15:0360(78)CA - Treasury, IRS and NTEU -- 1984 FLRAdec CA
[ v15 p360 ]
15:0360(78)CA
The decision of the Authority follows:
15 FLRA No. 78
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE,
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No. 3-CA-20285
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party filed exceptions to the Judge's Decision and the
Respondent filed an opposition to the Charging Party's exceptions. The
Respondent filed cross-exceptions and the Charging Party filed an
opposition to the Respondent's cross-exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority adopts the Judge's
findings, conclusions and recommended order to the extent consistent
herewith.
The complaint alleges that the Department of the Treasury, Internal
Revenue Service (the Respondent) violated section 7116(a)(1) and (8) of
the Statute /1/ by failing to grant a request by an employee, Tatum, for
representation by the National Treasury Employees Union (the Union) as
required by section 7114(a)(2)(B) of the Statute /2/ during a meeting
with two inspectors concerning Tatum's threats against other employees.
In agreement with the Judge, the Authority concludes that the meeting at
issue was not an "examination" of Tatum within the meaning of section
7114(a)(2)(B) of the Statute. Thus, as found by the Judge, the meeting
was to warn Tatum about threats he had made. Management found the
warning necessary to protect other unit personnel while action was going
forward to discipline or remove Tatum. As further found by the Judge,
it was not designed "to ask questions, elicit additional information,
have the employee admit his alleged wrongdoing, or explain his conduct."
Thus, Tatum was told before the meeting that the purpose was "to talk to
him for about two minutes . . . to warn him about threats," and at the
start of the meeting he was again told that the purpose of the meeting
was to advise him he had committed a crime by making threats and to warn
him about making threats. Further, it is noted that when Tatum began to
respond to the warning, he was advised not to say anything but that he
should just listen and acknowledge that he understood what was being
said. In all the circumstances, the Authority finds that there was no
"examination" and that the complaint must be dismissed. /3/
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20285 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
David E. Pryor, Esquire
For the Respondent
Patricia Armstrong, Esquire
For the Charging Party
Patricia Eanet Dratch, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region III, Federal Labor Relations Authority,
Washington, D.C. against the Department of the Treasury, Internal
Revenue Service (the Respondent). The complaint alleged, in substance,
that Respondent violated section 7116(a)(1) and (8) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the
Statute), by failing to comply with section 7114(a)(2)(B) when employee
Craig Tatum requested to be represented by the Union during a
conversation he had with two inspectors concerning threats he had
allegedly made against fellow employees. Respondent's answer admitted
to the meeting at which Tatum requested to be represented by the Union,
but denied that a conversation occurred or that Respondent had violated
the Statute.
A hearing was held in this matter in Washington, D.C. The
Respondent, Charging Party, and the General Counsel, FLRA were
represented by counsel and afforded full opportunity to be heard, adduce
relevant evidence, examine and cross-examine witnesses, and file
post-hearing briefs. Based on the entire record herein, including my
observation of the witnesses and their demeanor, the exhibits, other
relevant evidence adduced at the hearing, and the briefs filed by the
Respondent and the Charging Party, I make the following findings of
fact, conclusions of law, and recommendations.
Findings of Fact
Craig Tatum was employed as a clerk-typist for Respondent for
approximately three years until April 19, 1982 (Tr. 9). He was a member
of an appropriate unit of Respondent's employees represented exclusively
by the National Treasury Employees Union. When Tatum was initially
employed by Respondent, a background investigation conducted by
Respondent disclosed that he had falsified a portion of his employment
application. Tatum was interviewed concerning this matter by inspectors
of Respondent's Internal Security Division, IRS Inspection Service, /4/
and disciplinary action involving a suspension for a period of time was
subsequently taken against him. (Tr. 11, 15, 119-120).
Beginning in September 1981, the Employee Plans Technical Branch,
which assists management in areas of disciplinary action and labor
relations, began receiving complaints about Tatum's behavior. (Tr. 106,
116-117). A file was established concerning these complaints. (Tr.
118).
The Internal Security Division also began receiving reports about
Tatum's behavior in September 1981. He had reportedly torn some
curtains down. Secretaries in his office also reportedly felt
threatened on one or two occasions. (Tr. 79-80).
