paragraph (b), above, shall be delivered to the Director, or
Acting Director, as the case may be, of the Farm Service Agency,
Kansas City, Missouri, to insure that such Notices are posted at
all facilities of the Farm Service Agency in the Region, and are
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees of the Farm Service Agency are customarily
posted. Reasonable steps shall be taken to insure that such Notices
are not altered, defaced or covered by any other material.
(d) Pursuant to § 2423.30 of the Authority's Rules
and Regulations, 5 C.F.R. § 2423.30, notify the Regional Director
of the Dallas Region, Federal Labor Relations Authority, 525
Griffin Street, Suite 926, LB 107, Dallas, Texas 75202-1906, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: June 13, 1997
Washington, DC
NOTICE TO ALL EMPLOYEES
POSTED BY
ORDER OF THE
FEDERAL LABOR RELATIONS
AUTHORITY
The Federal Labor Relations Authority has found that the United
States Department of Agriculture, Office of Inspector General,
Kansas City, Missouri, violated the Federal Service
Labor-Management Relations Statute and has ordered us to post and
abide by this Notice.
WE HEREBY NOTIFY OUR EMPLOYEES AND ALL EMPLOYEES OF THE FARM
SERVICE AGENCY THAT:
WE WILL NOT fail or refuse to comply with the requirements of §
14(a)(2)(B) of the Labor-Management Relations Statute, 5 U.S.C. §
7114(a)(2)(B), when conducting investigatory examinations of
employees pursuant to that section of the Statute.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees of the Farm Service Agency in the
exercise of their rights assured by the Statute.
WE WILL ORDER all employees who conduct investigative examinations
of Farm Service Agency employees to comply with the requirements of
§ 14(a)(2)(B) of the Statute, 5 U.S.C. § 7114(a)(2)(B).
WE WILL ORDER all employees who conduct investigative examination
of Farm Service Agency employees to: (a) Permit Union
representatives when requested in accordance with § 14(a)(2)(B), to
be present at all examinations; and (b) Permit the active
participation of the Union representatives at the examination.
United States Department of Agriculture,
Office of Inspector General
Date: _____________________ By: __________________________________
Regional Inspector General
Office of Inspector General
Kansas City, Missouri
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, Dallas Region, whose address is: 525 Griffin Street,
Suite 926, LB 107, Dallas, Texas 75202-1906, and whose telephone
number is: (214) 767-4996.
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7114(a)(2)(B) will be referred to, simply, as "§ 14(a)(2)(B)".
2. Respondent OIG's use of the term "waiver" is a misnomer and is wholly incorrect. Mr. Bowman waived nothing. He was given a form of "Kalkines" warning (Kalkines v. The United States, 473 F.2d 1391, 1393 (Ct. Cl. 1973), whereby he was warned that: (a) his replies, and their fruits, could not be used against him in a criminal case; and (b) he was subject to discharge for not answering.
3. In this regard, the 1996 amendment to § 8(G)(f)(3) of the Inspector General Act, which relates to the United States Postal Service, is both interesting and enlightening. The amendment in question is as follows:
"(3) Nothing in this Act shall restrict, eliminate, or otherwise
adversely affect any of the rights, privileges, or benefits of
either employees of the United States Postal Service, or labor
organizations representing employees of the United States Postal
Service, under chapter 12 of title 39, United States Code, the
National Labor Relations Act, any handbook or manual affecting
employee labor relations with the United States Postal Service, or
any collective bargaining agreement." 5 U.S.C. App. 3, §
8(G)(f)(3); 110 Stat. 3009, Sept. 30, 1996)
The Postal Service is not subject to the Statute (see, 5 U.S.C. §§ 104, 105, 7103(a)(3); 39 U.S.C.A. §§ 1202, 1203, 1208, 1209), therefore, the above amendment to the IG Act was necessary to insure, inter alia, that the NLRB's Weingarten right be protected in IG investigation in the Postal Service. Inasmuch as Congress had incorporated the Weingarten right in the Statute (§ 14(a)(2)(B)), it was not necessary that the amendment of the IG Act extend to agencies subject to the Statute. Nevertheless, this amendment further lays to rest the wholly specious rational that the presence of a union representative at an IG investigation compromises the independence of the IG.
4. If a long distant call had been made it would seem reasonable to believe that Respondent Farm Service would have been aware of the call when billed; but no telephone record was offered.
5. This was recognized with approval by the United States Court of Appeals for the District of Columbia Circuit, in United States Department of Justice; Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, Office of Inspector General, Washington, D.C.; and Office of Professional Responsibility, Washington, D.C. v. FLRA, 39 F.3d 361 (D.C. Cir. 1994), as follows:
" . . . Quoting the ALJ, the Authority in Customs Service viewed the issue as 'whether the designated union representative of an employee in an actual or potential disciplinary action can be examined by management concerning statements made by the employee to his, or her, representative.' 38 F.L.R.A. at 1302. There is, the Authority answered, a 'privilege' protecting 'the content or substance of statements made by an employee to [his] Union representative in the course of representing the employee in a disciplinary proceeding.' 38 F.L.R.A. at 1308. (footnote omitted) Because section 7114(a) 'assures the right and duty of a union to represent employees in disciplinary proceed-ings,' an employee must 'be free to make full and frank disclosure to his or her represen-tative in order that the employee have adequate advice and a proper defense.' Id.
We do not question this reasoning insofar as it applies to management. . . . " (39 F.3d at 369).
However, the Court went on, as follows:
"But the Office of Inspector General is not within that category. . . The privilege the Authority recognizes, derived from the section 7114(a) right of an employee to union representation in an investigation, may be good as against management. But it is not good as against the world. . . ." (id., at 369).
With all deference, for reasons set forth by the Authority in NASA, supra (50 FLRA 601, 612-619 (1995)), the Inspector General is subject to § 14(a)(2)(B) of the Statute. Moreover, I suggest that the employee's due process rights require that, contrary to Court, the privilege must be good as against the world.
6. This was an unusual case in that it was a criminal investigation conducted by the FBI. The OIG agent sat in on the examination, but Mine Safety had no authority or control of OIG. Nevertheless, the Administrative Law Judge found that Mine Safety failed to comply with 14(a)(2)(B) and, therefore, violated §§ 16(a)(1) and (8). The Authority adopted, without opinion, the finding, conclusions and recommended Order (35 FLRA at 791). In view of the Authority's statement in NASA, I believe the Mine Safety and Health case was an aberration, was overly broad and should not be followed.