[ v50 p401 ]
50:0401(61)CA
The decision of the Authority follows:
50 FLRA No. 61
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
GENERAL SERVICES ADMINISTRATION
(Respondent/Agency)
and
BOBBIE J. BRUNNING
(Charging Party/Individual)
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1800
(Charging Party/Union)
WA-CA-30005
WA-CA-30153
_____
DECISION AND ORDER
May 26, 1995
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions of the Respondent.
The consolidated complaint alleged that the Respondent violated: (1) section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by conducting formal discussions without affording the Union prior notice and an opportunity to be represented at those discussions; and (2) section 7116(a)(1) of the Statute by subjecting bargaining unit employees to coercive questioning. The Judge concluded that the Respondent had violated the Statute as alleged and recommended that the Authority take appropriate remedial action.
Upon consideration of the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision. We adopt the Judge's conclusion that the Respondent violated section 7116(a)(1) and (8) of the Statute by its actions in conducting formal discussions concerning general conditions of employment without giving the Union the opportunity to be represented at the discussions. However, we find, contrary to the Judge, that the discussions did not concern a grievance within the meaning of section 7114(a)(2)(A). Also, we do not adopt the Judge's conclusion that the Respondent violated section 7116(a)(1) by subjecting bargaining unit employees to coercive questioning.
II. Judge's Decision
The allegations in this case center on interviews that R. Christina Ross, a representative of the Respondent, conducted with bargaining unit employees in conjunction with an appeal to the Merit Systems Protection Board (MSPB) filed by Bobbie J. Brunning, who had been Space Alterations Manager of the Respondent's West Alteration Work Group, concerning his removal.(1) In addition to the facts set forth in the Judge's decision, which will not be repeated here, unrebutted testimony in the record discloses the following relevant facts about the interviews. According to one witness at the hearing, the questions that Ross asked him involved individuals in addition to Brunning; Ross asked about the general office environment, what rumors were going around, and who was having affairs. Tr. at 24, 28, 30-31. Another witness testified that Ross asked whether Brunning had granted employees leave without charging them for it and whether he had given monetary gifts to women in the office. Tr. at 43. A third employee testified that Ross asked about office morale and atmosphere. Tr. at 51.
The Judge concluded that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to afford the Union the opportunity to be represented at interviews that constituted formal discussions that came within the scope of section 7114(a)(2)(A). In reaching that result, the Judge rejected the Respondent's contention that the interviews did not concern a grievance or general conditions of employment. Additionally, the Judge concluded that the Respondent violated section 7116(a)(1) of the Statute by failing to provide the safeguards that are set forth in Internal Revenue Service and Brookhaven Service Center, 9 FLRA 930 (1982) (Brookhaven), when it interviewed bargaining unit employees.
III. Positions of the Parties
A. Respondent
The Respondent excepts to the Judge's determination that the interviews came within the scope of section 7114(a)(2)(A). The Respondent argues that the interviews concerned neither a "grievance" as defined by section 7103(a)(9) of the Statute nor general conditions of employment.(2)The Respondent further argues that, even assuming working conditions were discussed at the interviews, the discussions involved only past, not present, working conditions.
The Respondent also excepts to the Judge's determination that the interviews constituted questioning that required the safeguards set forth in Brookhaven. Alternatively, the Respondent argues that the Respondent met its Brookhaven obligations.
B. General Counsel
The General Counsel contends that the interviews concerned general conditions of employment and that the Respondent was obligated to afford the Union an opportunity to be represented at those discussions. The General Counsel asserts that in interviewing bargaining unit employees, Respondent failed to fulfill the Brookhaven safeguards.
IV. Analysis and Conclusions
A. Formal Discussion
A meeting comes within the ambit of section 7114(a)(2)(A) of the Statute if it involves a discussion that is formal between one or more representatives of an agency and one or more unit employees or their representatives concerning any grievance or any personnel policy or practice or other general condition of employment. For example, U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584, 588-89 (1987) (Ray Brook), aff'd, 865 F.2d 1283 (D.C. Cir. 1989). In examining these elements, the Authority is guided by the intent and purpose of section 7114(a)(2)(A), which is to provide the union with an opportunity to safeguard its interests and the interests of bargaining unit employees as viewed in the context of the union's full range of responsibilities under the Statute.(3) For example, Ray Brook, 29 FLRA at 588-89.