Tatum's supervisor, Charles Logan, had reprimanded Tatum for his
conduct. Logan advised Tatum in a series of memoranda that, if he
continued to disrupt the office, it could result in more severe
disciplinary action. (Tr. 16, 42).
In early November 1981, Logan telephoned Inspector C. A. Barg of the
Internal Security Division. Logan advised Inspector Barg that Tatum had
caused office disruptions and verbally abused or threatened Logan and
other employees in a series of incidents. Logan also remarked that
Tatum had recently been treated in a mental hospital. Logan stated that
the office incidents warranted attention by Internal Security, although
he knew that personnel was taking some action against Tatum. Inspector
Barg stated he would contact personnel to ascertain the status of such
action, but so long as Tatum's actions involved no destruction of
government property or bodily injury, Internal Security would not
intervene in the matter. (Tr. 33-34, 43-44, 75; Respondent's Exh. 1).
On December 2, 1981, Grant Jones, a co-worker of Tatum, threw a
bottle of typewriter fluid into Tatum's trash basket. Tatum reacted
violently. He took up a fighting stance, accused Jones of narrowly
missing his head, and threatened Jones with bodily harm. Supervisor
Logan separated the two individuals, spent ten to fifteen minutes trying
to calm Tatum down, and, later on in the day, separately interviewed
both employees. (Tr. 34). Meanwhile, Jones submitted a memorandum to
the employees relations office concerning Tatum's threat. (Tr. 112).
Supervisor Logan subsequently contacted the employee relations office
and suggested that, in view of Tatum's constant abuse and disruption,
the latest incident should be reported to the Inspection Service. The
employee relations office agreed. The Internal Security Division,
Inspection Service was subsequently contacted by Logan and employee
relations personnel. It was decided that, since Logan had not been able
to stop Tatum's threats, Internal Security Division inspectors would
warn Tatum about making threats, in hopes of having the necessary effect
of stopping or curtailing such activity and protecting other employees.
It was agreed that no questions would be asked about the threats during
such warning. They determined that a warning of this nature would not
jeopardize other personnel action being taken against Tatum, since the
facts concerning such matters were already in management's possession.
(Tr. 34-35, 44-45, 61, 106-108, 113-115).
Although a record was being made of the contacts concerning the
threats by Tatum, the Internal Security Division did not open an
investigation of Tatum. The latest threat was not considered serious
enough to warrant criminal prosecution, since no physical assault or
bodily harm was involved, and the indication that Tatum had been treated
for mental instability also made prosecution unlikely. Internal
Security was also aware that management was taking personnel action
against Tatum. It preferred that management handle the problem in this
manner. (Tr. 52, 57, 75, 81, 85).
On December 8, 1981 two inspectors of the Internal Security Division,
Inspector C. A. Barg and Special Investigator Albert Anderson, arrived
in Mr. Tatum's work area. They advised supervisor Logan that they were
there to warn Tatum against making threats. Thereafter, they approached
Tatum at his desk. (Tr. 36). They identified themselves, and Inspector
Barg stated that they wanted to talk to him for about two minutes in
private to warn him about threats. /5/ Inspector Barg asked Tatum to go
with the inspectors to the back office or hallway. (Tr. 46, 89, 97).
Tatum said he did not want to leave and wanted to have his union
representative present. /6/ (Tr. 11, 22-23; General Counsel's Exhibit
1(i)).
At this point, Irving Porter, a tax law specialist who had a desk
next to Tatum's, intervened. Porter identified himself as the area vice
president of the Union. (Tr. 23). One of the inspectors told Porter
that it was not a Union matter. (Tr. 23, 30). Tatum said he was
calling his Union representative, and he placed a call to Joseph
Bothwell, the Union's chief steward. (Tr. 12, 30, 46, 90). Porter
remarked to the inspectors that Tatum "wants a representative and he has
the right to have a steward present." (Tr. 30). After Tatum indicated
that he was unable to reach the chief steward, Inspector Barg again
asked to talk to him in private in the back office or hallway. (Tr.
46). Porter advised Tatum not to go anywhere or say anything. (Tr.
