[ v04 p397 ]
04:0397(54)CA
The decision of the Authority follows:
4 FLRA No. 54
U.S. DEPARTMENT OF NAVY
U.S. MARINE CORPS
MARINE CORPS LOGISTICS BASE
ALBANY, GEORGIA
Respondent
and
BARBARA M. DRAKE, EMPLOYEE
Charging Party
Case No. 4-CA-235
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED
IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS
AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. SECTIONS 7101-7135), THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. IN THIS REGARD THE COMPLAINT HEREIN ALLEGED, THE
ADMINISTRATIVE LAW JUDGE FOUND, AND THE AUTHORITY AGREES THAT RESPONDENT
VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE BY DENYING A REQUEST
BY THE CHARGING PARTY, AN EMPLOYEE, TO BE REPRESENTED BY HER UNION
REPRESENTATIVE AT AN INTERVIEW LIKELY TO RESULT IN DISCIPLINARY ACTION
AGAINST HER.
ORDER
ACCORDINGLY, PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR
RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE
STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE U.S. DEPARTMENT OF NAVY,
U.S. MARINE CORPS, MARINE CORPS LOGISTICS BASE, ALBANY, GEORGIA SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING AN INVESTIGATIVE INTERVIEW OR EXAMINATION OF ANY
EMPLOYEE WHICH MIGHT
REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST SAID EMPLOYEE
WITHOUT GIVING AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2317, THE
EMPLOYEES' EXCLUSIVE BARGAINING
REPRESENTATIVE, AN OPPORTUNITY, UPON REQUEST BY SAID EMPLOYEE, TO BE
REPRESENTED AT SUCH
INVESTIGATIVE INTERVIEW OR EXAMINATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES
OF THE STATUTE:
(A) POST AT ITS FACILITIES IN ALBANY, GEORGIA COPIES OF THE ATTACHED
NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT
OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE COMMANDING OFFICER AND SHALL BE POSTED AND
MAINTAINED BY HIM 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 SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR OF REGION 4, SUITE 501, NORTH WING,
1776 PEACHTREE STREET,
NW., ATLANTA, GEORGIA 30309, IN WRITING, WITHIN 30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT
STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CONDUCT AN INVESTIGATIVE INTERVIEW OR EXAMINATION OF ANY
EMPLOYEE WHICH MIGHT REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST
SAID EMPLOYEE WITHOUT GIVING AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2317, THE EMPLOYEES' EXCLUSIVE BARGAINING
REPRESENTATIVE, AN OPPORTUNITY, UPON REQUEST BY SAID EMPLOYEE, TO BE
REPRESENTED AT SUCH INVESTIGATIVE INTERVIEW OR EXAMINATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1776 PEACHTREE STREET, NW., SUITE 501, NORTH WING, ATLANTA, GEORGIA
30309, AND WHOSE TELEPHONE NUMBER IS: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ELBERT C. NEWTON
LABOR RELATIONS SPECIALIST
CAPTAIN WILLIAM R. SEALE
DEPUTY STAFF JUDGE ADVOCATE
FOR THE RESPONDENT
BRENDA S. GREEN, ESQUIRE
WILLIAM N. CATES, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
CASE NO. 4-CA-235
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON NOVEMBER 16,
1979 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
ATLANTA, GEORGIA REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON
JANUARY 17, 1980 AT ALBANY, GEORGIA.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED
THE ACT). BASED UPON A CHARGE FILED ON SEPTEMBER 24, 1979 BY BARBARA M.
DRAKE, AN EMPLOYEE, AGAINST U.S. DEPARTMENT OF NAVY, UNITED STATES
MARINE CORPS, MARINE CORPS LOGISTICS BASE, ALBANY, GEORGIA (HEREIN
CALLED RESPONDENT), A COMPLAINT WAS ISSUED AGAINST SAID RESPONDENT. IT
WAS ALLEGED THEREIN THAT THE LATTER VIOLATED SECTIONS 7116(A)(1) AND (8)
OF THE ACT BY DENYING, ON SEPTEMBER 4, 1979, A REQUEST BY DRAKE TO BE
REPRESENTED BY HER UNION REPRESENTATIVE AT AN INTERVIEW LIKELY TO RESULT
IN DISCIPLINARY ACTION AGAINST SAID EMPLOYEE.