We find that the discussions did not concern a "grievance" within the meaning of section 7114(a)(2)(A) because all the elements of the definition of the term "grievance" in section 7103(a)(9) are not met. Cf. Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 31 FLRA 541, 551-52 (1988) (F.E. Warren Air Force Base) (to constitute a "grievance" under section 7114(a)(2)(A) all elements of the definition of that term set forth in section 7103(a)(9) must be met). In relevant part, "grievance" is defined in section 7103(a)(9) as "any complaint" by any "employee," "labor organization," or "agency . . . ." As defined by section 7103(a)(2) of the Statute, "employee" does not include, among others, "a supervisor or a management official[.]" The record establishes, and no party contests, that Brunning was a supervisor or management official and, consequently, not an "employee" within the meaning of the Statute. In view of this and the absence of any claim that a "labor organization" or an "agency" had filed the appeal with MSPB on Brunning's behalf, his appeal to MSPB does not constitute a "grievance" within the meaning of the Statute.
However, although the discussions did not concern a grievance, we find that they did concern general conditions of employment. The record reveals that the questions posed by Ross addressed Brunning's conduct as well as conduct that occurred and the atmosphere that existed in the office. For example, according to testimony at the hearing, Ross asked whether Brunning had told jokes of a sexual nature and whether anyone in the office had told such jokes. Tr. at 24, 25, 42. Her inquiries about misuse of government vehicles included asking whether interviewees had misused such vehicles or knew of misuse by any other employees. Tr. at 26, 28, 42, 50. Ross also sought information concerning the general environment in the office, including matters involving employee morale and social relationships. These circumstances are distinguishable from those involved in United States Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, 17 FLRA 927, 929 (1985), where the discussion was limited to the manner in which four specific employees in one small organizational subcomponent were reporting their productivity and was "no more than a routine monitoring function by management." Without defining the precise boundaries of what constitutes "general" conditions of employment for purposes of section 7114(a)(2)(A), we find, based on Ross' questions, that her discussions with employees concerned general conditions of employment. See Defense Depot Tracy (the Authority found that a meeting came within the scope of section 7114(a)(2)(A) when it concerned a general condition of employment of all warehouse employees).
The Respondent's claim that the discussions concerned only past conditions of employment does not support a contrary conclusion. The Respondent has cited no authority for adding a temporal requirement to the Statute's reference to "any grievance . . . or other general condition of employment[.]" In any event, even if we were to adopt the Respondent's interpretation of the Statute, it would not lead to a different result in this case. Brunning was in the process of appealing his removal and the possibility existed that he would be reinstated as a result of his appeal. Thus, at the time of Ross' meetings with the unit employees it could not be assumed that Brunning and the conditions that existed during his tenure involved only matters of past concern. Additionally, Ross provided uncontradicted testimony that during some of the interviews employees expressed anxiety about the possibility that co-workers who were friendly to Brunning "would take some type of retaliatory action against them or make life hard for them within the [office]." Tr. at 93. Thus, there is no basis to find that the discussions in this case were limited to past conditions of employment.
Based on the foregoing, we find that the meetings between Ross and employees in the Union's bargaining unit were formal discussions at which the Union was entitled to an opportunity to be represented. We conclude that the Respondent's failure to afford the Union that opportunity violated section 7116(a)(1) and (8) of the Statute.
B. Brookhaven Safeguards
Although we agree with the Judge that the Respondent did not obtain the employees' participation in the interviews on a voluntary basis, we disagree with the Judge that the Respondent violated section 7116(a)(1) by failing to provide the safeguards set forth in Brookhaven when it conducted the interviews that are the focus of this case. In Brookhaven, the Authority recognized the tension between the legitimate need of an agency to prepare its case for presentation in third-party proceedings and the right of employees under section 7102 of the Statute to form, join or assist any labor organization or to refrain from any such activity, freely and without fear of penalty or reprisal. 9 FLRA at 933-34. In order to minimize the coercive effect of agency interrogations when section 7102 rights are involved, the Authority set forth safeguards to be followed when an agency interviews bargaining unit employees in conjunction with case preparation for third-party proceedings. Id. at 933.
Under Brookhaven and its progeny, the safeguards apply only where a nexus is established between an agency's interview of a bargaining unit employee in preparation for third-party proceedings and the employee's section 7102 rights. See, for example, F.E. Warren Air Force Base, 31 FLRA at 546-49. In this case, no such nexus has been established or is otherwise apparent. In particular, there is no claim that a labor organization was involved in any way in the proceeding for which the interviews were conducted or that the proceeding otherwise concerned activity relating to any of the rights protected by section 7102. Consequently, the Respondent was not required to observe the Brookhaven safeguards.
