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31 FLRA No. 35

DEPARTMENT OF THE AIR FORCE
F.E. WARREN AIR FORCE BASE
CHEYENNE, WYOMING

                     Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2354

                     Charging Party

Case No. 7-CA-60398

DECISION AND ORDER

1. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the General Counsel, and an opposition to those exceptions filed by the Respondent. The issue is whether the Respondent violated section 7116(a)(1) of the Federal Service Labor - Management Relations Statute (the Statute) by failing to inform a unit employee that an interview in preparation for an unfair labor practice hearing was voluntary, and that no reprisal would take place if he refused to respond. We find, in agreement with the conclusion of the Judge, that the Respondent did not violate the Statute because the interview was voluntary and there was no threat or suggestion that there might be reprisals for refusing to respond. We find also that the interview constituted a formal discussion, and that the Respondent complied with its obligations under section 7114 (a) (2) (A) of the Statute. Therefore, we shall order that the complaint be dismissed.

II. Background

On or about January 8, 1986, an attorney for the Respondent interviewed unit employee Lars Story in preparation for an upcoming unfair labor practice hearing. The hearing had been scheduled pursuant to an unfair labor [PAGE] practice complaint which alleged that the Respondent, through the actions of unit employee Story, violated section 7116(a)(1) of the Statute. The complaint alleged that Story made certain statements to another unit employee which interfered with the employee's right to picket.

The interview took place in a private room in the civilian personnel office. The Union had been given notice of the meeting and the opportunity to be present. At the beginning of the interview, Story declined Respondent's offer to have a Union representative attend the interview. Story was not told that the interview was voluntary or that no reprisal would be taken if he refused to answer questions. Present at the interview were the Respondent's attorney, Major Beckenhauer; the Activity's chief of employee and labor relations and her assistant; and Story. ALJ at 4.

According to credited testimony, Major Beckenhauer informed Story of the purpose of the interview. Story said that he had nothing to tell Beckenhauer. Beckenhauer then told Story that he was concerned because the Respondent, through Story, was alleged to have made statements which interfered with employees' right to picket. Beckenhauer showed Story part of the unfair labor practice complaint. Thereafter, Story responded to the statements in Paragraph 22 of the Complaint. The Judge found that there was no threat or suggestion that there might be repercussions if Story refused to cooperate. ALT at 4,9.

III. Administrative Law Judge's Decision

The Judge concluded that the Respondent's failure to inform Story that the interview was voluntary and that no reprisals would take place if he declined to respond, did not violate section 7116(a)(1) of the Statute. The Judge recommended that the complaint be dismissed.

The Judge found that the Respondent had options to treat the interview of Story as (1) a fact-gathering interview subject to Brookhaven safeguards, (2) a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute, or (3) an examination in connection with an investigation within the meaning of section 7114(a)(2)(B). The Judge found that the Brookhaven decision did not "prohibit management, if it-desired, to forego the method permitted by Brookhaven, and treat the interview as a formal discussion; (or) . . . as an investigation." ALJ at 9. In [ v31 p2 ] the Judge's view, the Respondent complied with the various requirements of section 7114(a)(2), because it gave the Union notice and the opportunity to be present at the interview, and at the outset it gave Story the right to have a Union representative. 1 The Judge noted that compliance with the requirements of section 7114(a)(2) "does not insulate interference with protected rights(.)" Id. The Judge found, however, that "there was no interference with Mr. Story's protected rights," because "Respondent did not make any threat and did not coercively question Mr. Story." Id.

The Judge found that the Brookhaven warnings were not applicable to the questioning of Story because the Respondent "elected to treat the interview as a formal discussion . . . and/or an investigation(.)" Id.

The Judge also found, in the alternative, that Brookhaven was not applicable to the interview of Story because Story was acting as Respondent's 'agent, at the time of his earlier statements regarding picketing. Therefore, the Judge concluded that the interview of Story was "analogous to the interview of a bargaining unit employee concerning events which occurred during a period of time when [ v31 p3 ] the employee was an acting supervisor," and noted that such interview was not a formal discussion under Executive Order 11491, as amended. ALJ at 11. He reasoned that whether the unit employee was interviewed about events which occurred when the employee was an acting supervisor, or about events which occurred when the employee was an agent of management, a unit employee "is interviewed concerning activity removed from the bargaining unit(.)" ALJ at 11.

The Judge stated that in situations where Brookhaven would apply, it should be applied as a "per se rule, i.e., that the warning that the interview is voluntary and that no reprisal will be taken if the employee refuses to answer is mandatory when a bargaining unit employee is interviewed without conforming to the strictures of (71)14(a)(2)(A)." ALJ at 10.

IV. Positions of the Parties

A. General Counsel

The General Counsel excepted to the Judge's finding that the Respondent made no threat or suggestion to Story that there might be repercussions if he refused to cooperate in the interview. The General Counsel also excepted to the Judge's findings that the Respondent could elect to treat the interview either as a formal discussion or an examination, rather than a Brookhaven-type information-gathering interview. In addition, the General Counsel excepted to the Judge's alternative theory that Brookhaven did not apply to the interview of Story because the interview concerned events which occurred when Story was acting as the Respondent's agent.