A RESPONSE WAS FILED BY RESPONDENT ON DECEMBER 3, 1979 WHEREIN IT
DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICES. IT SPECIFICALLY
DENIED THAT: (A) DRAKE REQUESTED REPRESENTATION BY HER UNION AT THE
INTERVIEW, AS ALLEGED, AND (B) RESPONDENT REFUSED OR DENIED ANY REQUEST
BY DRAKE TO HAVE HER UNION REPRESENTATIVE PRESENT AT THE INTERVIEW.
BOTH PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES, AND TO FILE BRIEFS WITH THE UNDERSIGNED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN, AND SINCE 1964, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2317 (HEREIN CALLED THE UNION),
HAS BEEN, AND STILL IS, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL
GRADED AND UNGRADED EMPLOYEES OF THE MARINE CORPS LOGISTICS BASE,
ALBANY, GEORGIA. /1/ A CONTRACT WAS EXECUTED BETWEEN THE PARTIES ON
JUNE 3, 1976 WHICH COVERED SAID UNIT AND IS, BY ITS TERMS, EFFECTIVE FOR
A PERIOD OF THREE YEARS.
2. BARBARA DRAKE IS, AND HAS BEEN AT ALL TIMES MATERIAL HEREIN, AN
EMPLOYEE OF RESPONDENT WITHIN THE BARGAINING UNIT REPRESENTED BY THE
UNION. DRAKE IS EMPLOYED AS AN INVENTORY MANAGEMENT SPECIALIST.
3. BETWEEN AND DURING THE PERIOD FROM MONDAY, AUGUST 27, 1979
THROUGH FRIDAY, AUGUST 31, 1979, /2/ DRAKE DID NOT REPORT TO WORK. SHE
TELEPHONED THE BASE EACH DAY STATING THAT HER HUSBAND WHO WAS
HOSPITALIZED NEEDED HER ATTENTION AND THAT HER CHILD WAS ILL. NO
SANCTION OR APPROVAL FOR THE ABSENCE WAS GRANTED BY MANAGEMENT.
4. ON SEPTEMBER 4 JACK A. SWANSON, SUPERVISOR, INVENTORY MANAGEMENT
SPECIALIST, CALLED DRAKE TO ATTEND A MEETING AT BRANCH HEAD JIMMY
TURNER'S OFFICE. THE MEETING WAS HELD AT 8:30 A.M. ON THAT DATE FOR THE
PURPOSE OF INTERROGATING DRAKE CONCERNING HER ABSENCE FROM WORK DURING
THE WEEK OF AUGUST 27 AND ASCERTAINING THE REASON THEREFOR. PRESENT
THEREAT WERE DRAKE, SWANSON, TURNER AND RENA MONG, /3/ SECRETARY TO THE
BRANCH HEAD.
5. AT THE ONSET OF THE SEPTEMBER 4 MEETING, AND PRIOR TO ANY
INTERROGATION, DRAKE TOLD SWANSON THAT IF HE WAS CONTEMPLATING ANY
ACTION HARMFUL TO HER AND HER CAREER, SHE WANTED REPRESENTATION. THE
SUPERVISOR THEN ASKED WHY SHE WAS ABSENT ON MONDAY (AUGUST 27). DRAKE
REPLIED THAT HER CHILD, WHO HAD A HIGH TEMPERATURE, WAS ON STRONG
MEDICATION SINCE SHE WAS A CANDIDATE FOR EPILEPSY. MOREOVER, SHE STATED
HER HUSBAND WAS HOSPITALIZED AND NEEDED HER ATTENTION. DRAKE AGAIN
REQUESTED REPRESENTATION. SWANSON ASKED WHY THE EMPLOYEE WAS ABSENT ON
TUESDAY AND WEDNESDAY. SHE EXPLAINED HER HUSBAND WAS STILL HOSPITALIZED
AND IT WAS REALLY A FAMILY EMERGENCY. TURNER REMARKED THAT HE CALLED
THE SCHOOL AND WAS INFORMED DRAKE'S DAUGHTER HAD BEEN IN SCHOOL ON
AUGUST 27 AND 28. WHEREUPON DRAKE OBJECTED TO TURNER CALLING THE
SCHOOL. SHE REPEATED HER REQUEST FOR REPRESENTATION, AND TURNER
COMMENTED THAT HE UNDERSTOOD SHE WAS ONLY ENTITLED TO HAVE
REPRESENTATION AFTER SHE RECEIVES "THE LETTER." AT THE CONCLUSION OF THE
MEETING SWANSON STATED HE WAS DISAPPROVING THE LEAVE AND WOULD PLACE
DRAKE ON UNAUTHORIZED ABSENCE. NO RESPONSES WERE MADE, EXCEPT AS NOTED,
TO THE EMPLOYEE'S REQUEST FOR REPRESENTATION AT THE SAID MEETING. /4/
6. LATER IN THE DAY OF SEPTEMBER 4 SWANSON GAVE DRAKE A COPY OF HER
LEAVE SLIP WHICH HAD BEEN MARKED "DISAPPROVED." AT 4:15 P.M. THE
SUPERVISOR CALLED HER INTO THE OFFICE WHERE TURNER WAS ALSO PRESENT.
