[ v25 p210 ]
25:0210(16)CA
The decision of the Authority follows:
25 FLRA No. 16
FEDERAL PRISON SYSTEM,
FEDERAL CORRECTIONAL INSTITUTION,
PETERSBURG, VIRGINIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS,
LOCAL 2052
Charging Party
Case Nos. 34-CA-50274
34-CA-50311
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on an
exception filed by the General Counsel and a cross-exception filed by
the Respondent to the Judge's decision. /*/
II. Background and Judge's Decision
The complaints in this consolidated case alleged that the Respondent
violated section 7116(a)(1) and (8) of the Statute by refusing to permit
particular designated representatives of the Union to represent
employees during an examination in connection with an investigation
which the employees reasonably believed would result in disciplinary
action. More specifically, the complaints alleged that Respondent
refused to permit requested representation by certain designated
bargaining-unit representatives for the stated reason that those
representatives were also the subject of the investigation and that the
Respondent further refused to permit representation by an attorney,
employed and designated by the Union, for the stated reason that it did
not permit attorneys at such investigations. However, as was found by
the Judge, representation was permitted by bargaining-unit
representatives who were not themselves subject to investigation.
The Judge concluded that to preserve the integrity of the
investigation, individuals who were to be investigated could not serve
as representatives of other employees being investigated until their own
investigations had been completed. Consequently, the Judge found that
the Respondent had violated section 7116(a)(1) and (8) only in those
instances where the Respondent had refused to permit designated
representatives, whose examinations had been completed, to represent
employees to be examined. As to the Respondent's refusal to permit an
attorney to represent employees, the Judge concluded that there was no
basis for the Respondent's refusal and that consequently the Respondent
had violated section 7116(a)(1) and (8) by such refusal. The Judge
further found no violation of the Statute when the Respondent, after
delaying for a reasonable period of time, began an examination prior to
the arrival of the designated representative. Accordingly, the Judge
recommended that this portion of the complaint be dismissed. To remedy
the violations the Judge recommended that the Respondent be ordered to
cease and desist from interfering with the right of the Union to
designate its representative at any examination of an employee pursuant
to section 7114(a)(2)(B) of the Statute and to take the affirmative
action of posting a notice to that effect.
III. Positions of the Parties
In its exception the General Counsel disputes the Judge's recommended
remedy. He contends that the expungement of the statements taken at the
interviews where the Respondent violated the Statute is necessary to
fully remedy those violations. The Respondent only excepts to the
statement of the Judge that "as a general rule a union's right to
designate its representative for the purpose of an examination in
connection with an investigation is inviolate." It does not dispute the
specific findings of violations of section 7116(a)(1) and (8) of the
Statute.
IV. Analysis and Conclusions
We adopt the Judge's findings and conclusions. However, we
specifically do not adopt the Judge's comment excepted to by the
Respondent. We also adopt the Judge's recommended order. In view of
the Judge's finding that in all instances a union representative was
permitted by the Respondent to represent the employee being examined, we
conclude that the Judge's recommended remedy and not the remedy of
expungement requested by the General Counsel best effectuates the
purposes and policies of the Statute.
V. Order
A. Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Federal Prison System,
Federal Correctional Institution, Petersburg, Virginia is ordered to:
1. Cease and desist from:
(a) Interfering with American Federation of Government Employees,
Council of Prison Locals, Local 2052, (the Union), lawfully designating
its officers and stewards as its representative at any examination of an
employee, pursuant to section 7114(a)(2)(B) of the Statute.
(b) Interfering with the right of the Union to have an attorney as
its representative at any examination of an employee pursuant to section
7114(a)(2)(B) of the Statute.
(c) In any like or related manner interfering with, restraining, or
coercing its 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) Post at its facilities at Petersburg, Virginia, 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
Warden and posted in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted, and
shall be maintained for 60 consecutive days thereafter. Reasonable
steps shall be taken to ensure that said Notices are not altered,
defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, P.O. Box 33758, Washington, D.C. 20033-0758, in
writing, within 30 days of the date of this Order, as to what steps have
been taken to comply herewith.
B. Those portions of the complaints as to which no violation of the
Statute has been found are dismissed.
Issued, Washington, D.C. January 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with American Federation of Government
Employees, Council of Prison Locals, Local 2052 (the Union) lawfully
designating its officers and stewards as its representative at any
examination of an employee, pursuant to section 7114(a)(2)(B) of the
Statute.
WE WILL NOT interfere with the right of the Union to have an attorney
as its representative at any examination of an employee pursuant to
section 7114(a)(2)(B) of the Statute.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
(Activity)
Dated: By:
(Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1118 18th Street, NW., 7th Floor (P.O. Box 33758), Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos.: 34-CA-50274, 34-CA-50311
FEDERAL PRISON SYSTEM FEDERAL CORRECTIONAL
INSTITUTION, PETERSBURG, VIRGINIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL OF
PRISON
LOCALS, LOCAL 2052
Charging Party
Yvonne E. Hinkson, Esquire
For the Respondent
Ira Sanderson, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether
Respondent violated Sections 16(a)(1) and (8) of the Statute by refusing
to permit particular designated representatives of the Union to
represent employees during an examination in connection with an
investigation which the employees reasonably believed would result in
disciplinary action. Specifically, Respondent refused to permit
requested representation by certain designated bargaining unit
representatives for the stated reason that those representatives were
also the subject of the investigation and further refused to permit
representation by an attorney, employed and designated by the Union, for
the stated reason that it did not permit attorneys at such
investigations. Representation was permitted by bargaining unit
employees not themselves subject to investigation. Case No. 34-CA-50274
was initiated by a charge filed on February 7, 1985 (G.C. Exh. 1(a)) and
the Complaint therein issued on April 29, 1985 (G.C. Exh. 1(c)) with a
hearing set for June 4, 1985. Case No. 34-CA-50311 was initiated by a
charge filed on February 28, 1985 (G.C. Exh. 1(b) and the Complaint
therein issued on May 23, 1985 (G.C. Exh. 1(c)) with a hearing set for
June 20, 1985. On May 16, 1985, General Counsel had filed a motion to
postpone Case No. 34-CA-50274 (G.C. Exh. 1(f)), to the same date hearing
was set in Case No. 34-CA-50311 and by Order dated May 17, 1985, Case
No. 34-CA-50274 was rescheduled for June 20, 1985 (G.C. Exh. 1(h)).
Pursuant to the Notice of Hearing in Case No. 34-CA-50311 and the Order
Rescheduling Hearing in Case No. 34-CA-50274, a hearing was duly held on
June 20, 1985, in Richmond, Virginia, before the undersigned. The two
cases were litigated together and, inasmuch as the parties are the same
in each case and each case presents common issues of law and fact, I
hereby consolidate the cases for purpose of decision.
