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13:0164(35)CA
The decision of the Authority follows:
13 FLRA No. 35
DEPARTMENT OF LABOR, EMPLOYMENT
STANDARDS ADMINISTRATION
Respondent
and
JAMES BROWN
Charging Party
Case Nos. 2-CA-745
2-CA-765
2-CA-771
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in certain unfair labor practices alleged in the consolidated complaint,
and recommending that the complaint be dismissed in its entirety.
Thereafter, the General Counsel filed exceptions to the Judge's Decision
and the Respondent filed an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended order.
The Authority agrees with the Judge's conclusion that the Respondent
did not violate the Statute on January 20 by directing a unit employee
to answer inquiries concerning his whereabouts on January 7 although he
was unaccompanied by a Union representative. Section 7114(a)(2)(B)
requires that an exclusive representative be given the opportunity to be
represented at "any examination of an employee . . . in connection with
an investigation" where the employee "reasonably believes that the
examination may result in disciplinary action" and "the employee
requests representation." As noted by the Judge, the Respondent had
postponed the meeting on three prior occasions due to the employee's
failure to secure Union representation, or to explain his failure to do
so. In addition, before the January 20 meeting, the Respondent
specifically notified the Union that the employee was having difficulty
in obtaining a Union representative and was advised that such
representation would be arranged. Nevertheless, on January 20, the
employee again appeared without a Union representative and provided no
indication of when he would be able to attend with a representative, if
ever. Under the foregoing circumstances, wherein the Respondent had
taken every reasonable step to ensure that the Union had an opportunity
to represent an employee who had requested such representation, the
Authority finds that the Respondent did not violate section 7116(a)(1)
and (8) of the Statute by proceeding with the January 20 meeting.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 2-CA-745,
2-CA-765 and 2-CA-771 be, and they hereby are, dismissed.
Issued, Washington, D.C., September 29, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos.: 2-CA-745, 2-CA-765,
2-CA-771
Sheila K. Cronan, Esq.
For the Respondent
James Brown
Pro Se
Steven Sharfstein, Esq.
For the General Counsel, FLRA
Before, SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the
Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
C.F.R.XIV, 2410 et seq.
James Brown, an individual, (hereinafter called Brown and/or the
Charging Party) filed a charge in Case No. 2-CA-745 on January 12, 1981,
a charge in Case No. 2-CA-765 on January 21, 1981 and a charge in Case
No. 2-CA-771 on February 5, 1981 alleging that Department of Labor,
Employment Standards Administration (hereinafter called Respondent
and/or DOL-ESA) violated the Statute. On March 30, 1981 the General
Counsel of the FLRA, by the Director of Region 2, issued an Order
Consolidating Cases, Complaint and Notice of Hearing alleging that
Respondent violated Sections 7116(a)(1) and (8) of the Statute by
denying Brown's request to be represented at meetings conducted by
DOL-ESA. Respondent filed an answer denying that it violated the
Statute.
A hearing in this matter was conducted before the undersigned in New
York, New York. The General Counsel of the FLRA, Respondent and
Charging Party were represented and afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence and
to argue orally. Post hearing briefs were filed and have been fully
considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
A. Background
At all times material herein Respondent and the National Council of
Field Labor Locals, American Federation of Government Employees, AFL-CIO
(hereinafter called the Union) were parties to a collective bargaining
agreement covering a collective bargaining unit composed of all
Department of Labor employees throughout the nation in field duty
stations. The Charging Party, is an employee of Respondent's Office of
Contract Compliance Programs (OFCCP), New York Area Office, 60 Hudson
Street, New York City and is a member of the collective bargaining unit.
At all times material herein Brown's immediate supervisor was Module
Supervisor Leroy Gillead and the City Area Office Director of the New
York Area Office of OFCCP was Harry Anbarlian. The New York Area Office
was divided into four modules, each headed by an Equal Employment
Opportunity Supervisor or Module Supervisor.
On January 7, 1981 Brown had a morning appointment with an FLRA
investigator. /1/ On January 7, 1981, prior to his leaving his office,
Brown was approached by Gillead at 9:00 or 9:15 a.m. and Gillead
reminded Brown of the appointment with the FLRA. Brown attended a staff
meeting and then assembled the material for the investigation. At about
10:20 a.m. Gillead asked Brown why Brown had not yet left and Brown
explained that he had to assemble certain material. Brown arrived at
the FLRA office at about 10:30 a.m. and left at about 11:30 a.m. /2/
with an amended charge which, after lunch, Brown served on Respondent's
Regional Administrator, Mr. Mercurio, at the Regional Office at 1515
Broadway. Brown returned to his own office at about 3:30 p.m. and
advised Gillead that he, Brown, had another appointment with the FLRA
investigator the next morning, January 8, 1981 to continue the
investigation. Gillead asked Brown what time Brown had returned to the
office and Gillead advised Brown that Brown had to account for his time
that day.
