[ v44 p1021 ]
44:1021(83)CA
The decision of the Authority follows:
44 FLRA No. 83
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
LONG BEACH NAVAL SHIPYARD
LONG BEACH, CALIFORNIA
(Respondent)
and
FEDERAL EMPLOYEES METAL TRADES COUNCIL
AFL-CIO
(Charging Party/Union)
8-CA-90137
DECISION AND ORDER
April 29, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Union to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The Respondent filed oppositions to the General Counsel's and the Union's exceptions and a cross-exception to the Judge's Decision. No opposition was filed to the Respondent's cross-exception.
The complaint alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by threatening an employee Union representative with disciplinary action because the representative had refused to provide the Respondent with information, which the employee representative had acquired while engaged in Union activity, regarding the conduct of another unit employee.
The Judge concluded that the Respondent did not commit the alleged unfair labor practice.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decision and the entire record, we find, contrary to the Judge, that the Respondent violated section 7116(a)(1) of the Statute.
II. Preliminary Matters
Following the Union's timely filing of exceptions with the Authority pursuant to section 2423.26(c) of our Rules and Regulations, the Respondent filed a motion with the Authority requesting that the exceptions be dismissed as improperly filed because the Union failed to serve the Respondent with a copy of the Union's exceptions. The Union filed an opposition to the Respondent's motion to dismiss and indicated that it had served the Respondent with "a second copy of the exceptions." Union's Opposition to Motion to Dismiss at 2 (Union's Opposition). The Respondent subsequently filed motions with the Authority requesting that the Authority: (1) allow it to supplement its earlier motion to dismiss; and (2) waive the time limit for filing an opposition to the Union's exceptions.
A. Positions of the Parties
1. Respondent
The Respondent contends that "[i]f the Charging Party timely filed exceptions," the Union's failure to timely serve the Respondent with a copy of the Union's exceptions "flagrantly violates [s]ection 2423.6(c) [sic] of the . . . Authority's Rules and Regulations." Motion to Dismiss. The Respondent asserts that it "called [the Union's counsel of record] in an attempt to obtain service of the exceptions but he has not contacted us." Id. The Respondent requests that, because of the Union's "flagrant violation of the Authority's Rules and Regulations[,]" the Union's exceptions be dismissed. Id.
In its Request for Waiver of Time Limits, the Respondent notes that section 2429.23(b) of the Authority's Rules and Regulations provides that a request to waive an expired time limit may be approved in extraordinary circumstances. The Respondent argues that its "late receipt of the Charging Party's exception constitutes good cause for waiving the time limit for rebuttal and to supplement our earlier motion for dismissal." Request for Waiver of Time Limits. The Respondent states that the Union does not object to its request for waiver of the time limit. The Respondent further states that the General Counsel takes no position regarding the request.
2. Union
The Union claims that it served the Respondent with a copy of its exceptions "on the same day the exceptions were mailed to the [Authority]." Union's Opposition at 2. The Union asserts that it was not aware of the Respondent's contention that it had not received the Union's exceptions until receipt of the Respondent's motion to dismiss its exceptions. The Union states that, at that point, the Respondent was served with a "second" copy of its exceptions. Id. The Union argues that inasmuch as the Respondent has "experienced no prejudice to its position[,]" the Respondent's motion to dismiss should be denied. Id.
B. Analysis and Conclusions
The record shows that on August 17, 1990, the Union filed timely exceptions with the Authority under section 2423.26(c) of our Regulations. The Union asserts that it served the Respondent with a copy of its exceptions at the same time that it filed the exceptions. However, in its motion to dismiss the Union's exceptions, the Respondent contended that it did not receive a copy of the Union's exceptions. The Union states that once it became aware of the Respondent's claim that the Respondent had not received a copy of the Union's exceptions, the Union immediately mailed the Respondent another copy of its exceptions. The record shows that the Respondent received a copy of the Union's exceptions on October 15, 1990. On October 18, 1990, the Respondent filed its request for waiver of the 10-day time limit in 5 C.F.R. º 2423.28 to file an opposition to the Union's exceptions and its request to file a supplemental motion to dismiss the exceptions.
In these circumstances, we will: (1) deny the Respondent's motion to dismiss the Union's exceptions and its request to file a supplemental motion to dismiss; and (2) grant the Respondent's request for a waiver of the time limit to file its opposition to the Union's exceptions. We find that the Union's exceptions were timely filed and that the Respondent filed its request for a waiver and its opposition to the Union's exceptions within 10 days of receiving them on October 15, 1990. We further note that neither the Union nor the General Counsel objects to the Respondent's request for a waiver of the time limit to file its opposition to the Union's exceptions and that, in light of our granting of its request for a waiver to file an opposition, the Respondent has not been prejudiced by the delay in receipt of the Union's exceptions.