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 each parties waived. At the close of the hearing, July 22, 1985,
was fixed as the date for mailing post-hearing briefs, which time was
subsequently extended, upon timely motion of the General Counsel,
supported by Respondent, for good cause shown, specifically, delay in
receipt of the transcript, to August 5, 1985, which have been carefully
considered. Upon the basis of the entire record, /2/ including my
observation of the witnesses and their demeanor, I make the following
findings and conclusions:
Findings
1. At all times material, the American Federation of Government
Employees, Council of Prison Locals (AFGE) has been recognized by
Respondent as the exclusive representative of a nationwide unit of all
employees, Class Act, Wage Board, and Professional of the Federal Prison
System except managerial officials, any employee engaged in federal
personnel work in other than a purely clerical capacity, or any
supervisor (G.C. Exhs. 1(c), Par. 5(a), 1(e)) and the parties entered
into a collective bargaining agreement (G.C. Exh. 2) which was in force
and effect at all times material (Tr. 17) (A new agreement became
effective May 12, 1985, after the events involved herein, which was not
introduced as an exhibit). Article 29, "DISCIPLINARY ACTIONS", of
General Counsel Exhibit 2 provided, in part, as follows:
"Section b. If at any time an employee is being questioned by
a supervisor or management official and he/she believes that
his/her rights are being threatened, he/she may request that
his/her designated representative be present. If such a request
is made, no further questioning will take place until the
employee's representative is present, provided, that if the
representative is not available within a reasonable period of
time, the questioning may proceed without the representative being
present. All employees are required to answer questions regarding
the performance of their duties, even though such answers may lead
to disciplinary action short of criminal prosecution.
"Section c. When an employee is going to be questioned on
matters which may lead to disciplinary action, prior to the taking
of a written or sworn statement, it is recommended that he/she be
reminded at that time of his/her right to be represented. If a
representative is requested, no questioning will take place until
the employee's representative is present. Provided, that if the
representative is not available within a reasonable period of the
time, the questioning may proceed without the representative
present.
. . ." (G.C. Exh. 2, Art. 29, Sections b and c).
2. At all times material, American Federation of Government
Employees, Council of Prison Locals, Local 2052 (hereinafter referred to
as the "Union") has been the agent of AFGE, acting on its behalf, in
representing unit employees at Respondent's Petersburg, Virginia
facility (G.C. Exhs. 1(c), Par. 5(b), 1(e)).
3. The Office of Inspections (OI), a component of the Bureau of
Prisons, is located in Washington, D.C., and has as its primary
responsibility the investigation, or monitoring of investigations of
allegations of staff misconduct. Its inspectors and director are
admitted supervisors or management officials and agents of Respondent
(G.C. Exhs. 1(c), Par. 4, 1(e)).
4. By way of background, on Christmas Day 1982, a riot broke out at
the Federal Correctional Institution in Petersburg, Virginia, during
which a correctional officer was killed. The riot was put down over the
next few days. After calm was restored, allegations of inmate abuse by
staff in retaliation for the death of the officer surfaced. OI began an
investigation of these complaints in late December 1982, which was
suspended when the Federal Bureau of Investigation began its own
investigation. Subsequently, three employees, including one bargaining
unit employee and two management employees, were indicted, convicted and
sectenced to prison. In his Bench opinion regarding those convictions,
Judge Merhige, of the United States District Court for the Eastern
District of Virginia, indicated that perjury may have taken place in his
courtroom and that certain individuals may have been engaged in a
"cover-up" (Tr. 186-188). Consequently, Mr. Patrick R. Kane, Chief, OI,
decided to reopen his Office's investigation. In addition to the
"cover-up" and possible involvement of other persons in the abuse of
inmates, theft of a telephone bugging device from a locked cabinet in
the Warden's Office was discovered as well as possible unathorized
removal of documents from a safe in the Warden's Office (Res. Exh. 1)
and made the subject of the investigation. Accordingly, the reopened OI
investigation concerned: 1) were there others beyond the three
convicted who were involved in abuse of prisoners; 2) were there
employees who were involved in a coverup of what took place; 3)
possible improper access to the files; and 4) improper possession of a
piece of peripheral recording equipment (bugging device) that was used
in recording telephone conversations (Tr. 187-188).
Mr. James G. Meeker, Inspector OI, was in Petersburg in November,
1984, but did not interview any staff members at that time (Tr. 190).
The first interviews were conducted on December 5, 1984, and there were
no requests for representation on December 5 (-tr. 199). The December
interviews were conducted by Mr. Meeker and by Mr. Mark Henry, also an
Inspector OI.
5. On December 6, the first person to be interviewed was Mr. James
Manley Long, a steward, who requested representation (Tr. 199). Mr.
Meeker testified that Mr. Long requested as his representative Mr.
Charles H. Trotman, President of the Union, and/or Mr. Nathaniel Nelson,
Vice President and Chief Information Officer of the Union; and/or a
third person, whose name he did not remember, each of whom he, Meeker,
rejected as representative because each was also a possible suspect or
possible target of the investigation (Tr. 200). Mr. Meeker stated that
he rejected the representatives requested by Mr. Long to preserve the
integrity of the investigation; that, as targets of the investigation,
such representative would hear everything that was said, have an
opportunity to know all the information we had prior to being
interviewed himself; and, from experience makes the investigation look
like a white-wash (Tr. 200-201). Mr. Meeker stated that after he had
rejected all representatives requested by Mr. Long, Mr. Long left to get
a representative.
6. Mr. Trotman testified that a bargaining unit employee called him,
he believed it was Mr. Robert E. Howard, Chief Steward of the Union, to
tell him that bargaining unit employees were being denied
representatives of their choice (Tr. 19). Mr. Trotman talked with Mr.
Nelson and Mr. Robert E. Howard. Mr. Nelson testified that he was told
that OI was interrogating employees and had disqualified the elected and
appointed Union officials as representatives, so it was decided that the
Union would use the law firm of Eliades and Associates, which had been
retained by the Union about four months earlier to represent the Union
(Tr. 99), as its designated representative (Tr. 57). /3/ Mr. Nelson
called the law firm and talked to Mark Esposito, Mr. Eliades being in
court, and Mr. Esposito agreed to come right out (Tr. 58). Although not
specifically stated by either Mr. Nelson or Mr. Trotman, it is obvious
from the course of events that Mr. Nelson told Mr. Trotman that Mr.
Esposito was coming as Warden Robert J. Verdeyen testified that Mr.
Trotman called and informed him that Mark Esposito would be representing
the Union (Tr. 166), that he would be representative of a group (Tr.
166) /4/ and that Mr. Esposito arrived at the institution less than
fifteen minutes after Mr. Trotman called him (Tr. 167). Mr. Meeker
stated that staff -- perhaps the Warden -- called him that Mr. Esposito
was coming into the institution (Tr. 203).
7. Mr. Trotman went to the Parole Hearing Room and arrived shortly
before Mr. Esposito /5/ and testified that he introduced himself to Mr.