B. Respondent

The Respondent filed an opposition to the General Counsel's exceptions. In addition, the Respondent filed cross-exceptions to the Judge's decision.

The Respondent agreed with the Judge's conclusion that the Brookhaven warnings did not apply to Story. The Respondent characterized as "untenable" the General Counsel's position that Story was not acting as an "agent" for the Respondent when he performed the acts which were the subject of the interview. The Respondent also argued that it had the right to interview Story without giving him the Brookhaven warnings. [ v31 p4 ]

The Respondent excepted to the Judge's statement that when applicable, the Brookhaven warnings should be applied on a per se basis. Rather, the Respondent argued that application of the warnings should depend on the "totality of the circumstances." The Respondent argued that the interview in these circumstances did not restrain or coerce Story's exercise of his protected rights. Also, it argued that a Federal employee has a duty to account to his employer for duty-related activities and that the Brookhaven safeguards conflict with this "duty to account."

V. Analysis and Conclusions

This case involves the interrelationship between Brookhaven warnings, formal discussions, and examinations in connection with investigations. The Judge found that the requirements applicable to formal discussions and examinations may substitute for the Brookhaven warnings. For the reasons discussed below, we disagree with this finding.

We separately will analyze the Brookhaven and the formal discussion requirements in connection with the interview of Story. Because there is no allegation in the complaint and no argument from the parties concerning the requirements of section 7114(a)(2)(B) of the Statute, it is unnecessary to determine whether the interview was an "examination" within the meaning of that section. We note, however, that Story declined the Respondent's offer to have Union representation during the interview.

We agree with the Judge's conclusion that the Respondent did not violate the Statute when it failed to give the Brookhaven warnings. We find that the essential purpose of the safeguards was fulfilled. Story knew the purpose of the interview, there was no coercion and Story refused an offer of union representation. We conclude, therefore, that Story's participation in the interview was voluntary. We reject the Judge's conclusion and the General Counsel's argument that the Brookhaven warnings should be applied as a per se rule.

We find that the purpose of the Brookhaven safeguards is to protect employee rights. Apart from those employee rights, a union has a right to be provided with an opportunity to attend formal discussions. We disagree with the Judge's conclusion that fulfilling the obligations concerning formal discussions can substitute for the [ v31 p5 ] Brookhaven safeguards. Therefore, if an interview of a unit employee constitutes a formal discussion, an agency has obligations under the Statute in addition to its obligations to assure that the interview is not coercive.

We find that the interview of Mr. Story was a formal discussion within the meaning of section 7114(A)(2)(a) of the Statute. We conclude that the Respondent fulfilled its obligations under that section when it provided notice and the opportunity to the Union to be represented at the interview.

A. The Brookhaven Protections

In Brookhaven, the Authority concluded that certain safeguards were necessary to protect employee rights under section 7102 of the Statute when management interviewed those employees "to ascertain necessary facts." Brookhaven at 933. The Authority stated that (1) management must inform the employee of the purpose of the questioning, assure that there will be no reprisal for a refusal to participate, and obtain that participation voluntarily; (2) the questioning must not occur in a coercive context; and (3) the questions must not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with the employee's protected rights. Id. The Authority did not discuss whether or not the rule was to be applied in a per se manner.

1. Private Sector Origins and Purpose

The Authority's requirements can be traced directly to private sector law. Since 1964, the National Labor Relations Board (the Board) has required employers seeking to interrogate employees for legitimate purposes--such as preparing a defense in an unfair labor practice trial--to communicate the purpose of the questioning, assure that no reprisal would take place, and obtain participation on a voluntary basis. Johnnie's Poultry Co., 146 NLRB 770, 775 (1964), enforcement denied on other grounds sub nom. NLRB v. Johnnie's Poultry Co., 344 F.2d 617 (8th Cir. 1965). The Board recognized that "despite the inherent danger of coercion" in an employer's interrogation of employees concerning matters involving protected rights, where there is a legitimate purpose and necessity, such as preparation for a third party proceeding, such safeguards could "minimize the coercive impact of such employer interrogation." Johnnie's Poultry, 146 NLRB at 774-75. [ v31 p6 ]

2. Private Sector Application

The courts and the Board have applied Johnnie's Poultry safeguards many times. For example, the U.S. Court of Appeals for the Fifth Circuit noted in NLRB v. Neuhoff Bros., Packers, Inc., 375 F.2d 372, 377 (5th Cir. 1967), that:

(o)n the one hand, there is the legitimate right . . . to prepare for the employer's defense to the unfair labor practice charges. On the other hand, there is implicit in the rights enumerated in . . . the Act . . . 'the right of rank-and-file employees to a congressionally provided, effective administrative process (citations omitted).' Consequently, the process of investigation through interrogation of employees must be a carefully conducted one. . . . There is, therefore, '. . . a delicate balance between the legitimate interest of the employer in preparing its case for trial, and the interest of the employee in being free from unwarranted interrogation . . .,' for '. . . any interrogation by the employer relating to union matters presents an ever present danger of coercing employees in violation of their . . . rights (citations omitted).'