SWANSON SAID THAT HE WAS PREPARING A PROPOSAL FOR DRAKE'S SUSPENSION FOR
FIVE DAYS BASED ON HER UNAUTHORIZED ABSENCE BETWEEN AUGUST 27-31.
7. ON SEPTEMBER 11 DRAKE WAS GIVEN A "NOTIFICATION OF CONTEMPLATED
SUSPENSION FROM DUTY" SIGNED BY SWANSON. THIS PROPOSED FIVE DAY
SUSPENSION WAS DECLARED TO BE A DISCIPLINARY OFFENSE PREDICATED ON HER
UNAUTHORIZED ABSENCE FROM WORK. THE NOTIFICATION ALSO REFERRED TO THE
HEARING HELD ON SEPTEMBER 4, AND IT RECITED THAT SWANSON REJECTED
DRAKE'S EXPLANATION FOR BEING ABSENT FROM AUGUST 27 TO AUGUST 31.
8. THEREAFTER SWANSON WAS ADVISED BY THE NAVAL CIVILIAN PERSONNEL
COMMAND THAT, UNDER THE AGREEMENT BETWEEN THE PARTIES, MANAGEMENT
SHOULD
HAVE NOTIFIED DRAKE PRIOR TO THE SEPTEMBER 4 MEETING THAT SHE COULD HAVE
A UNION REPRESENTATIVE THEREAT. SINCE SWANSON FAILED TO SO ADVISE DRAKE
DESPITE HIS INTENTION TO DISCUSS DISCIPLINARY ACTION WITH HER, THE
COMMAND SUGGESTED THE PROPOSED SUSPENSION BE RESCINDED AND NOT
EFFECTUATED AT THAT TIME. /5/
9. IN ACCORDANCE WITH THE ADVICE RECEIVED FROM THE COMMAND, SWANSON
SUBMITTED A MEMORANDUM TO DRAKE, DATED OCTOBER 12, 1979, WHICH RESCINDED
THE CONTEMPLATED SUSPENSION. THE MEMO ALSO RECITED THAT A PRE-ACTION
INVESTIGATION WOULD BE HELD ON OCTOBER 15; THAT DRAKE WAS ENTITLED TO
HAVE HER UNION REPRESENTATIVE PRESENT THEREAT; AND THAT APPROPRIATE
ACTION WOULD BE TAKEN AFTER THE INVESTIGATION.
10. ON OCTOBER 15 A MEETING WAS HELD IN THE DIVISION DIRECTOR'S
OFFICE. PRESENT WERE SWANSON, TURNER, UNION REPRESENTATIVE DOUG SMITH
AND THE SECRETARY TO THE DIVISION DIRECTOR. TURNER, WHO CONDUCTED THE
MEETING, ASKED DRAKE WHY SHE WAS ABSENT ON EACH DAY-- AUGUST 27 THROUGH
AUGUST 31-- AND THE EMPLOYEE REPLIED THE REASONS WERE THE SAME AS GIVEN
AT THE PRIOR INVESTIGATIVE MEETING. UNION REPRESENTATIVE SMITH REMARKED
THAT MANAGEMENT HAD ALREADY ASKED THESE QUESTIONS, AND HE TOLD TURNER TO
USE THE INFORMATION PROVIDED AT THE PREVIOUS INVESTIGATION.
11. ON OCTOBER 23, DRAKE WAS GIVEN A NEW "NOTIFICATION OF
CONTEMPLATED SUSPENSION FROM DUTY" BASED ON HER UNAUTHORIZED ABSENCE
FROM DUTY DURING THE AUGUST 27-31 PERIOD. THE NOTIFICATION STATED THAT,
WHILE MANAGEMENT DID NOT INTEND TO USE THE EXPLANATIONS GIVEN BY DRAKE
AT THE SEPTEMBER 4 MEETING, HER UNION REPRESENTATIVE AUTHORIZED THE USE
THEREOF AT THE OCTOBER 15 MEETING. FURTHER, DRAKE WAS NOTIFIED IN THE
MEMO THAT SHE AND HER UNION REPRESENTATIVE STATED THAT, WHILE MANAGEMENT
DID NOT INTEND TO USE THE EXPLANATIONS COULD ARRANGE TO MEET WITH TURNER
IF EXPLANATIONS WERE DESIRED RE THE PROPOSED ACTION AND REASONS
THEREFOR.