Henry and Mr. Henry introduced himself and Mr. Meeker; that Mr Henry
said they were there to continue an investigation of the Christmas Day
riot of '82; that he, Trotman, asked what was the problem in terms of
people having representation of their choice; that Mr. Henry replied
that there were certain people that they had to question and those
people couldn't serve as representatives; that Mr. Henry said he,
Trotman, was one of the people he was going to question and I couldn't
be a representative of any member of the bargaining unit; that he asked
if Nelson or Howard could be a representative and Henry said no; that
he, Trotman, asked for a list of people that he wanted to talk with so
the Union could select someone that he wasn't going to talk with to
serve as representative and Henry said he couldn't provide a list; that
he, Trotman, then asked if it was okay if the Union had an attorney and
Henry said ". . . no we couldn't have an attorney sit in either" (Tr.
20-21 ). While Mr. Trotman was talking to Messrs. Henry and Meeker, Mr.
Esposito arrived and was taken to a room "off to the side" of the Parole
Hearing Room where Mr. Nelson and Mr. Long were waiting (Tr. 100). Mr.
Nelson introduced Mr. Esposito to Mr. Long and Mr. Esposito, then talked
to Mr. Long (Tr. 101). Messrs. Nelson, Long and Esposito, a few minutes
later, were summoned to the Hearing Room. Mr. Meeker stated that there
were about a half dozen people there at the doorway to the Hearing Room,
including Mr. Trotman or Mr. Nelson, or both (Tr. 205). Mr. Meeker
stated that Mr. Long returned with Attorney Esposito who he wanted as
his representative (Tr. 202); Mr. Esposito very credibly testified that
he identified himself as a local attorney and stated that he was there
as the Union's representative (Tr. 101-102) whereupon, Mr. Meeker told
him, Esposito, that he was not permitted to participate in any of the
interrogations as a representative or in any other capacity; (Tr. 102)
and Mr. Meeker stated that he, ". . . tried to explain to him
(Esposito), as best I could, not being an attorney . . . that this was
an administrative matter, that there was no foreseeable criminal
prosecution. That if in fact we took statements from people without
benefit of counsel, that we were very clearly precluded from using them
in a future criminal prosecution. And that . . . the policy of the
Agency, was that staff members in investigations where there was no
foreseeable criminal prosecution were not entitled to be represented by
attorneys." (Tr. 203-204) (Emphasis supplied). Mr. Meeker asserted that
after Mr. Esposito had been unsuccessful in convincing Meeker and Henry
that employees had a constitutional right to be represented by an
attorney, Esposito then said he was the Union's attorney, (Tr. 204);
however, Mr. Meeker admitted on cross-examination, that some Union
official, either Trotman or Nelson, had also said Mr. Esposito was the
Union's designated representative (Tr. 229-230) and that he denied Mr.
Esposito the representation after he was told by Mr. Esposito and the
Union official that Mr. Esposito was the Union's designated
representative (Tr. 230). Mr. Esposito was then asked to go to the
Warden's Office and Warden Verdeyen testified that he told Mr. Esposito
that it was his understanding from OI that he would not be permitted to
represent employees and therefore his presence in the institution could
not be continued (Tr. 168), whereupon, Mr. Esposito left the prison
premises.
8. After Mr. Esposito left the Hearing Room, Mr. Nelson remained in
the Hearing Room with Mr. Long (Tr. 62, 120) but after Long signed a
form stating they read him his rights as an employee (Tr. 120-121), the
Inspectors told Mr. Nelson he could not represent Mr. Long and would
have to leave (Tr. 62. 121-122). Mr. Long stated that he asked for
another representative and, when Mr. Trotman was denied, he selected Mr.
Gene Miller (Tr. 124). After Miller arrived, Mr. Long was questioned
for about three hours (Tr. 126). Mr. Long testified that Mr. Meeker
told him that the investigation could result in discipline ranging from
". . . a letter of reprimand to suspension or firing or dismissal from
job" (Tr. 130). Mr. Meeker stated that Mr. Long subsequently, in
February and/or March, 1985, represented a number of people (Tr. 207).
9. Mr. Esposito obtained a temporary restraining order from Judge
Merhige prohibiting further interrogations (Tr. 107). Subsequently, the
TRO was dissolved and interviews were resumed in February, 1985 (Tr.
208).
10. Early on the morning of February 21, 1985, Mr. Trotman was
informed that Mr. Patrick R. Kane, Chief OI, and Mr. Meeker were at the
prison to resume interviews and Mr. Trotman went to the Parole Hearing
Room to speak to Mr. Kane, whom Mr. Trotman had known when Mr. Kane was
a case manager (Tr. 32). Mr. Meeker was also present in the Hearing
Room and Mr. Trotman asked to speak to Mr. Kane. The two of them then
went to the training room which was on the same floor (Tr. 33). Mr.
Trotman testified that he, ". . . told Mr. Kane that we wanted Mr.
Esposito to serve as a Union representative. Mr. Kane advised me, at
that time, that the Bureau took a position that they did not want to get
involved with having an attorney represent members of the Bargaining
Unit in an administrative investigation." (Tr. 34). Mr. Trotman further
testified, "I pointed out to Mr. Kane that the Union definitely took a
stance that they wanted an attorney because something may develop out of
this investigation . . . Mr. Kane, again, said, no he could not allow an
attorney to represent members of the Bargaining Unit in their
investigation." (Tr. 34). Mr. Kane, who was a very credible witness,
neither denied this conversation nor was he examined about it.
Accordingly, Accordingly, as I also found Mr. Trotman's testimony in
this regard wholly credible and entirely uncontroverted, I fully credit
Mr. Trotman's testimony concerning this conversation.
11. Mr. Nelson was interviewed initially in the morning of February
21, 1985 and again on March 7, 1985 (The second interview is discussed
later). On February 21, he requested Mr. Trotman as his representative,
which was denied (Tr. 68-69); then Mark Esposito, which was denied (Tr.
69; G.C. Exh. 9); and then Mr. Jack Womeldorf who was accepted (Mr.
Nelson stated that prior to requesting Mr. Esposito he had asked for Mr.
Robert Howard, whose name does not appear on G.C. Exh. 9, ". . . because
he did not work that day . . ." but Mr. Meeker said he was disqualified
". . . because they may want to talk to him later." (Tr. 69). Mr.
Trotman was interviewed during the afternoon of February 21 and, having
been denied Mr. Esposito, Mr. Trotman requested Mr. Long to represent
him which was approved (Tr. 35; G.C. Exh. 5).
Mr. Steven Weser, Shop Steward, was interviewed on the morning of
March 5, 1985. He first requested Mr. Trotman as his representative,
which request was denied (Tr. 139); then for the Union's counsel who
had been retained, Mr. Mark Esposito, which request was denied (Tr.
139); then Nelson and Tim Boyle, a Shop Steward, and both requests were
denied (Tr. 139-140; G.C. Exh. 11); then Mr. Bob Howard, Chief
Steward, which request was denied ". . . and he (Meeker (Tr. 140))
didn't even write that down on the sheet (G.C. Exh. 11) that Mr. Howard
was denied or that I requested him" (Tr. 141). Finally, Mr. Weser
picked Mr. Michneack who was approved (Tr. 142).