Later, on January 7, Brown went to Anbarlian's office to talk to him.
They discussed primarily a time and attendance matter and I find that
Anbarlian did not tell Brown that Brown could not have Union
representation at future meetings. /3/
On January 8, 1981, during the morning, Brown returned to the FLRA
investigator and continued that investigation. Gillead and Anbarlian
scheduled a meeting for January 8, 1981, on Brown's return, for the
purpose of asking Brown to account for his time on January 7. Gillead
advised Brown he could bring his Union representative. Brown arrived at
the meeting without a Union representative and requested additional
time. Anbarlian rescheduled the meeting for January 8, 1981, advising
Brown that he could utilize two hours before the meeting to meet with
the Union representative.
On January 9, 1981 Anbarlian was advised that Union Shop Steward
Barbara Ricks had been removed as Shop Steward. Brown advised Anbarlian
that he wished to have the meeting postponed because of the
unavailability of the Union Steward. Anbarlian agreed and the meeting
was postponed and rescheduled for January 12, 1982. Brown indicated he
would try to get Union representation. Anbarlian advised Brown that it
was important that Gillead and Anbarlian knew of Brown's whereabouts.
B. January 12, 1982 Meeting
On January 12, 1982 Anbarlian called Brown during the morning and
told him to come down to the meeting. Anbarlian, Gillead and Brown met
in Anbarlian's office. When Brown arrived he indicated that he didn't
have a Union representative. Anbarlian told Brown that the meeting had
already been postponed a few times and that Anbarlian and Gillead
wanted, and were entitled, to know where Brown was on January 7, 1981.
Brown insisted that he wanted Union representation and refused to
answer. Anbarlian advised Brown that they would have to charge Brown
AWOL for the unaccounted for time on January 7. Anbarlian stated that
they had to know where Brown was. Brown stated that it was management's
fault that he could not get Union representation.
After this meeting Anbarlian called Respondent's labor officer, Susan
Horwitz, and advised her that Brown was having difficulty obtaining a
Union representative. Horwitz then called Shirley Shivers-Hays, Union
Executive-Vice President and advised Shivers-Hays about the problems
Brown was having obtaining union representation. Shivers-Hays advised
Horwitz that Shivers-Hays would contact Brown and arrange for Union
representation. A few minutes later Union President Peter Richardson
called Horwitz. Horwitz advised Richardson of her recent conversation
with Shiver-Hays. Richardson indicated that he would speak with
Shiver-Hays. C. January 20 Meeting
On January 19, 1981 Gillead advised Brown that Anbarlian wanted to
see Brown the next day, January 20, 1981, to discuss, among other things
Brown's whereabouts on January 7, 1981 and that Brown should bring his
Union representative. Brown arrived at the meeting with Gillead and
Anbarlian without a Union representative. The meeting concerned three
topics, a pay and leave problem, continued work performance counselling
and Brown's whereabouts on January 7. Brown, when questioned about his
whereabouts and use of time on January 7, requested Union
representation. Anbarlian insisted that the meeting continue since it
was important for Gillead and Anbarlian to know Brown's whereabouts on
January 7. Brown, rather briefly, recounted his whereabouts. Gillead
questioned Brown concerning the times he left the office and went to
lunch on January 7. Gillead also asked whether Brown had checked in and
out on January 7, as required by the collective bargaining agreement and
Gillead also asked Brown whether Brown had misrepresented the time for
the scheduled January 8 FLRA investigation. The meeting was, at least
in part, heated. D. January 29 Meeting
On January 29, 1981 there was an employee meeting concerning work in
Anbarlian's office. Brown continued the discussion until about 1:55
p.m. Brown left for lunch at the conclusion of the discussion and
returned from lunch at about 2:35 p.m. /4/ Mr. Gillead questioned Brown
as to when he returned from lunch and why he had been so late. Brown
explained that he had been at the meeting until 1:55 p.m. Gillead
indicated that Brown had no permission for a late lunch and would Brown
like to talk annual leave. Brown indicated that he would not and that
he was going to see Anbarlian. The meeting lasted less than five
minutes. With respect to this meeting I credit Mr. Gillead that Brown
did not ask for a Union representative. In addition to the demeanor of
the witnesses, the nature and brevity of the meeting made it highly
unlikely that Brown would have specifically requested a Union
representative.