The circumstances present in this case are distinguishable from those in cases where the Authority has concluded that interviews were subject to the Brookhaven safeguards. For example, in Brookhaven, bargaining unit employees were interviewed by agency representatives in preparation for: (1) a pending unfair labor practice case initiated by the union; and (2) an upcoming arbitration hearing conducted pursuant to the parties' collective bargaining agreement. 9 FLRA at 930-31. In National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio, 22 FLRA 1037 (1986), an employee was interrogated about an affidavit provided by the employee in her capacity as a union representative in a court proceeding. In F.E. Warren Air Force Base, a bargaining unit employee was interviewed by an agency representative in preparation for an upcoming unfair labor practice hearing. 31 FLRA at 541-42. In U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York, 38 FLRA 1552, 1558-60 (1991), the Authority found that the agency had failed to satisfy Brookhaven requirements when union officials were required to participate in an interview in preparation for a scheduled hearing in an unfair labor practice case relating to a charge filed by a union. In yet another case, the Authority found that an agency had violated the Statute by failing to apply Brookhaven safeguards when its representative conducted a telephone interview with a bargaining unit employee in preparation for an MSPB proceeding in an appeal in which a bargaining unit employee was being represented by a union representative. Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370, 1382-85 (1991), enf'd, 16 F.3d 1526 (9th Cir. 1994). In each of these cases, a nexus existed between the interviews conducted and activity protected under section 7102.
C. Summary
In sum, we conclude that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to afford the Union the opportunity to be represented at formal discussions between bargaining unit employees and a representative of the Agency that concerned general conditions of employment. However, we find that the Respondent did not violate section 7116(a)(1) by subjecting bargaining unit employees to coercive questioning and we dismiss that portion of the consolidated complaint.
VI. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the General Services Administration shall:
1. Cease and desist from:
(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by National Federation of Federal Employees, Local 1800 (the Union), concerning general conditions of employment without affording the Union prior notice of and the opportunity to be represented at the formal discussion.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Post at its facilities in Washington, D.C., where bargaining unit employees represented by the Union are located, 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 Administrator of the General Services Administration, and shall be posted and maintained 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 insure that such 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, Washington Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
The allegation in the consolidated complaint that the Respondent subjected bargaining unit employees to coercive questioning is dismissed.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT conduct formal discussions with our employees in the bargaining unit exclusively represented by the National Federation of Federal Employees, Local 1800 (the Union) concerning any general condition of employment without affording the Union prior notice and an opportunity to be represented at the formal discussion.
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 Federal Service Labor-Management Relations Statute.
______________________________
(Agency)
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 any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Washington Region, 1255 22nd Street, N.W., Suite 400, Washington, D.C. 20037-1206, and whose telephone number is: (202) 653-8500.
OFFICE OF ADMINISTRATIVE LAW JUDGES
GENERAL SERVICES ADMINISTRATION
Respondent
and
BOBBIE J. BRUNNING
Charging Party/Individual
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1800
Charging Party/Union
Case No. WA-CA-30005
WA-CA-30153
Sharon J. Pomeranz, Esquire
Renn C. Fowler, Esquire
On Brief
For the Respondent
Laurence M. Evans, Esquire
For the General Counsel
Peter B. Broida, Esquire
For Bobbie J. Brunning
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. § 7101, et seq. (1) , and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns: (a) whether Respondent, in violation of §§ 16(a)(1) and (8) of the Statute, conducted formal discussions, without giving the exclusive representative notice and an opportunity to be represented, by interviewing bargaining unit employees in preparation for MSPB depositions; and (b) whether Respondent, in violation of § 16(a)(1) of the Statute, interviewed bargaining unit employees without giving them the so-called "Brookhaven" warnings.