Mr. Howard was interviewed on the morning of March 6, 1985 (Tr.
158-159). He testified that he requested that attorney Margaret Pena or
attorney Joe Goldberg represent him (Tr. 159; G.C. Exh. 13); that he
told them they were staff attorneys from the American Federation of
Government Employees and ". . . they are my Union representative." (Tr.
160). Mr. Howard stated that Mr. Meeker said, ". . . it is our position
that attorneys are not allowed." Mr. Meeker confirmed that Mr. Howard
had asked for two attorneys which request he denied, ". . . following
the Agency policy that since this was an administrative matter, that
they were not entitled to have an attorney there representing them" (Tr.
212). Finally, Mr. Howard requested Mr. Long to represent him and this
request was granted (Tr. 160; G.C. Exh. 13).
12. Mr. Nelson is interviewed a second time on the morning of March
7, 1985. Mr. Nelson testified that on this occasion he requested Mr.
Trotman, then Howard, and then Esposito which requests were denied (Tr.
77). Mr. Meeker testified that on this occasion Mr. Nelson requested
Trotman, Weser, or Boyle all of whom he denied because they were
possible targets of the investigation (Tr. 216-217). I find it
unnecessary to resolve this conflict since, in any event, Mr. Nelson was
denied three representatives of his choice. After Mr. Nelson was denied
his chosen representatives, he picked Mr. Steve Michneack who was
approved and arrived some 20-25 minutes later (Tr. 81).
The only new dimension presented by Mr. Nelson's second interview is
whether the interrogation began before Mr. Nelson's representative
arrived. Mr. Nelson credibly testified that he strongly objected to
proceeding without any represntative being present (Tr. 77). Mr. Nelson
stated that, "Mr. Meeker insisted and demanded that the investigation
start and he did start without a Union rep being present." (Tr. 77).
Mr. Nelson said he was asked the same questions with more
intensification on the alleged missing items from the Warden's office,
this electronic bugging device, about the Union meeting in November,
about the sensitive CIM material (Tr. 77-78) and that Steve Michneack
came in about 20 to 25 minutes after the interview began (Tr. 81, 93).
Mr. Nelson testified that, "What Mr. Meeker said -- his exact words --
'we are going to start your investigation without your rep because I
believe that you have had ample time' . . . I had ample time to have a
man there so that is why he started the investigation without the rep
being present." (Tr. 93). Mr. Nelson stated that he, ". . . explained
to Mr. Meeker that he gave me short notice and I certainly was not going
to look for a representative on my own time, when I am away from the
institution." (Tr. 95). Mr. Nelson stated that Mr. Meeker had called
him at 3:30 on March 6 (Mr. Nelson's regular hours are 7:00 a.m. - 4:00
p.m.) and told him he wanted him upstairs for the investigation the
following morning around 7:30 or 8:00 (Tr. 76-77). Mr. Nelson further
stated that he called Mr. Michneack prior to going into the interview
room and told him I was going to be interviewed by OI again and he had
to go through this procedure getting permission from his supervisor to
report to the hearing room to represent Mr. Nelson (Tr. 82; see also
Tr. 95-96).
Mr. Meeker testified that Mr. Nelson arrived without a
representative, that ". . . we sat there engaging in the American
pass-time of shooting the breeze, talking about the weather or whatever,
for a period of twenty minutes, and with no Bargaining Unit
representative showed up. So, after twenty minutes had gone by, and no
representative had come, I felt that Mr. Nelson was playing a game with
me, so I felt that twenty minutes was a reasonable period of time . . .
So, I started the continuation of the interview. After about three
minutes later, Mr. Michneack arrived. . . ." (Tr. 217). Although Mr.
Meeker testified that he had not completed the first question before Mr.
Michneack arrived (Tr. 218-219), I do not credit his testimony in this
regard. Rather, I credit Mr. Nelson's testimony that the interview did
begin before his representative, Mr. Michneack, arrived, which was
confirmed by Mr. Meeker's earlier statement that he started the
interview at least three minutes before Mr. Michneack arrived. I also
do not credit Mr. Nelson's testimony, if, indeed, he intended such
inference, that he was questioned for 20 to 25 minutes before Mr.
Michneack arrived. To the contrary, I credit Mr. Meeker's testimony
that he waited 20 minutes before beginning the interview during which
time they "shot the breeze". Accordingly, I conclude that Mr. Nelson
was interrogated for about three to five minutes, under protest, before
his representative arrived.
Conclusions
Section 14(a) provides, in relevant part, as follows:
"(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at --
. . .
(B) 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.
(3) Each agency shall annually inform its employees of their
rights under paragraph (2)(B) of this subsection." (5 U.S.C.
Section 7114(a)(2) and (3)).
Other quite different proposals were considered, e.g. H.R. 3793,
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, Subcommitte
on Postal Personnel and Modernization of the Committee on Post Office
and Civil Service, House of Representatives, Ninety-Sixth Congress,
First Session, Committee Print No. 96-7 (hereinafter referred to as
"Legislative History" followed by the page number of the Committee
Print) p. 229, Report No. 95-920, Legislative History, pp. 643, 647, had
provided that if the investigation could lead suspension, removal or
reduction in rank or pay, A) the employee must be given notice in
writing of the fact that he/she is under investigation; B) the specific
nature of the alleged misconduct; and C) the right of the employee to
have reasonable time, not to exceed 5 working days, to obtain a
representative of his choice and to have such representative present
during questioning. This, of course, was not adopted; and the present
provision underwent significant modification before enactment, e.g.
notice before any investigative interview, Legislative History, p. 914,
became the annual notice, and "investigative interview", Legislative
History, p. 914, became the broader "examination". The Sectional
Analysis of the Udall substitute (H.R. 11280 as passed by the House,
September 13, 1978, pp. 967, 973) stated, in part, as follows:
The substitute's provisions concerning investigatory interviews
reflect the U.S. Supreme Court's holding in National Labor
Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975). In
Weingarten, the Court upheld the Board's determination that the
National Labor Relations Act provides a statutory 'right of union
representation at investigatory interviews which the employee
reasonably believes may result in disciplinary action against
him.' 420 U.S. 251, at 267.
. . .
"The Weingarten right, of course, is tied to the National Labor
Relations Act's 'guarantee of the right of employees to act in
concert for mutual aid and protection.' Other than this difference
in derivation, the substitute's provisions differ from Weingarten
only in providing that the employee must be informed of the right
of representation prior to the commencement of any investigatory
interview concerning misconduct which could reasonably lead to
suspension, reduction in grade or pay, or removal." (Legislative
History, p. 926) (Actually, the Udall substitute had extended the
right to any disciplinary action, not merely suspension, reduction
in grade or pay, or removal).
