FEDERAL LABOR RELATIONS AUTHORITY OALJ 13-22
Office of Administrative Law Judges
WASHINGTON, D.C.
U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS OFFICE OF INTERNAL AFFAIRS CENTRAL OFFICE WASHINGTON, D.C. RESPONDENT And U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL COMPLEX TUCSON, ARIZONA RESPONDENT AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3955, AFL-CIO CHARGING PARTY | Case No. DE-CA-13-0163 |
Katie A. Smith
For the General Counsel
Steven R. Simon
For the Respondent
Susan Mastin
For the Charging Party
Before: SUSAN E. JELEN
Administrative Law Judge
BENCH
STATEMENT OF THE CASE
This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. §§ 7101-7135 (the Statute) and the revised Rules and Regulations of the Federal Labor Relations Authority (the Authority), 5 C.F.R. Chapter XIV, part 2423.
On January 4, 2013, the American Federation of Government Employees, Local 3955, AFL-CIO (Union) filed an unfair labor practice charge against the U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Phoenix, Arizona and the U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Complex, Tucson, Arizona (Respondents).[1] Subsequently, the Regional Director of the Denver Region issued a Complaint and Notice of Hearing on May 31, 2013. As amended at the hearing, the complaint alleged that the Respondents violated section 7116(a)(1) and (8) of the Statute by failing and refusing to allow a bargaining unit employee requested representation during an examination in connection with an investigation pursuant to section 7114(a)(2)(B) of the Statute.
On June 24, 2013, the Respondents filed its Answer to the complaint in which it admitted certain allegations, but denied the substantive allegations of the complaint.
A hearing in this case was held on July 23, 2013, at which time all parties were represented and afforded an opportunity to be heard, produce relevant evidence, and examine and cross-examine witnesses. At the conclusion of the hearing, the parties requested a Bench Decision pursuant to section 2423.31(d) of the Authority’s Rules and Regulations. Following oral arguments by both the General Counsel and the Respondents, I issued the following Bench Decision, based on the entire record, including my observation of the witnesses and their demeanor.
FINDINGS
This case alleges that the two Respondents, Office of Internal Affairs, Central Office, Washington, D.C., and the Federal Correctional Complex, Tucson, Arizona, denied a bargaining unit employee representation pursuant to section 7114(a)(2)(B) in violation of section 7116(a)(1) and (8) of the Statute. Section 7114(a)(2)(B) of the Statute requires that certain elements must be present in order to find a violation.
In this case, the evidence establishes that an investigation was conducted by Michael Burton and Donald Petrisko, two representatives of the Respondents, for the purpose of eliciting information for an administrative inquiry regarding misconduct or improper performance of official duties. Further, the examination was in connection with an investigation. Further, employee, Louie Acosta, reasonably believed that the examination could result in disciplinary action.
The issue in this matter is whether or not Mr. Acosta requested Union representation during the examination. Acosta testified that he requested representation 20 to 25 times during the interview and his requests were repeatedly denied or ignored. Both Burton and Petrisko testified that Acosta did not request representation during the examination. Acosta did sign two separate Form B’s warning and assurance, to employees who are required to provide information.
Burton and Petrisko testified that at one point in the interview Acosta asked whether he wanted or needed union representation? Petrisko stopped the interview and told Acosta that he would help him get a Rep. But according to Burton and Petrisko, Acosta said no; let’s proceed. Both Burton and Petrisko also denied that Acosta requested a representative 20 to 25 times during the meeting.
The decision in this matter depends totally on a credibility determination regarding the testimony of the witnesses.
First, I do not consider the signing of a Form B to be any sort of waiver of a bargaining unit employee’s right to representation. I do note that neither Burton or Petrisko argued that it was such a waiver. Second, I find the evidence reflects that Mr. Acosta was well aware of his right to union representation during the meeting. However, being aware of one’s rights does not necessarily mean that a specific request for representation was made. Further, while the failure to request a representative during an investigatory interview may not be logical, that argument does not prove that such a request was made.
Based on the totality of the evidence, including the witness’s demeanor, I find the testimony of Burton and Petrisko to be more credible. I also find their testimony straightforward, consistent, and logical within the situation. I do not believe that they both would have ignored 20 to 25 requests for union representation if they were made by Mr. Acosta.
CONCLUSION
Therefore I find that Mr. Acosta did not request union representation during the investigative meeting and thus, the General Counsel failed to establish a violation of the Statute as alleged. Thus, I recommend that the complaint in this matter be dismissed. [2]
ORDER
It is ordered that the complaint be, and hereby is, dismissed.
Issued, Washington, D.C., August 8, 2013
____________________________
SUSAN E. JELEN
ADMINISTRATIVE LAW JUDGE
Insert:
Excerpts from the Transcript, pages 114 - 116
[2]An excerpt from the transcript containing this Bench Decision is attached.