52:0421(43)CA - - Bureau of Prisons, Office of Internal Affairs, Washington, DC and Phoenix, AZ and Federal Correctional Institution, El Reno, OK and AFGE, Local 171 - - 1996 FLRAdec CA - - v52 p421

[ v52 p421 ]
52:0421(43)CA
The decision of the Authority follows:

52 FLRA No. 43

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

____

BUREAU OF PRISONS

OFFICE OF INTERNAL AFFAIRS

WASHINGTON, D.C. AND PHOENIX, ARIZONA

AND

FEDERAL CORRECTIONAL INSTITUTION

EL RENO, OKLAHOMA

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 171

(Charging Party)

DA-CA-30570

___

DECISION AND ORDER

October 23, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.⁽¹⁾

I. Statement of the Case

This case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondents filed an opposition to the General Counsel's exceptions, and also filed cross-exceptions to certain of the Judge's findings. The General Counsel did not file an opposition to the cross-exceptions.

The complaint alleges that the above-named Respondents violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to permit a representative of the American Federation of Government Employees, Local 171 (the Union) to actively represent an employee during an examination in connection with an investigation (a "Weingarten" examination). The Judge found that the Respondents did not violate the Statute as alleged and recommended dismissal of the complaint.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions that the Respondents did not violate the Statute, and we dismiss the complaint.

II. Background and Judge's Decision

An employee of the Respondent Federal Correctional Institution at El Reno, Oklahoma, who was also the Union vice president at the Institution, was told by management that he was to be investigated for serious alleged improprieties. Some 3 weeks later, the examination that is at issue in this case, primarily involving questions concerning the alleged improprieties, took place.

The employee was directed to report to a meeting and was told to bring a Union representative with him. When the employee and his Union representative arrived, they were met by two Internal Affairs investigators from the Respondent Bureau of Prisons, who gave the employee a form stating that they were inquiring into "Possible Violations of the Employee Standards of Conduct." The form also stated that the employee's answers could not be used against him in any criminal proceeding, but could be used in an agency disciplinary action. The employee and his Union representative both read the form and signed it. The investigators announced the format of the examination: 45 minutes of questioning, followed by a 15-minute break. One of the investigators then began questioning the employee, occasionally leaving the room for short periods.⁽²⁾ The other investigator took notes and remained in the room.

During the course of the questioning, the employee and his Union representative twice asked for a recess in order to confer with each other outside the interview room. Both requests were denied. The requests were apparently precipitated by questions about whether members of the employee's family had engaged in certain conduct.⁽³⁾ The Judge found that, immediately following the first of these requests, the employee inquired of the investigator, and the investigator "explained," how his questions about the employee's family members "tied in with the 'stated' purpose of the interview." Judge's Decision at 12. The Judge further found that the investigator told the employee and his Union representative that "they could confer in the interview room and they did so," and that, "[a]s a result, the questions resumed without any renewal of the request for a recess to confer at that point." Id.

The Judge determined that the second request for a recess was made just after the employee and his Union representative had returned from a scheduled break. He also determined that, because a pattern had by then been established in the investigator's line of questioning, both the employee and his Union representative "'knew'" before the break that the next question when they returned would be about one of the employee's family members.⁽⁴⁾ Id. Nevertheless, despite the Judge's finding that they "had ample opportunity to confer outside the examination room" during this break, the employee and the Union representative testified that they did not confer because they "had nothing to confer about." Id. This testimony led the Judge to characterize as "dubious" the sincerity of their request to again leave the room as soon as the questioning about the employee's family resumed after the break. Id. As they had done following their first request for a recess, the employee and his Union representative conferred inside the room, "whispering back and forth," without interruption from the investigator and "never moved to the rear of the room to confer even when [the investigator] had left the interview room."⁽⁵⁾ Id. at 12, 13.

The Judge concluded that, notwithstanding the denial of the requested recesses, the Union representative was not prevented from taking an "active role" in the employee's examination. Id. at 12. Although the Judge also found no indication that brief conferences "outside the hearing of the investigator would have been unduly disruptive or would have interfered with the objective of the investigation," he nevertheless concluded that the investigator's denial of the recess requests "was a reasonable limitation on the exclusive representative's participation." Id. at 12-13. Accordingly, the Judge determined that the employee and his Union representative were not denied any rights under section 7114(a)(2)(B), and recommended dismissal of the complaint.⁽⁶⁾

III. Positions of the Parties

A. The General Counsel

The General Counsel first contends that the Judge failed to address the allegation that the Union representative was not permitted to represent the employee because he was not allowed to clarify the questions the investigator was asking. The General Counsel asserts that the Respondents had adequate notice of this alleged violation and that it was properly litigated before the Judge. The General Counsel acknowledges that the complaint does not explicitly allege this violation, but argues that the wording of the complaint is sufficiently broad to cover it.⁽⁷⁾ The General Counsel also relies upon counsel for the General Counsel's opening statement at the hearing,⁽⁸⁾ the testimony of the employee and his Union representative,⁽⁹⁾ and counsel for the General Counsel's post-hearing brief to the Judge.⁽¹⁰⁾ The General Counsel moreover asserts that "at no time during the hearing did Counsel for Respondent[s] indicate that he had not been given adequate notice that this issue was to be litigated as one aspect of [Respondents'] refusal to allow [the Union representative] to actively participate in the examination." Exceptions at 4-5.

The General Counsel also contends that the Judge failed to correctly apply the Authority's decision in U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota and Office of Inspector General, Washington D.C. and Office of Professional Responsibility, Washington, D.C., 46 FLRA 1526 (1993) (hereinafter Twin Cities) (vacated and remanded on other grounds sub nom. U.S. Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994)). According to the General Counsel, the Authority held in Twin Cities that the Statute entitles an employee and his or her union representative to conduct private conferences, outside the presence of the investigator, during a Weingarten examination so long as such conferences are not unduly disruptive and do not interfere with the objective of the examination or compromise the integrity of the investigation. The General Counsel expressly rejects any suggestion that this entitlement should depend on whether "the Union representative really needs a private conference in order to effectively represent the employee." Exceptions at 13.

The General Counsel also excepts to the Judge's conclusion that the employee and the Union representative were given sufficient opportunity to confer inside the interview room. The General Counsel asserts that the employee and the Union representative were interrupted by the investigator "on every occasion when they tried to confer" in the room. Id. at 9. In addition, the General Counsel argues that the employee and his Union representative were forced to sit from 6 to 12 inches in front of the desk behind which the investigator sat, that they never received "permission to confer in the back of the room at any time" and that, even if they had attempted to confer there while the investigator was absent, "they would . . . only have been able to confer about those questions that had already been asked and answered." Id. The General Counsel summarizes these arguments by asserting that "the evidence strongly suggests" that the circumstances under which the employee and his representative were allowed to confer were "inherently coercive in nature and were designed to inhibit their ability to confer to the maximum extent possible." Id. at 9-10.

B. The Respondents

The Respondents assert that the Union representative was not denied an opportunity to ask the investigator to clarify the meaning of his questions, but was denied only an opportunity to inquire why he was asking the questions. They also assert that neither the charge nor the complaint alleged that the Union representative was prevented from seeking clarification of the investigator's questions. The Respondents argue that they did not reply during the hearing to an allegation regarding the Union representative's inability to clarify questions because they, like the Judge, "had no reason to believe that anyone considered this issue to be a part of the case." Opposition at 5.

The Respondents also argue that the employee and the Union representative failed to articulate, either at the Weingarten examination or at the hearing in this case, any legitimate reason for needing a private conference outside the presence of the investigators. According to the Respondents, Twin Cities does not stand for the proposition that the Statute entitled the employee and his Union representative to a private conference because the Authority's decision in that case was vacated by the D.C. Circuit Court of Appeals and, for all practical purposes, no longer exists.