12. ON NOVEMBER 6 DRAKE RECEIVED A MEMO FROM TURNER NOTIFYING HER
SHE WOULD BE SUSPENDED FOR A PERIOD OF FIVE DAYS FROM NOVEMBER 12
THROUGH NOVEMBER 16 BASED ON HER UNAUTHORIZED ABSENCE. THEREAFTER DRAKE
WAS SO SUSPENDED FOR FIVE DAYS WITHOUT PAY.
CONCLUSIONS
THERE ARE THREE ESSENTIAL ISSUES PRESENTED FOR DETERMINATION HEREIN:
(1) WHETHER RESPONDENT DENIED DRAKE UNION REPRESENTATION AT THE
SEPTEMBER 4 MEETING IN VIOLATION OF THE ACT; (2) WHETHER MANAGEMENT'S
SUBSEQUENT CONDUCT WHEREBY IT CONDUCTED AN INVESTIGATION OF DRAKE'S
ABSENCES ANEW, AND WITH A UNION REPRESENTATIVE BEING PRESENT, CURED ANY
INITIAL WRONGDOING AND RENDERED IT MOOT OR DE MINIMIS; (3) WHETHER ANY
REMEDIAL RELIEF SHOULD INCLUDE A RETURN TO STATUS QUO ANTE UNDER THESE
CIRCUMSTANCES.
(1) UNDER EXECUTIVE ORDER 11491, AS AMENDED, EMPLOYEES IN THE PUBLIC
SECTOR WERE AFFORDED THE RIGHT TO HAVE THEIR UNION REPRESENTATIVE
PRESENT AT FORMAL DISCUSSIONS HELD WITH MANAGEMENT CONCERNING PERSONNEL
POLICIES OR CONDITIONS OF EMPLOYMENT. THIS RIGHT WAS PROTECTED, AND
SOMEWHAT MODIFIED, UNDER THE ACT HEREIN AS SET FORTH IN SECTION 7114
THEREOF AS FOLLOWS:
SECTION 7114. REPRESENTATION RIGHTS AND DUTIES
"(A)(2). AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN
AGENCY SHALL BE GIVEN
THE OPPORTUNITY TO BE REPRESENTED AT--
"(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR
MORE EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICE OR OTHER GENERAL CONDITION OF EMPLOYMENT; OR
"(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE
OF THE AGENCY IN
CONNECTION WITH AN INVESTIGATION IF--
(1) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE; AND
(11) THE EMPLOYEE REQUESTS REPRESENTATION.
IT BECOMES APPARENT THAT WHEN AN EMPLOYER CONDUCTS AN INTERVIEW OR
INVESTIGATION OF AN EMPLOYEE CONCERNING THE LATTER'S ABSENCE FROM
EMPLOYMENT, THE AFORESAID STATUTORY LANGUAGE REQUIRES THAT UNION
REPRESENTATION THEREAT, IF REQUESTED, MUST BE ALLOWED. IN THE CASE AT
BAR, I AM SATISFIED THAT DRAKE MADE SEVERAL SUCH REQUESTS AT THE MEETING
ON SEPTEMBER 4. SHE MANIFESTED CONCERN RE THE LIKELIHOOD OF
DISCIPLINARY ACTION BEING TAKEN AGAINST HER BY MANAGEMENT AND ASKED
REPEATEDLY THAT HER UNION REPRESENTATIVE BE IN ATTENDANCE. DESPITE HER
ENTREATIES IN THIS RESPECT, SWANSON CONTINUED WITH THE INVESTIGATION.
BY IGNORING DRAKE'S REQUESTS FOR SUCH REPRESENTATION, BY FAILING TO
REPLY THERETO, AND CONTINUING TO INVESTIGATE THE REASON FOR HER ABSENCE
FROM AUGUST 27-31, MANAGEMENT ABROGATED THE RIGHT AFFORDED THIS
INDIVIDUAL UNDER THE STATUTE. RESPONDENT'S CONDUCT RAN FOUL OF SECTION
7114(A)(2)(B)(1)(11), AS AFORESAID, AND THUS WAS VIOLATIVE OF SECTIONS
7116(A)(1) AND (8) OF THE ACT.