The U.S. Court of Appeals for the D.C. Circuit noted that the Board in Johnnie's Poultry had attempted to strike a balance "between the employer's need to prepare adequately for pending unfair labor practice cases and the inherently coercive nature . . . of employer interrogation of employees during a labor dispute." UAW v. NLRB, 392 F.2d 801, 809 (D.C. Cir. 1967), cert. denied sub nom. Preston Products Co. v. NLRB, 392 U.S. 906 (1968). The court traced the concept that such a balance must be struck to protect against interrogation which is "inherently coercive" to Joy Silk Mills v. NLRB, 185 F.2d 732, 743-44 (D.C. Cir. 1950), cert. denied, 341 U.S. 914 (1951).

The Board has held that compliance with the Johnnie's Poultry safeguards does not require the use of "magic words(.)" Superior Container, 276 NLRB 521, 522 (1985). The Board has also held, however, that the safeguards are "applicable irrespective of the employer's intent to coerce, the extent of the questioning or number of employees so [ v31 p7 ] interrogated, or the remoteness of the interrogation to the alleged unlawful conduct." Kyle & Stephen, Inc., 259 NLRB 731, 733 (1981).

The courts are divided on whether the Johnnie's Poultry safeguards should be applied as a per se rule. See generally 1 The Developing Labor Law 125-27 (C. Morris 2d ed. 1983) and 1 The Developing Labor Law 25 (C. Morris 2d ed., 2d supp. 1987). In A & R Transport, 237 NLRB 1084 (1978), for example, the Board adopted the Administrative Law Judge's conclusion that the employer had committed an unfair labor practice by failing to provide an employee with the Johnnie's Poultry safeguards even though the "omissions of assurances . . . were inadvertent and free from unlawful motivation." Id. at 1089. The U.S. Court of Appeals for the Seventh Circuit refused to enforce that part of the Board's order. A & R Transport, Inc. v. NLRB, 601 F.2d 311 (7th Cir. 1979). The court noted that the Board had found that failure to adhere strictly to Johnnie's Poultry safeguards "constitutes a per se violation of B(a)(1) (of the NLRA)." Id. at 313. The court held as follows:

The interrogation standards set forth in Johnnie's Poultry are relevant in determining whether an interview was coercive and thus violative of 8(a)(1). We join with other circuits, however, in declining to approve a per se rule and instead will look to the totality of the circumstances, including the purpose of the interview, the entire statement made to the employee, and the scope of the questioning.

Id. See also Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 492 (2d Cir. 1975) ("The rule in this circuit is that employer interrogation is unlawful if it is coercive in light of all of the surrounding circumstances."). Compare Standard-Coosa-Thatcher Carpet Yarn Division v. NLRB, 691 F.2d 1133, 1141 (4th Cir. 1982), cert. denied, 460 U.S. 1083 (1983), where the court found that the Board's application of a per se rule did not constitute an abuse of discretion but noted that "(a)rguably, the statute would be better served by raising a rebuttable presumption of coerciveness in such cases(.)"

3. Application of Brookhaven to This Case

The purpose of the Johnnie's Poultry l Brookhaven protections is to protect employees form coercive [ v31 p8 ] questioning concerning matters involving employees' protected rights. We find that the purpose of the warnings was fulfilled in this case.

Story was told of the purpose of the interview. At the beginning he declined the offer to have a Union representative present. The Judge found on the basis of credibility determinations that "no threat or suggestion was made that there might be repercussions if Mr. Story refused to cooperate(.)" ALJ at 4. The General Counsel requests the Authority to reverse the Judge's credibility determinations. General Counsel Exceptions at 20. As the General Counsel notes, however, the Authority will not reverse a Judge's credibility findings unless a clear preponderance of all the relevant evidence demonstrates that the Judge's findings were incorrect. See United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA 874, 878 n. 4 (1987), petition for review filed sub nom. Department of Justice v. FLRA, No. 87-4153 (2d Cir. November 17, 1987).

We have carefully reviewed the record in this case and determine that there is no basis on which to reverse the Judge's findings. Further, there is nothing in the record to show that the interview took place in a coercive context, or that the Respondent questioned Mr. Story on any matters other than those directly involved in the unfair labor practice hearing. Therefore, ye agree with the Judge's conclusion that "there was no interference with Mr. Story's protected rights(;) Respondent did not make any threat and did not coercively question Mr. Story." ALJ at 9. We conclude that despite the Respondent's failure to expressly assure Story that there would be no reprisals, he was free from coercion and his participation was voluntary. The purpose of the Brookhaven warnings was fulfilled.

We reject the General Counsel's request that we find any failure to provide the Brookhaven warnings to be a per se violation of the Statute. We find that the purposes of the Statute are better served by determining whether the circumstances in which interviews occur are coercive instead of simply determining whether the Brookhaven assurances were stated. We note, however, that agencies may choose to provide the Brookhaven warnings in order to assure that employee participation is voluntary. [ v31 p9 ]

B. The Meeting Was a Formal Discussion

As noted above, the purpose of the Brookhaven warnings is to assure that employees are not subject to coercive questioning concerning the exercise of the employees' protected rights under the Statute. The right to be free of coercion is an employee right. Apart from this employee right, a union has the right under section 7114(a)(2)(A) of the Statute to be given the opportunity to be represented at formal discussions. A formal discussion within the meaning of section 7114(a)(2)(A) exists if there is (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more employees in the unit or their representatives; (4) concerning any grievance or personnel policies or other general condition of employment.