In their cross-exceptions to the Judge's decision, the Respondents take issue with the Judge's finding that there was no indication that a brief conference outside the hearing of the investigator "would have been unduly disruptive or would have interfered with the objective or integrity of the investigation." Judge's Decision at 12. The Respondents contend that:

allowing a union representative to interrupt the flow of questioning in order to conduct a private conversation with a subject of an interview prior to the subject's answering a pending question will always interfere with a "legitimate management prerogative" and, thus, will always interfere with the objective and integrity of an interview.

Respondents' Cross-Exception at 17 (emphasis in original).

IV. Analysis and Conclusions

The General Counsel's exceptions present two independent questions for decision. We will consider each separately. The first question is whether the Judge erred in failing to address the General Counsel's allegation that the Union representative was not permitted to assist the employee by seeking clarification of the investigator's questions. The second question is whether the Judge erred in concluding that the Respondents did not violate the Statute by denying the requests of the employee and his Union representative to leave the interview room and confer during the examination.

A. The Judge Did Not Err in Failing to Rule on the Allegation that the Union Representative Was Prevented From Clarifying Questions

The charge in this case, which was amended several months prior to issuance of the complaint, alleges only that "during the course of the interrogation, [the investigator] continually refused the employee the opportunity to confer in private with his representative in order to gain a better understanding of the questions he was being ordered to answer." As noted previously (note 6 supra), the relevant section of the complaint alleges that "[t]he Respondents denied active representation by the union representative, including the right to confer privately, during the examination." The Respondents present no reason why the phrase "including the right to confer privately" must be construed as limiting the manner in which the investigator allegedly denied active Union representation during the examination, rather than merely illustrating one way in which he did so, and no reason for such a construction is apparent. At the same time, it is undisputed that the complaint does not expressly state the allegation that the General Counsel now seeks to pursue -- i.e., that the Union representative was prevented from clarifying questions. Thus, the complaint is ambiguous.

Where a complaint is silent or ambiguous about specific issues that are later raised at the hearing, the Authority may still consider and dispose of those issues if the record shows that they were fully and fairly litigated. Thus, in U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 467 (1995), the Authority affirmed that, consistent with private sector precedent, a violation not expressly alleged in a complaint may be found if all issues surrounding the violation have been litigated fully and fairly. The Authority stated in Department of Labor that the test of full and fair litigation was one of whether the respondent knew what conduct was at issue and had a fair opportunity to present a defense. See also, e.g., U.S. Department of the Air Force, 56th Support Group, MacDill Air Force Base, Florida, 51 FLRA 1144, 1157 (1996); U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154, 173 (1991); U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494 (1990).

The Authority expressly applied these principles in Department of Veterans Affairs, Veterans Affairs Medical Center, Washington, D.C., 51 FLRA 896 (1996). The complaint in that case alleged that an employee did not receive an incentive award promised to her by her supervisor, but did not clearly allege that the supervisor had failed to recommend the employee for the award. Nevertheless, counsel for the General Counsel's opening statement at the hearing alleged that the supervisor had failed to recommend the award for the employee in reprisal for her protected activities. The respondent expressly contested this allegation in its own opening statement and introduced testimony from the supervisor in an attempt to rebut it. In these circumstances, the Authority determined that the respondent had sufficient notice of the allegation and was able to fully litigate it.

Although counsel for the General Counsel's opening statement in this case makes a clear reference to the investigator's alleged refusal to permit the Union representative to clarify questions, neither the testimony nor other record evidence describes any specific instance when this refusal occurred, identifies any of the questions which the Union representative was not permitted to clarify, or otherwise illuminates this general allegation. For example, it is not clear from the Union representative's testimony whether he was attempting to ask questions of the investigator or offering clarification of his own. Transcript at 48-49. None of the testimony on this point was developed, and counsel for the General Counsel made no further reference to it during the course of the hearing.

Moreover, unlike Veterans Affairs, where the record showed that the respondent expressly acknowledged and defended itself against a new allegation at the hearing, no response to the disputed allegation in this case was made until the Respondents filed their opposition to the General Counsel's exceptions. Indeed, the Respondents specifically claim that they did not protest the introduction of this allegation in counsel for the General Counsel's opening statement because they did not believe the allegation was part of the case.⁽¹¹⁾ We attach no particular weight to the Respondents' claim, since it is impossible to verify, and we certainly do not base our decision on it. We note only that the record in this case -- unlike the record in Veterans Affairs -- contains no independent evidence from which we can conclude that the Respondents understood, or clearly should have understood, that a new allegation had been raised against them.

The General Counsel relies on U.S. Department of the Air Force, 416 CSG, Griffiss Air Force Base, Rome, New York, 38 FLRA 1136 (1990) (Griffiss) to assert that the disputed allegation in this case can be encompassed by the complaint. This reliance is misplaced, however, because the Authority expressly found in Griffiss that issues relating to events not alleged in the complaint "were fully litigated at the hearing." Id. at 1146.⁽¹²⁾ The General Counsel also refers to Equal Employment Opportunity Commission, San Diego Area, San Diego, California, 48 FLRA 1098 (1993) (EEOC), a case in which the Authority found the complaint "sufficiently broad to include [certain] statements" found by the Judge to violate the Statute." Id. at 1099. The General Counsel does not indicate how EEOC is relevant. Its only apparent relevance is that the facts in that case supported a conclusion similar to the one which the General Counsel seeks (on different facts) here.⁽¹³⁾

"[D]ue process considerations are basic in American jurisprudence . . . ." Department of Labor, 51 FLRA at 467. When a complaint is ambiguous and the record does not clearly show that the respondent otherwise understood (or should have understood) what was in dispute, fairness requires that any doubts about due process be resolved in favor of the respondent. See, e.g., American Federation of Government Employees, Local 2501, Memphis, Tennessee, 51 FLRA 1657, 1660-64 (1996) (Authority reversed judge's finding that union president violated the Statute by making certain statements, even though union did not except to judge's finding on this ground, because record did not demonstrate that union was or should have been on notice that statements were alleged as violation). We again stress that it is the record evidence, not merely the contentions of the parties, upon which our decision must be based. Although counsel for the General Counsel's opening statement might have been sufficient in other circumstances to put a previously unstated allegation in issue, the preponderance of the evidence in this case does not show that it was.

The General Counsel's exception points out clearly the difficulties that result when a complaint is ambiguous and the question whether a factual issue was fully and fairly litigated is presented on appeal. On balance, however, in view of the undeveloped record, and guided by the principle that doubts on this issue must be resolved in favor of the respondent, we are unable to conclude that the Respondents had sufficient notice of the allegation that the Union representative was prevented from obtaining clarification of the questions asked of the employee, and thus did not have an opportunity to fully and fairly defend against this allegation. Consequently, we conclude that this allegation was not properly before the Judge, and that he did not err by failing to rule on it.

B. The Judge Did Not Err in Concluding that the Investigator Did Not Prevent the Union Representative from Actively Representing the Employee at the Examination

1. Section 7114(a)(2)(B) Does Not Grant a Per Se Right to Engage in Private Conferences Outside the Presence of an Investigator During a Weingarten Examination

In this case, the General Counsel argues that section 7114(a)(2)(B) always authorizes an employee and his or her union representative to conduct private conferences outside the presence of the investigator during a Weingarten examination unless the conferences are unduly disruptive, interfere with the objective of the examination, or compromise the integrity of the investigation. The Respondents, in effect, argue that section 7114(b)(2)(B) never permits such conferences.

Section 7114(a)(2)(B) contains no mention of an employee's right to confer privately with a union representative, either with or without the investigator present, during a Weingarten examination. Therefore, if such a right exists, it must logically exist as a consequence of the basic right to union representation that section 7114(a)(2)(B) does guarantee. "[T]he Authority has consistently held that the purposes underlying section 7114(a)(2)(B) can be achieved only by allowing a union representative to take an active role in assisting a unit employee in presenting facts in his or her defense." Headquarters, National Aeronautics and Space Administration, 50 FLRA 601, 607 (1995), petition for enforcement filed sub nom. FLRA v. National Aeronautics and Space Administration, Washington, D.C. and NASA, Office of the Inspector General, Washington, D.C., No.á95-6630 (11th Cir. Julyá31, 1995). A union representative's right to take an "active role" includes not only the right to assist the employee in presenting facts but also the right to consult with the employee: "We have long held that for the right to representation to be meaningful, the representative must have freedom to assist, and consult with, the affected employee." Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, 48 FLRA 787, 799 (1993). See also U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 42 FLRA 834, 840 (1990).