90). Obviously irritated at the continuing intrusions of Porter, one of
the inspectors then showed Porter his badge, asked him for his name,
room, and telephone number, and indicated that he should not interfere
in the matter. When Tatum still refused to accompany the inspectors,
the inspectors requested Logan to order Porter and the other two
employees to leave the area for a break. (Tr. 24, 36, 90). Before
Porter left the area, he advised Tatum not to answer any questions and
stated that he would be back with a Union representative. (Tr. 13, 37).
At no time did Tatum specifically request Porter to represent him, nor
did Porter specifically request to stay and act as Tatum's
representative. (Tr. 91).
After all the other employees left the office, Inspector Barg advised
Tatum that the inspectors were there at the direction of their
supervisor and the U.S. Attorney's Office to talk to him for about two
minutes to advise him that he had committed a crime under Title 18,
United States Code, by making a threat toward an IRS employee, and to
warn him about making threats. Tatum stood up, yelled, cursed, and
demanded to know whom he had threatened, when, and whether the
inspectors were referring to Jones. (Tr. 47-48, 64, 72-73, 102-103).
Inspector Barg replied that they were referring to any threat he had
made; that he had threatened numerous IRS employees in the past;
specifically Mr. Logan, who was worried for his personal safety; and
that's why they were there to advise him. (Tr. 64, 102). Tatum replied
that he had threatened Grant Jones because Jones had thrown something at
him. Tatum also said that Logan was harrasing him because of typing
errors. (Tr. 64, Respondent's Exhibit 1). The inspectors advised Tatum
not to say anything; that, just as Porter had advised him, he should
not say anything; that he should just listen and acknowledge that he
understood what they were saying. (Tr. 51, 90-91).
Inspector Barg continued to advise Tatum that no matter who threw
what, it was still against the law; that he had committed a crime by
making a threat toward an IRS employee; that he could be arrested;
that they were there to warn him not to do it again; that, if he made
another threat or assault against an IRS employee, they would open an
investigation, and he could be arrested and subject to criminal
prosecution. (Tr. 47, 66, 73, 90, 100). The inspectors did not request
any information about the threats. (Tr. 51, 69-70, 93).
Tatum stated he had a complaint to make against supervisor Logan and
proceeded to make loud and abusive remarks concerning Logan. Inspector
Barg opened up his notebook at this point, but after listening awhile,
advised Tatum to consolidate his complaint into a written report and
forward it to them. No notes were taken during the meeting. (Tr. 49,
91-92, 95). The meeting with Tatum lasted about ten minutes. (Tr. 48).
As the meeting concluded, Porter returned with the acting Union steward
for the area. (Tr. 25).
The inspectors subsequently advised supervisor Logan and Ms.
Lehrkinder, labor relations specialist, that they had warned Tatum.
(Tr. 38, 109). Once the inspectors returned to their office, Inspector
Barg wrote a contact memorandum concerning the meeting. (Tr. 52). The
memorandum stated, in part, as follows:
On 12/8/81, Inspectors Barg and Anderson contacted Tatum and
informed him of the threat and assault statutes regarding IRS
employees. Tatum appeared to be excited and acted abnormal.
Tatum acknowledged that he threatened Jones, but stated Jones
threw something at him. Tatum also stated that he was harrassed
by his supervisor for his typing errors. (Respondent's Exhibit
1).
The memorandum was not disseminated outside the Internal Security
Division. (Tr. 54). The purpose of the memorandum was to maintain a
chronology of events in the reference file. If Tatum made another
threat, Internal Security would present the memorandum to the U.S.
Attorney showing that he had made a threat on a previous occasion and
had, in fact, acknowledged making a prior threat. The memorandum would
be a vital part of the background discussion with the U.S. Attorney
concerning criminal prosecution of any subsequent threat. (Tr. 59,
73-74).
Mr. Tatum was removed from his position on April 19, 1982. (Tr. 10).
One of the reasons given for his removal was the incident with Grant
Jones on December 2, 1981. (Tr. 114). No information from the December
8, 1981 meeting was considered in making the decision to remove Mr.
Tatum. (Tr. 109).
Discussion, Conclusions, and Recommendation
Section 7114(a)(2)(B) of the Statute provides:
An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at . . . any
examination of an employee in the unit by a representative of the
agency in connection with an investigation if (i) the employee
reasonably believes that the examination may result in
disciplinary action against the employee; and (ii) the employee
requests representation.