Because the rights addressed by the Brookhaven decision and the rights which accompany a formal discussion are different, we will examine the record to determine if the questioning of Story constituted a formal discussion and if so, whether the Respondent fulfilled its obligations under section 7114(a)(2)(A).

1. The Meeting was a "Discussion"

In Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594 (1987) ("McClellan"), we found that an interview of a unit employee who was to be a Union witness in an arbitration proceeding was a formal discussion. We there noted that we have found the term "discussion" to be synonymous with "meeting." Department of Defense National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG)(TAC), Kelly Air Force Base, 15 FLRA 529 (1984). A meeting took place here in which a unit employee answered questions from a management representative. We find that the meeting was a "discussion" within the meaning of the Statute.

2. The Meeting was "Formal"

The meeting took place in a private room in the civilian personnel office, in the presence of an Air Force attorney, the Respondent's chief of employee and labor relations, and the latter's assistant. The Union, and Story individually, were informed of the purpose of the meeting. [ v31 p10 ]

These indicia of formality lead us to conclude that the meeting was formal. See McClellan, 29 FLRA at 603.

3. The Meeting concerned a Grievance or Personnel Policy or Practice or other General Condition of Employment

(a) The Meeting Concerned a "Grievance"

We recently reviewed the scope of the term "grievance" as it applies to section 7114(a)(2)(A). We stated that a "grievance" can encompass a statutory appeal. U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584 (1987) ("FCI (Ray Brook)"), petition for review filed sub nom. AFGE, Local 3882 v. FLRA, No. 87-1723 (D.C. Cir. Nov. 27, 1987). The term grievance within the meaning of section 7114(a)(2)(A) is not limited to a complaint under a grievance procedure, but would also include complaints under other third party procedures established by statute.

Our decision in FCI (Ray Brook) considered the decision by the U.S. Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. FLRA 774 F.2d 1181 (D.C. Cir. 1985). We noted that the court concluded that "grievance" under section 7114(a)(2)(A) should be interpreted in light of the broad definition of the term in section 7103(a)(9) of the Statute. Section 7103(a)(9) defines "grievance" as "any complaint":

(A) by any employee concerning any matter relating to the employment of the employee;

(C) by any employee, labor organization, or agency concerning--

(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment(.)

The interview of Story was in preparation for an unfair labor practice hearing concerning an allegation that [ v31 p11 ] the Respondent had interfered with unit employees' protected rights involving picketing. The interview concerned a complaint by an employee or labor organization, which was prosecuted by the General Counsel, concerning a claimed violation of the Statute which affected conditions of employment. All of the elements of the definition in section 7103(a)(9) of the term "grievance" are met. The meeting in this case concerned a "grievance" within the scope of the term as it appears in section 7114(a)(2)(A).

(b) The Meeting Concerned a Personnel Policy or Practice or Other General Condition of Employment

The subject matter of the January 8 meeting was alleged management interference with employee picketing. Employee picketing involves protected employee rights under the Statute. These rights concern conditions of employment. Therefore, the meeting was in preparation for unfair labor practice proceedings which concerned a personnel policy or practice or other condition of employment of general concern.

C. The Authority does not Adopt the Judge's Analytical Approach

We reject the Judge's conclusion that agency management may treat interviews as one kind of meeting or another at its option. We recently reaffirmed that section 7114(a)(2)(A) and 7114(a)(2)(B) establish separate rights to representation, and that the particular facts of each case will determine which provisions of the Statute are pertinent. McClellan, 29 FLRA at 600. Whether section 7114(a)(2)(A) or (B) applies is determined by the facts of each case. See, for example, id. at 598-600. If an interview is a formal discussion, an agency must fulfill its statutory obligations concerning formal discussions.

In view of our conclusions that (1) the purpose of the Brookhaven warnings was fulfilled, and (2) the meeting was a formal discussion concerning which the Respondent met its obligations under section 7114(a)(2)(A), we do not address the Judge's alternative finding that Brookhaven does not apply because Story was acting as Respondent's agent at the time of the acts which were the subject of the meeting. [ v31 p12 ]

VI. Summary

The purpose of the Brookhaven warnings was fulfilled at the interview which the Respondent held with unit employee Story for the purpose of preparing for an unfair labor practice hearing. Further, the interview was a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute, and the Respondent fulfilled its obligations concerning formal discussions. Therefore, we find that the Respondent did not violate section 7116(a)(1) of the Statute by conducting the interview.

ORDER

The complaint in Case No. 7-CA-60398 is dismissed.

Issued, Washington, D.C. February 23, 1988

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v31 p13 ]

DEPARTMENT OF THE AIR FORCE,
F. E. WARREN AIR FORCE BASE,
CHEYENNE, WYOMING

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2354

              Charging Party
Case No.: 7-CA-60398

Major Michael W. Johnston
         For the Respondent

Matthew Jarvinen, Esquire
         For the General Counsel

Before: WILLIAM B. DEVANEY
         Administrative Law Judge

DEClSION

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., 2 and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., concerns the interview of a bargaining unit employee in preparation for an unfair labor practice hearing. Respondent gave the Union notice of the interview; gave the employee the opportunity to have a union representative; informed the employee the purpose of the questioning; told the employee he was not being ordered to cooperate; and the questions did not exceed the scope of the legitimate [PAGE] purpose of the inquiry; but Respondent did not inform the employee that the interview was voluntary and that no reprisal would take place if he refused to respond. General Counsel asserts that it is a per se violation of 16(a)(1) of the Statute to conduct an interview in preparation for a hearing without first advising the employee that his cooperation is voluntary and assuring the employee that no reprisal would be taken against him if he refused to cooperate. For reasons more fully set forth hereinafter, I find that, under the circumstances of this case, Respondent did not violate 16(a)(1) of the Statute.

This case was initiated by a charge filed on May 22, 1986 (G.C. Exh. 1(a)); and the Complaint and Notice of Hearing (G.C. Exh. 1(b)) issued on August 29, 1986. The Notice of Hearing set the hearing for November 20, 1986; but, pursuant to timely motion of Respondent (G.C. Exh. 1(d)), for good cause shown, by Order dated October 1, 1986 (G.C. Exh. 1(e)), the hearing was rescheduled for December 12, 1986, pursuant to which a hearing was duly held on December 12, 1986, in Cheyenne, Wyoming, before the undersigned.

All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues presented, to examine and cross-examine witnesses, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, January 12, 1987, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, initially, upon timely motion of General Counsel, with which the other parties concurred, for good cause shown, to January 20, 1987, and thereafter upon timely motion of Respondent, for good cause shown, to February 6, 1987. Respondent and General Counsel each timely mailed an excellent brief, received on, or before February 10, 1967, which have been carefully considered. Upon the basis of the entire record, 3 I make the following findings and conclusions:

Findings

1. At all times material, the American Federation of Government Employees, AFL - CIO, Local 2354 (herein also [ v31 p2 ] referred to as the "Union") has been the certified exclusive representative of certain employees at Respondent's facility at F. E. Warren Air Force Base, Cheyenne, Wyoming, as more fully described in Paragraph 4 of the Complaint (G.C. Exh. 1(b), Par. 4; admitted, G.C. Exh. 1(c)).

2. On December 13, 1985, a consolidated Complaint was issued in Case Nos. 7-CA-50462 and 7-CA-50556 alleging that Respondent violated 16(a)(1) of the Statute by certain acts in relation to informational picketing in June, 1985 (Jt. Exh. 1). Paragraph 22 of that Complaint provided that,

"22. On or about June 13, 1985, Respondent, by and through Lars Story, a unit employee . . . told a unit employee words to the effect that:

a. no annual leave would be granted the next day, and

b. it was suggested that people bring their lunch the next day." (Jt. Exh. 1).

3. Major Charles David Beckenhauer, an attorney assigned to Headquarters, United States Air Force Central Labor Law Office, Randolph Air Force Base, Texas (Tr. 36), was assigned as Respondent's representative in Case Nos. 7-CA-50463 and 7-CA-50556 and went to F. E. Warren AFB during the week of January 6, 1986, to interview witness and to prepare for hearing, set for January 23, 1986 (Jt. Exh. 1). On, or about, January 8, 1986, he interviewed Mr. Lars Christopher Story, a bargaining unit employee. Mr. Story has been employed in Respondent's carpenter shop for 17 years; is, and was at the time of the interview, a member of the Union; and subsequently became a Steward for the Union.

4. Major Beckenhauer sought to interview Mr. Story because the Complaint asserted that Respondent by and through Mr. Story had engaged in an unfair labor practice, and Major Beckenhauer testified that because of the allegation of the Complaint he considered Mr. Story an agent of Respondent and a potential management witness. 4 (Tr. 41) [ v31 p3 ]

5. The Union was notified of the interview of Mr. Story and other bargaining unit employees, had been given the names of the employees to be interviewed, and the time of the interviews (Tr. 49, 74).

6. Present at the interview of Mr. Story were: Major Beckenhauer, Julia Ann Roberts, Chief of Employee and Labor Relations at F. E. Warren, Kim Zaker, assistant to Ms. Roberts, and Mr. Story (Tr. 18, 42, 67). After introductions, Major Beckenhauer asked Mr. Story if he wanted a Union representative (Tr. 22-23, 49, 73) and Mr. Story declined the invitation to have a Union representative (Tr. 23, 49, 73). Major Beckenhauer, who was the sole spokesman for Respondent, did not inform Mr. Story that the interview was voluntary or that no reprisal would be taken if he refused to answer questions (Tr. 20, 50); however, Major Beckenhauer did inform Mr. Story of the purpose of the interview. Mr. Story testified that he, ". . . told him I really had nothing to tell him. I didn't want to talk to him" (Tr. 18), to which Major Beckenhauer responded that ". . . you have, as an employee, you have certain obligations to the employer to cooperate in this matter" (Tr. 18) at which point he, Story, said. ". . . are you ordering me to talk to you" (Tr. 18) and Major Beckenhauer responded "No". (Tr. 18). Mr. Story stated that later in the investigation Major Beckenhauer said if he didn't cooperate some kind of repercussions could happen (Tr. 18-19), or that he ". . . got that indication from the Major that if I wasn't going to cooperate, something could happen." (Tr. 20). Major Beckenhauer and Ms. Roberts categorically denied that any statement or suggestion was made that there might be repercussions if he, Story, refused to cooperate (Tr. 45-46, 57-58, 71-72) and, having considered the testimony carefully, I conclude that no threat or suggestion was made that there might he repercussions if Mr. Story refused to cooperate and specifically do not credit Mr. Story's testimony in this regard but do credit Major Beckenhauer's and Ms. Roberts' denials. I find from the testimony of all witnesses that, when Mr. Story said he "had nothing to tell. I didn't want to talk to him", Major [ v31 p4 ] Beckenhauer did discuss the duty to account (Tr. 60) and told Mr. Story that what he was Concerned about was what had occurred on duty for which Respondent through him, was asserted to have made statements which interferred with employees' right to picket (Tr. 43) and showed Mr. Story Paragraph 22 of the Unfair Labor Practice Complaint (Tr. 44, 71), whereupon Mr. Story responded to the statements in Paragraph 22 of the Complaint, because, as Major Beckenhauer stated, Mr. Story, "said if that's all you want to know I'll tell you, and he told us." (Tr. 44; see, also Tr. 71). I make this finding for several reasons: first, Mr. Story never pointed to any statement of Major Beckenhauer that constituted a threat of repercussions if he refused to cooperate and I do not find Major Beckenhauer's discussion of the duty to account to have constituted either a direct or implied threat of repercussions if Mr. Story refused to cooperate. Second, Mr. Story initially made no reference to the Unfair Labor Practice Complaint, but when recalled admitted that he might have been shown a copy of the Complaint (Tr. 78). Third, I found Major Beckenhauer and Ms. Roberts wholly credible witnesses. Not only did each deny that any statement or suggestion was made that there would be repercussions if Mr. Story refused to cooperate, but Major Beckenhauer used great care to encourage the voluntary cooperation of Mr. Story by explaining that he was interested only in the allegations of Paragraph 22 of the Complaint, which Mr. Story conceded he might have been shown, whereupon, when he understood Major Beckenhauer's inquiry, Mr. Story responded voluntarily. Fourth, this finding is consistent with all testimony, including Mr. Story's conceded response in terms of the allegations of Paragraph 22 of the Complaint (Tr. 19), and the fact that Major Beckenhauer asked no other question (Tr. 19).

Conclusions

14(a)(2) of the Statute provides:

"(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at -

"(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or [ v31 p5 ] practices or other general condition of employment; 5 or

"(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."

Although E.O. 11491 did not contain language comparable to 14(a)(2)(B) of the Statute, the right of agency management to conduct investigative interviews was well established under the Order. See, for example, the Council's Statement on Major Policy Issue, FLRC No. 75P-2, 4 FLRC 710 (1976); Internal Revenue Service and National Treasury Employees Union, A/SLMR No. 897, 7 A/SLMR 783 (1977). Nevertheless, the interview of a bargaining unit employee witness was held to be a formal discussion to which the exclusive representative was entitled to notice and opportunity to be present. United States Air Force, McClellan Air Force Base, California, A/SLMR No. 830, 7 A/SLMR 350 (1977); Internal Revenue Service, South Carolina District, A/SLMR No. 1172, 8 A/SLMR 1370 (1978).

While not involving the interview of bargaining unit witness, the Authority, in Internal Revenue Service, Fresno, Service Center, Fresno, California, 7 FLRA No. 54, 7 FLRA 371 [ v31 p6 ] (1981), pursuant to 14(a)(2)(A) of the Statute, held that a meeting in conjunction with the processing of an EEO complaint, at which the employee was represented by a union steward, was a formal discussion; that the Union, as exclusive representative, was entitled to notice and opportunity to be present; and that the fact that the employee happened to be represented by a person who was also a union steward did not satisfy the requirement of notice to the Union, qua Union, and its right to be present. Two Administrative Law Judges had reached opposite conclusions with respect to whether the interview of bargaining unit employees constituted a formal discussion within the meaning of 14(a)(2)(A). Judge Sternburg, in Bureau of Governmental Financial Operations, Headquarters and National Treasury Employees Union and National Treasury Employees Union Chapter 202, Case No. 3-CA-2646 (August 2, 1982), because the language of 14(a)(2)(A) was substantially the same as the concluding sentence of Section 10(e) of the Executive Order, held that such interviews were formal discussions within the meaning of 14(a)(2)(A); 6 while Judge Mason, in U.S. Department of Treasury, United States Customs Service, Region V and NTEU, Case No. 6-CA-237 (March 20, 1981) held such interviews were not formal discussions within the meaning of 14(a)(2)(A). 7 Before either of these cases was decided by the Authority, the Authority, in a stipulated case, Internal Revenue Service and Brookhaven Service Center, 9 FLRA No. 132, 9 FLRA 93 (1982) (hereinafter referred to as "Brookhaven"), held that the interview of bargaining unit witnesses for the purpose of preparing for a hearing was not a formal discussion. The Authority stated, in part, as follows:

. . . Under the facts as stipulated, the Authority is unwilling to find the existence of a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. . .

"In the circumstances herein, the Authority concludes that the above-described meetings did not constitute formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. Rather, they were fact-gathering sessions between a representative of the [ v31 p7 ] Respondent and a unit employee wherein management was merely seeking information to aid it in the preparation of its cases . . . before a third-party neutral, in the same manner as an exclusive representative may gather the facts from employees prior to such proceedings. Therefore, the Respondent was not required to give NTEU an opportunity to be represented and its failure to do so herein did not constitute an unfair labor practice.

"It must be emphasized, however, that an agency may not conduct such fact-gathering sessions without limitation. Thus, while management may ascertain facts in preparing its case for third-party proceedings without the presence of the exclusive representative, the unit employees have the protected right under section 7102 of the Statute to 'form, join, or assist any labor organization, or to refrain from such activity, freely and without fear of penalty or reprisal(.)' Accordingly, where management exercises its right to interview unit employees in preparation for third-party proceedings, but does not take necessary precautions to preserve employees' protected rights, and instead acts in a manner which 'interferes with, restrains, or coerces' the employees, it violates section 7116(a)(1). of the Statute. To protect employees' rights under section 7102 while management attempts to ascertain necessary facts, the Autbority concludes that (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. In this manner, the necessary balance between the rights of management and the rights of employees and their exclusive representatives will best be preserved." (9 FLRA at 933) (Emphasis supplied). [ v31 p8 ]

Brookhaven, on the same day, was applied to the interview of bargaining unit witnesses in preparation for an unfair labor practice case over contention of General Counsel that such interviews were formal discussions within the meaning of 14(a)(2)(A). United States Department of the Treasury, United States Customs Service, Region V, 9 FLRA No. 134, 9 FLRA 951, 952 (1982).

A. Agency may treat interviews as formal discussions and/or examinations.

General Counsel argues, in effect, that management violates 16(a)(1) by questioning a bargaining unit employee in preparation for an unfair labor practice hearing without observing the Brookhaven safeguards. I do not agree. Although it is plain that the Authority in Brookhaven provided a means for management to gather facts through the interview of bargaining unit witnesses in preparation for hearings whereby it was "not required to give" the Union notice and "an opportunity to be represented", i.e., free of the strictures of 14(a)(2), the Authority did not thereby prohibit management, if it desired, to forego the method permitted by Brookhaven, and treat the interview as a formal discussion; nor did Brookhaven prevent management from treating an interview as an investigation. Here, Respondent, because the unfair labor practice complaint alleged that it had violated the Statute "by and through" bargaining unit employee Story, was unwilling to take the risk that employee Story might decline to answer its questions if it elected to conduct the interview pursuant to Brookhaven and, therefore, elected to treat the interview as a formal discussion and/or an investigation, as it was free to do. Accordingly, Respondent: (a) gave the President of the Union notice of the interview and gave the union the opportunity to be represented; and (b) at the outset of the interview, gave employee Story the right to have a union representative. Of course, compliance with the provisions of 14(a)(2) does not insulate interference with protected rights, National Institute For Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio, 22 FLRA No. 101, 22 FLRA 1037 (1986); but here, there was no interference with Mr. Story's protected rights. Respondent did not make any threat and did not coercively question Mr. Story. Accordingly, as Respondent fully complied with the requirements of 14(a)(2) of the Statute, it did not violate 16(a)(1) by its failure to inform Mr. Story that the interview was voluntary and that no reprisal would be taken if he refused to answer. [ v31 p 9 ]

B. Alternatively, Brookhaven was not applicable to interview of employee Story.

I agree with General Counsel that Brookhaven was, and should be, a per se rule, i.e., that the warning that the interview is voluntary and that no reprisal will be taken if the employee refuses to answer is mandatory when a bargaining unit employee is interviewed without conforming to the strictures of 14(a)(2)(A). There is considerable surface appeal to a "totality of the circumstances" test, followed by some courts in the private sector, e.g., W. W. Grainger, Inc. v. NLRB, 677 F.2d 557 (7th Cir. 1982); NLRB v. Monroe Tube Co., 545 F.2d 1320 (2d Cir. 1976); Retired Persons Pharmacy v. NLRB, 519 F.2d 486 (2d Cir. 1975); but this case well illustrates that if the employee's rights under S 2 of the Statute are to be protected in an interview free of the strictures of 14(a)(2)(A), the employee must be assured by the agency that the interview is voluntary and that no reprisal will be taken if he does not cooperate. It is simply not a question of what the employee believes, for here the record shows that Mr. Story believed the interview was voluntary; but, rather the unqualified assurance of the agency that the interview is voluntary and that it will not take any reprisal if he refuses to cooperate, an assurance Respondent was unwilling to make to Mr. Story. Consequently, even though Respondent informed Mr. Story of the purpose of the interview; the questioning did not occur in a context which was coercive in nature; and the questions did not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with Mr. Story's statutory rights, from which circumstances it might well have appeared that the interview did not violate 16(a)(1); nevertheless, if Brookhaven were applicable, Respondent clearly, violated 16(a)(1) by its failure and refusal to give the assurance that the interview was voluntary and that no reprisal would be taken if he refused to cooperate, for the reason that Respondent well understood that if it gave the assurance that the interview was voluntary and that no reprisal would be taken if he refused to cooperate, Mr. Story might refuse to cooperate. No matter how benign an interview may appear, an employee's protected rights are not fully protected unless the agency gives the assurances mandated by Brookhaven when Brookhaven is applicable.