The only Authority decision addressing the issue of private conferences between an employee and a union representative during a Weingarten examination is Twin Cities. In Twin Cities, the Authority adopted, without specifically addressing, the Judge's conclusion that the respondent violated the Statute by refusing a request that an employee and his union representative be permitted to leave the interview room and consult in private during a Weingarten examination. According to the Judge, the investigator "stated that [the union representative] could speak to [the employee] in the room, but he and [the employee] could not have any 'private conferences'" and could not "confer privately outside of the room where the questioning occurred." Twin Cities, 46 FLRA at 1565. The Judge concluded that the investigator violated the Statute:

There is no indication in the record that a brief conference between the Union representative and the employee outside the hearing of the investigator would have been unduly disruptive, would have interfered with the objective of the examination, or would have compromised the integrity of the investigation. Indeed, based on the Union representative's purpose in wanting two brief conferences, the knowledgeable union representative could have assisted the investigator "by eliciting favorable facts." Therefore, I conclude that the full rights of representation under the Statute were not granted in this respect.

Id. at 1569, quoting from NLRB v. J. Weingarten, Inc., 420 U.S. 251, 263 (1975). As mentioned above, the Authority adopted the Judge's findings and conclusions without discussion or modification. Id. at 1528. Although the D.C. Circuit Court of Appeals subsequently vacated the Authority's decision and remanded the case, it did so on grounds that are not relevant here.⁽¹⁴⁾ Nowhere in its decision did the court rule, implicitly or explicitly, on the point at issue in this case.⁽¹⁵⁾ Thus, whether or not the Authority's Twin Cities decision "no longer exists," as the Respondents assert, is irrelevant.

This does not, however, mean that the General Counsel is necessarily correct in stating that Twin Cities establishes a general right to conduct private conferences outside the presence of the investigator so long as such conferences are not unduly disruptive. The Judge's decision in Twin Cities gives no indication of any intention to establish a rule of law extending beyond the facts of that case. Instead, on those facts, he merely determined that the private conferences requested could have promoted one of the objectives which the Supreme Court identified in Weingarten -- that of allowing the union representative to assist the investigator and save time by "eliciting favorable facts." Twin Cities, 46 FLRA at 1569. Nowhere in his decision did the Judge suggest that he was concerned with establishing a general right to private conferences, however qualified, rather than with examining the legitimate purposes which such conferences might serve in the particular case before him.

Thus, contrary to the General Counsel's argument, Twin Cities does not, on its face, hold that section 7114(a)(2)(B) entitles an employee and a union representative to confer privately outside the interview room during a Weingarten examination unless the conference would unduly disrupt the examination. In other words, Twin Cities does not establish a per se, single-factor rule under which private conferences must be permitted absent "undue" disruption. Nor does Twin Cities establish that any right to confer privately necessarily includes a right to leave the interview room. Accordingly, and also contrary to the General Counsel's argument, there is no basis on which to conclude that the Judge misapplied Twin Cities in this case.

The General Counsel cites no other authority for the proposition that a request to leave the interview room in order to conduct a private conference must be evaluated solely on the basis of whether it would disrupt an examination. Our research likewise fails to disclose any authority, in the public or private sectors, for this proposition. To adopt such a proposition now would be to extend to employees and their representatives, in effect, a right to interrupt Weingarten examinations upon request in order to leave the site of the examination and conduct private conferences (absent "undue" disruption) even when the conferences are unnecessary to protect any of the rights guaranteed under section 7114(a)(2)(B). Accordingly, we are persuaded that the approach used by the Judge in this case -- evaluating the Respondents' actions to determine whether they interfered with active and effective participation by the Union representative in the employee's defense -- is the proper approach to resolving the complaint.⁽¹⁶⁾

2. The Employee and His Union Representative Were Not Denied Rights Under the Statute When Their Requests to Confer Privately Outside the Interview Room During the Examination Were Denied

Consistent with the foregoing, the question to be decided in this case is whether the General Counsel satisfied the burden of proving that the Respondents violated the Statute by refusing to permit the employee and the Union representative to confer outside the examination room, at their request, or whether the record supports the Judge's conclusion that, by these actions, the Union representative was not "prevented from taking the 'active role' . . . envisioned by" section 7114(a)(2)(B) of the Statute. Judge's Decision at 12. This question, in turn, requires careful examination of the Judge's finding that the employee and the Union representative had sufficient opportunity to confer, when they desired, inside the interview room, as well as during their scheduled breaks outside it, and that it was therefore unnecessary to allow them to leave the room when they requested.

As the Judge acknowledged, the record presents conflicting testimony on the ability of the employee and the Union representative to confer privately inside the interview room. Although the employee and the Union representative testified that they were interrupted by the investigator when they tried to confer, both investigators testified that the employee and the Union representative were not interrupted and were permitted to whisper to each other. Transcript at 59-60, 69, 77. The Judge, after having observed the demeanor of the witnesses as they testified, credited the investigators' testimony. The Authority will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. See, e.g., U.S. Department of Transportation, Federal Aviation Administration, Southwest Region, Airways Facilities Sector, Austin, Texas, 43áFLRAá1581 (1992), reconsideration denied, 44 FLRA 1095 (1992). Besides his credibility determination, the Judge relied on other evidence in concluding that the employee and the Union representative could adequately confer inside the interview room. For example, he found that they did not renew their requests to leave the room while the investigator was absent, and that they did not withdraw to the rear of the room to confer at any time, even while the investigator was absent and the employee was not being questioned.

As to the opportunities afforded the employee and the Union representative to confer outside the interview room, the Judge found that they were informed at the beginning of the interview that they would be given hourly, 15-minute breaks outside the room, and that they did not object to this schedule. It is undisputed that these breaks in fact took place and that the employee and the Union representative were free to confer in private when the breaks occurred.

It is also undisputed that each of the two requests to leave the interview room and confer were immediately preceded by questions about the employee's family members. As mentioned previously, this questioning appears to have been the principal reason for both requests. The Judge determined that, after the investigator denied the first request to leave the room, the discussion shifted from "the request for a recess to a discussion of the scope of the interview." Id. at 12. That is, when the employee asked the investigator what the examination had to do with his family, the investigator "explained," and neither the employee nor the Union representative renewed their request to leave the room. Id. The Judge's determination is clearly supported by the record and, in turn, supports the conclusion that the employee and his representative had an opportunity (had they chosen to avail themselves of it) to discuss the questions about the employee's family during their scheduled break, when complete privacy was assured. Nevertheless, the Judge found that they did not confer during the break immediately preceding their second request to leave the room because they "had nothing to confer about" -- despite their clear awareness by this time that the employee's family was implicated in the examination and the fact that the question preceding the break in effect signaled the question likely to, and which did, follow it. Id. at 13. Indeed, it was precisely this failure of the employee and the Union representative to avail themselves of the opportunity to confer that led the Judge to doubt the "sincerity" of their second request for a recess. Id. at 6.

Moreover, the record does not indicate how either request to confer outside the interview room, if granted, would have enhanced the Union representative's ability to effectively represent the employee. In addition to the facts discussed above, the employee's responses to the investigator's questions do not show that he was prevented from protecting his interests in responding to questions asked during the course of the interview, which largely pertained to the allegations of which he was notified 3 weeks before the interview. Further, the affidavit signed by the employee and his representative at the end of the interview, which sets forth the questions asked by the investigator and the employee's answers, shows that the employee did not answer any of the questions asked him with respect to the employee's family. Indeed, he asserted, in reply to the second such question, that "I do not know what they did or did not do. Any time you ask me a question about my family this is the same answer I am going to provide, because my family does not work for the Bureau of Prisons." General Counsel's Exh. 4. We can find no clear indication in the record that the employee received less effective representation than that to which he was entitled under the Statute because he and the Union representative were not permitted to leave the interview room and confer when they requested.