This case was initiated by a charge filed by Mr. Brunning on October 1, 1992, in Case No. WA-CA-30005, and the same charge was filed by National Federation of Federal Employees, Local 1800, on December 1, 1992, in Case No. WA-CA-30153. Each charge alleged violations of §§ 16(a)(1) and (8) of the Statute. The Consolidated Complaint and Notice of Hearing issued on December 29, 1992, for a hearing in Washington, D.C., on a date to be determined. By Order dated April 16, 1993, the date of the hearing was fixed for May 6, 1993, and by Order dated April 28,1993, on motion of Respondent, for good cause shown, the hearing was rescheduled for May 26, 1993, pursuant to which a hearing was duly held in Washington, D.C. on May 26, 1993, 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 each party waived. At the conclusion of the hearing, June 28, 1993, was fixed as the date for mailing post-hearing briefs and each party timely mailed an excellent brief, received on, or before, June 29, 1993, which have been carefully considered. Upon the basis of the entire record, I make the following findings and conclusions:
Findings
The National Federation of Federal Employees, Local 1800 (hereinafter, "Union") is the exclusive representative of a unit of Respondent General Services Administration employees appropriate for collective bargaining. From April 12, 1987, Mr. Bobbie L. Brunning had been Space Alterations Manager of Respondent's West Alterations Work Group. By letter dated May 18, 1992, Respondent gave Mr. Brunning notice that it proposed to separate him from the Federal service (Ag. Exh. 1) and subsequently, on August 14, 1992, did remove him (Tr. 82). On, or about, September 1, 1992, Mr. Broida, on behalf of Mr. Brunning, filed an appeal with the Merit Systems Protection Board, Brunning v. General Services Administration, Docket No. DC0752920681-I-1 (Tr. 73), and by letter dated September 2, 1992, served Respondent with interrogatories, document requests and a notice of depositions of fifteen employees on September 22 and 25, 1992 (Ag. Exh. 2; Tr. 73-74).
R. Christina Ross, Assistant Regional Counsel for Respondent's National Capital Region (Tr. 60), was assigned to represent Respondent in the Brunning removal case (Ag. Exh. 2; Tr. 74) and, to prepare for the depositions scheduled by Mr. Broida, Ms. Ross asked Management Support to set up interviews on three days with the non-supervisory employees Mr. Broida was to depose (Tr. 75, 81), allowing 45 minutes to an hour for each interview (Tr. 74). Accordingly, Mr. Frank Wallace, Acting Space Alterations Manager, on September 10, 1992, issued a memorandum to each of eleven employees to meet with Ms. Ross on a date (September 16, 17 or 18) and at a time shown. Each memorandum stated, "The meeting is manda-tory . . .". (G.C. Exhs. 2A-2K). Sometime immediately before the September 10, 1992, memoranda were issued, Ms. Ross met with all employees of the West Alterations Work Group in a group meeting to tell them that she was an attorney for Respondent and that there would be interviews concerning the Brunning case (Tr. 20, 39, 47).
Ms. Ross conducted the interviews, on September 16, 17 and 18, either in her office or in a conference room (Tr. 20, 29, 47, 48); Ms. Floretta Grant objected to being interviewed, because she had a pending EEO complaint against Respondent, until she talked to a representative or counsel (Tr. 77) and she was not interviewed; Mr. Richard Lee Sampson asked to tape-record, on his personal recorder, his interview, and Ms. Ross gave him permission to do so (Tr. 78-79). At the beginning of each interview, Ms. Ross asked if the individual would mind if she tape-recorded the interview; none had any objection (2) ; she tape-recorded each interview; and, later, a transcriber, a temporary clerk (Tr. 61), made a non-verbatim transcription of the interviews (Tr. 61, 84) for Ms. Ross' personal use (Tr. 84). Also at the beginning of each interview, Ms. Ross explained the deposition process; that it would be held at Mr. Broida's offices; that a court reporter would be present to record the deposition; that they would be placed under oath; that Mr. Broida would question them concerning Mr. Brunning and their prior EEO affidavits; and that after Mr. Broida had completed his questions, she, Ms. Ross, would have the opportunity to ask questions inasmuch as they, as federal employees, would be represented by Respondent in the depositions unless there was a conflict of interest, as in the case of Ms. Floretta Grant and Ms. Janet Jones who had EEO cases pending against Respondent (Tr. 75-76).