(2) RESPONDENT ARGUES THAT ANY VIOLATION IT MAY HAVE COMMITTED ON
SEPTEMBER 4 WAS MERELY TECHNICAL IN NATURE. IT INSISTS THAT SINCE IT
AFFORDED DRAKE AN OPPORTUNITY TO HAVE A UNION REPRESENTATIVE PRESENT AT
A LATER DATE, ANY INITIAL WRONGDOING WAS CORRECTED. THUS, THE EMPLOYER
CONTENDS THE ISSUE IS MOOT AND NO JUSTIFICATION EXISTS FOR A REMEDIAL
ORDER HEREIN.
I DISAGREE. IT IS TRUE THAT RESPONDENT INITIATED A NEW
INVESTIGATION. DUE NOTICE WAS GIVEN THE UNION REPRESENTATIVE OF ANOTHER
MEETING TO BE HELD ON OCTOBER 15, AND THE ORIGINAL NOTICE OF SUSPENSION
WAS RESCINDED. MOREOVER, THE UNION OFFICIAL ATTENDED THE SAID MEETING
AND REPRESENTED DRAKE THEREAT. NEVERTHELESS, I DO NOT DEEM RESPONDENT'S
REFUSAL TO GRANT UNION REPRESENTATION ON SEPTEMBER 4 TO BE SO TRIVIAL OR
DE MINIMIS AS NOT TO WARRANT FINDING A VIOLATION OCCURRED. INSTANCES
HAVE OCCURRED IN THE PUBLIC SECTOR WHERE CONDUCT HAS BEEN CHARACTERIZED
AS DE MINIMIS AND NOT SUFFICIENT TO REQUIRE FINDING THE ORDER WAS
VIOLATED. THUS, IN VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT
GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 435, FLRC NO.
741-77, MANAGEMENT REFUSED TO CONTINUE NEGOTIATIONS AND WALKED OUT OF A
MEETING. HOWEVER, IT RESUMED NEGOTIATIONS ON THE FOLLOWING DAY AND
RETURNED TO THE BARGAINING TABLE. WHILE THE ASSISTANT SECRETARY FOUND A
VIOLATION OCCURRED, THE FEDERAL LABOR RELATIONS COUNCIL CONCLUDED THE
BRIEF INTERRUPTION HAD A DE MINIMIS EFFECT WHICH DID NOT WARRANT FINDING
A VIOLATION.
IN MY OPINION THE CITED CASE IS DISTINGUISHABLE FROM THE ONE AT HAND.
A VERY SHORT TIME ELAPSED IN THE VANDENBERG CASE BETWEEN THE
DISCONTINUANCE AND RESUMPTION OF NEGOTIATIONS. THE EMPLOYER DID
CONTINUE TO BARGAIN, AND THE BRIEF INTERRUPTION HAD NO SIGNIFICANT
IMPACT. IN THE INSTANT MATTER OVER A MONTH PASSED BEFORE RESPONDENT
REINSTITUTED THE INVESTIGATION PROCESS WITH THE PROPER PROCEDURE. THE
EMPLOYER DID NOT ATTEMPT TO RECTIFY ITS WRONGDOING UNTIL AFTER THE
EMPLOYEE HAD RECEIVED A SUSPENSION NOTICE AND THE INVESTIGATION WAS
COMPLETED. THIS WAS NOT, IN ANY SENSE, COMPARABLE TO THE "BRIEF
INTERRUPTION" WHICH OCCURRED IN THE VANDENBERG CASE. NOTE IS ALSO TAKEN
OF THE DECISION IN DEPARTMENT OF THE AIR FORCE, 47TH FLYING TRAINING
WING, LAUGHLIN AIR FORCE BASE, TEXAS, 2 FLRA NO. 24, WHERE THE EMPLOYER
FAILED TO NOTIFY THE UNION OF A DECISION TO MODIFY ITS TELEPHONE SYSTEM.
ACCORDINGLY, IT WAS HELD THAT THE UNION WAS DENIED THE RIGHT TO
NEGOTIATE OVER IMPACT AND IMPLEMENTATION OF THE MODIFICATION. DESPITE
MANAGEMENT'S SUBSEQUENT NEGOTIATIONS OVER THE IMPACT OF THE CHANGES
SEVERAL WEEKS AFTER THE NEW SYSTEM WAS INSTALLED, THE FEDERAL LABOR
RELATIONS AUTHORITY CONCLUDED SUCH ACTION DID NOT REMEDY THE INITIAL
FAILURE TO NOTIFY THE UNION.