The evidence, taken as a whole, persuaded the Judge that the employee and his representative were not denied any rights guaranteed them by the Statute merely because they were not permitted to leave the interview room when they asked to do so. Our review of the record confirms that the General Counsel has not established the necessary connection between the requested recesses and the ability of the Union representative to actively and effectively represent the employee. In fact, as mentioned previously, the General Counsel, who bears the burden of proof on this point, denies that any such connection is necessary.

As to the General Counsel's argument that the circumstances of the examination were "inherently coercive" because the employee and his Union representative were interrupted by the investigator "on every occasion when they tried to confer" in the interview room, we note that both the employee and the Union representative testified to this effect, but neither indicated whether they had requested permission to confer or simply started talking. Nor did they indicate whether they ever objected to the interruptions. In any event, as set forth above, the Judge credited the contrary testimony of the investigators, one of whom stated that the employee and the Union representative were told after they asked to leave the interview room that they could "confer inside the room." Transcript at 59. On at least this occasion, as the Judge found, they were not interrupted. Judge's Decision at 5; Transcript at 60, 77.

The General Counsel also argues that the employee and his Union representative were coerced by being forced to sit only a few inches in front of the desk behind which the investigator sat. However, the General Counsel does not dispute the Judge's finding that they never moved to the rear of the room to confer, even when the investigator was absent. Instead, the General Counsel contends only that the employee and the Union representative never received "permission to confer in the back of the room at any time." Exceptions at 9. The record does not indicate whether the employee and the Union representative ever asked for such permission. In addition, the General Counsel does not explain why, as asserted, had they asked to confer in the back of the room, the employee and the Union representative would have been limited to discussing questions that had already been answered.

The Judge's decision that the employee and the Union representative "had, and exercised, the right to confer in the examination room" is based largely on his assessment of the facts and the demeanor and resulting credibility of the witnesses. Judge's Decision at 13. The record supports his decision. Although they may have been prevented from leaving the interview room at the precise times they desired, the General Counsel has not established, consistent with the burden of doing so, that the employee and his Union representative were denied their right to confer under the Statute.⁽¹⁷⁾

In summary, for the reasons explained previously, we believe that any right for an employee and union representative to confer privately outside an interview room depends upon whether it is reasonably necessary to do so in order to ensure active and effective union representation. The burden of showing that it is necessary must rest with the General Counsel. Because that burden has not been met, we conclude that the Respondents did not violate the Statute as alleged.

V. Order

The complaint is dismissed.

Dissenting Opinion of Member Wasserman

Initially, I disagree with the majority that the Respondents did not have adequate notice of the allegation that the Union was prevented from obtaining clarification of the questions asked of the employee. I believe that the complaint, although broadly worded, is sufficient to encompass this allegation, especially in view of the claim in the General Counsel's opening statement that the union representative was not permitted "to assist [the employee] in seeking clarification of the question." Transcript at 12.

Having put the Respondents on notice that the issue would be litigated, the General Counsel in fact litigated it. For example, the General Counsel asked the employee if his representative was "allowed to clarify any of the questions . . . asked of you during the interview[.]" Id. at 27. The General Counsel later asked the representative whether he had been allowed to clarify the questions and what response he had received when he had attempted to do so. Id. at 48-49. The fact that the Respondents may not have taken the General Counsel's statement and questioning seriously and therefore, did not respond to this allegation has no bearing on whether the Respondents understood (or should have understood) what was in dispute.^(*/) Therefore, as I would find that the Respondents had an opportunity to fully and fairly defend against this allegation, I would conclude that they were accorded due process.

With regard to the allegation addressed by the majority decision, I agree with the Judge and my colleagues that we must evaluate the Respondents' actions to determine whether those actions interfered with the union representative's active and effective participation in the employee's defense. However, applying this approach, I conclude, contrary to the majority, that the General Counsel met his burden of demonstrating that the requirements of section 7114(a)(2)(B) were met. The Authority has consistently held that a union representative must be allowed to take an active role in assisting an employee's defense. In my view, a representative cannot adequately perform the "active role" required by Authority precedent, see, e.g., Headquarters, National Aeronautics and Space Administration, Washington, D.C., 50 FLRA 601, 607 (1995), petition for enforcement filed sub nom. FLRA v. National Aeronautics and Space Administration, Washington, D.C. and NASA, Office of the Inspector General, Washington, D.C., No.á95-6630 (11th Cir. Julyá31, 1995); United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 440 (1990), if he or she is not permitted sufficient privacy to confer with an employee when the employee most needs assistance. Thus, in my view, the question in this case is not whether the employee and his representative were wrongly denied the right to leave the room, but whether they were denied the right to hold a meaningful conference in private, regardless of location.

In some cases, an agency may meet the requirements of section 7114(a)(2)(B) if the representative can meet privately with the employee before the Weingarten interview begins. In this case, however, a meaningful pre-interview conference was not possible because the employee was summoned to appear at the interview with no advance notice of the scope of the inquiry or the nature of significant portions of the questioning. In other cases, where the scope of the interview and its possible effects on the employee are clear, the representative may be able to give adequate assistance if permitted to confer with the employee in the interview room during the questioning. This is definitely not that sort of case.

In this case, the only advance notice the employee received regarding the interview was that the questioning would concern improprieties that allegedly occurred during an investigation in which he had represented another employee. In fact, he was questioned about events that were unrelated to that earlier investigation and that had allegedly occurred during a time period that "long pre-dat[ed]" the matter that he had been summoned to discuss. Judge's Decision at 5. Thus, with virtually no advance notice, the Respondents required the employee under investigation to endure a highly intimidating situation, in which two high-level representatives of his agency (accompanied by an agent of the Federal Bureau of Investigation (FBI) in the next room) engaged in far-ranging questioning covering events that had occurred years earlier. Clearly, the presence in El Reno, Oklahoma of investigators from Phoenix, Arizona and Washington, D.C. and an FBI agent from Oklahoma City conveyed to the employee that the matter was of the utmost seriousness and that the full weight of the Bureau of Prisons, FBI and Department of Justice could be brought to bear against him.

I find it significant that the questions that evoked the requests to confer were directed not at the employee's conduct, but at potentially criminal activities of members of his family. The record does not establish that the employee had any advance knowledge that the inquiry would cover such matters. Moreover, although he had been given assurances that his testimony could not be used in a criminal proceeding (assurances that did not lessen the potential -- and actual -- effect on his job status), he had no such assurances that statements regarding his family would not have dire consequences for them. It is this type of intimidation, and the fear that it engenders, that the Supreme Court sought to mitigate by requiring employers to permit knowledgeable representation during investigatory interviews. NLRB v. Weingarten, Inc., 420 U.S. 251, 262-63 (1975) ("A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.").

In light of these unique circumstances, I cannot conclude that the employee had a sufficient opportunity to confer with his union representative. Instead, I would find that effective representation in this case required a level of privacy that simply was not afforded. In support of my position, I note the following:

The placement of the employee and representative during the questioning allowed no real privacy. Rather, they were seated within a foot of the desk at which the investigators were also seated. The ability to hold whispered conferences several feet from one's interrogators does not, in my view, afford sufficient privacy to meet the requirements of section 7114(a)(2)(B).

In view of the fact that the employee and representative were never left alone in the interview room, I disagree with the Judge that they could have held an adequate conference had they moved to the back of the room. Even though Mr. Pfistner periodically left the room, they still could not converse openly without fear of being overheard by Mr. Winn. In a case such as this, where an investigator is always present, leaving the room may be the only means open to an employee for a truly private conference with his or her representative. Thus, in the circumstances of this case, I conclude that the failure to request leave to speak elsewhere in the room establishes nothing.

I also disagree that the employee should have anticipated that the ninth question would concern his son's conduct and that he should have used the break period to confer with his representative regarding his response to that question. Although the Judge found that there was a pattern to the questioning that should have alerted the employee to the probability of such an inquiry after the break, I note that the employee and/or his representative requested a recess to confer much earlier in the questioning, before any such pattern was evident. Moreover, even after eight questions, the employee could not necessarily have been expected to detect such a "pattern."