III. Background
The facts, which are set out fully in the Judge's decision, are summarized below.(1)
Joseph Walsh is employed by the Respondent as a boiler plant operator/utility dispatcher. Walsh also served as the Union's chief steward. In his capacity as the Union's chief steward, Walsh represented employee Rene Garcia in a removal action before the Merit Systems Protection Board (MSPB). In a prehearing conference in the MSPB proceeding held on April 21, 1988, Walsh informed Jeri Edwards, a Labor Relations Specialist for the Respondent, that Garcia had engaged in outside employment during the period of his removal.(2) In a meeting on April 26, a settlement agreement was reached in the MSPB matter pursuant to which the Respondent agreed, among other things, to reinstate Garcia with backpay. In that meeting, Garcia stated, in the presence of officials of the Union and the Respondent, including Walsh and Edwards, that he had been employed outside of the Long Beach Naval Shipyard during the time of his removal.
On May 3, Garcia submitted a declaration for backpay indicating that he had not earned any money from other employment during the period of time covered by the settlement agreement. Edwards, on the basis of statements made to her by Walsh and in her presence by Garcia, reported the "apparent falsification" to the Respondent's Security Officer. Judge's Decision at 3. Garcia's backpay claim was subsequently the subject of criminal and administrative investigations conducted by the Respondent's Criminal Investigation Division (CID).
A. CID Investigations
1. Criminal Investigation
During the criminal investigation, CID investigators met with Walsh on three different occasions, on May 17, 20, and 23. An initial meeting with Walsh on May 17 was terminated after Walsh requested a Union representative. On May 20, an informal meeting was held by CID investigators to apprise Walsh that as a Federal employee he was required to answer the questions asked him regarding the Garcia matter, and that if he did not answer the questions, action could be taken against him.
On May 23, the formal criminal investigative interview of Walsh took place. Present at the interview were two Criminal Investigators, the Acting Union President, and Walsh. Before being questioned, Walsh stated that he was not able at that time "to answer any questions concerning the representational duties under the jurisdiction of the [MSPB] relating to Mr. Garcia." General Counsel's Exhibit 2 at 4. Walsh further stated that he had filed a brief with the judge in the MSPB proceeding, who had jurisdiction over Garcia's case until the April 26 settlement agreement was finalized. Walsh stated that he had requested the judge to inform him of Walsh's "obligations and responsibilities to Mr. Garcia." Id. Walsh also stated at that point that he could not answer "any questions concerning [his U]nion representational duties concerning Mr. Garcia" until he had received answers from another individual to questions concerning the Privacy Act. Id.
One of the investigators then asked Walsh questions about Garcia. In his responses, Walsh stated that he knew Garcia as an employee and that he was with Garcia as his representative at an MSPB settlement agreement meeting on April 26. Walsh was then asked whether, prior to that meeting, he had called Jeri Edwards and discussed anything with her specifically on April 21. Walsh answered that there were several phone calls between Edwards and him and that he was not sure what the specific phone call was on that date. The investigator then asked the following questions and Walsh made the following responses:
[Q]: Did you ever speak with Ms. Edwards about Mr. Garcia working and collecting money while he was out on unemployment?
[A]: I cannot answer that question until [the MSPB Judge] makes a determination in this case.
[Q]: You then refuse to answer that question?
[A]: I cannot answer the question until the [MSPB] makes a determination on the case, the brief is on file.
[Q]: Do you have knowledge of, ah . . . Mr. Garcia working off the books?
[A]: I cannot answer that question until [the MSPB Judge] makes a determination.
Id. at 6-7. The interview thereupon concluded.
2. Administrative Investigation
On June 3, two CID investigators met with Walsh to conduct an administrative investigation. The investigators informed Walsh that they wanted to interview him about "statements made in his presence or made by [him] about money earned by Garcia" during Garcia's outside employment. Judge's Decision at 5. Walsh was given an administrative warning, orally and in writing, regarding his participation in the interview. The written administrative warning informed Walsh that he was being interviewed "for pertinent information, material, and relative data relating to [Walsh's] performance as an employee of the [Respondent]." General Counsel's Exhibit 6. It also informed Walsh that he had "the right to remain silent [during the interview] and make no statement at all." Id. The warning further stated that if Walsh chose to remain silent, he "may be subject to disciplinary action up to and including dismissal, for failure to answer questions relating to the performance of [his] duties as [an] employee of the [Respondent]." Id. Further, the warning advised Walsh that any answers Walsh gave, or any evidence gained by reason of those answers, could not be used against him in a criminal proceeding, except that he could be subject to criminal prosecution for any false answers that he knowingly made. The warning also informed Walsh that his answers could be used for disciplinary action against him, including criminal/disciplinary action for giving false statements or misleading information.