Thus, for union representation to be applicable to a meeting, /7/
there must be (1) an examination, (2) of an employee in the unit, (3) by
a representative of the agency, (4) in connection with an investigation,
(5) the employee reasonably believes that the examination may result in
disciplinary action against the employee, and (6) the employee requests
representation.
Starting with the last element first, it has been found above that
the employee requested representation.
The penultimate element is whether the employee reasonably believed
that the examination may result in disciplinary action against him.
Tatum had previously been warned, in effect, that the next incident of
misconduct would bring severe disciplinary action. He had engaged in
such alleged misconduct. Now he was confronted by two inspectors from
the Inspection Service. He knew from personal experience that the
Inspection Service investigated employee misconduct. He also knew from
personal experience that disciplinary action could result or follow from
an investigative interview by the Inspection Service. I conclude that
Tatum reasonably believed that his meeting with the two inspectors might
result in disciplinary action against him. However, in the absence of a
finding that the meeting, etc., is an examination in connection with an
investigation, the fact that the employee might fear discipline is of no
import. /8/ Absent such an examination, the protective role of a union
representative, which is to attempt to clarify the facts, suggest other
employees who may have knowledge of them, and make sure the employer
does not initiate or impose punishment unjustly, /9/ is inapplicable.
The next element is whether the meeting was "in connection with an
investigation" to determine whether or not disciplinary action was
warranted. Here the inspectors themselves were not investigating
whether Tatum should be disciplined for his misconduct. This was being
determined by the personnel office. The Inspection Service had already
ruled out prosecution. However, their meeting with Tatum was,
nevertheless, a part of an agreed upon agency approach to the
misconduct. The inspectors were to try to stop any further misconduct
by issuing a warning to Tatum, while, at the same time, the personnel
office would continue to process the agency's disciplinary action.
Under all the circumstances, I find that the meeting was "in connection
with an investigation" to determine whether disciplinary action was
warranted.
There is now no dispute as to the next element, that the inspectors
were "representative(s) of the agency" within the meaning of section
7114(a)(2)(B). /10/
The last, and most critical element being considered here in reverse
order, is whether the meeting was "an examination." An employee who is
advised that he has committed a crime, and warned that he will be
prosecuted for any further threat, could reasonably be expected to
respond by making statements denying, admitting, or explaining his
actions, just as the employee did here. It is reasonable in such
circumstances to envision a discussion of an employee's conduct which
could lead to discipline. Therefore, it has been held that, in such
circumstances, the employee's right to union representation attaches.
/11/ I would find that principle applicable here if the record also
showed that the warning procedure was designed and used by the agency as
part of an investigative effort to obtain information which could lead
to discipline, or was otherwise an "examination." A preponderance of the
evidence, however, does not show this.
While personnel action was going forward to discipline or remove
Tatum, some action was believed to be necessary in the interim to
protect other unit personnel. Therefore, it was decided to have the
Inspection Service issue Tatum a warning-- to inform him plainly and in
the strongest possible terms that another threat on his part would bring
the swift reprisal of a criminal investigation and possible prosecution.
This meeting was designed to issue a warning, and not to ask questions,
elicit additional information, have the employee admit his alleged
wrongdoing, or explain his conduct. This is unlike the usual concept of
an examination, which is an orderly attempt to obtain information by
asking questions or otherwise attempting to gain or elicit responses
from an employee. /12/
A meeting to issue a warning of this type was remedial rather than
investigatory in nature. It was more closely analogous to either a
counseling session /13/ or a meeting held for the sole purpose of
imposing discipline /14/ that to an examination. /15/ The fact that the
employee voluntarily responded to the explanation of the reasons for the
warning with an admission of one of the threats did not convert the
meeting to an examination. /16/ The nature and focus of the meeting did
not change. The inspectors adhered to the original design and purpose
of the meeting. Although the inspectors did subsequently make a note of
Tatum's admission in their files, the information was not provided to
the officials involved, or used in the subsequent disciplinary action.
Under all the circumstances, I conclude that no "examination" was
conducted. The record demonstrates that the warning was issued as part
of the agency's remedial and supervisory response to the employee's
conduct. It was issued to protect other employees until disciplinary
action could be taken. It was not part of an investigative effort
calculated to form a basis for taking disciplinary or other
job-affecting actions against the employee.