The majority acknowledges that the employee and his representative "may have been prevented from leaving the interview room at the precise times they desired," slip op. at 18, but conclude nonetheless that the record does not indicate that they were denied the right to confer. Timing is, as the cliche goes, often everything. Where, as here, an employee requests a conference with his representative in order to respond to a particular question or line of questioning, it is of little value that hourly breaks may have been rigidly scheduled solely at management's convenience.

Having been rebuffed twice in their request for a recess, the employee and his representative reasonably could have thought that it would be futile to try again. Therefore, I draw no inferences from their failure to do so. In particular, I accord no weight to the fact that they did not reiterate the request after the investigator "explained" the relevance of his line of questioning and gave them permission to confer in the interview room.

There was no evidence that granting the requests for recesses would have caused any disruption to the investigation. Indeed, the Judge so found. Judge's Decision at 12 ("[T]here is no indication that such a brief conference outside the hearing of the investigator would have been unduly disruptive or would have interfered with the objective or integrity of the investigation."). I note in this regard that Mr. Pfistner showed no reluctance to "disrupt" his line of questioning at least six times when he left, apparently to confer with the FBI agent outside the room.

Finally, I stress that this was an investigation with potentially serious consequences; in fact, the employee was terminated following the investigation. This employee truly needed the effective union representation contemplated by the Statute. I do not believe that he received it. Consequently, I dissent.

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

BUREAU OF PRISONS

OFFICE OF INTERNAL AFFAIRS

WASHINGTON, D.C.

AND

BUREAU OF PRISONS

OFFICE OF INTERNAL AFFAIRS

PHOENIX, ARIZONA

AND

FEDERAL CORRECTIONAL INSTITUTION

EL RENO, OKLAHOMA

Respondents

Case No. DA-CA-30570

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 171

Charging Party

Steven R. Simon, Esquire
Mr. John Fox
For the Respondents

Mr. Robert Brantley
For the Charging Party

John M. Bates, Esquire
For the General Counsel

Before: WILLIAM B. DEVANEY
Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq.,⁽¹⁾ and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns, narrowly, whether Respondents violated §§ 16(a)(1) and (8) of the Statute by denying, "active representation by the union representative", when it refused to grant a recess for the representative, "to confer privately", during an examination, although it permitted conferring privately within the room.

This case was initiated by a charge filed on March 25, 1993 (G.C. Exh. 1(a)); an amended charge was filed on July 6, 1993 (G.C. Exh. 1(c)); and the Complaint and Notice of Hearing issued on December 23, 1993 (G.C. Exh. 1(e)), and set the hearing for a date and at a location to be determined in El Reno, Oklahoma. By Order dated March 8, 1994, the hearing was scheduled for May 9, 1994, in Oklahoma City (G.C. Exh. 1(g)); by Order dated May 3, 1994, the hearing was rescheduled for May 11, 1994 (G.C. Exh. 1(h)); by Order dated May 5, 1994, the hearing was further rescheduled for July 25, 1994 (G.C. Exh. 1(i)); by Order dated June 29, 1994 (G.C. Exh. 1(j)), the hearing was again rescheduled for October 3, 1994; and, finally by Order dated August 23, 1994 (G.C. Exh. 1(l)), the hearing was further rescheduled for October 4, 1994, pursuant to which a hearing was duly heard on October 4, 1994, in Oklahoma City, Oklahoma, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the close of the hearing, November 4, 1994, was fixed as the date for mailing post-hearing briefs. General Counsel and Respondent each timely mailed a brief, received on, or before, November 8, 1994, which have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

Findings

1. Mr. Rickey H. Miller has been a correctional officer at the Federal Correctional Institution, El Reno, Oklahoma, for fourteen years (Tr. 14); he is now a Senior Officer Specialist; and he is vice president of Local 171, a position he has held for about five and one-half years (Tr. 14).

2. On February 11, 1993, Mr. Miller was placed on home duty (G.C. Exh. 2). He was told that he was going to be investigated for intimidating, coercing and harassing both inmate and staff witnesses during an investigation in which he was involved as the representative of a Roger Alexander (Tr. 15).⁽²⁾

3. Mr. Miller was called at home and told to come to the Correctional Institution on March 4, 1993, and to bring a Union representative with him (Tr. 17).

4. Mr. Miller called Mr. Robert W. Brantley, his Union representative, and asked him to represent him at the meeting (Tr. 17, 43). Mr. Brantley had been employed at El Reno from 1974 until his retirement in December, 1989 (Tr. 43). He stated that he now is "the advocate for the local." (Tr. 43). Mr. Miller and Mr. Brantley met "at the union house" on March 4, 1993, and proceeded to the Correctional Institution where they were escorted to the interview room in the Office of the Special Investigative Supervisor (Tr. 17-18).⁽³⁾ Waiting in the interview room were two Internal Affairs investigators: Mr. John R. Pfistner, Supervisory Special Agent from Internal Affairs' Phoenix, Arizona, office and Mr. Richard A. Winn, Special Agent from Internal Affairs' Washington, D.C. office (Tr. 18, 58, 69, 74).

5. The interview room was described as about 20 feet by 20 feet, with file cabinets and a desk at one end (Tr. 19, 44). Mr. Pfistner sat at the desk and Mr. Winn sat at the corner, or side, of the desk (Tr. 44). Mr. Miller and Mr. Brantley sat in chairs in front of the desk, their chairs being located so that there was only about a foot between their knees and the desk (Tr. 19, 44). After introductions, Mr. Pfistner stated that they were there to investigate allegations against Mr. Miller of violations of the Code of Conduct, as Mr. Miller stated (Tr. 19); or, as Mr. Brantley stated, Mr. Pfistner said, ". . . he was there to interview Mr. Miller on several issues and that during the course of the interview, there would be a 15-minute break -- he would give us a 15-minute break at the end of 45 minutes." (Tr. 45). Mr. Miller was given a copy of Form B to sign which stated, inter alia, that, "Neither your answers nor any information or evidence gained by reason of your answers can be used against you in any criminal proceeding, except that if you knowingly and willfully provide false statements . . . The answers you furnish . . . may be used in the course of agency disciplinary proceedings . . .". (G.C. Exh. 3). The form also stated, "This inquiry pertains to: Possible Violations of the Employee Standards of Conduct." (G.C. Exh. 3). Mr. Miller and Mr. Brantley read the form together and both signed it (Tr. 46; G.C. Exh. 3).

6. Mr. Miller stated that Mr. Pfistner, who conducted the interview, "would read through affidavits and ask questions and type them on the computer and ask me and then type in the answer." (Tr. 21). The document entitled "Affidavit" (G.C. Exh. 4) contains the questions and answers, with Mr. Miller's corrections, and about three-fourths of page 7 and all of page 8 (except for the interjection of one question) constitutes Mr. Miller's closing statement; and on the last page (execution page) is a further handwritten comment by Mr. Miller.

Mr. Winn had a yellow pad to take notes (Tr. 21).

7. The Affidavit (G.C. Exh. 4) does not show at what point Mr. Miller and/or Mr. Brantley requested a recess and does not show at what point Mr. Pfistner left the room, although the record shows there was at least one request for a recess and that Mr. Pfistner left the room, Mr. Miller and Mr. Brantley stated, "at least a half-a-dozen times" for two or three minutes, presumably to confer with Mr. Nichols (Tr. 28, 52).