IN MY OPINION THE MEETING HELD ON OCTOBER 15 DID NOT RECTIFY THE
VIOLATION WHICH OCCURRED AT THE INITIAL INTERVIEW. THE FAILURE TO
PERMIT DRAKE UNION REPRESENTATION AT THE MEETING ON SEPTEMBER 4 WAS NOT
PROMPTLY REMEDIED. IT INSTITUTED A SEPARATE OR DISTINCT VIOLATION OF THE
EMPLOYEE'S STATUTORY RIGHTS AND I DO NOT DEEM IT TRIVIAL OR DE MINIMIS.
WHILE RESPONDENT MAY HAVE FOLLOWED THE PROPER PROCEDURE AND COMPLIED
WITH ITS OBLIGATION AT A LATER DATE SO AS TO AFFORD DRAKE UNION
REPRESENTATION, SUCH CONDUCT DID NOT 'CURE' THE VIOLATION OCCURRING ON
SEPTEMBER 4. FAILURE TO SO CONCLUDE WOULD REQUIRE EXONERATING A
RESPONDENT WHO, UPON VIOLATING THE ACT, ENGAGES IN SUBSEQUENT CONDUCT
WHICH PER SE IS NOT VIOLATIVE THEREOF. UNLESS SUCH VIOLATION IS A MERE
TECHNICAL FAULT-- WHICH I DO NOT FIND EXISTENT IN THIS CASE-- A PARTY
COULD ENGAGE IN TRANSGRESSIONS WITH IMPUNITY. ACCORDINGLY, I CONCLUDE
THAT RESPONDENT'S ACTION IN LATER GRANTING DRAKE UNION REPRESENTATION
DID NOT RENDER MOOT ITS WRONGDOING ON SEPTEMBER 4.
(3) IT IS ALSO CONTENDED BY THE GENERAL COUNSEL THAT A RETURN TO THE
STATUS QUO ANTE IS THE ONLY REMEDY WHICH COULD PROPERLY RECTIFY THE
RESPONDENT'S MISCONDUCT HEREIN. IN THIS RESPECT, IT IS URGED THAT THE
SUSPENSION OF DRAKE BE REVOKED, ALL MATERIAL IN CONNECTION THEREWITH BE
EXPUNGED FROM HER FILES, AND A RESTORATION BE MADE OF ANY BACK PAY OR
LEAVE LOST BY THE EMPLOYEE. GENERAL COUNSEL ARGUES THAT HAD PROPER
REPRESENTATION BEEN AFFORDED DRAKE ON SEPTEMBER 4, SHE MIGHT NOT HAVE
RECEIVED ANY DISCIPLINE FOR HER ABSENCES. IN SUPPORT OF ITS POSITION
THE GENERAL COUNSEL CITES TWO CASES /6/ IN THE PRIVATE SECTOR WHEREIN
SUCH A REMEDY WAS ORDERED BY THE NATIONAL LABOR RELATIONS BOARD.
WHILE I AGREE THAT THE LAW IN THE PUBLIC SECTOR HAS BEEN ALTERED TO
CONFORM WITH THE DOCTRINE ENUNCIATED BY THE SUPREME COURT IN NLRB V. J.
WEINGARTEN, INC., 420 U.S. 251, THE PROTECTION NOW AFFORDED EMPLOYEES IN
THE PUBLIC SECTOR DOES NOT, IPSO FACTO, REQUIRE THE STATUS QUO ANTE
REMEDY. IT IS NOTED THAT IN THE CITED CASES, THE DISCHARGE OR
DISCIPLINARY ACTION TAKEN BY MANAGEMENT TOWARD THE EMPLOYEES RESULTED,
IN EACH INSTANCE, FROM AN INTERVIEW WHEREIN THE EMPLOYEES WERE PREVENTED
FROM OBTAINING UNION REPRESENTATION. THE EMPLOYERS MADE NO ATTEMPT TO
COMPLY WITH THEIR OBLIGATION AND ARRANGE FOR ANOTHER INTERVIEW WITH THE
PRESENCE OF A UNION REPRESENTATIVE. ACTION TAKEN BY MANAGEMENT WAS
PREDICATED ON THE SINGLE INTERVIEW AT WHICH THE EMPLOYEE WAS DENIED
REPRESENTATION. IN THE CASE AT BAR RESPONDENT DID START ITS PROCESS
ANEW WITH THE MEETING ON OCTOBER 15, AT WHICH TIME THE UNION HEREIN
ATTENDED AND SPOKE ON BEHALF OF DRAKE. THE ORIGINAL SUSPENSION HAD BEEN
REVOKED, AND THE DISCIPLINARY ACTION INVOKED AGAINST THE EMPLOYEE
FOLLOWED THE SECOND MEETING. THUS, RESPONDENT HAD COMPLIED WITH THE
REQUIREMENT UNDER THE STATUTE BEFORE FINALLY SUSPENDING DRAKE FOR FIVE
DAYS.