The interview with Ms. Michelle Coleman lasted about 40 minutes (Tr. 40); the interview with Mr. Richard Lee Sampson lasted 30 to 45 minutes (Tr. 32); and the interview with Mr. Robert Joseph Kellerman lasted about an hour and a half (Tr. 48). Although Ms. Ross did not have prepared questions (Tr. 75), in a practical manner she did follow a set format as she questioned each employee using the prior EEO report of the Brunning matter prepared by GSA contract investigator, Mr. Lonnie C. King, and the affidavit of each employee attached to the report (Tr. 23, 41-42, 75, 86, 99-100). Ms. Ross questioned employees about a number of topics, including sexual harassment in the office, whether jokes of a sexual nature were told in the office and by whom; and about the use and misuse of GSA cars (Tr. 23-29, 42, 50, 51). As noted above, each memorandum stated that the meeting with Ms. Ross was mandatory (G.C. Exhs. 2A-2K); Ms. Coleman testified that she was never told that her participation in the interview was voluntary and it was her impression that if she had wanted to leave it would not have been appropriate (Tr. 41); Mr. Kellerman told Ms. Ross he did not want to get involved in the Brunning case (Tr. 93); nevertheless, she did not tell Mr. Kellerman that his participation in the interview was voluntary (Tr. 49); and Mr. Sampson testified that Ms. Ross did not tell him, in so many words, that his participation in the interview was voluntary (Tr. 22) and it was his "sense" that he could not have got up and left "without retribution" (Tr. 22).
Conclusions
A. Respondent Failed to Give Union Notice of Formal Discussion
For reasons well stated by General Counsel (General Counsel's Brief, pp. 6-7) and by Counsel for Mr. Brunning (Broida Brief, pp. 2-3), there is no doubt whatever that Respondent's interviews met all tests for formality as set forth by the Authority in Department of Health and Human Services, Social Security Administration, San Francisco, California, 10 FLRA 115, 118 (1982). Thus, the record shows that Ms. Ross, who conducted the interviews, was no first line supervisor but was an Assistant Regional Counsel of Respondent; that the interviews were conducted one-on-one, away from the employees' work site, in Ms. Ross' office or conference room; that each interview lasted about 45 minutes to an hour; that the interviews were scheduled by Respondent in advance and attendance was mandatory; that the interviews had a formal agenda of explaining the up-coming deposition procedure, of tracking a prior EEO report and the previous affidavit of each employee, of inquiring of the use and misuse of GSA cars, and of questioning about sexual harassment in the office; that each interview was tape-recorded, and later transcribed, with the identity of each employee fully noted.
Respondent does not question that the interviews met the indicia of formality, but, rather, asserts that the interviews were not formal discussions because the interviews did not concern a grievance, "Mr. Brunning's MSPB appeal was not a grievance . . . he was a manager." (Respondent's Brief, p. 3) and did not concern general conditions of employment, i.e., that, ". . . Ms. Ross asked case specific questions directly focused on the charges against Mr. Brunning. . . . Ms. Ross' questions related solely to Mr. Brunning's MSPB appeal. . . ." (Respondent's Brief, p. 4) and "The General Counsel's attempt . . . to broaden the scope of section 7114(a)(2)(A) to include an agency's preparation for the MSPB appeal of a manager is contrary to the purpose and intent of the Statute." (Respondent's Brief, p. 5). I do not agree with Respondnet's contentions.
It is true that Mr. Brunning was a manager; but as well stated by Counsel for Mr. Brunning,
". . . 5 USC 7114 provides employees and the union protection with respect to formal discussions between agency representatives and unit employees concerning 'any grievance or any personnel policy or practices or other general condition of employment'. Whether or not the D.C. Circuit might consider Mr. Brunning's appeal to the Merit Systems Protection Board to be a 'grievance,' the language of the statute is disjunctive. If the agency engages unit employees in formal discussions over personnel policies or practices or other general conditions of employment, and does so without benefit of the protections established by the Authority, the agency commits an unfair labor practice . . . The questioning by Ms. Ross . . . involved use by unit employees of government vehicles, and it involved the general atmosphere and interplay of unit employees within the workplace. Personnel practices, policies, and general conditions of employment were the essence of her interview . . ." (Broida's Brief, p. 3).
In, U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), the Authority held that an oral reply meeting did not concern a "grievance" within the meaning of § 14(a)(2)(A). But there, the Authority stated that, ". . . the format of the meeting contemplated a wholly passive role for the agency" and further noted that,
". . . the oral reply is a personal right of the employee under 5 U.S.C. § 7513(b), and under that section the employee has a statutory right to 'be represented by an attorney or other representative[.]' The employee elected to make an oral reply and elected to choose an attorney to represent him. . . . In these circumstances . . . we can find no statutory purpose that would be served by requiring that the Union be given an opportunity to be represented . . ." (29 FLRA at 592-593).