Walsh thereupon requested Union representation and the meeting was recessed until a Union steward arrived. After the Union steward arrived, the steward was informed that Walsh was required to sign the administrative warning and that the steward was required to sign the warning as a witness. Walsh refused to sign the warning, and the steward stated that he believed the warning was "unconstitutional" and refused to sign the warning as a witness. Judge's Decision at 6. Further, Walsh refused to answer any questions about Garcia. Instead, he gave the investigators a written statement stating in part that "I believe you are attempting to coerce and or interfere with my representational responsibilities." Id. (quoting General Counsel's Exhibit 7b). The meeting was then terminated.
B. Formal Investigative Discussion
On August 22, Ron Keeling, Walsh's third-level supervisor, conducted a formal investigative discussion (FID) of Walsh's refusal to cooperate in the administrative investigative interview held on June 3. Under the parties' collective bargaining agreement, an FID must be conducted prior to taking disciplinary action against a unit employee. During the FID, Keeling asked Walsh two questions: (1) did Walsh refuse to sign the administrative warning?; and (2) did Walsh refuse to testify in an administrative investigation? Walsh responded that he refused to sign the warning, but he did not refuse to testify.
On August 29, Walsh contacted Keeling and inquired what the proposed disciplinary penalty would be.(3) As required by the parties' agreement,(4) Keeling informed Walsh that the proposed penalty was Walsh's removal.
C. Charge and Complaint
On December 12, the Union filed an unfair labor practice charge contending that "[o]n or about August 1988 [m]anagement of [the Respondent] threatened to take action against a [s]teward for performing his [p]rotected [a]ctivities." General Counsel's Exhibit 1(a). The unfair labor practice complaint alleged that the Respondent's unlawful action was committed "on or about August 27, 1988," by Keeling. General Counsel's Exhibit 1(b), paragraph 7.
IV. Administrative Law Judge's Decision
The Judge found that the sole issue before him was whether the Respondent, through Keeling, threatened Walsh on August 29 with disciplinary action because Walsh had refused to provide information regarding the conduct of another unit employee which Walsh had acquired while engaged in Union activity. The Judge found no support in the record for the allegation that Keeling threatened Walsh on August 29. Rather, the Judge found that Keeling was merely following the parties' agreement when, upon inquiry by Walsh, Keeling informed Walsh what the recommended disciplinary penalty against Walsh would be. According to the Judge, "[t]here was no threat made; nor did Mr. Keeling's response to Mr. Walsh's inquiry interfere with, restrain, or coerce Mr. Walsh in the exercise by Mr. Walsh of any right under the Statute." Judge's Decision at 9. Further, the Judge found that during the August 22 FID Keeling did not seek information from Walsh regarding the conduct of another employee. The Judge pointed out that Walsh's testimony established that during the August 22 FID Keeling asked Walsh only two questions: (1) whether he refused to sign the administrative warning; and (2) whether he refused to participate in an administrative investigation.
The Judge stated that "[t]here is no allegation in the [c]omplaint of interrogation of Mr. Walsh other than by Mr. Keeling; no allegation that there had been a[n] FID conducted on [Walsh] because he had refused to provide information; or that the FID [violated section 7116(a)(1) of the Statute] because [Walsh] refused to provide information[.]" Id. Accordingly, the Judge found that the sole allegation in the complaint--that Keeling threatened Walsh on or about August 27--was without support in the record.
The Judge further concluded that the interrogations of Walsh during the CID investigations on May 23 and June 3 were not unlawful. The Judge noted his view in United States Customs Service, Washington, D.C., Case No. 8-CA-80171 (June 20, 1989) (Customs Service)(5) that, as a general principle, statements by an employee to his or her designated union representative are privileged and information acquired by a union official while engaged in protected activity should be protected from disclosure. The Judge stated, however, that not all information acquired by union officials while engaged in protected activity should be protected from disclosure. In this regard, the Judge stated that he would protect only those statements and disclosures made by an employee to his or her representative which are necessary to obtain informed advice and proper representation, and that he would not protect "[w]hat the representative saw or heard at an investigation" because those matters are "not disclosures made by the employee to the representative in order that the employee have adequate advice or a proper defense . . . ." Judge's Decision at 10.
The Judge further stated that "[i]nformation which was privileged loses its immunity upon public disclosure." Id. The Judge stated that, in this case, when Walsh told Edwards that Garcia had been working during the time of his removal, "the information disclosed ceased to be privileged and if Mr. Walsh were questioned about his statement to Ms. Edwards, such questioning would not violate [section 7116(a)(1) of the Statute] as interrogation concerning statements made by an employee to a representative. In short, the proper line of questioning is not what Garcia told Walsh but, rather, what Walsh told Ms. Edwards." Id. at 11.
After reiterating that the privilege "may be claimed only as to those disclosures made by the employee to the representative[,]" the Judge stated that "a proper evaluation [of the privilege] demands that specific questions be asked." Id. The Judge concluded that in instances where no specific question is asked, "it is not possible to separate proper areas of inquiry from the privileged." Id.
The Judge addressed Walsh's refusal to answer the investigator's question on May 23 about whether Walsh had ever spoken with Edwards about Garcia working and collecting money while he was out on unemployment. The Judge found that Walsh's reason for refusing to answer "did not invoke the privilege" accorded to information disclosed by an employee to his or her representative. Id. Further, the Judge found that, even assuming that Walsh had invoked the privilege, "any statement Mr. Walsh may have made to Ms. Edwards was not privileged." Id.
The Judge next addressed Walsh's refusal to answer the investigator's question on May 23 about whether Walsh had any knowledge of Garcia working off the books. The Judge found that Walsh's reason for refusing to answer did not invoke the privilege accorded to information disclosed by an employee to his or her representative. Further, the Judge found that, assuming that Walsh had properly asserted the privilege, "Mr. Walsh's knowledge based on any disclosure by Mr. Garcia was privileged." Id.
Finally, the Judge addressed Walsh's refusal on June 3 to answer any questions because of Walsh's belief that the investigators were "attempting to coerce and or interfere with [Walsh's] representational responsibilities . . . ." Id. (quoting General Counsel's Exhibit 7(b)). According to the Judge, Walsh's reason for refusing to answer any questions "was a wholly improper invocation of the privilege" accorded to information disclosed by an employee to his or her representative. Id. The Judge stated that because Walsh's refusal to answer was "not in response to specific questions it is not possible to separate proper areas of inquiry from the privileged." Id. The Judge found that "by refusing to sign a statement that he had been advised of his rights and by refusing to answer any questions, Mr. Walsh was not acting in accordance with the privilege I would accord a [u]nion steward." Id. at 12.
In sum, the Judge found that Walsh's interrogation on May 23 and June 3 "was not improper[.]" Id. The Judge stated that the questions that the investigators asked Walsh "were proper, although Mr. Walsh quite properly could have asserted the privilege as to the question asked on May 23, 1988, concerning his (Walsh's) knowledge of Mr. Garcia working off the books." Id. at 12. The Judge further found that Walsh's "refusal to answer was not otherwise shown to have been protected from inquiry, and, if not privileged, the threat of disciplinary action for refusing to answer did not violate [section 7116(a)(1) of the Statute]." Id. Finally, the Judge found that "the allegation in Paragraph 7 of the [c]omplaint of information 'acquired while engaged in Union activity,' improperly asserts the privilege accorded by Customs Service, and is broader than any privilege" he would apply. Id. (citing General Counsel's Exhibit 1(b)).
Accordingly, having found that the Respondent did not violate section 7116(a)(1) of the Statute in questioning Walsh, the Judge recommended that the Authority dismiss the complaint.
V. Positions of the Parties
A. Union's Exceptions
The Union makes three exceptions to the Judge's decision. Two of the exceptions relate to certain credibility findings made by the Judge. Specifically, the Union excepts to two instances in which the Judge adopted the testimony of a CID investigator over Walsh's testimony.
The Union also excepts to the Judge's conclusion that Walsh was not privileged to refuse to answer certain questions about Garcia during the CID criminal investigation. Specifically, the Union argues that the Judge erred when he concluded that "Walsh's refusal to answer [CID] investigators' questions was unprivileged, without taking into consideration that the inept [CID] investigations mixed" Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Miranda) warnings with administrative warnings, causing Walsh "to believe he was a suspect along with Rene Garcia and therefore need not answer any questions[.]" Union's Exceptions at 4. The Union asserts that Walsh had a constitutional right not to answer the questions put forth by the CID investigators. The Union contends that "[s]ince the actions by Walsh were justified or privileged . . . the [Respondent] had no right to threaten him with disciplinary action." Id. at 8. Accordingly, the Union concludes that the Respondent violated section 7116(a)(1) of the Statute and that, therefore, the Judge's decision must be reversed.
B. General Counsel's Exceptions
The General Counsel excepts to the Judge's finding that "no threat was made to [Walsh] on August 29, 198[8], and further that previous interrogations [on May 23 and June 3] of . . . Walsh [were] not unlawful because Walsh either was not privileged in refusing to answer questions posed to him or did not properly invoke any privilege that may have been applicable to him." General Counsel's Brief in Support of Exceptions at 1 (General Counsel's Brief). Further, the General Counsel excepts to the Judge's failure to find that the Respondent violated the Statute to the extent that the "Respondent did not inform . . . Walsh that he would be recommended for removal for his conduct during various interrogations which in part included at least one question which he was privileged to refuse to answer." Id. at 2. The General Counsel asserts that the Judge's decision is "erroneous to the extent it can be interpreted to mean that a union representative may lose whatever privilege he possesses not to divulge confidential information if he informs a management official that he possesses such information." Id. at 1-2.
The General Counsel argues that the Judge erroneously failed to find that the Respondent violated section 7116(a)(1) of the Statute when it informed Walsh that he would be disciplined for failing to testify in an administrative investigation. The General Counsel contends that "the threat of discipline and the December 1988 proposed removal of Walsh [were] not limited to any incident in which Walsh may have been required to answer." Id. at 3 (emphasis in original). Rather, the General Counsel claims, "the threat of removal by Respondent was overly broad and to the extent it encompassed Walsh's refusal to answer a question that he could only have obtained in his [capacity as Garcia's Union representative, it] constituted unlawful interference, restraint, and coercion in violation of [s]ection 7116(a)(1) of the Statute." Id. The General Counsel urges the Authority to find that "the questioning of a steward regarding the substance of information gleaned in confidential communication between an employee and a steward under the threat of discipline is an impermissible infringement upon protected activity." Id. at 3-4.
C. Respondent's Oppositions and Cross-Exception
1. Opposition to the Union's Exceptions
The Respondent contends that the Union's exceptions do not comply with section 2423.27 of the Authority's Rules and Regulations and should be dismissed. The Respondent argues that the Union's exceptions do "not set forth with specificity, particularity and clarity, the questions upon which exceptions are taken[ ]" and do not "clearly identify and explain the grounds for the exceptions." Respondent's Opposition to Union's Exceptions at 1. The Respondent claims that the Union's argument in support of its exceptions "does not provide a clear and understandable specification of the issues involved and does not clearly provide the points of fact and laws relied upon." Id.
The Respondent further contends that the Union's exceptions do not comply with section 2423.28(a) of the Authority's Rules and Regulations. The Respondent argues that: (1) the Union's arguments include issues that were not presented to the Judge; and (2) the Union's "argument in support of [its] exceptions does not provide a clear and understandable specification of the issues involved and does not clearly provide the points of fact and law relied upon." Id.
The Respondent also contends that the Union's arguments that are based on an interpretation of Miranda constitute new issues not presented to the Judge, and, in accordance with Authority precedent, should not be considered. The Respondent notes that "the Authority has stated that it will not rule on the constitutionality of [a]gency investigative methods, leaving resolution of constitutional issues to the courts." Id. at 2 (citation omitted).
The Respondent concludes that "the primary issues and arguments presented by the [Union] involve credibility determinations by the [Judge,]" and, accordingly, that those determinations should not be overruled unless a clear preponderance of the evidence establishes that the determinations were incorrect. Id. The Respondent claims that the Union's showing of evidence is "exceedingly thin and is wholly insufficient to overturn the findings of the [Judge]." Id.
2. Opposition to the General Counsel's Exceptions
The Respondent contends that the General Counsel's exceptions are without merit. The Respondent argues that the Judge properly concluded that the General Counsel failed to meet its burden of proving the allegations in the complaint. The Respondent disputes the General Counsel's contention that the Respondent's informing Walsh on August 29 of the disciplinary action that would be taken against him was "overly broad" so as to encompass Walsh's refusal to answer the CID investigators' questions at the May 23 interview. Id. The Respondent asserts that the Judge properly found that it did not, through Keeling, threaten Walsh on August 29.
The Respondent argues that the General Counsel's exceptions include "issues which were not covered in the complaint, which are untimely and, as to one issue, not litigated before the [Judge]." Id. at 3. Specifically, the Respondent contends that the General Counsel's allegations with respect to the May 23 and June 3 interviews of Walsh and the General Counsel's reference to the notice of proposed removal issued to Walsh on December 13 should not be considered. Id.
The Respondent asserts that the May 23 interview "was not within the scope of the complaint and that allegations pertaining to the interview were untimely . . . ." Id. The Respondent notes that the filing of the charge in this case occurred on December 12 and argues that "[a] complaint may not rest upon a charge which was filed more than six months after acts or occurrences alleged to constitute unfair labor practices." Id. (citing Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, AFL-CIO, 4 FLRA 787 (1980)). The Respondent further notes that "[a]lthough a complaint need not be confined only to specific matters set forth in a charge, a matter may not be included if the acts claimed to be unfair labor practices occurred more than six months prior to filing and service of the charge." Id. Similarly, the Respondent contends that the Judge properly excluded the General Counsel's arguments that rely on the June 3 interview of Walsh.
Finally, regarding the General Counsel's reference to the notice of proposed removal issued to Walsh on December 13, the Respondent asserts that the Judge properly excluded the notice of proposed removal from his consideration of the complaint because "it was not cited in the complaint nor was it litigated before the [Judge]." Id. at 4. In any event, the Respondent concludes that the "interviews did not intrude into confidential information[,]" and, further, that the May 23 interview involved information that had been publicly disclosed by either Walsh or Garcia. Id. at 7.
The Respondent disputes the General Counsel's claim that the Judge placed "'too great an onus on [Walsh] to require [him] to be sophisticated enough to make clear his basis for refusing to divulge confidential information.'" Id. at 8 (quoting General Counsel's Brief at 3). The Respondent asserts that the Judge properly placed the burden on Walsh to show that he was privileged in refusing to answer certain questions posed to him and to properly invoke any privilege that applied to him. The Respondent contends that the Authority should reject the General Counsel's assertion that "the Authority should adopt a per se rule barring Federal [a]gency's [sic] from compelling union representatives to disclose any statement made by an employee to the union representative in the course of an actual or potential disciplinary proceeding." Id. at 6. The Respondent claims that such a per se rule "would not allow any exceptions" and would "trammel" the Respondent's rights under section 7106(a)(2)(A) and (B) of the Statute. Id.
3. Cross-Exception
The Respondent excepts to the Judge's finding that Walsh could have asserted the privilege of confidentiality with respect to the question asked by the CID investigator on May 23 concerning Garcia's "working off the books." Cross-exception at 1, 2 (referencing Judge's Decision at 12). The Respondent argues that the question posed to Walsh "did not intrude into confidential information" because Walsh had already, as noted by the Judge, disclosed this information to Edwards. Id. at 1 (referencing Judge's Decision at 10). The Respondent asserts that "[t]he disclosure of a privileged communication waives the privilege." Id. at 2. Accordingly, the Respondent concludes that it "must be found" that the May 23 interview of Walsh did not violate section 7116(a)(1) of the Statute. Id. at 3.
VI. Analysis and Conclusions
A. Preliminary Rulings
We reject the Respondent's contention that the Union's exceptions are procedurally deficient under section 2423.27 of our Rules and Regulations. Section 2423.27 of the Authority's Rules and Regulations provides, in relevant part, that exceptions to an administrative law judge's decision must: (1) set forth specifically the questions upon which exceptions are taken; (2) identify the part of the judge's decision to which the objection is made; and (3) state the grounds for the exceptions. We conclude that the Union's exceptions are sufficiently clear so as to satisfy the requirements of section 2423.27. See, for example, Internal Revenue Service, Washington, D.C., 39 FLRA 1568, 1572-73 (1991), petition for review as to other matters filed sub nom. Internal Revenue Service, Washington, D.C. v. FLRA, No. 91-1247 (D.C. Cir. May 24, 1991); U.S. Department of Veterans Affairs, Medical Center, Long Beach, California, 39 FLRA 1347 at n.* (1991).
Further, we reject the Respondent's contention that the Union's exceptions are procedurally deficient under section 2423.28(a) of our Rules and Regulations. Section 2423.28(a) of the Authority's Rules and Regulations provides, in relevant part, that any brief in support of exceptions shall contain: (1) only matters included within the scope of the exceptions; (2) a concise statement of the case containing all that is material to the consideration of the questions presented; (3) a specification of the questions involved and to be argued; and (4) the argument, presenting the points of fact and law relied on in support of the position taken on each question. We find that the Union's brief in support of its exceptions is sufficient to meet the requirements of section 2423.28(a).
However, we agree with the Respondent's contention that the Union's exceptions are deficient to the extent that the Union's arguments "include issues not presented to the Administrative Law Judge . . . ." Id. Section 2429.5 of our Rules and Regulations precludes the Authority from, among other things, considering any issue which was not presented in the proceedings before the administrative law judge. Specifically, the Respondent claims that the Union's arguments that are based on an interpretation of Miranda constitute new issues not presented to the Judge. See Union's Exceptions at 4. We agree with the Respondent's contention and conclude that the Union's arguments in this regard are not properly before us. See, for example, American Federation of Government Employees, AFL-CIO, Local 1909, Fort Jackson, South Carolina, 41 FLRA 18, 20 (1991).
Further, we agree with the Respondent's contention that the General Counsel's arguments, to the extent that they encompass the notice of proposed removal issued to Walsh on December 13, are not properly before us because the arguments were raised for the first time in the General Counsel's exceptions to the Judge's Decision. Accordingly, as these arguments were not previously raised before the Judge in this proceeding, they will not be considered. See id.; Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 24 FLRA 9, 11 (1986) and case cited therein.
Finally, we agree with the Judge that the issue before him was whether the Respondent, through Keeling, threatened Walsh on August 29 with disciplinary action because Walsh had refused to provide information, which Walsh had acquired while engaged in Union activity, regarding the conduct of another unit employee. It is clear from the record that the conversation between Walsh and Keeling on August 29 was the culmination of events which included both the May 23 and June 3 interviews of Walsh. The August 22 FID conducted by Keeling resulted from Walsh's earlier refusals to answer investigators' questions about Garcia. As noted above, an FID must be conducted prior to taking disciplinary action against a unit employee. Based on the FID, the Respondent determined that the appropriate penalty for Walsh's conduct was Walsh's removal. Subsequently, when Walsh contacted Keeling on August 29 and inquired what the proposed penalty against him was going to be, Keeling told him. Accordingly, the May 23 and June 3 interviews were directly related to the August 29 conversation between Walsh and Keeling and the decision relayed to Walsh on that date. Although the May 23 and June 3 interviews occurred more than 6 months prior to the filing of the unfair labor practice charge on December 12, they may be considered for the purpose of explaining Keeling's actions of August 29. See, for example, United States Department of the Interior, Lower Colorado Dams Project, Water and Power Resources Service, 14 FLRA 539, 543 (1981) (evidence of events occurring more than 6 months prior to the filing of a charge may be used to explain the conduct or events occurring within the 6-month period).
B. The Respondent Committed the Alleged Unfair Labor Practice
In Customs Service, Washington, D.C., we found that the respondent violated section 7116(a)(1) of the Statute by requiring a union representative to disclose, under threat of disciplinary action, the content or substance of statements made by an employee to the union representative in the course of representing the employee in a disciplinary proceeding. We found that, under the Statute, an employee must be free to make full and frank disclosure to his or her representative in order to obtain adequate advice and a proper defense. In Customs Service, Washington, D.C., the conversations between the union representative and the employee occurred while the representative was representing the employee in a disciplinary proceeding and was assessing his case and the defense they would employ at the oral reply meeting. Accordingly, we concluded that "those conversations constituted protected activity." 38 FLRA at 1308. We stated that "[a]ny interference with that protected activity violated the Statute unless . . . the right to maintain the confidentiality of the conversations had been waived or some overriding need for the information was established." Id. at 1309.
In Customs Service, Washington, D.C., we found that the representative did not waive the privilege to retain the confidentiality of these conversations. We noted that the representative clearly objected to being interrogated concerning his conversations with the employee. Further, we found that, contrary to the respondent's contention, the record did not show that during the oral reply proceeding the representative volunteered that the employee had told him about the events in question and then proceeded to tell the respondent's representatives what the employee had told him. Rather, we found that the evidence showed that the representative simply stated the facts from the employee's standpoint and that the representative did not refer to the actual content of his conversations with the employee. 38 FLRA at 1309.
Accordingly, in Customs Service, Washington, D.C., we found that the respondent violated section 7116(a)(1) of the Statute by interfering with, restraining, or coercing the employee in the exercise of rights under the Statute and that it further violated section 7116(a)(1) by interfering with, restraining, or coercing the representative both by inhibiting him from obtaining needed information from employees and by interfering with his protected right to engage in union activity.
Applying Customs Service, Washington, D.C. to this case, we must determine whether the Respondent required Walsh to disclose, under threat of disciplinary action, the content or substance of statements made by Garcia to Walsh in the course of representing Garcia, in violation of section 7116(a)(1) of the Statute. As an initial matter, we find that conversations between Garcia and Walsh, in which Garcia told Walsh that he had been engaged in outside employment during his period of removal from the Shipyard, occurred while Walsh was representing Garcia in a disciplinary proceeding and a subsequent settlement of the disciplinary action. Accordingly, consistent with our decision in Customs Service, Washington, D.C., we conclude that the conversations between Garcia and Walsh constituted protected activity and that Walsh had the right to maintain the confidentiality of those conversations.
Any interference with that protected activity violated the Statute unless the right to maintain the confidentiality of the conversations had been waived or some overriding need for the information was established. Inasmuch as there is no allegation herein of an overriding need for the information, we need not reach the issue of what circumstances would permit the questioning of a union representative about employee misconduct.
We next consider whether the right to maintain the confidentiality of those conversations between Garcia and Walsh concerning Garcia's outside employment was waived. In Customs Service, Washington, D.C., we found that the representative did not waive the right to maintain the confidentiality of the conversations found to constitute protected activity. We noted that the representative clearly objected to being interrogated concerning his conversations with the employee. Similarly, in this case, the record demonstrates that in the interviews of May 23 and June 3, Walsh clearly objected to being interrogated concerning his conversations with Garcia. Based on the record before us, we find, contrary to the Judge's determinations, that during the May 23 and June 3 interviews Walsh was invoking the privilege accorded to information disclosed by an employee to his or her representative.
Having determined that Walsh invoked the privilege accorded to information disclosed by an employee to his or her representative, we must examine whether Walsh had a right under the Statute to maintain the confidentiality of the information disclosed. During the May 23 interview, Walsh refused to answer two specific questions asked by the CID investigators. First, Walsh refused to answer the investigators' question about whether Walsh had ever spoken with Edwards about Garcia working and collecting money while he was out on unemployment. We find, in agreement with the reasoning and finding of the Judge, that Walsh did not have a right under the Statute to keep confidential any information that he had already told Edwards.(6) Therefore, we conclude that the investigators' question was not improper and would not have constituted a violation of the Statute.