IT IS FURTHER MAINTAINED BY THE GENERAL COUNSEL THAT THE SECOND
MEETING HEREIN WAS A "SHAM," AND THAT RESPONDENT'S INVESTIGATION THEREAT
WAS MERELY A FORMALITY SINCE IT USED THE REPORT AND INFORMATION OBTAINED
AT THE MEETING ON SEPTEMBER 4 WHEN NO UNION REPRESENTATIVE WAS PRESENT.
THE DIFFICULTY WITH THIS POSITION LIES IN THE FACT THAT UNION AGENT
SMITH, DURING THE INVESTIGATION ON OCTOBER 15, URGED SWANSON TO USE THE
INFORMATION GATHERED AT THE INITIAL INTERVIEW. MOREOVER, HE BLOCKED ANY
FURTHER DISCUSSION OF THE DETAILS RE DRAKE'S ABSENCE FOR FIVE DAYS AND
OFFERED NO NEW FACTS IN SUPPORT THE EMPLOYEE'S ABSENCE. IN THIS POSTURE,
THE UNION WAIVED ANY RIGHT, IN MY OPINION, TO CLAIM THAT MANAGEMENT
COULD NOT PROPERLY RELY UPON THE DATA SECURED AT THE FIRST
INVESTIGATION. IT HAD, AT THIS INTERVIEW, AN OPPORTUNITY TO PRESENT ANY
DETAILS OR ARGUMENT TO RESPONDENT IN AN EFFORT TO CONVINCE THE LATTER
THAT DRAKE'S CONDUCT WAS JUSTIFIABLE AND NO DISCIPLINARY ACTION SHOULD
BE TAKEN.
THUS, UNDER ALL THE CIRCUMSTANCES, I AM NOT PERSUADED THAT, AS
GENERAL COUNSEL MAINTAINS, NO DISCIPLINE WOULD HAVE BEEN INVOKED IF
DRAKE HAD UNION REPRESENTATION ON SEPTEMBER 4. MOREOVER, IN VIEW OF THE
FACT THAT THE EMPLOYER CONDUCTED A NEW INVESTIGATIVE MEETING AND
AFFORDED PROPER PROTECTION TO THE EMPLOYEE, A REASONABLE BASIS WAS
PROVIDED FOR THE SUSPENSION OF DRAKE AFTER CONCLUDING HER ABSENCES WERE
UNAUTHORIZED. THE UNION HAD ITS OPPORTUNITY TO REPRESENT THE EMPLOYEE
AT THE SECOND INTERVIEW, AND I CANNOT CONCLUDE-- NOR IS IT INCUMBENT
UPON ME TO CONCLUDE-- THAT HERE ABSENCES DID NOT WARRANT DISCIPLINARY
ACTION BY RESPONDENT. UNDER THESE CIRCUMSTANCES I AM RELUCTANT TO
REQUIRE THE EMPLOYEE HEREIN TO RESCIND THE SUSPENSION AGAIN AND ARRANGE
FOR A THIRD INTERVIEW. /7/ ACCORDINGLY, THE STATUS QUO ANTE REMEDY
SEEMS IMPRACTICAL UNDER THESE CIRCUMSTANCES AND I MAKE NO ORDER IN THIS
RESPECT.
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF
THE ACT BY DENYING BARBARA M. DRAKE, EMPLOYEE, UNION REPRESENTATION AT
AN INVESTIGATORY INTERVIEW ON SEPTEMBER 4, 1979, I RECOMMEND THAT THE
AUTHORITY ISSUE THE FOLLOWING ORDER.