In Conference, "investigative interview" became "examination" and
annual notice was substituted for notice prior to each interview. The
Conference Report states, in part, as follows:
"The conference agreed to adopt the wording in the House bill
with an amendment deleting the House provision requiring the
agency to inform employees before certain investigatory interviews
of the right to representation, and substituting a requirement
that each agency inform its employees annually of the right to
representation. The conferees further amended that provision so
as to give the labor representative the right to be present at any
examination of an employee by a representative of the agency in
connection with an investigation if the employee reasonably
believes that the examination may result in disciplinary action
against the employee. The conferees recognize that the right to
representation in examinations may evolve differently in the
private and Federal sectors, and specifically intend that future
court decisions interpreting the right in the private sector will
not necessarily be determinative for the Federal sector.
(Legislative History, pp. 823-824).
Respondent is quite correct that the Union has no independent right
to have a representative present at an examination of an employee in
connection with an investigation; but, to the contrary, the Union's
right is derivative in that it is entitled to be represented at such
examination only if the employee reasonably believes that the
examination may result in disciplinary action and if the employee
requests representation. Department of Health and Human Services,
Social Security Administration, 18 FLRA No. 7, 18 FLRA 42, 46 (1985)
(Respondent's Brief, p.4). Of course, here there is no dispute that:
a) the employees reasonably believed that the examination might result
in disciplinary action against them /6/ and that employees requested
representation which was denied.
Although the right of the exclusive representative to be represented
at such examination is derivative, it is the exclusive representative's
right to be represented at an examination when, as here, the two
conditions of Section 14(a)(2)(B) are met; indeed, by virtue of Section
14(a)(1), it is not only the Union's right but becomes its duty to
provide representation, i.e. "An exclusive representative is responsible
for representing the interests of all employees in the unit it
represents. . . ." (Section 14(a)(1)) (Emphasis supplied). Literally,
only the exclusive representative can select who will represent it at
such examination, not the employee.
1. Respondents's rejection of bargaining unit employees as
representatives
As General Counsel states in his Brief,
"As a general proposition, it is well established that a Union
is free to designate representatives of its own choosing in
labor-management relations. Thus, in American Federation of
Government Employees, AFL-CIO (U.S. Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio), (4 FLRA No. 39) 4
FLRA 272 (1980), the Authority stated that 'it is within the
discretion of both agency management and labor organizations
holding exclusive recognition to designate their respective
representatives when fulfilling their responsibilities under the
Statute.' (at p. 274) . . . ." (G.C. Brief, p. 25).
While generally stated with respect to negotiations, I perceive no
distinction in the union's right, ordinarily, to designate its
representative under Sections 14(a)(2)(B) and 14(b)(2), and I fully
agree with the statement of Judge Chaitovitz, in Department of Health
and Human Services, Social Security Administration, Great Lakes Program
Service Center, Chicago, Illinois and American Federation of Government
Employees, Local 1395, AFL-CIO, Case No. 5-CA-1204 (September 16, 1982),
Administrative Law Judge Decisions Report No. 22, March 10, 1983, that,
". . .By advising the employees . . . that Williams could not
act as the employees' Union representative at the interviews,
Respondent interferred with the Union's right, provided in Section
7114(a)(2)(B) of the Statute, to be represented at the interviews.
It It is well established that in such a situation the Union was
entitled to choose and designate its own representative, and that
when Respondent interferred with this right of choice it violated
Sections 7116(a)(5) and (1) of the Statute." (Case No. 5-CA-1204
at p. 6).
While, ordinarily, a union has complete discretion to designate its
representatives for the purpose of Section 14(a)(2)(B), here I find that
the Union's designated representatives within the meaning of Article 29,
Sections b and c, were, inter alia its Officers and Stewards, /7/ its
discretion is not absolute and I conclude that Respondent properly
refused to permit Union designated representatives who were themselves
subjects of the investigation to serve as representatives. I agree with
the position of Respondent, as stated by Mr. Meeker (see, also,
Respondent's Brief, pp. 11-12), that to preserve the integrity of the
investigation individuals who are targets of the investigation may not
serve as representatives, pursuant to Section 14(a)(2)(B), until their
own examination has been completed. On March 5, 1985, Mr. Weser
requested as his representative bargaining unit members Trotman, Nelson,
Boyle, and Howard, each of whom was rejected by Respondent's agents
Meeker and Kane. Each of these requested representatives was a target
of the investigation. Mr. Nelson had been interviewed on February 21,
but his examination had not been completed and he was further examined
on March 7, 1985; Mr. Howard was not examined until March 6, 1985; and
the date of Mr. Boyle's examination was not shown. Mr. Trotman had been
examined on February 21, 1985; his examination had been completed (G.C.
Exh. 5 and 6) and, therefore, Respondent's rejection of Mr. Trotman as
Mr. Weser's designated Union representative on March 5, 1985, and as Mr.
Nelson's designated Union representative on March 7, 1985, violated
Sections 16(a)(1) and (8) of the Statute.
Specifically, I conclude that as a general rule a union's right to
designate its representative for the purpose of an examination in
connection with an investigation is inviolate; however, the right of a
union to choose and designate its own representative is not absolute and
a designated representative may be rejected when that representative is
himself the target of the investigation and his serving as
representative would violate the integrity of the investigation. The
exception is narrow and must be limited to preservation of the integrity
of the investigation. Once the examination of a target of the
investigation has been completed, that individual must, as a designated
union representative, be permitted to represent employees as the
justification for refusing to permit his serving as a representative,
namely to preserve the integrity of the investigation, no longer exists.
Here, Mr. Trotman's examination had been completed on February 21,
1985, and Respondent's refusal thereafter, on March 5, 1985, /8/ to
permit Mr. Trotman to represent Mr. Weser violated Sections 16(a)(1) and
(8). On the other hand, I find that Respondent properly rejected Mr.
Weser's request that Messrs. Nelson and/or Howard represent him and I
find it unnecessary to determine whether Respondent did or did not
violate the Statute by the rejection of Mr. Boyle inasmuch as, even if
it did, such violation was merely cumulative and would not affect the
remedy.
Accordingly, I find that Respondent failed and refused to comply with
Section 14(a)(2)(B) of the Statute on March 5 and 7, 1985, by refusing
to permit President Trotman, whose own examination had been completed,
to represent employees at examination of employees and Respondent
thereby violated Sections 16(a)(1) and (8) of the Statute.
2. Respondent's rejection of Union's attorney as its
representative
There is no dispute that on December 6, 1984, Mr. Esposito was
present at the prison and that Mr. Meeker refused to permit him to be
present, as the Representative of the Union, during the examination of
Mr. Long. Mr. Meeker admitted that Mr. Esposito told him he was the
Union's attorney (Tr. 204) but asserted that this was after Mr. Esposito
had been unsuccessful in convincing Meeker and Henry that Mr. Long had a
constitutional right to be represented by an attorney. I am not
convinced that it matters whether, at the outset, Mr. Long returned with
an attorney (Mr. Esposito) who he wanted as his representative (Tr. 202)
and only later did Mr. Esposito tell him he was the Union's attorney
since, in any event, Mr. Meeker refused to permit Mr. Esposito to be
present at the examination of Mr. Long with full knowledge that he was
the representative of the Union. Nevertheless, the record shows, and I
find, that Respondent had full knowledge that Mr. Esposito was the
representative of the Union. After Mr. Long's requests first that Mr.