8. The parties were in sharp disagreement as to how many times Mr. Miller and/or Mr. Brantley requested a recess to confer outside the interview room: Messrs. Miller and Brantley stoutly maintained they made two requests: First, when question No. 3 was asked (Mr. Miller said question No. 2 (Tr. 21-22), but from the context of his testimony it is clear that he referred to what in the Affidavit is question 3, i.e., "(the first question he asked me [question No. 1 in the Affidavit is an affirmation of non-medication, etc.] was a total surprise; he asked me about something that had happened over three years prior to the . . . interview" and ". . . the second question, he asked had my teenage son did [sic] that . . . .") (Tr. 22, 46). Second, on question No. 9 (Tr. 23, 50). On the other hand, Messrs. Pfistner and Winn were equally adamant that there had been a single request for a recess to confer outside the interview room, namely, after question 9 was asked (Tr. 67, 76). Mr. Winn stated that the interview began at about 8:10 a.m.; that the first break was at about 8:54; that before the break Mr. Pfistner had asked questions in regard to Mr. Miller's family; that when they resumed after the break, Mr. Pfistner asked question No. 9 ("To your knowledge did [your son -- any member of your family -- or acquaintance] . . . ever start a fire behind the . . . residence. . . ."); that Mr. Pfistner denied them a recess to go outside but said, "You can confer inside the room." (Tr. 59); that Mr. Brantley whispered in Mr. Miller's ear and immediately thereafter, Mr. Miller responded that he was ". . . answering this question under duress. And then he would respond to what we asked him." (Tr. 59-60). Mr. Pfistner confirmed Mr. Winn's account (Tr. 76-77) and emphasized that, ". . . Mr. Brantley and Mr. Miller whispered back and forth. I did not interrupt that. It was not disruptive. And ultimately, Mr. Miller responded to the question." (Tr. 77).

9. Whether a recess was sought after this third question, there is no dispute that when the third question was asked, or, even more likely, when the second question was asked, Mr. Miller asked for clarification as to how events that had occurred as long in the past as 1990 tied in with the stated purpose of the interview;⁽⁴⁾ (Tr. 21-22, 46, 72) and Mr. Winn stated that Mr. Pfistner, ". . . explained . . . why his family [sic] was being asked these questions: because we had information that we believed that his family was involved in the misconduct of which he was under investigation." (Tr. 72). Mr. Miller said, when asked if Messrs. Pfistner and Winn had specifically told him what he was to be questioned about, replied, "No. They were vague. They said it was for allegations for violating the code of conduct." (Tr. 21). Mr. Miller had earlier said that in connection with the Alexander case, ". . . I went through the disciplinary packet and wanted to talk [sic] the people that had written the affidavits and memoranda. And a couple of these guys said that I had made threatening statements, and they felt like I was harassing them by doing my part of the investigation getting ready for the arbitration hearing." (Tr. 16). His surprise, when Mr. Pfistner began the interview with events long pre-dating the Alexander case, certainly is undeniable and persuades me that, as he and Mr. Brantley testified, he and/or Mr. Brantley did, indeed, request a recess to confer when question 2 or 3 was asked.

10. Although twice denied a recess to confer outside the interview room, the record is clear that they were told they could confer in the interview room (Tr. 22, 59) and that they, in fact, did so (Tr. 22, 47, 53, 60, 77), although Mr. Miller said that Mr. Pfistner, when they tried to confer in the room, would say, ". . . Gentlemen, excuse me; Are you refusing to cooperate; If you are not, answer the question." (Tr. 22) and Mr. Brantley said, "There was no privacy there, and the -- there were a lot of restrictions placed on our even leaning over and conversing in a very low tone." (Tr. 47-48).

Mr. Pfistner stated he "did not interrupt" Mr. Miller and Mr. Brantley (Tr. 77) and Mr. Winn said they did whisper (Tr. 60).

Both Mr. Miller and Mr. Brantley testified that Mr. Pfistner left the interview room at least six times but neither indicated at what point (question) of the interview he was absent and, accepting their unchallenged testimony that on each occasion he was gone for two to three minutes, neither commented on their failure to repair to the far end of the room to confer privately. Nor did they indicate they made any request to confer outside the room while Mr. Pfistner was conferring outside the room.

11. In view of the fact that all witnesses agree that a recess to "confer" was requested at question 9 and in view of the further facts which are undisputed, namely, that there had been a ten-minute break after question 8 and that both before the break and after, Mr. Pfistner had asked questions concerning conduct of Mr. Miller's family, Mr. Brantley's admission, on cross-examination, that he and Mr. Miller did not confer on the breaks -- that,

"Well, we had nothing to confer about other than to discuss the -- what had already transpired in the meeting." (Tr. 49)

renders dubious the sincerity of their request to confer.

Conclusions

Respondents did not question Mr. Miller's right to representation at the investigative interview, indeed, instructed him to bring his representative which he did. Mr. Brantley, Mr. Miller's representative, was present at the interview and actively participated, but, he was denied the right to a recess to confer with Mr. Miller outside the interview room although he was permitted to confer with Mr. Miller in the interview room.

The Authority has stated,

" . . . The purpose of section 7114(a)(2)(B) is to create representational rights for Federal employees similar to the rights provided by the National Labor Relations Board (NLRB) in interpreting the National Labor Relations Act (NLRA). See 124 Cong. Rec. 29184 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, H.R. Comm. Print No. 7, 96th Cong., 1st Sess. 926 (1979) (Legislative History), where Congressman Udall explained that the purpose of the House bill provisions which led to enactment of section 7114(a)(2)(B) was to reflect the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten).

Under Weingarten, the right to representation at an examination is intended to benefit an employee who is called into a meeting with his or her employer in connection with an investigation as well as to benefit the employer and the union. . . .

. . .

"In view of the legislative history underlying section 7114(a)(2)(B), cited above, we conclude that the purposes underlying the Weingarten right in the private sector--promoting a more equitable balance of power and preventing unjust disciplinary actions and unwarranted grievances--also apply to the right to representation created by section 7114(a)(2)(B). These purposes are consistent with the overall purposes and policies of the Statute set forth in section 7101. That is, they effectuate 'the right of employees to organize, . . . and participate through labor organizations . . . in decisions which affect them . . . [which] safeguards the public interest, . . . contributes to the effective conduct of public business, and . . . facilitates and encourages the amicable settlements of disputes[.]' Insofar as representation at examinations promotes a more equitable balance of power between management and labor, we believe that this is consistent with the intent of Congress in passing the Civil Service Reform Act (CSRA), Pub. L. 95-454, of which the Statute constitutes title VII. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 107 (1983) in which the Court noted, '[i]n passing the Civil Service Reform Act, Congress unquestion-ably intended to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest[.]'

"The purpose underlying section 7114(a)(2)(B) and the benefits intended for the various parties cannot be achieved if the union representative is prohibited from taking an active role in assisting an employee in presenting facts at an examination. Consequently, under section 7114(a)(2)(B) repre-sentation includes the right of the union representative to take an 'active part' in the defense of the employee. Federal Aviation Admin-istration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678, 678-79, n.2 (1981); NLRB v. Texaco, Inc., 659 F.2d 124 (9th Cir. 1981)." United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 439-440 (1990) (hereinafter, "Bureau of Prisons, Safford, Arizona").

In Federal Aviation Administration, New England Region, Burlington, Massachusetts, 35 FLRA 645 (1990) (hereinafter, "FAA, Burlington"), decided shortly after Bureau of Prisons, Safford, Arizona, supra, the Authority again stated that,

"The representational rights of the union under section 7114(a)(2)(B) include the right to take an 'active part' in the defense of the employee. Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678, 678-79 n.2 (1981). The union representative must be granted a full opportunity to assist the examined employees and to fully participate in the investigatory examination. See U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA 297 (1981)." (35 FLRA at 651).

The Authority cautioned, however, that the right of the union to participate in the examination was limited, stating, in part, that,

"In Weingarten, the Court outlined the 'contours and limits' of the right to union representation and noted, among other things, that the 'exercise of the right may not interfere with legitimate employer prerogatives.' 420 U.S. at 256, 258. Thus, under Weingarten, an employer has a legitimate interest and prerogative in achieving the objective of the examination and preserving the integrity of the investigation. See Weingarten, 420 U.S. at 258. Accordingly, a union's represen-tational rights under section 7114(a)(2)(B) may not compromise that integrity. Federal Prison System, Federal Correctional Institution, Petersburg, Virginia, 25 FLRA 210 (1987)(adopting the Judge's finding that a representative designated for an investigatory examination may be rejected by management in order to preserve the integrity of the investigation).

. . .