Discussion and Conclusions
Section 7114(a)(2)(B) of the Statute provides that an exclusive
bargaining representative shall be given the opportunity to be
represented at "any examination of an employee in the unit by a
representative of the agency in connection with an investigation if (i)
the employee reasonably believes that the examination may result in
disciplinary action against the employee; and (ii) the employee
requests representation . . . "
The meetings of January 12 and 20, 1981 between Brown and Gillead and
Anbarlian were within the purview of Section 7114(a)(2)(B) because they
were examinations of an employee by agency representatives in connection
with an investigation of Brown's whereabouts. Further Brown reasonably
believed these meetings could result in his discipline and he asked for
Union representation. cf. Internal Revenue Service, Detroit, Michigan,
5 FLRA No. 53 (1981); Lackland Air Force Base Exchange, 5 FLRA No. 60
(1981); U.S. Department of Navy, U.S. Marine Corps, Marine Corps
Logistics Base, 4 FLRA No. 54 (1980); and Internal Revenue Service,
Washington, D.C. and Hartford District Office, 4 FLRA No. 37 (1980).
Brown was therefore entitled to Union representation at these meetings.
However, in the circumstances present in this case DOL-ESA did not deny
Brown the right to such Union representation. Quite to the contrary,
DOL-ESA took every reasonable step to enable Brown to secure Union
representation including postponing meetings a number of times and then
contacting the Union to advise it that Brown was apparently encountering
difficulty in securing union representation. The record contains no
evidence as to what steps, if any, Brown took to obtain Union
representation. At the January 12 meeting Anbarlian reminded Brown that
the meeting had already been postponed so that Brown could secure Union
representation. Anbarlian told Brown that Respondent had a right to
know where Brown was on January 7 and that if there was no explanation
Brown could be charged with being AWOL. Brown insisted on his right to
Union representation and answered no questions. The DOL-ESA
representatives then did not insist that Brown answer nor did they
pursue the matter and there is no evidence that Brown was in any way
disciplined for failing to respond to Anbarlian's inquiry.
At the January 20, meeting however, after a days warning that the
meeting would be held, Brown again attended without Union
representation. On this occasion Respondent's representative did insist
that Brown respond to their inquiries, even though Brown had no Union
representative. Brown did account for his time on January 7.
Respondent did not at any time forbid Brown from bringing a Union
representative and there is no showing that at any of the meetings Brown
indicated precisely when, if ever, he would be able to attend a meeting
with a Union representative. In these circumstances Respondent did not
deny Brown permission to be represented by the Union; rather, after the
numerous delays Respondent merely insisted that Brown account for this
time on January 7.
Accordingly it is concluded that, with respect to the January 12 and
January 20, 1982 meetings, Respondent did not violate Section
7114(a)(2)(B) of the Statute by denying Brown Union representation.
Rather when Brown repeatedly failed to bring a union representative,
Respondent insisted on continuing the examination.
With respect to the January 29 meeting I need not reach the issue
whether it was encompassed by Section 7114(a)(2)(B) of the Statute /5/
because Brown did not request Union representation. Thus Respondent did
not fail to comply with its obligations set forth in Section
7114(a)(2)(B) of the Statute.
In light of the foregoing conclusions that Respondent did not fail to
comply with Section 7114(a)(2)(B) of the Statute, it is concluded, that
DOL-ESA did not violate Sections 7116(a)(1) and (8) of the Statute.
Accordingly, I recommend that the FLRA adopt the following:
ORDER
It is hereby Ordered that the Consolidated Complaint in Case Nos.
2-CA-754, 2-CA-765 and 2-CA-771, be and hereby is dismissed.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: April 29, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The FLRA was investigating the charge in Case No. 2-CA-709. That
charge, filed by Brown, alleged a refusal to permit Brown to have union
representation in violation of Section 7114(a)(2)(B). The charge in
Case No. 2-CA-709 is not at issue in this proceeding and was withdrawn.
/2/ Brown had left his briefcase containing relevant documents at
home and therefore he made an appointment to meet the FLRA investigator
again the next day, January 8, 1981, in the morning.
/3/ In my findings, where there is a conflict, I credit Anbarlian's
and Gillead's versions and do not credit Brown's. Anbarlian and Gillead
were more credible witnesses than Brown, not only because of their
demeanor, but also because their testimony was more reasonable and
consistent with the other occurrences.
/4/ There was a dispute whether this was in violation of an
inter-office memo that provides that lunch periods are to begin and end
between 11:30 a.m. and 2:00 p.m. The merits of this dispute are
irrelevant to the instant case.
/5/ If such a determination were necessary, I would conclude that
this was the type of everyday supervisor-employee encounter that is not
within the purview of Section 7114(a)(2)(B) of the Statute.