For the foregoing reasons, I conclude that the meeting in question
did not fall within the purview of section 7114(a)(2)(B) of the Statute
and that a preponderance of the evidence does not establish a violation
of section 7116(a)(1) and (8) as alleged. Based on the foregoing
findings and conclusions, I recommend that the Authority adopt the
following order:
ORDER
IT IS HEREBY ORDERED that the Complaint in Case No. 3-CA-20285 be,
and it hereby is, dismissed.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: July 21, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor
practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ Section 7114(a)(2)(B) provides:
Sec. 7114. Representation rights and duties
. . . .
(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/ See United States Air Force, 2750th Air Base Wing Headquarters,
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 10
FLRA 97 (1982).
/4/ The Internal Security Division, IRS Inspection Service is a
professional investigative service for all IRS offices. It investigates
charges of employee misconduct, including alleged threats, assaults,
embezzlement, and bribery, and alleged breaches of the employee
integrity regulations, the IRS Code of Conduct. (Tr. 87-88).
/5/ Tatum and a co-worker, Irving Porter, testified that the
inspectors said they wanted to ask Tatum some questions. Based on the
entire record, I credit the contrary testimony of the inspectors in this
respect.
/6/ The inspectors testified that Tatum did not specifically ask for
a representative. However, Respondent's answer admitted that Tatum
requested to be represented by the Union. Although the admission is
conclusive evidence, I also credit Tatum's testimony in this respect,
based on the entire record and, particularly, the ensuing events, and
find that he did request Union representation.
/7/ The titling of the meeting is irrelevant to whether statutory
rights attach. Federal Aviation Administration, St. Louis Tower,
Bridgeton, Missouri, 6 FLRA No. 116 (1981).
/8/ Internal Revenue Service and Internal Revenue Service, Detroit
District, 5-CA-719, 5-CA-729, OALJ-81-137, decision of Judge Burton S.
Sternburg (July 21, 1981).
/9/ NLRB v. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689, 2692-2693
(1975).
/10/ Internal Revenue Service, Washington, D.C. and Internal Revenue
Service, Hartford District Office, 4 FLRA No. 37 (1980), rev. denied;
enforcement granted, D.C. Cir. No. 80-2423 (Feb. 12, 1982).
/11/ Cf. Federal Aviation Administration, St. Louis Tower, Bridgeton,
Missouri, 6 FLRA No. 116, 6 FLRA 678 (1981).
/12/ Cf. Department of Treasury, Internal Revenue Service, 8 FLRA
No. 72, 8 FLRA 327 (1982).
/13/ See, e.g., Internal Revenue Service, Detroit, Michigan, 5 FLRA
No. 53 (1981); U.S. Department of the Treasury, Internal Revenue
Service, 8 FLRA No. 72 (1982); Library of Congress, Case No. 3-CA-741,
OALJ-82-96, decision of Judge Samuel A. Chaitovitz (June 21, 1982).
Contra Federal Aviation Administration, St. Louis Tower, Bridgeton,
Missouri, 6 FLRA No. 116 (1981).
/14/ See, e.g., United States Air Force, Wright-Patterson Air Force
Base, Ohio, 3-CA-736, 737, 738, 805, OALJ-81-135, decision of Judge
Isabelle R. Cappello, pp. 8-9 (July 15, 1981).
/15/ See, e.g., Internal Revenue Service, Washington, D.C. and
Internal Revenue Service, Hartford District Office, 4 FLRA No. 37
(1980), rev. denied; enforcement granted, D.C. Cir. No. 80-2423 (Feb.
12, 1982); U.S. Department of the Navy, U.S. Marine Corps, Marine Corps
Logistics Base, Albany, Georgia, 4 FLRA No. 54 (1980); U.S. Customs
Service, Region VII, Los Angeles, California, 5 FLRA No. 41 (1981);
Lackland Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA
No. 53 (1981).
/16/ Cf. United States Air Force, Wright-Patterson Air Force Base,
Ohio, Case No. 5-CA-715, OALJ-81-081, decision of Judge Alan W. Heifetz
(April 6, 1981) at pp. 9-11.