"The NLRB has stated that the construction of the NLRA affirmed by the Supreme Court in Weingarten represents a balance between employer prerogatives in investigating and disciplining misconduct and the right of employees to a union representative when their terms and conditions of employment are threatened by those prerogatives. The proper balance must be struck 'in light of the mischief to be corrected and the end to be attained.' Pacific Telephone & Telegraph, 262 NLRB at 1049 (quoting Weingarten, 420 U.S. at 262).

"We agree with the NLRB's approach and adopt it for the Federal sector as an analytical tool . . ." (35 FLRA at 652-653).

In U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA 297 (1981), the Authority held that an activity violated §§ 16(a)(1) and (8) of the Statute by precluding the representative from speaking out or making any statement during a taped interview; in Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 682 (1981), the Authority held that the activity violated §§ 16(a)(1), (2) and (8) of the Statute by, inter alia, issuing an oral reprimand to a representative because he sought to take an active part in the employee's defense and refused "to take" an order to be quiet. However, in Norfolk Naval Shipyard, 9 FLRA 458 (1982), the Authority, although it affirmed the Administrative Law Judge's finding that the activity violated §§ 16(a)(1) and (8) because ". . . employees were unnecessarily intimidated. It follows that the Respondent's conduct went beyond what was reasonably necessary under the specific circumstances of this case" (9 FLRA at 459), stated that,

"In so doing, the Authority recognizes management's need, under certain circumstances, to place reason-able limitations on the exclusive representative's participation pursuant to section 7114(a)(2)(B) of the Statute during an examination of an employee, in order to prevent an adversary confrontation with that representative and to achieve the objective of the examination." (9 FLRA at 458-459).

In U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota and Office of Inspector General, Washington, D.C. and Office of Professional Responsibilities, Washington, D.C., 46 FLRA 1526 (1993) (hereinafter, "INS-OIG"), vacated and remanded, ___ F.3d ___, No. 93-1284, United States Court of Appeals for the District of Columbus Circuit, November 4, 1994, the Authority had adopted the Judge's Decision, as material here, with respect to violations of § 16(a)(1) and (8) of the Statute by failing to comply with § 14(a)(2)(B) of the Statute. Judge Oliver stated, in part, as follows,

"The statement of OIG/OPR Investigator Nelson to Union representative Hagen that other than asking for clarification of a question, or pointing out a procedural error, he could not advise the employee at all, clearly interfered with the Union repre-sentative's ability to take an active part in assisting the employee to elicit and present facts as contemplated by the Statute. The Union repre-sentative obviously could not 'assist the employer by eliciting favorable facts' and render the other assistance to the employer and employee as envisioned by the Supreme Court in Weingarten. . . .

"With regard to determining whether the Statute was separately violated when OIG/OPR Investigator Nelson prohibited the Union representative and the employee from having a private conference during the examination, the Supreme Court declared in Weingarten that the presence of the Union represen-tative 'need not transform the interview into an adversary contest,' 420 U.S. at 263, and the Authority has held that a union's representational rights under section 7114(a)(2)(B) may not interfere with an employer's legitimate interest and prerog-ative in achieving the objective of the examination or compromise the integrity of the employer's investigation. Federal Aviation Administration, New England Region, Burlington, Massachusetts, 35 FLRA 645, 652 (1990).

"There is no indication in the record that a brief conference between the Union representative and the employee outside the hearing of the investigator would have been unduly disruptive, would have interfered with the objective of the examination, or would have compromised the integrity of the investigation. Indeed, based on the Union representative's purpose in wanting two brief conferences, the knowledgeable union representative could have assisted the investigator 'by eliciting favorable facts.' Therefore, I conclude that the full rights of representation under the Statute were not granted in this respect.

"By the conduct of OIG/OPR Investigator Nelson described above, Respondents OIG and OPR failed to comply with section 7114(a)(2)(B) of the Statute and thereby committed an unfair labor practice in violation of section 7116(a)(1) and (8) of the Statute, as alleged." (46 FLRA at 1568-1569).

On appeal, the Court stated that, "The first issue is whether the Office of Inspector General (and OPR) committed an unfair labor practice when its investigator, Nelson, refused to allow the union representative to confer privately with Wood during the interrogation. [footnote omitted]." (Slip opinion p. 6). The Court vacated the Authority's findings because it concluded, inter alia, that, ". . . the Authority erred in considering the Office of Inspector General to be the 'agency' subject to that provision. Because section 7114(a)(2)(B) did not govern the investigatory interview of union member Wood [which was pursuant to the Inspector General Act], neither the Office of Inspector General nor OPR committed unfair labor practices when the investigator restricted the role of Wood's representative." (Slip opinion, p. 14).⁽⁵⁾

In this case, I have found that Mr. Miller and/or his representative, Mr. Brantley, requested a recess to confer outside the interview room after the second or third question and the request was denied; but, as Mr. Brantley, testified, Mr. Miller at this point asked for clarification as to how these questions tied in with the "stated" propose of the interview; Mr. Pfistner "explained"; and the discussion, having segued from the request for a recess to a discussion of the scope of the interview, does not show that the Union Representative was prevented from taking the "active role" as the Authority has stated is envisioned by § 14(a)(2)(B) of the Statute. Not only did the discussion almost immediately shift, but Messrs. Miller and Brantley were told they could confer in the interview room and they did so. As a result, the questions resumed without any renewal of the request for a recess to confer at that point. The questions followed the pattern of asking Miller if he had done so and so, e.g. questions 2, 4, 6, 8 (G.C. Exh. 4), followed by a question asking Mr. Miller if he had any knowledge of his son or his wife having done so and so, e.g. questions 3, 5, 7, 9 (G.C. Exh. 4). After question 8, there was a ten minute recess, following which, Mr. Pfistner asked question 9. All parties agree that at this point, i.e., when question 9 was asked, a further request for a recess was made by Mr. Brantley, and/or Mr. Miller, to confer outside the interview room, which request was denied. Mr. Pfistner told them they could confer in the room; they did so -- whispering back and forth, which Mr. Pfistner did not interrupt (Tr. 77) and when Mr. Miller answered, he prefaced his answer to question 9 with the statement, "I am answering this question under duress. . . ." (G.C. Exh. 4), a phase he had not previously employed but which he also used in response to question 11 (G.C. Exh. 4).

Read literally, INS-OIG, supra, might indicate that the mere refusal to permit a private conference outside the interview room constituted a failure to comply with § 14(a)(2)(B) and violates §§ 16(a)(1) and (8) where, as here, there is no indication that such a brief conference outside the hearing of the investigator would have been unduly disruptive or would have interfered with the objective or integrity of the investigation. But I believe, as the Authority explained in FAA, Burlington, supra, that a ". . . proper balance must be stuck 'in light of the mischief to be corrected and the end to be attained.'" (35 FLRA at 653). The parties had just had a ten minute break and, upon reconvening, question 9, continuing the pattern, having asked by question 8 if Mr. Miller had started a fire behind the Beeley residence, Mr. Pfistner asked Mr. Miller if he had any knowledge that his son, any member of his family or an acquaintance had started a fire behind the Beeley residence. Forewarned by question 8, Mr. Brantley and Mr. Miller well "knew" that Mr. Pfistner's next question would be whether Mr. Miller had any knowledge that his son or his wife had started a fire behind the Beeley's residence; but Mr. Brantley testified that he and Mr. Miller did not confer on the breaks because, ". . . we had noting to confer about . . .". (Tr. 49). Accordingly, the request for a recess to confer, after question 9 was asked, was not shown to have had any relation to assisting Mr. Miller and, having just had ample opportunity to confer outside the examination room, assuredly did not interfere with Mr. Brantley's right, ". . . to take an 'active part' in the defense of the employee." Bureau of Prisons, Safford, Arizona, supra, 35 FLRA at 440. Mr. Pfistner's denial of the recess was a reasonable limitation on the exclusive representative's participation. Norfolk Naval Shipyard, supra, 9 FLRA at 458. Moreover, the record shows that Mr. Brantley and Mr. Miller had, and exercised, the right to confer in the examination room. Even though, when sitting at the front of the desk, they may have felt their privacy compromised, despite Messrs. Pfistner's and Winn's assertion that they heard nothing whispered between Mr. Brantley and Mr. Miller (Tr. 60, 77), they never moved to the rear of the room to confer even when the inquisitor (Mr. Pfistner) had left the interview room.