Second, Walsh refused to answer the investigators' question on May 23 about whether Walsh had any knowledge of Garcia "working off the books." General Counsel's Exhibit 2 at 7. Unlike the first question, which was an attempt to find out what Walsh had told Edwards, this question was an effort to find out what Garcia had disclosed to Walsh. We agree with the Judge that "the proper line of questioning is not what Garcia told Walsh, but, rather, what Walsh told Ms. Edwards." Judge's Decision at 11. Accordingly, we find, in agreement with the Judge and contrary to the Respondent's assertion in its cross-exception, that with respect to this question, Walsh had a right under the Statute to invoke the privilege accorded to information disclosed by an employee to his or her representative. We found above that Walsh invoked the privilege. We further find that the Respondent, through Keeling, threatened Walsh on August 29 with disciplinary action in part because Walsh had refused to answer this question.(7)
By threatening Walsh on August 29 with disciplinary action because Walsh refused to disclose the content or substance of statements made to him by Garcia while Walsh was representing Garcia, the Respondent violated section 7116(a)(1) of the Statute by interfering with, restraining, or coercing Walsh in the exercise of his rights under the Statute. For these reasons, we disagree with the Judge's conclusion that Keeling's conduct on August 29 simply constituted compliance with the parties' agreement. We also disagree with the Judge to the extent that he held that because Walsh called Keeling on August 29 and asked what the recommended penalty would be, Keeling's response did not constitute an unfair labor practice. The fact that Keeling's action on August 29 was in response to a question from Walsh does not address the basis for the Respondent's threat to discipline Walsh and, therefore, is not relevant to the question of whether the Respondent's threat to discipline Walsh was based on an impermissible reason.
Finally, we note that during the June 3 interview, Walsh refused to sign the administrative warning and to answer any questions. In agreement with the Judge, we find that, inasmuch as Walsh's reason for refusing to answer was not in response to specific questions, we cannot ascertain whether such refusal was protected by a right to maintain the confidentiality of the information sought. Accordingly, we make no finding as to whether the investigators' attempt on June 3 to interrogate Walsh was improper and constituted a violation of the Statute.
We find that an order requiring the Respondent to cease and desist from its improper action and to post a notice is appropriate to effectuate the purposes and policies of the Statute.
VII. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Long Beach Naval Shipyard, Long Beach, California, shall:
1. Cease and desist from:
(a) Threatening an employee, who is a representative of the Federal Employees Metal Trades Council, AFL-CIO, the exclusive representative of its employees, with disciplinary action for refusing to disclose information which that employee received while functioning in a representational capacity.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Post at its facilities, 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 Commanding Officer 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 ensure 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, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
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 threaten an employee, who is a representative of the Federal Employees Metal Trades Council, AFL-CIO, the exclusive representative of our employees, with disciplinary action for refusing to disclose information which that employee received while functioning in a representational capacity.
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)
Dated:__________ By:_____________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103 and whose telephone number is: (415) 744-4000.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1/ The Union excepts to certain credibility findings made by the Judge. The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination is incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania, 38 FLRA 671, 672 n.* (1990).
2/ The Judge inadvertently refers to the date of the prehearing conference as April 26, 1988. Judge's Decision at 3. It is clear from the record that the prehearing conference was held on April 21, 1988. See Transcript at 52; Respondent's Exhibit 3. Unless otherwise specified, all dates in this decision refer to 1988.
3/ The Judge noted that Walsh indicated that he contacted Keeling on or about August 27. Based on the record evidence before him, the Judge found that Walsh contacted Keeling on August 29. See Judge's Decision at 8 n.3.
4/ The parties' collective bargaining agreement requires the FID hearing officer to inform an employee within 5 workdays following the FID of what the proposed disciplinary action to be taken against the employee will be. See Judge's Decision at 7-8; Transcript at 28-29.
5/ At the time of the Judge's decision in the instant case, the Judge's decision in Customs Service was pending on exceptions before the Authority. Subsequently, the Authority issued its decision agreeing with the Judge that the respondent in that case had committed the unfair labor practice alleged. U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 1300 (1991) (Customs Service, Washington, D.C.).
6/ The Judge stated that "[i]nformation which was privileged loses its immunity upon public disclosure." Judge's Decision at 10. We agree with this statement only insofar as it means in this case that Walsh did not have a right under the Statute to keep confidential any information that he had already told Edwards.
7/ The Respondent's action on May 23, requiring Walsh to disclose the content or substance of statements made to him by Garcia while Walsh was representing Garcia, would itself have constituted an unfair labor practice if it had occurred within the 6-month filing period provided in section 7118 of the Statute. Accordingly, we disagree with the Judge insofar as he held that the Respondent's questioning of Walsh on May 23 was not improper.