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
IS HEREBY ORDERED THAT THE U.S. DEPARTMENT OF NAVY, U.S. MARINE CORPS,
MARINE CORPS LOGISTICS BASE, ALBANY, GEORGIA SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING AN INVESTIGATIVE INTERVIEW OR EXAMINATION OF ANY
EMPLOYEE WHICH MIGHT REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST
SAID EMPLOYEE WITHOUT GIVING AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2317, THE EMPLOYEES' EXCLUSIVE BARGAINING
REPRESENTATIVE, AN OPPORTUNITY, UPON REQUEST BY SAID EMPLOYEE, TO BE
REPRESENTED AT SUCH INVESTIGATIVE INTERVIEW OR EXAMINATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ACT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ACT:
(A) POST AT IS FACILITIES IN ALBANY, GEORGIA COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING
OFFICER AND SHALL BE POSTED AND MAINTAINED FOR HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED. REASONABLE STEPS
SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR OF REGION 4, SUITE 501, NORTH WING,
1776 PEACHTREE STREET, N.W., ATLANTA, GEORGIA 30309 IN WRITING WITHIN 30
DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: MAY 1, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CONDUCT AN INVESTIGATIVE INTERVIEW OR EXAMINATION OF ANY
EMPLOYEE WHICH MIGHT REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST
SAID EMPLOYEE WITHOUT GIVING AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2317, THE EMPLOYEES' EXCLUSIVE BARGAINING
REPRESENTATIVE, AN OPPORTUNITY, UPON REQUEST BY SAID EMPLOYEE, TO BE
REPRESENTED AT SUCH INVESTIGATIVE INTERVIEW OR EXAMINATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 1776 PEACHTREE
STREET, SUITE 501, NORTH WING, ATLANTA, GEORGIA 30309.
--------------- FOOTNOTES$ ---------------
/1/ THE UNIT DESCRIPTION WAS CHANGED IN 1979 SO AS TO COVER ALL
APPROPRIATED FUND EMPLOYEES, AND THE UNION WAS CERTIFIED AS THE
BARGAINING REPRESENTATIVE ON OCTOBER 19, 1979.
/2/ UNLESS OTHERWISE INDICATED, ALL DATES HEREIN MENTIONED OCCURRED
IN 1979.
/3/ MONG, WHO TOOK NOTES AT THE MEETING WHICH WERE ADMITTENLY
INCOMPLETE AND NOT COMPREHENSIVE, REFUSED TO APPEAR VOLUNTARILY AS A
WITNESS AT THE HEARING. SHE WAS NOT SUBPOENAED.
/4/ BOTH SWANSON AND TURNER DENIED THAT DRAKE REQUESTED UNION
REPRESENTATION UNTIL AFTER THE MEETING HAD CONCLUDED AND THE PARTIES
WERE ABOUT TO LEAVE THE ROOM. THEY TESTIFIED DRAKE THEN INDICATED SHE
WOULD LIKE REPRESENTATION IF SWANSON PROCEEDED WITH DISCIPLINARY ACTION.
I CREDIT DRAKE'S VERSION OF WHAT OCCURRED, AS SET FORTH HEREINABOVE.
APART FROM THE FACT THAT SHE TESTIFIED IN GREATER DETAIL THAN HER
SUPERVISORS, NEITHER MANAGEMENT OFFICIAL WAS ABLE TO RECALL STATEMENTS
MADE AT THE MEETING WITH THE SAME EXACTITUDE AS THE EMPLOYEE.
ACCORDINGLY, I FIND THAT DRAKE DID REQUEST UNION REPRESENTATION AT THE
SEPTEMBER 4 MEETING.
/5/ ARTICLE XVII, SECTION 2 OF THE AGREEMENT PROVIDES, IN SUBSTANCE,
THAT IF A UNIT EMPLOYEE IS BEING QUESTIONED BY MANAGEMENT DURING A
PRE-ACTION INVESTIGATION, HE SHALL BE SO ADVISED AND TOLD HE MAY HAVE A
UNION REPRESENTATIVE PRESENT. FURTHER, IF THE EMPLOYEE REQUESTS
REPRESENTATION, NO FURTHER QUESTIONING MAY ENSUE, OR ACTION TAKEN, UNTIL
THE REPRESENTATIVE IS PRESENT.
/6/ ANCHORTANK, INC., 239 NLRB NO. 52; SOUTHWESTERN BELL TELEPHONE
CO., 227 NLRB 1223.
/7/ GENERAL COUNSEL INSISTS A PROPER INVESTIGATION DEMANDS THAT OTHER
REPRESENTATIVES OF MANAGEMENT CONDUCT THE INTERVIEW OR REVIEW THE
RESULTS THEREOF. I DO NOT SUBSCRIBE TO THIS VIEW SINCE IT IS NOT MY
FUNCTION TO DECIDE WHICH SUPERVISORS SHOULD CONDUCT INVESTIGATIONS OR
INTERVIEWS.