Of course, in examining witnesses the agency is the active, moving party; Ms. Ross, in this case, questioned employees about conditions of employment; and the interview of witnesses is a formal discussion, within the meaning of § 14(a)(2)(A) of the Statute, whether in preparation for a union-initiated arbitration hearing, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987); conducted by the agency's EEO Director, National Labor Relations Board, 46 FLRA 107 (1992); by telephone of MSPB witnesses, Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370 (1991), enf'd, sub nom., The Department of Veterans Affairs Medical Center, Long Beach, California v. FLRA, et al., ___ F.3d ___, Nos. 91-70640, 91-70712 (9th Cir. February 25, 1994); or at the taking of depositions in preparation for MSPB hearings, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 47 FLRA 170 (1993). Because Respondent, in violation of § 14(a)(2)(A), failed and refused to give the Union notice and an opportunity to be represented at its questioning of unit employees in preparation for the taking of their depositions for a MSPB hearing, Respondent violated § 16(a)(1) and (8) of the Statute.
B. Interviews Were Coercive
The employees were informed in their notices to meet with Ms. Ross that the meeting was mandatory; the Union was not given notice of the interviews; the interviews were conducted one-on-one in Ms. Ross' office or conference room, with a tape recorder running; and the employees were not told that their participation in the interview was voluntary and that there would be no reprisal if he or she chose to leave.
The Authority holds that,
Under its Brookhaven doctrine, the Authority requires that when management interviews employees "to ascertain necessary facts" in preparation for third-party proceedings, it must provide certain safeguards to protect employee rights under section 7102 of the Statute. 9 FLRA at 933. In Brookhaven, the Authority articulated those safeguards as follows: (1) management must inform the employee who is to be questioned of the purpose of the questioning, assure the employee that no reprisal will take place if he or she refuses, and obtain the employee's participation on a voluntary basis; (2) the questioning must occur in a context which is not coercive in nature; and (3) the questions must not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with the employee's statutory rights. Id. In F.E. Warren, the Authority concluded that the Brookhaven assurances need not be applied on a per se basis. Rather, the Authority will examine the circumstances of each case to determine whether employee participation was voluntary. 31 FLRA at 549. See also U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 36 FLRA 748, 770 (1990)." Veterans Administration Medical Center, Long Beach, California, supra. (41 FLRA at 1382-1383).
Accordingly, Respondent further violated § 16(a)(1) of the Statute by conducting coercive interviews of bargaining unit employees in preparation for their depositions in a MSPB case. (3)
Having found that Respondent violated §§ 16(a)(1) and (8) of the Statute, it is recommended that the Authority adopt the following:
ORDER
Pursuant to § 18 of the Statute, 5 U.S.C. § 7118, and § 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.29, the Authority hereby orders that General Services Administration, Washington, D.C., shall:
1. Cease and desist from:
(a) Conducting formal discussions with its employees in the bargaining unit exclusively represented by National Federation of Federal Employees, Local 1800 (hereinafter, "Union"), concerning grievances or any personnel policies or practices or other general conditions of employment, including interviews in preparation for depositions in Merit Systems Protection Board proceedings, without first affording the Union prior notice and the opportunity to be represented at such formal discussions.
(b) Coercively questioning its employees concerning matters known to be at issue in scheduled third-party proceedings.
(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Post(4) at its facilities in Washington, D.C., where bargaining unit employees represented by the Union are located, 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 Administrator of the General Services Administration, and shall be posted and maintained 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 insure that such 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, Washington Region, Federal Labor Relations Authority, 1255 22nd Street, NW, Suite 400, Washington, DC 20037-1206, 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
Issued: April 21, 1994
Washington, DC
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT conduct formal discussions with employees in the bargaining unit exclusively represented by National Federation of Federal Employees, Local 1800, concerning grievances or any personnel policies or practices or other general conditions of employment, including interviews in preparation for deposi-tions in Merit Systems Protection Board proceedings, without first giving the Union prior notice and the opportunity to be represented at such formal discussions.
WE WILL NOT coercively question our employees concerning matters known to be at issue in scheduled third-party proceedings.
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 Federal Service Labor-Management Relations Statute.
_____________________
(Activity)
Date: _____________ 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 any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Washington Region, 1255 22nd Street, NW, Suite 400, Washington, DC 20037-1206, and whose telephone number is: (202) 653-8500.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Both employees who are represented by the American Federation of Government Employees and employees who are represented by the National Federation of Federal Employees were summoned to interviews with Ross. However, the allegations in the consolidated complaint in this case are limited to Respondent's actions with respect to the employees in the bargaining unit represented by the National Federation of Federal Employees.
2. The Respondent does not contest the Judge's findings that the meetings conducted by Ross with bargaining unit employees met the elements set forth in section 7114(a)(2)(A) of the Statute insofar as they were discussions that were formal between a representative of the Agency and employees in the bargaining unit.
3. Consideration of the intent and purpose of section 7114(a)(2)(A) does not constitute a separate element in the analytical framework. Rather, it is only a guiding principle that informs our judgments in applying the statutory criteria. To the extent that some Authority precedent sets forth that consideration as an independent element of the analytical framework, that precedent will no longer be followed. See, for example, U.S. Department of Defense, Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 37 FLRA 952, 961-62 (1990) (Defense Depot Tracy).
ADMINISTRATIVE LAW JUDGES FOOTNOTES:
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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 7114(a)(2)(A) will be referred to, simply, as, "§ 14(a)(2)(A)."
2. Had any employee objected, Ms. Ross stated that she would not have recorded the interview and would merely have made notes (Tr. 78).
3. In Veterans Administration Medical Center, Long Beach, California, supra, the history of § 14(a)(2)(A) and the treatment of the interview of witnesses in preparation for an adversarial hearing was reviewed in part as follows:
"Under substantially identical language of the Executive Order7/ the Assistant Secretary had held
"
/ Section 10(e) of Executive Order 11491, as amended. . . .7
"that the interview of bargaining unit witnesses in preparation for an adversarial hearing were formal discussions. United States Air Force, McClellan Air Force Base, California, 7 A/SLMR No. 830, 7 A/SLMR 351 (1977); Internal Revenue Service, South Carolina District, A/SLMR No. 1172, 8 A/SLMR 1370 (1978). There was dissatisfaction with the Assistant Secretary's conclusion for a variety of reasons, including contentions similar to those advanced by Respondent in this case, but in essence that proper investigation and gathering of facts in preparation for the hearing demanded the interview of witnesses. As the Court of Appeals for the District of Columbia has stated, "When an employer interviews an adverse witness rather than his own or even a neutral witness, common sense suggests that the situation carries a greater potential for intimidation or coercion." National Treasury Employees Union v. FLRA, 774 F.2d 1181, 1192 (D.C. Cir. 1985). Sharing fully the view later stated by the Court of Appeals, the National Labor Relations Board in 1964 had established safeguards to eliminate the possibility of coercive interrogation. Johnnie's Poultry Co., 146 NLRB 770, 55 LRRM 1403 (1964). The Authority, in Internal Revenue Service and Brookhaven Service Center, (Brookhaven), 9 FLRA 930 (1982), held that the interview of bargaining unit witnesses was not a formal discussion.
. . .
"Although the Authority neither mentioned nor cited Johnnie's Poultry supra, it did, nevertheless, impose the Johnnie's Poultry safeguards.
"Brookhaven, supra, while different from the McClellan - South Carolina District, supra, position of the Assistant Secretary, was an attempt to reconcile the requirement of § 14(a)(2)(A) with the need for adequate and proper trial preparation. Brookhaven was, of course, applied and followed; however Bureau of Governmental Financial Operations, Headquarters, 13 FLRA 27 (1983), 15 FLRA 423 (1984) which had followed Brookhaven, supra, was reversed and remanded, sub nom. National Treasury Employees Union v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), on remand, 21 FLRA 512 (1986).
. . .
"Whether the Authority might have reevaluated the decisions of the Assistant Secretary and arrived at a different conclusion, it did not; but, to the contrary, the Authority has concluded that the interview of bargaining unit employees is a formal discussion within the meaning of § 14(a)(2)(A), if the elements of that subsection are found to exist. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987); Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyoming, 31 FLRA 541 (1988). (41 FLRA at 1395-1397)
Because it appeared to me that Johnnie's Poultry/Brookhaven statements are not warranted if the interview of witnesses are formal discussions, I stated:
"Prior to Brookhaven, supra, employers could not interview bargaining unit employees without affording the union an opportunity to be present. In Brookhaven, supra, the Authority, in effect, held that the employer could interview bargaining unit employees in preparation for a hearing, i.e., without having to comply with § 14(a)(2)(A), provided, it was voluntary which was to be assured by giving and observing the Johnnie's Poultry, supra, safeguards. This was both necessary, to minimize the potential for intimidation or coercion, and proper, because it was the quid pro quo for exemption from 14(a)(2)(A). But when exemption from 14(a)(2)(A) is removed there is neither reason for the Johnnie's Poultry safeguards nor justification for them. Federal employees may not refuse to answer work-related questions so that an interview, pursuant to § 14(a)(2)(A), is not voluntary and the employee may be compelled to answer. The employee can be discharged for refusing to answer if he is adequately informed: (a) that he is subject to discharge for not answering; and (b) that his replies, and their fruits, can not be used against him in a criminal case. Gardner v. Broderick, 392 U.S. 273, 278 (1968); Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 283, 284, 285 (1968); Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation (Uniformed Sanitation Men II), 426 F.2d 619 (2d Cir. 1970), cert. denied, 406 U.S. 96 (1972); Kalkines v. The United States, 473 F.2d 1391, 1393 (Ct. Cl. 1973); Navy Public Works Center, Pearl Harbor, Hawaii v. FLRA (678 F.2d 9th Cir. 1982); Weston v. Department of Housing and Urban Development, 14 MSPR 321, 324 (1983); Gootee v. Veterans Administration, 36 MSPR 526 (1988); National Treasury Employees Union, 9 FLRA 983, 986 (1982)." (41 FLRA at 1403)
The Authority disagreed (41 FLRA at 1383-1384) and the Ninth Circuit agreed with the Authority. There is language, both in the Authority's decision and in the Court's decision, that suggests that an attorney's interview of witnesses who have been interviewed previously is not part of the investigation. Thus, the Authority stated,
". . . we agree . . . that employees have a duty to account for their performance and conduct in disciplinary investigations . . . This case does not involve an investigation of misconduct, however. Rather, the Respondent's attorney was interviewing . . . about a matter that had already been fully investigated and was about to be heard by the MSPB. . . ." (41 FLRA at 1384)
The Court stated,
". . . The Hospital suggests that because employees are required to 'testify' they must provide answers to questions asked by investigators at any time during the course of an investigation. We need not consider whether that argument is correct because, as the FLRA noted, by the time Geffner asked to interview Smith the Hospital's investigation was complete. In seeking to question Smith, the Hospital was not conducting an investigation but preparing for a third-party hearing. . . ." (Slip opinion, pp. 1970-1971)
My experience has been that the interview of witnesses is, almost without exception, very much an investigation for myriad reasons, not the least of which are: that the attorney's view of the case is different than the investigator's and necessitates development of facts either not covered in earlier interviews or inadequately developed; that the attorney has additional information which requires further exploration with the witnesses, etc. Indeed, I strongly believe that the high number of settlements of FLRA cases after trial counsel has entered the picture is due to the fact that trial counsel's evaluation of the cases is different.
Certainly, a § 16(a)(1) violation could be bottomed on the coercive nature of an interview where notice of the interview, pursuant to § 14(a)(2)(A), is not given. Nevertheless, with all deference to the Authority and to the Ninth Circuit Court of Appeals, I adhere to the view that imposition of Brookhaven/Johnnie's Poultry statements that the interview is voluntary is improper. To the contrary, that only a Kalkines type of warning is appropriate.
4. General Counsel has sought an "appropriate cease and desist Order and a Notice signed by the Administrator of the General Services Administration" (General Counsel's Brief, pp. 9-10). This remedy will be granted.
Counsel for Charging Party, Bobbie Brunning, seeks, in addition to posting: (a) that the notice be mailed to employees at their residences; and (b) that "the Authority should notify the Merit Systems Protection Board of its findings with respect to coerced testimony and request that the Board consider as an element of its decisional process in the case brought by GSA against Mr. Brunning and . . . whether the Board should reopen its proceedings and strike agency evidence offered through witnesses whose interviews were coerced in violation of the Statute." (Broida Brief, p. 3). Both requests are denied. As to mailing of the notice, there is no reason shown, or suggested, that posting would not afford full notice to employees and, unlike the absence of teachers during summer vacation, Department of the Army, Fort Bragg Schools, 3 FLRA 364, 367 (1980), Respondent's employees will be present and posting will effectuate the purposes and policies of the Statute. As to the latter request, it would be wholly inappropriate that the Authority attempt to inject itself into the decisional process of the MSPB. Moreover, such evidence as Respondent offered was testimony taken pursuant to MSPB's deposition rules and there is no contention in this case that § 14(a)(2)(A) was violated in any manner in the deposition process.