Trotman, second that Mr. Nelson, and apparently a third person, possibly
Mr. Howard, represent him had been denied by Respondent, Mr. Long had
left the hearing room to get a representative. Chief Steward Howard was
informed and he notified President Trotman who, after talking to Mr.
Howard and Mr. Nelson, decided that as OI had disqualified the elected
and appointed Union officials as representatives, they should use the
law firm of Eliades and Associates, which was already on retainer, as
the Union's designated representative. Mr. Nelson called the law firm
and spoke to Mark Esposito who agreed to come right out. Mr. Trotman
called Warden Verdeyen and told him that "Mark Esposito . . . would be
representing the Union" (Tr. 166). Indeed, Warden Verdeyen stated that
Mr. Esposito was at the institution in less than fifteen minutes after
Mr. Trotman called him (Tr. 167). That Warden Verdeyen was informed by
Mr. Trotman that Mr. Esposito was coming to the institution is borne out
by Mr. Esposito's wholly credible testimony that, "Mr. Nelson informed
me that . . . the Warden had been told that our firm was representing
the Union and that he knew I was on my way. . . . I went past the
tower, they waived me through. I went through the check point there,
entered the institution, where I was escorted up to the parole
revocation room. . . ." (Tr. 99-100). In the absence of advance notice,
it is obvious that this sequence of events would scarcely have been
possible. Moreover, this is corroborated by Mr. Meeker's testimony
that, ". . . someone from the institution staff, it may have been the
Warden, called . . . and . . . They told us that he was coming into the
institution at this time. . . ." (Tr. 202-203). Accordingly, I
specifically do not credit Warden Verdeyen's later testimony that Mr.
Esposito was already on the premises when Mr. Trotman called him.
Rather, I conclude, as Warden Verdeyen initially testified, and as the
record otherwise shows, Mr. Trotman called Warden Verdeyen and told him
that Mr. Esposito would be representing the Union and was on his way to
the prison. Finally, Mr. Trotman very credibly testified that he had
gone to the hearing room and had had a conversation with Messrs. Meeker
and Henry immediately prior to Mr. Esposito's arrival during which Mr.
Henry told him that there were certain people, including Mr. Trotman,
Mr. Nelson and Mr. Howard, who could not serve as representatives
because they (0I) had to question them. Mr. Trotman asked if it were
okay if the Union had an attorney and Mr. Henry responded that an
attorney wouldn't be permitted.
Mr. Meeker refused to permit Mr. Esposito to serve as the Union's
representative at the examination of Mr. Long on December 6, 1984, for
the reason that ". . . the policy of the Agency, was that staff members
in investigations where there was no foreseeable criminal prosecution
were not entitled to be represented by attorneys." (Tr. 203-204).
Nor is there any dispute, Mr. Trotman's wholly credible testimony
being neither denied nor controverted, that on February 21, 1985, when
interviews resumed after having been enjoined, that Mr. Trotman, in a
private conversation with Mr. Kane, Chief of OI, before the commencement
of interviews, told Mr. Kane that that, ". . . we wanted Mr. Esposito to
serve as a Union representative" to which Mr. Kane responded that, ". .
. the Bureau took a position that they did not want to get involved with
having an attorney represent members of the Bargaining Unit in an
administrative investigation." (Tr. 34). Mr. Nelson, on February 21,
1985; Mr. Trotman on February 21, 1985; Mr. Weser on March 5, 1985;
and Mr. Nelson, again, on March 7, 1985, each requested representation
by Mr. Esposito which was denied. /9/
The fact that OI does not want to be bothered with attorneys in
administrative investigations constitutes no justification whatever for
rejection of the Union's designated representative. As noted above, as
a general rule, a union has complete discretion to designate its
representative for the purpose of Section 14(a)(2)(B), although I have
found that, where necessary to preserve the integrity of the
investigation, particular representatives may be rejected when they
themselves are targets of the investigation. Nothing in the Statute, or
in its legislative history, indicates, or even suggests, that a union
may not designate as its representative an attorney. Indeed, in
negotiations unions quite frequently are represented by attorneys and
the right of the union to have an attorney as its representative in
examinations pursuant to Section 14(a)(2)(B) has consistently been
recognized by Administrative Law Judges, although the Authority has not
had occassion to address the matter. See, for example, Department of
Health and Human Services, Social Security Administration, Great Lakes
Program Service Center, Chicago, Illinois and American Federation of
Government Employees, Local 1395, AFL-CIO, Case No. 5-CA-1204 (September
16, 1982), Administrative Law Judge Decisions Report No. 22, March 10,
1983; U.S. Library of Congress and Congressional Research Employees
Association, Case No. 3-CA-20698 (February 22, 1983), Administrative Law
Judge Decisions Report No. 26, May 13, 1983, Department of Justice,
Federal Prison System, Washington, D.C. and Department of Justice,
Federal Prison Systems, Bureau of Prisons, U.S. Medical Center for
Federal Prisoners, Springfield, Missouri and American Federation of
Government Employees, Local 1612, AFL-CIO, Case No. 7-CA-50228,
OALJ-85-122 (August 22, 1985).
It is the union which designates its representative under Section
14(a)(2)(B), not the employee subject to the examination, although the
employee must, inter alia, request representation. Section 14(a)(2)(B)
accords the employee subject to the examination no right to have his own
representative present at his examination, be he an attorney or
non-attorney. Similarly, while Section 14(a)(5)(A) permits an employee
to be represented by an attorney or other representative of the
employee's own choosing in any grievance or appeal action not pursuant
to a negotiated grievance or appeal procedure, the Authority has held,
in National Federation of Federal Employees, Local 1001, 15 FLRA No.
154, 15 FLRA 804 (1984), that,
". . . By its terms, this section (Section 21(b)(3)) limits
unit employees bringing grievances under the negotiated grievance
procedure either to representing themselves or to being
represented by the exclusive representative. Again, it is clear
that unit employees may not have other representation." (15 FLRA
at 808).
To like effect, see, also, Sheet Metal Workers International
Association, Local 97, 7 FLRA No. 138, 7 FLRA 799 (1982). The National
Labor Relations Board has held that an employee's request for the
presence of his personal attorney does not raise Weingarten rights.
Consolidated Casinos Corporation, 266 NLRB 988, 1008 (1983). Of course,
neither the Authority's decisions with respect to representation in
processing grievances nor the National Labor Relations Board decision
with respect to the employee's right to personal representation at an
investigative interview addressed or considered the union's choice of
representative and I find nothing in these decisions, or in the cases
cited and relied upon by Respondent in its Brief (Respondent's Brief,
pp. 9-11), that suggests that a union's right, pursuant to Section
14(a)(2)(B) of the Statute, to designate its representative, whether or
not such representative is a member of the bargaining unit or whether
such representative is an attorney or a non-attorney, is not left to the
discretion of the union, except where such designation would compromise
the integrity of the investigation.
An investigation pursuant to Section 14(a)(2)(B) differs from
negotiations pursuant to Section 14(b) in many ways, of course. One
significant difference is that, pursuant to Section 14(b)(3), the
parties must meet to negotiate at reasonable times, whereas, an
investigation, pursuant to Section 14(a)(2)(B), is left to the control
of the agency. The union is entitled to "the opportunity to be
represented at . . . (B) any examination of an employee . . . in
connection with an investigation" if, but only if, the two specific
conditions of Section 14(a)(2)(B) are met; however, opportunity to be
represented at the examination necessarily means that the examination
will proceed subject only to "the opportunity" of the union to be
represented. While the union may designate any representative it
chooses, including an attorney, it may not delay the examination beyond
satisfaction of having the opportunity to be represented at the
examination. of course, here, the Agreement of the parties specifically
provides, in relevant part, that,
". . . if the representative is not available within a
reasonable period of time, the questioning may proceed without the
representative being present . . . ." (G.C.
Exh. 2, Art. 29, Section b and c).
Here, Mr. Esposito was the designated representative of the Union and
Respondent was well aware when it denied Mr. Esposito the right to be
present at the examination of Mr. Long on December 6, 1984, that Mr.
Esposito was the representative of the Union. It is equally clear that
on February 21, 1985, Mr. Kane was told that Mr. Esposito was the
representative of the Union and, again Respondent denied the right of
Mr. Esposito to represent employees in examinations pursuant to Section
14(a)(2)(B).
In its Brief, Respondent argues, inter alia, that attorneys in
private practice, like Mr. Esposito, would be "less readily available
than other employee representatives located at the facilities."
(Respondent's Brief, p. 8). I have no doubt that this might frequently
be true; but it is a wholly factitious argument in this case, inasmuch
as Mr. Esposito on December 6, 1984, was present at the hearing room
and, while he was not on the premises on February 21, 1985, Mr. Kane,
prior to the commencement of interviews, refused to permit Mr. Esposito
to represent the Union in the examination of employees. Not only is
there no basis in the record to infer that Mr. Esposito would not have
been readily available on February 21, but if he were not available
within a reasonable period of time, pursuant to the parties Agreement,
questioning could have proceeded without his presence.
To be sure, the Authority has held that management may place
reasonable limitations on the union's participation during a Section
14(a)(2)(B) investigation in order to prevent an adversarial
confrontation with that representative and to achieve the objective of
the examination, Norfolk Naval Shipyard, 9 FLRA No. 55, 9 FLRA 458
(1982) and in U.S. Library of Congress, supra, limitations on scope of
examinations by an attorney was held not in violation of the Statute.
Finally, as well stated by Judge Dowd, in Department of the Treasury,
Internal Revenue Service, Southeast Region, Atlanta, Georgia;
Department of the Treasury Internal Revenue Service, Southeast Regional
Office of Inspection, Atlanta, Georgia; Department of the Treasury,
Internal Revenue Service, Jacksonville, Florida and National Treasury
Employees Union, Case No. 4-CA-893 (July 29, 1982), Administrative Law
Judge Decisions Report No. 19 (January 21, 1983),
"In Weingarten, the Supreme Court approved the Board's view
that
'. . . exercise of the right (to representation) may not
interfere with legitimate employer prerogatives. The employer has
no obligation to justify his refusal to allow union
representation, and despite refusal, the employer is free to carry
on his inquiry without interviewing the employee, and thus leave
to the employee the choice between having an interview
unaccompanied by his representative, or having no interview and
foregoing any benefits that might be derived from one.'
"What the Supreme Court is saying is that the employer and the
employee both have choices. The employer's choice is to conduct
the interview with the employee accompanied by his or her
representative, or to not conduct the interview at all, with no
obligation to explain or justify its election. The employee, on
the other hand, has a choice of insisting on the presence of his
or her representative, or relinguishing this right." (Case No.
4-CA-893) at pages 14-15).
Moreover, in Department of Justice, Federal Prison System,
Washington, D.C., et al., supra, Judge Cappello, in a case which also
involved the Federal Prison System and which presented the same issue,
namely the right of the union to designate an attorney as its
representative at an examination pursuant to Section 14(a)(2)(B), held
that the agency violated Sections 16(a)(1) and (8) of the Statute when
it denied the right of the attorney to represent the Union. I agree
fully with her conclusions which I hereby incorporate by reference in
further support of my conclusion that Respondent violated Section
16(a)(1) and (8) by refusing to permit the Union's designated
representative, Attorney Mark Esposito, to represent employees in
examinations pursuant to Section 14(a)(2)(B).
Nor did the Union waive or withdraw its request that Mr. Esposito (or
that its officers and stewards) represent it in examinations of
employees notwithstanding that, when its designated representatives were
rejected by Respondent, each employee after rejection of the designated
Union representative was represented.
Accordingly, Respondent failed and refused to comply with the
provisions of Section 14(a)(2)(B), as alleged in Case No. 34-CA-50274
and as alleged in Case No. 34-CA-50311, by its rejection of Attorney
Mark Esposito as the designated representative of the Union in the
examination of employees and thereby violated Section 16(a)(1) and (8)
of the Statute.
3. Respondent's examination of employee Nelson prior to the
arrival of the employee's union representative
On March 7, 1985, in his second examination, after Respondent had
rejected his requests that he be represented by Union designated
representatives Trotman, Howard and Esposito, according to Mr. Nelson,
or for Trotman, Weser and Boyle, according to Mr. Meeker, Mr. Nelson
then requested Mr. Michneack which request was granted. Actually, in
anticipation that the Union's designated representatives would be
rejected, as they had been on prior occasions, Mr. Nelson had called Mr.
Michneack before he had gone to the interview room. Contrary to the
assertion of Mr. Nelson, I have found from the testimony of Mr. Meeker,
which I credit in this regard, that Respondent waited 20 minutes after
Mr. Nelson announced the selection of Mr. Michneack and, when the
representative had not arrived, began questioning Mr. Nelson. I have
further found that Mr. Nelson was questioned for about three to five
minutes prior to the arrival of Mr. Michneack. The record shows that
Mr. Nelson did not inform Meeker and Kane that he had called Mr.
Michneack nor did he ask Meeker to call to have his representative,
Michneack, relieved from his post (Tr. 218). As noted previously, the
Agreement of the parties specifically provides, ". . . that if the
representative is not available within a reasonable period of time, the
questioning may proceed without the representative being present" (G.C.
Exh. 2, Art. 29, Sections b and c). Mr. Michneack did not testify and
there is nothing in the record that explains the reason for his arrival
not less than 30 minutes after Mr. Nelson called him. Under the
circumstances, Respondent's delay of the beginning of questioning for 20
minutes was a reasonable period of time, pursuant to the Agreement of
the parties, and, accordingly, Respondent did not violate the Statute by
beginning the questioning of Mr. Nelson prior to the arrival of his
representative. Therefore, I shall recommend that Paragraph 9 of the
Complaint in Case No. 34-CA-50311, as amended at the hearing, be
dismissed.
Having found that Respondent violated Sections 16(a)(1) and (8) of
the Statute, 5 U.S.C. Sections 7116(a)(1) and (8), I recommend that the
Authority adopt the following:
ORDER
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
Section 2423.29 of the Regulations, 5 C.F.R. Section 2423.29, the
Authority hereby orders that the Federal Prison System, Federal
Correctional Institution, Petersburg, Virginia, shall:
1. Cease and desist from:
(a) Interfering with American Federation of Government
Employees, Council of Prison Locals, Local 2052, (hereinafter also
referred to as the "Union"), lawfully designating its officers and
stewards as its representative at any examination of an employee,
pursuant to Section 14(a)(2)(B) of the Statute.
(b) Interfering with the right of the Union to have an attorney
as its representative at any examination of an employee pursuant
to Section 14(a)(2)(B) of the Statute.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Statute.
2. Take the following affirmative action:
(a) Post at its facilities at Petersburg, Virginia, 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 an appropriate official of Respondent and shall be
posted and maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to assure that said Notices are not altered,
defaced, or covered by any other material.
(b) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region 3, Federal
Labor Relations Authority, 1111 - 18th Street, Room 700, P.O. Box
33758, Washington, D.C. 20033-0758, in writing, within 30 days of
this Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that Paragraph 9 of the Complaint in Case No.
34-CA-50311, as amended at the hearing, be, and the same is hereby,
dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: September 6, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
(*) The General Counsel filed a motion to strike the Respondent's
cross exception because it exceeds the scope of the General Counsel's
exception. We find under section 2423.28 of the Authority's Rules and
Regulations that the Respondent's timely filed cross exception was not
limited by the scope of the General Counsel's exception. Accordingly,
we deny the General Counsel's motion.
(1) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(1) and (8) of the Statute
will be referred to, simply, as "Section 16(a)(1) and (8)."
(2) General Counsel filed with his brief a Motion to Correct
Transcript, to which no opposition was filed, which I find proper, and
said Motion is granted except the requested change on page 80, line 4,
of the transcript which is denied for the reason that the transcript is
correct as it appears. The transcript is hereby corrected as follows:
Page Line From To
11 14 "and" "an"
27 23 "of" "for"
27 24 "officers" "officer"
36 6 "fussy" "fuzzy
63 19 "order "orders"
72 22 "anything" "everything"
74 17 "indefinite" "indefinitely"
75 24 "an" "and"
76 2 "satisfactory" "satisfied"
76 2 "infomred" "informed:"
76 24 "invetigation" "investigation"
83 13 Insert "employee's" before "Union"
117 5 Insert "representatives of" after "as"
119 5 "specific" "specify"
135 9 "and" "said"
168 16 Insert "in" after "doing"
199 21 "targets" "target"
230 2 "Union" "Union's"
(3) This sequence of events is a composite, based in large part on
Mr. Meeker's testimony which, for the most part, I found more complete
in its detail while Mr. Long's initial recollection of events was poor;
Mr. Trotman's recollection, while wholly credible as to all material
facts appears, questionable as to the sequence of events. Thus, while I
fully credit his testimony as to his conversation with Messrs. Meeker
and Henry, I conclude that he did not upon receiving the call from Mr.
Howard go immediately to the Parole Hearing Room, but talked to Messrs.
Howard and Nelson at which time they decided to use an attorney, and
that he, Trotman did not talk to Messrs. Meeker and Henry until
immediately prior to the arrival of Mr. Esposito. In the meantime, as
noted hereinafter, Mr. Trotman called Warden Robert J. Verdeyen.
(4) Mr. Trotman prepared a memorandum (G.C. Exh. 3) which Mr.
Verdeyen denied having seen prior to the hearing. Since Warden Verdeyen
admitted that Mr. Trotman called and told him that Mr. Esposito would be
representing the Union, I find it unnecessary to decide whether G.C.
Exh. 3 had, or had not, been seen by Warden Verdeyen as the memorandum
merely restated, to the extent material, what Warden Verdeyen admitted
he was told by telephone.
(5) See n.3, supra.
(6) Indeed, the employees were told that the investigation could
result in disciplinary action including dismissal (see, e.g. Tr. 130);
the forms each employee was instructed to sign so stated (see, e.g.,
G.C. Exh. 5); and the nature and objects of the investigation, alone,
would have given reasonable belief that the examination might result in
disciplinary action.
(7) The Union did not submit a list of its representatives for
examinations in connection with investigations, nor was it ever the
practice to do so (Tr. 258). While it may be done, I am not aware of
any case in which it was done separate and apart from notification of
the names of officers, chief steward and stewards. Generally, the
request is for the employee's steward or, perhaps, for a particular
steward or officer, as here. Indeed, the Collective Bargaining
Agreement uses the term "designated representative" which would include
the Union's officers and Stewards and yet broad enough to include any
other representative designated by the Union. The practice of
Respondent's OI Inspectors to permit the employee to select his
representative accords with the provisions of the Statute and the
Collective Bargaining Agreement only to the extent that the employee's
choice is a Union designated representative or the Union acquiesces in
the employee's choice. But, as previously noted, the right of
representation is the Union's, not the employee's.
(8) Also on March 7, 1985, to represent Mr. Nelson; however, as this
further violation is cumulative, I find it unnecessary to further
address Respondent's additional violation.
(9) On March 6, 1985, Mr. Howard requested representation by AFGE
staff attorneys Margaret Pena or Joe Golberg (Tr. 159, G.C. Exh. 13)
which was denied. Although I am fully aware of this request, I do not
further address it for the reasons: a) the record does not show that
either was present in the area and was reasonably available (See G.C.
Exh. 2, Article 29, Section b and c); and b) such request was, at most,
cumulative since the same issue is already fully encompassed by the
Union's designation of attorney Esposito.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with American Federation of Government
Employees, Council of Prison Locals, Local 2052 (hereinafter referred to
as the "Union") lawfully designating its officers and stewards as its
representative at any examination of an employee, pursuant to Section
7114(a)(2)(B) of the Statute.
WE WILL NOT interfere with the right of the Union to have an attorney
as its representative at any examination of an employee pursuant to
Section 7114(a)(2)(B) of the Statute.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured by the
Statute.
. . . . . . (Agency or Activity)
Dated: . . . . . .
By: . . . . . . (Signature)
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, Region III,
whose address is: 1111 - 18th Street, Room 700, P.O. Box 33758,
Washington, DC 20033-0758 and whose telephone number is: (202)
653-8500.