For reasons set forth above, Brookhaven was not applicable here because Respondent elected to treat the interview as a formal discussion, pursuant to 14(a)(2)(A), and/or an investigation, pursuant to 14(a)(2)(B), cf. Federal Prison System, Federal Correctional Institution, [ v31 p10 ] Petersburg, Virginia, 25 FLRA No. 16, 25 FLRA 210 (1987). Alternatively, I conclude that Brookhaven does not, in any event, apply to the interview of a unit employee for whose conduct an agency is asserted in an unfair labor practice complaint to have committed an unfair labor practice. The Complaint here had alleged that Respondent "by and through" Mr. Story committed an unfair labor practice and, accordingly, asserted that the employee was an agent of Respondent for whose conduct Respondent was responsible. To this extent, the interview is analogous to the interview of a bargaining unit employee concerning events which occurred during a period of time when the employee was an acting supervisor, as to which it was held that such interview was not a formal discussion within the purview of Section 10(e) of the Executive Order. United States Department of the Treasury, Internal Revenue Service, A/SLMR No. 833, 7 A/SLMR 371, 373 (1977) (hereinafter referred to as "IRS"). In either situation a bargaining unit employee is interviewed concerning activity removed from the bargaining unit, in the IRS case for activity while an acting supervisor, and here for activity while acting as agent for Respondent. General Counsel asserts that the Complaint did not name Mr. Story ". . . as an 'agent' of Respondent. Story clearly was not acting as an agent of Respondent, but merely served as a conduit . . . Had the Consolidated Complaint gone to trial, Respondent could very easily have taken the position that Story was not an agent of Respondent, and therefore Respondent was not liable. . . ." (General Counsel's Brief, p. 19). I do not agree with either assertion. First, the Complaint alleged that "Respondent, by and through Lars Story, a unit employee. . . ." took certain action (Par. 22, Jt. Exh. 1) and that "By the acts and conduct described in paragraphs 16 through 26 . . . Respondent . . . has engaged in . . . unfair labor practices within the meaning of 5 USC 7116(a)(1)" (Par. 29, Jt. Exh. 1). Nothing in the Complaint suggested that Mr. Story served as a conduit, but simply that Respondent "by and through" Mr. Story took action for which Respondent was asserted to be responsible and guilty of an unfair labor practice. The allegation of the Complaint was a direct and plain assertion that Mr. Story acted as an agent of Respondent and, accordingly, Respondent was entitled to insist that Mr. Story answer questions concerning his action as its asserted agent in the same manner that an agency may examine a bargaining unit employee concerning action taken while an acting supervisor, as in IRS, supra. Second, it is not an adequate response that an allegation could be denied. In order to adequately prepare for hearing, Respondent was entitled to inquire concerning the activities of the unit employee for whose actions Respondent was asserted to be liable. [ v31 p11 ]

Having found that Respondent did not violate 16(a)(1) of the Statute, it is recommended that the Authority adopt the following:

ORDER

The Complaint in Case No. 7-CA-60398 be, and the same is hereby, dismissed.

WILLIAM B. DEVANEY
Administrative Law Judge

Dated: April 30, 1967
       Washington, D.C.

FOOTNOTES

Footnote 1 Section 7114(a)(2)(A) and (B) provides: (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or (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.

Footnote 2 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) will be referred to, simply, as "16(a)(1)."

Footnote 3 General Counsel's motion to correct transcript, to which no opposition was filed, is granted and the transcript is hereby corrected as set forth in the Appendix hereto.

Footnote 4 On January 6, 1986, a subpoena had been issued to Mr. Story, at the request of General Counsel, to testify at the hearing. (G.C. Exh. 2). The record does not show whether Mr. Story had received the subpoena at the time of the interview; but the record shows that Major Beckenhauer did not know that a subpoena had been issued at the time he interviewed Mr. Story (Tr. 62-63).

Footnote 5 This is essentially the same as the concluding sentence of Section 10(e) of Executive Order 11491 which provided that: ". . . The labor organization shall be given the opportunity to be represented at formal discussions between management and employees or employee representatives concerning grievances, personnel policies and practices, or other matters affecting general working conditions of employees in the unit." (E.O. 11491, 10(e)).

Footnote 6 Reversed, 13 FLRA No. 5, 13 FLRA 27 (1983).

Footnote 7 Affirmed, 9 FLRA No. 134, 9 FLRA 951 (1982).

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