Having found that Respondents did not under the circumstances of this case interfere with the § 14(a)(2)(B) right of the Union representative by denying a request for a recess to confer privately, it is recommended that the Authority adopt the following:

ORDER

The Complaint in Case No. DA-CA-30570 be, and the same is hereby, dismissed.

_________________________
WILLIAM B. DEVANEY
Administrative Law Judge

Dated: January 12, 1995
Washington, DC

FOOTNOTES:

Authority's Footnotes Follow:

1. Member Wasserman's dissenting opinion is set forth at the end of this decision.

2. The Judge "presumed" from the testimony that the investigator was leaving the interview room to confer with an FBI agent whom the employee and his Union representative had seen waiting in the outer office when they arrived. Judge's Decision at 4. He found that the investigator was absent "at least six times" for "two to three minutes," although it was unclear at what point in the examination these absences occurred. Id. at 6.

3. The employee testified that, at the time of the first request, he "wanted to confer with [the Union representative] because, you know, I didn't feel [the investigator] had a right to be asking me about my family." Transcript at 22.

4. As found by the Judge, this pattern consisted in the investigator's "asking [the employee] if he had done so and so . . . followed by a question asking [him] if he had any knowledge of his son or his wife having done so and so." Judge's Decision at 12. The question asked before the scheduled break was whether the employee had started a fire behind another employee's residence; the question asked after the break was whether the employee knew if his son or wife had started such a fire. Id. at 13.

5. The Judge noted that neither the employee nor his representative "commented on their failure to repair to the far end of the room to confer privately" while the investigator was absent or indicated that "they made any request to confer outside the room while [the investigator] was conferring outside the room." Judge's Decision at 6.

6. The employee in this case was terminated following the examination, in part for having denied during the examination that he had made (or remembered making) certain statements in connection with the improprieties in which he allegedly had engaged. It is not alleged, and there is no indication in the record, that the employee's termination had any connection with the requested recesses. The employee was subsequently reinstated with back pay at the direction of an arbitrator, who found no proof that he had made the statements attributed to him.

7. Paragraph 18 of the complaint alleges that "[t]he Respondents denied active representation by the union representative, including the right to confer privately, during the examination."

8. The relevant portion of this opening statement is as follows:

[The Union representative] was also denied the right to actively participate in the examination in other respects. [The employee and the Union representative] were informed that if [the employee] did not understand a particular question, the [investigator] who was conducting the questioning would handle that situation rather than allowing [the Union representative] to assist [the employee] in seeking clarification of the question.

Transcript at 12.

9. The employee testified as follows on direct examination:

Q. Okay. Was [the Union representative] allowed to clarify any of the questions that, you know, were asked of you during the interview?

A. No, sir. When [the Union representative] would try to ask [the investigator] questions to help clarify this question for me so I could give a proper answer, [the investigator] would tell [the Union representative], This is my investigation; I will ask the questions; You won't ask questions.

Transcript at 27. The Union representative himself testified:

Q. Were you allowed to clarify any questions that were asked during the interview?

A. No, sir. As a matter of fact, I began to suspect that I might be charged with some violation during the course of the interview for my attempts to represent [the employee] as I believed my duties to represent him called for.

Q. What response did [the investigator] make when you attempted to clarify questions?

A. Well, he was very, very terse and quick to remind me that it was his investigation, that he would do the clarification and that he was in charge of the meeting.

Transcript at 48-49.

10. The General Counsel argues, in pertinent part, that:

The record also establishes that [the Union representative] was not allowed to fully represent [the employee] in the March 4, 1993 investigatory examination in two respects. First [the representative] was not allowed to assist [the employee] by seeking clarification of [the investigator's] questions. This is supported by the testimony of both [the representative and the employee] and is not refuted by the testimony of either of the [Respondents'] witnesses.

General Counsel's Post-Hearing Brief at 10.

11. The Respondents point out that the General Counsel twice moved to amend the complaint at the hearing and argues that, even after these amendments, nothing in the complaint encompassed the disputed allegation. The amendments to the complaint merely corrected two erroneous paragraph numbers. Although the General Counsel could also have moved to substantively amend the allegations of the complaint at the hearing, no such motion was presented.

12. The General Counsel also cites U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491 (1990), and U.S. Customs Service, Washington, D.C. and U.S. Customs Service, Northeast Region (Boston, Massachusetts), 29 FLRA 891 (1987) for the proposition that a mere ambiguity in the complaint does not preclude litigation of an issue where both parties understand that issue and present evidence relating to it. This proposition is not in dispute. What is in dispute is whether the Respondents in this case understood the nature of the allegations and had a proper opportunity to defend against them.

13. The complaint in EEOC alleged that a supervisor had made unlawful statements regarding participation in protected activities. The Judge found that no witness testified to precisely the statement alleged in the complaint, but that a "composite" of the testimony of three witnesses showed the supervisor had "explicitly linked adverse consequences to union activity." 48 FLRA at 1107.

14. The court disagreed with the Authority's conclusion that the investigator conducting the Weingarten interview (under the supervision of the Inspector General) was "a representative of the agency" within the meaning of section 7114(a)(2)(B) of the Statute. Department of Justice v. FLRA, 39 F.3d. 361, 365-66 (1995).

15. However, the court was willing to "assume arguendo that the section 7114(a)(2)(B) right to union 'representation' prevents an 'agency' from barring private conferences between its employee and the attending union member during an examination." Department of Justice v. FLRA, 39 F.3d. at 365.

16. The Judge's decision in Twin Cities can reasonably be read as an application of this same approach, albeit with a different result.

17. However, this decision should not be read as a conclusion that section 7114(a)(2)(B) of the Statute may never be found to encompass a right to a private conference of the type involved in this case.

Dissenting Opinion Footnote Follows:

*/ I am puzzled by the fact that the Respondents, part of a major Federal agency, plead ignorance of allegations against them that were articulated and litigated at a formal hearing and yet argue that a beleaguered employee did not need additional assistance to understand and respond to questions that were unforeseen and fraught with danger for the employee and his family.

ALJ's Footnotes Follow:

1. For convenience of reference, sections of the Statute hereinafter, are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(8) will be referred to, simply, as, "§ 16(a)(8)."

2. Mr. Alexander had been removed; Local 171 took the case to arbitration and Mr. Miller was assigned to handle his arbitra-tion case. The arbitrator cleared Mr. Alexander of all charges and ordered his reinstatement with backpay (Tr. 15, 16).

3. Sitting in the outer office, through which they passed, was a Mr. Herman Nichols, an FBI agent out of the Oklahoma City Office assigned to handle matters that may arise at the Institution, who Mr. Miller and Mr. Brantley knew (Tr. 18, 44).

4. Nothing in question 2, et seq. (G.C. Exh. 4) indicated such a time frame; but, obviously, Mr. Miller well appreciated the time of the incidents inquired about.

5. The Court did not have to decide, and did not decide, whether the § 14(a)(2)(B) right prevents an agency from barring private conferences during an examination; nevertheless, the Court stated,

". . . We shall assume arguendo that the section 7114(a)(2)(B) right to union 'representation' prevents an 'agency' from barring private conferences between its employee and the attending union member during an examination. [footnote omitted]. Still, the Authority's conclusion that the Office of Inspector General committed an unfair labor practice does not necessarily follow. . . ." (Slip opinion, p. 7).

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52:0421(43)CA - - Bureau of Prisons, Office of Internal Affairs, Washington, DC and Phoenix, AZ and Federal Correctional Institution, El Reno, OK and AFGE, Local 171 - - 1996 FLRAdec CA - - v52 p421

Dissenting Opinion of Member Wasserman

Authority's Footnotes Follow:

Dissenting Opinion Footnote Follows:

ALJ's Footnotes Follow: