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05:0297(41)CA
The decision of the Authority follows:
5 FLRA No. 41
U.S. CUSTOMS SERVICE, REGION VII
LOS ANGELES, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 8-CA-193
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS DECISION AND ORDER FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT
IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET
FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S DECISION AND ORDER, AND THE GENERAL COUNSEL AND THE CHARGING
PARTY FILED OPPOSITIONS TO SUCH EXCEPTIONS.
THEREFORE, 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. 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 DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE EXCEPTIONS OF SUCH EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION,
AS MODIFIED HEREIN.
ORDER /1/
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. CUSTOMS SERVICE, REGION VII, LOS
ANGELES, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING OR FAILING TO AFFORD AN OPPORTUNITY TO THE NATIONAL
TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, TO BE REPRESENTED AT AN EXAMINATION OF MARIA ANTONIETA
VALDEZ, OR ANY OTHER BARGAINING UNIT EMPLOYEE, IN CONNECTION WITH A
SUBSEQUENT INVESTIGATION HEREIN, OR ANY OTHER INVESTIGATION WHICH COULD
REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST HER OR SUCH EMPLOYEE
WHEN SUCH REPRESENTATION IS REQUESTED BY THE EMPLOYEE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) WITHDRAW AND REMOVE FROM THE PERSONNEL FOLDER OF MARIA ANTONIETA
VALDEZ THE REPRIMAND LETTER, DATED JUNE 15, 1979, AND ANY OTHER
REFERENCES TO THE DISCIPLINARY ACTION WHICH IT ISSUED AGAINST HER
ARISING OUT OF THE EVENTS OF DECEMBER 9, 1978.
(B) AFFORD THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, THE OPPORTUNITY TO BE FULLY
REPRESENTED AT ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
REPRESENTATIVE OF THE AGENCY IN CONNECTION WITH AN INVESTIGATION IF THE
EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS SUCH
REPRESENTATION.
(C) POST AT ITS FACILITIES AT U.S. CUSTOMS SERVICE, REGION VII, LOS
ANGELES, CALIFORNIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER,
U.S. CUSTOMS SERVICE, REGION VII, AND THEY 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. THE REGIONAL COMMISSIONER SHALL TAKE
REASONABLE STEPS TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VIII, FEDERAL LABOR
RELATIONS AUTHORITY, 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., MARCH 19, 1981
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 REFUSE OR FAIL TO AFFORD AN OPPORTUNITY TO THE NATIONAL
TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, TO BE REPRESENTED AT AN EXAMINATION OF MARIA ANTONIETA
VALDEZ, OR ANY OTHER BARGAINING UNIT EMPLOYEE, IN CONNECTION WITH A
SUBSEQUENT INVESTIGATION HEREIN, OR ANY OTHER INVESTIGATION WHICH COULD
REASONABLY RESULT IN DISCIPLINARY ACTION AGAINST HER OR SUCH EMPLOYEE,
WHEN SUCH REPRESENTATION IS REQUESTED BY THE EMPLOYEE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL WITHDRAW AND REMOVE FROM THE PERSONNEL FOLDER OF MARIA
ANTONIETA VALDEZ THE REPRIMAND LETTER, DATED JUNE 15, 1979, AND ANY
OTHER REFERENCES TO THE DISCIPLINARY ACTION ISSUED AGAINST HER ARISING
OUT OF THE EVENTS OF DECEMBER 9, 1978.
WE WILL AFFORD THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, THE OPPORTUNITY TO BE FULLY
REPRESENTED AT ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
REPRESENTATIVE OF THE AGENCY IN CONNECTION WITH AN INVESTIGATION IF THE
EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS SUCH
REPRESENTATION.
DATED: . . . BY: . . .
(SIGNATURE)
REGIONAL COMMISSIONER, REGION VII,
U.S. CUSTOMS SERVICE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CA, 90071, AND WHOSE
TELEPHONE NUMBER IS (213) 688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DONNA RAE EIDE, ESQUIRE
GARY LANDSMAN, ESQUIRE
FOR THE RESPONDENT
SILVIA M. DIAZ, ESQUIRE
GERALD M. COLE, ESQUIRE
FOR THE GENERAL COUNSEL
CAROL W. PERKINS, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON MARCH 3, 1980
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, LOS
ANGELES, CALIFORNIA, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON MAY
13, 1980.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREIN CALLED THE ACT). IT IS BASED ON A CHARGE
FILED ON AUGUST 22, 1979 BY THE NATIONAL TREASURY EMPLOYEES UNION
(HEREIN CALLED THE UNION OR CHARGING PARTY) AGAINST U.S. CUSTOMS
SERVICE, REGION VII, LOS ANGELES, CALIFORNIA (HEREIN CALLED THE EMPLOYER
OR RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT CONDUCTED AN
INVESTIGATORY INTERVIEW OF EMPLOYEE MARIA ANTONIETA VALDEZ ON APRIL 13,
1979 BUT DENIED THE LATTER'S EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO
PARTICIPATE IN A REPRESENTATIVE CAPACITY ON HER BEHALF. SUCH DENIAL
OCCURRED, IT WAS AVERRED, DESPITE THE FACT THAT THE EMPLOYEE HAD
REASONABLE CAUSE TO BELIEVE THAT DISCIPLINARY ACTION COULD BE TAKEN
AGAINST HER. BASED ON THE FOREGOING IT WAS ALLEGED RESPONDENT FAILED OR
REFUSED TO COMPLY WITH SECTION 7114(A)(2)(B)(I)(II) OF THE ACT;
FURTHER, THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE ACT
BY THE AFORESAID CONDUCT.
AN ANSWER DATED MARCH 28, 1980 WAS FILED BY RESPONDENT IN WHICH IT
DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICES. MOREOVER, THE
ANSWER AVERRED THAT EMPLOYEE VALDEZ'S UNION REPRESENTATIVE WAS PRESENT
AT THE INVESTIGATORY INTERVIEW AND WAS AFFORDED THE OPPORTUNITY TO
PARTICIPATE IN A REPRESENTATIVE CAPACITY.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
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. MARIA ANTONIETA VALDEZ (HEREIN CALLED VALDEZ) HAS BEEN EMPLOYED
BY RESPONDENT SINCE 1974 AT SAN YSIDRO, CALIFORNIA, WHICH IS THE PORT OF
ENTRY FROM MEXICO.
2. ON DECEMBER 9, 1978 VALDEZ CROSSED THE BORDER FROM MEXICO, EN
ROUTE TO SAN DIEGO, CALIFORNIA, IN THE COMPANY OF HER SISTER AND A BABY
BELONGING TO ANOTHER WOMAN. THE IMMIGRATION OFFICIALS AT SAN YSIDRO
QUESTIONED VALDEZ SINCE THEY SUSPECTED SHE WAS IN THE PROCESS OF
ILLEGALLY SMUGGLING AN ALIEN INTO THE UNITED STATES.
3. PREPARATORY TO CONDUCTING AN INVESTIGATION OF THE AFORESAID
INCIDENT, DONALD FARRELL, WHO WAS THE RESPONDENT'S RESIDENT AGENT,
OFFICE OF MANAGEMENT AND INTEGRITY, TELEPHONED VALDEZ ON MARCH 28, 1979
TO ARRANGE AN INTERVIEW. AFTER NOTIFICATION WAS GIVEN BY VALDEZ TO THE
BARGAINING AGENT, NATIONAL TREASURY EMPLOYEES UNION, THE SAID UNION
ASSIGNED ALAN HERSCH, ASSOCIATE GENERAL COUNSEL, TO REPRESENT THE
EMPLOYEE DURING THE INVESTIGATION. HERSCH THEN CALLED FARRELL AND
INFORMED THE RESPONDENT'S OFFICIAL THAT HE WAS VALDEZ'S REPRESENTATIVE.
AFTER EXPLAINING TO HERSCH THE PURPOSE OF THE INTERVIEW, FARRELL STATED
THAT ANY DISCIPLINE DIRECTED TOWARD VALDEZ WOULD BE WITHIN THE AGENCY;
THAT NO CRIMINAL PUNISHMENT WOULD ENSUE, SINCE THE U.S. ATTORNEY DID
NOT INTEND TO PROSECUTE THE MATTER. A MEETING WAS SCHEDULED FOR APRIL
13.
4. BOTH HERSCH AND VALDEZ APPEARED ON APRIL 13 FOR THE INTERVIEW.
HERSCH INTRODUCED HIMSELF TO FARRELL AS THE EMPLOYEE'S UNION
REPRESENTATIVE. ALL THREE INDIVIDUALS THEN WENT INTO FARRELL'S OFFICE
WHERE THEY WERE JOINED BY HOWARD DILKES, SPECIAL AGENT WITH THE
RESPONDENT'S OFFICE OF MANAGEMENT AND INTEGRITY. AT THE OUTSET FARRELL
EXPLAINED THAT UNDER HIS STANDARD PROCEDURE FOR CONDUCTING
INVESTIGATIONS THERE WOULD BE AN INITIAL INFORMAL INTERVIEW. HE STATED
THAT THE PURPOSE OF THE INFORMAL SESSION WAS TO ENABLE VALDEZ TO GATHER
HER THOUGHTS AND REFRESH HER RECOLLECTION; THAT SOMETIMES EMPLOYEES ARE
UNDER STRESS WHEN BEING QUESTIONED; AND THAT THE INTERVIEW WAS
ADMINISTRATIVE AND NOT CRIMINAL IN NATURE. FARRELL ALSO INFORMED THEM
THAT THE INFORMAL SESSION WOULD BE FOLLOWED BY A TAPE-RECORDING SESSION,
AT WHICH TIME HE WOULD TAPE QUESTIONS DIRECTED TOWARD VALDEZ AS WELL AS
HER ANSWERS.
THE RESIDENT AGENT FURTHER EXPLAINED THAT DURING THE FIRST SESSION,
DURING WHICH QUESTIONS WOULD BE DIRECTED TO VALDEZ, HER REPRESENTATIVE
WOULD BE PERMITTED TO PARTICIPATE. FARRELL STATED THAT THE SECOND
SESSION WOULD INVOLVE A RECORDING, OR TAPING, OF QUESTIONS ASKED OF
VALDEZ AND ANSWERS GIVEN BY HER. HOWEVER, HE ASSERTED THAT DURING THE
TAPING HERSCH WOULD NOT BE ALLOWED TO SPEAK OR MAKE ANY STATEMENTS; /2/
THAT MANAGEMENT WAS ANXIOUS TO OBTAIN VALDEZ'S VERSION OF WHAT OCCURRED
AND NOT A REPORT FROM HER REPRESENTATIVE, AND NO INTERRUPTIONS OR
COMMENTS WERE TO BE MADE BY HERSCH DURING THE TAPING.
5. AFTER FARRELL EXPLAINED THE PROCEDURE WHICH WOULD BE FOLLOWED
DURING THE INVESTIGATION, BOTH VALDEZ AND HERSCH REGISTERED OBJECTIONS
THERETO. THEY OBJECTED TO THE PROHIBITIONS PLACED ON THE UNION
REPRESENTATIVE, AND HERSCH INSISTED HE SHOULD BE PERMITTED TO SPEAK
DURING THE TAPING. FARRELL SAID THE UNION AGENT HAD NO NEED TO TALK
DURING THE RECORDED SESSION; THAT HE WOULD HAVE FULL OPPORTUNITY TO DO
SO IN THE INITIAL SESSION; THAT IF HERSCH DID SPEAK OR INTERRUPT WHILE
THE TAPING OCCURRED, VALDEZ WOULD BE HELD RESPONSIBLE AND IF REFUSAL TO
REPLY COULD BE GROUNDS FOR DISCIPLINE. /3/ THE RESIDENT AGENT FURTHER
COMMENTED THAT THE MATERIAL COVERED AT THE TAPING SESSION WOULD BE THE
SAME AS DISCUSSED AT THE INFORMAL SESSION; THAT WHILE THE QUESTIONS
MIGHT NOT BE IDENTICAL, THERE WOULD BE NO ATTEMPT TO COVER DIFFERENT
GROUND OR POSE TRICK QUESTIONS.
6. DURING THE INFORMAL STAGE OF THE INTERVIEW FARRELL ASKED VALDEZ
TO EXPLAIN WHAT OCCURRED ON DECEMBER 9. IN RESPONSE TO THE EMPLOYEE'S
REQUEST, HE ASKED SPECIFIC QUESTIONS DURING THE INFORMAL INTERVIEW,
ALTHOUGH NO LIST HAD BEEN PREPARED BY FARRELL BEFOREHAND. DURING THE
"PRACTICE" SESSION HERSCH MADE SEVERAL OBJECTIONS, COMMENTED
OCCASIONALLY, TOOK NOTES, AND ASSISTED IN CLARIFYING SOME OF THE
QUESTIONS POSED BY MANAGEMENT. NO ATTEMPT WAS MADE TO RESTRICT HERSCH
AT THIS STAGE OF THE INVESTIGATION, ALTHOUGH HE CONTINUED TO PROTEST THE
PROCEDURE ADOPTED BY MANAGEMENT. ALL QUESTIONS ASKED BY FARRELL WERE
ANSWERED BY VALDEZ.
7. UPON THE COMPLETION OF THE INFORMAL SESSION THE PARTIES RECESSED
FOR LUNCH. THE TAPING SESSION TOOK PLACE WHEN THEY RETURNED TO
FARRELL'S OFFICE. BEFORE COMMENCING THIS SECOND INTERVIEW, RESPONDENT'S
REPRESENTATIVE REPEATED THE ADMONITION THAT NO INTERRUPTION FROM HERSCH
WOULD BE COUNTENANCED; THAT IF VALDEZ REFUSED TO ANSWER, FARRELL WOULD
SEND UP THE REPORT TO MR. BURGESON, REGIONAL COMMISSIONER, WITHOUT HER
INPUT. FARRELL MADE IT CLEAR THAT HERSCH WOULD NOT BE PERMITTED TO MAKE
OBJECTIONS OR STATEMENTS ON THE TAPED RECORD. HERSCH AND VALDEZ
CONTINUED TO INSIST THAT THE LATTER WAS BEING DENIED REPRESENTATION.
HERSCH ALSO REQUESTED THAT THE RESTRICTIONS ANNOUNCED BY FARRELL BE
PLACED ON THE TAPE BUT THE EMPLOYER'S AGENT REFUSED TO DO SO.
8. THE TAPING PORTION OF THE INTERVIEW CONSISTED OF QUESTIONS
DIRECTED TO VALDEZ AND HER ANSWERS IN REPLY THERETO. FARRELL HAD NOT
PREPARED A LIST OF QUESTIONS BUT POSED THEM AS A RESULT OF THE INFORMAL
INTERVIEW CONDUCTED EARLIER THAT DAY. RECORD FACTS REVEAL THE QUESTIONS
ASKED DURING THE TAPED SESSION WERE DIFFERENT IN FORM THAN THOSE POSED
IN THE MORNING; HOWEVER, THESE QUESTIONS COVERED THE SAME GROUND OR
SUBJECT MATTER AS EXPLORED IN THE INFORMAL INTERVIEW, AND WITH ONE
EXCEPTION /4/ THERE WERE NO NEW ITEMS RAISED IN THE SECOND INTERVIEW.
JUST PRIOR TO THE END OF THE TAPING, FARRELL TURNED OFF THE TAPE TO
ALLOW VALDEZ TO VOLUNTEER ANY ADDITIONAL INFORMATION. AT THIS POINT
HERSCH WHISPERED TO VALDEZ AND THE LATTER MENTIONED THAT SHE HAD BEEN
DENIED PROPER UNION REPRESENTATION. /5/ THIS CONCLUDED THE TAPED
SESSION.
9. ABOUT A WEEK LATER FARRELL GAVE VALDEZ THE TRANSCRIPT OF THE
TAPED SESSION AND ASKED HER TO SIGN SAME. SINCE SHE HAD SOME QUESTIONS
REGARDING THE TRANSCRIPT, VALDEZ DEFERRED SIGNING IT. THEREAFTER SHE
MAILED A COPY THEREOF TO HERSCH WHO WANTED TO EXAMINE IT. VALDEZ DID
NOT SIGN THE TRANSCRIPT AS REQUESTED.
10. SUBSEQUENT TO THE INVESTIGATION CONDUCTED ON APRIL 13, FARRELL
SENT IN HIS REPORT TO THE REGIONAL COMMISSIONER. WHILE HIS REPORT
CONTAINS INFORMATION RE THE BASIS OF THE INVESTIGATION AND WHAT OCCURRED
THEREAT, THE ONLY EXACT STATEMENTS OF VALDEZ CONCERNING THE INCIDENT ON
DECEMBER 9, 1979 WERE CONTAINED IN THE TRANSCRIPT OF THE TAPED
INTERVIEW.
11. A LETTER OF REPRIMAND, DATED JUNE 15, 1979, WAS ISSUED BY
RESPONDENT TO VALDEZ FOR HAVING BROUGHT A BABY INTO THE UNITED STATES
WITHOUT DECLARING THE INFANT TO BE A MEXICAN CITIZEN. THE LETTER WAS
PLACED IN VALDEZ'S PERSONNEL FOLDER FOR A PERIOD NOT TO EXCEED THREE
YEARS.
CONCLUSION
THE CENTRAL ISSUE HEREIN IS WHETHER RESPONDENT FAILED TO PROVIDE
VALDEZ'S UNION REPRESENTATIVE AN OPPORTUNITY TO BE REPRESENTED AT THE
INVESTIGATORY INTERVIEW OF THE EMPLOYEE ON APRIL 13, 1980-- ALL AS
REQUIRED BY SECTION 7114(A)(2)(B) OF THE ACT. IT IS CONTENDED BY THE
GENERAL COUNSEL THAT THE REFUSAL TO ALLOW UNION AGENT HERSCH TO
PARTICIPATE IN THE TAPED PORTION OF THE INVESTIGATION FLOUTED THE
AFORESAID REQUIREMENT. ACCORDINGLY, IT IS ALLEGED THAT RESPONDENT
VIOLATED SECTION 7116(A)(1) AND (8) OF THE ACT.
RESPONDENT CONTENDS, CONTRARIWISE, THAT IT AFFORDED FULL OPPORTUNITY
TO THE UNION OFFICIAL TO REPRESENT EMPLOYEE VALDEZ AT THE INVESTIGATION.
IT AVERS THAT HERSCH WAS ALLOWED FULL PARTICIPATION AT THE INFORMAL
SESSION; THAT RESPONDENT NEVER STOPPED COMMUNICATION BETWEEN VALDEZ AND
HER REPRESENTATIVE; THAT THE TAPING SESSION WAS MERELY A
'FORMALIZATION' OF THE EARLIER INTERVIEW; THAT HERSCH WAS PERMITTED TO
CONSULT WITH THE EMPLOYEE AT ALL TIMES DURING THE INVESTIGATION; AND
THAT JUST PRIOR TO CONDUCTING THE TAPED INTERVIEW VALDEZ WAS ALLOWED TO
CONFER WITH HER REPRESENTATIVE AS WELL AS MAKE ADDITIONAL COMMENTS ON
THE RECORD. IT INSISTS THAT, UNDER ALL THE CIRCUMSTANCES, HERSCH WAS
GRANTED COMPLETE FREEDOM TO ASSIST THE EMPLOYEE. MOREOVER, IT URGES
THAT, UNDER NLRB V. J. WEINGARTEN, INC., 420 U.S. 251(1975), IT WAS
ENTITLED TO PROCURE A STATEMENT FROM VALDEZ WITHOUT INTERRUPTION AND IN
A MILIEU FREE FORM ADVERSERIAL CONTROVERSY.
UNDER EXECUTIVE ORDER 11491, AS AMENDED, GOVERNMENT EMPLOYEES WERE
NOT ACCORDED THE RIGHT TO HAVE UNION REPRESENTATION AT AN INVESTIGATION
OR DISCIPLINARY PROCEEDING. WHILE, UPON REQUEST, AN EMPLOYEE COULD BE
REPRESENTED BY HIS BARGAINING AGENT AT FORMAL DISCUSSIONS RE GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, HE HAD NO PROTECTED RIGHT TO
ASSISTANCE OR REPRESENTATION AT NON-FORMAL INVESTIGATIONS OR INTERVIEWS
TO WHICH HE WAS SUMMONED. STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 710
(DECEMBER 2, 1976).
HOWEVER, THIS WAS CHANGED BY THE ENACTMENT OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE IN 1978. UNDER THIS ACT IT IS
SPECIFICALLY PROVIDED BY SECTION 7114(A)(2) AS FOLLOWS:
"AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT -
(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
THE AGENCY IN
CONNECTION WITH AN INVESTIGATION IF -
(I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE; AND
(II) THE EMPLOYEE REQUESTS REPRESENTATION.
THE AFORESAID SECTION OF THE ACT REFLECTS THE HOLDING AND THE RATIO
DECIDENDI EXPRESSED IN THE WEINGARTEN CASE, SUPRA, BY THE SUPREME COURT
IN 1975. WHILE THE CITED CASE AROSE IN THE PRIVATE SECTOR, THERE IS AN
OBVIOUS ATTEMPT TO EXTEND THE SAME RIGHT OF REPRESENTATION UNDER SIMILAR
CIRCUMSTANCES TO EMPLOYEES IN THE PUBLIC SECTOR. THIS IS BORNE OUT BY
THE ACT'S LEGISLATIVE HISTORY. /6/ THUS, AS STATED BY THE SUPREME
COURT, SINCE EMPLOYEES ARE ACCORDED THE RIGHT TO ENGAGE IN CONCERTED
ACTIVITIES FOR THEIR MUTUAL AID OR PROTECTION, ACTION TAKEN BY THEM TO
SEEK REPRESENTATION AT A CONFRONTATION WITH THEIR EMPLOYER FALLS WITHIN
THE AMBIT OF THAT PROTECTION. THE WEINGARTEN DECISION CLEARLY
RECOGNIZED THE INEQUITY OF REQUIRING A LONE EMPLOYEE TO ATTEND AN
INVESTIGATORY INTERVIEW WHICH HE REASONABLY BELIEVES COULD RESULT IN
DISCIPLINARY ACTION AGAINST HIM. MOREOVER, IT IS CONTEMPLATED THAT THE
EMPLOYEE MAY BE TOO FEARFUL OR INARTICULATE TO RELATE AN INCIDENT
ACCURATELY; THAT THE UNION REPRESENTATIVE COULD ASSIST THE EMPLOYER IN
ELICITING THE FACTS AND GET "TO THE BOTTOM OF THE INCIDENT."
IN THE CASE AT BAR RESPONDENT ARGUES THAT IT HAS FULFILLED ITS
OBLIGATION TO EXTEND UNION REPRESENTATION TO EMPLOYEE VALDEZ AT THE
INVESTIGATORY INTERVIEW. I DO NOT AGREE. ALTHOUGH THE RECORD REFLECTS
THAT HER REPRESENTATIVE, HERSCH, WAS AFFORDED FULL OPPORTUNITY TO ASSIST
VALDEZ AT THE INITIAL INTERVIEW ON APRIL 13, AN IMPORTANT LIMITATION WAS
IMPOSED UPON HIM DURING THE TAPED INTERVIEW. THE EMPLOYER INSISTS THAT
HERSCH WAS NOT PRECLOSED FROM CONFERRING WITH THE EMPLOYEE WHILE THE
TAPING WAS IN PROGRESS, AND THAT VALDEZ WAS PERMITTED TO CONSULT WITH
HER REPRESENTATIVE WHEN THE TAPE WAS TURNED OFF NEAR THE CLOSE OF THE
SECOND SESSION. NEVERTHELESS, I FIND IT DIFFICULT TO ACCEPT THE
ARGUMENT THAT COMPLETE FREEDOM TO ASSIST AND CONSULT EXISTS WHERE THE
REPRESENTATIVE IS ADMONISHED NOT TO SPEAK OUT OR MAKE STATEMENTS. IN
THAT POSTURE, HOW DOES ONE 'REPRESENT' AN EMPLOYEE? IN LIGHT OF THE
FACT THAT FARRELL INSISTED HERSCH COULD NOT MAKE ANY STATEMENT OR
COMMENT DURING THE TAPED INTERVIEW, I CANNOT SUBSCRIBE TO THE VIEW THAT
THE REPRESENTATIVE WAS ACCORDED FULL OPPORTUNITY TO ASSIST VALDEZ IN
CLARIFYING QUESTIONS AND ELICITING ANSWERS THERETO.
RESPONDENT, HOWEVER, ARGUES THAT THE TAPING WAS MERELY A 'FORMALITY';
THAT THE SECOND INTERVIEW COVERED THE SAME GROUND AS THE EARLIER
INTERVIEW AT WHICH TIME NO RESTRAINT WAS PLACED UPON HERSCH TO SPEAK,
OBJECT, OR ASSIST VALDEZ. THE DIFFICULTY WITH THIS POSITION IS THAT THE
QUESTIONS IN THE SECOND INTERVIEW WERE NOT THE SAME AS THOSE POSED
EARLIER, AT LEAST AS TO FORM, AND THUS THE DIFFERENT PHRASEOLOGY COULD
HAVE REQUIRED CLARIFICATION OR ASSISTANCE IN RESPONDING THERETO. IT MAY
BE THAT QUESTIONS ASKED IN THE TAPED SESSION COULD HAVE LED TO
LEGITIMATE COMMENTS FROM THE UNION REPRESENTATIVE. IF THE LATTER HAS NO
VOICE IN PART OF THE INTERVIEW, ONE CAN SCARCELY CONCLUDE THAT THE
EMPLOYEE HAS BEEN REPRESENTED AT THE INVESTIGATION. FURTHER, THE
REFUSAL TO ALLOW FULL PARTICIPATION BECOMES SIGNIFICANT WHEN IT IS SEEN
THAT THE TAPED PORTION OF THE INVESTIGATION-- FROM WHICH HERSCH WAS
BARRED-- WAS THE ONLY EMPLOYEE STATEMENT SENT TO THE REGIONAL
COMMISSIONER.
WHILE RESPONDENT INSISTS THAT HERSCH COULD HAVE PASSED NOTES TO
VALDEZ-- AS HE ATTEMPTED TO DO-- DURING THE TAPING, SUCH A PROCEDURE
OBVIOUSLY CIRCUMSCRIBES THE EFFECTIVENESS OF THE REPRESENTATIVE. I AM
NOT PERSUADED THAT THE LATTER MAY RENDER EFFECTIVE ASSISTANCE TO AN
EMPLOYEE IF THE EMPLOYER ADAMANTLY INSISTS THAT HE NOT SPEAK NOR MAKE A
STATEMENT DURING AN INTERVIEW. FURTHER, IT IS DIFFICULT TO ENDORSE THE
PROCEDURE WHEREBY AN INVESTIGATION IS COMPARTMENTALIZED, AND THE UNION
REPRESENTATIVE IS ALLOWED PARTICIPATION IN ONLY A PART THEREOF.
REPRESENTATION DURING AN EXAMINATION SHOULD NOT, IN MY OPINION, BE
RESTRICTED TO A PORTION OF IT. SUCH A LIMITATION IS INCOMPATIBLE WITH
THE RIGHT TO BE REPRESENTED AS DECLARED UNDER SECTION 7115(A)(2) OF THE
ACT.
RESPONDENT FURTHER CONTENDS THAT, UNDER THE WEINGARTEN CASE, IT WAS
ENTITLED TO OBTAIN A STATEMENT FROM THE EMPLOYEE WITHOUT INTERRUPTION
FROM HER REPRESENTATIVE. MOREOVER, IT HAS A LEGITIMATE INTEREST, AVERS
THE EMPLOYER, IN SEEING THAT THE INTERVIEW DOES NOT BECOME ADVERSERIAL
IN NATURE. BUT THE SUPREME COURT IN WEINGARTEN DECLARED THAT THE
PRESENCE OF THE UNION AGENT "NEED NOT TRANSFORM THE INTERVIEW INTO AN
ADVERSARY CONTEST." IT MUST ALSO BE RECOGNIZED THAT THE EMPLOYEE HAS A
LEGITIMATE CONCERN WHERE, AS HERE, DISCIPLINARY ACTION TOWARD HER MAY
RESULT AFTER THE INVESTIGATION. THUS, SOME INTERRUPTION, BY WAY OF
COMMENTS RE THE FORM OF QUESTIONS OR STATEMENTS AS TO POSSIBLE
INFRINGEMENT OF EMPLOYEE RIGHTS, SHOULD PROPERLY BE EXPECTED FROM THE
EMPLOYEE'S REPRESENTATIVE. THE EMPLOYER ALWAYS RETAINS THE OPTION TO
REFRAIN FROM CONDUCTING THE EXAMINATION IN THE EVENT IT DECIDES THAT THE
INTERVIEW, IN THE PRESENCE OF A UNION REPRESENTATIVE, IS NOT
EFFICACIOUS.
IN SUM, I AM CONSTRAINED TO FIND THAT THE RIGHT OF REPRESENTATION,
EXTENDED BY THE ACT HEREIN, WAS NOT PROPERLY GRANTED BY THE EMPLOYER IN
THIS CASE. NEITHER THE FACT THAT HERSCH CONSULTED WITH VALDEZ PRIOR TO,
AND DURING THE INFORMAL INTERVIEW, NOR THAT A COPY OF THE TRANSCRIPT WAS
ULTIMATELY FURNISHED BOTH INDIVIDUALS, CONVINCES ME THAT RESPONDENT HAS
FULFILLED ITS STATUTORY OBLIGATION. IN RESPECT TO THE ESSENCE OF THE
INVESTIGATION-- THE INTERVIEW CONDUCTED ON APRIL 13-- THE EMPLOYER
FAILED, IN MY OPINION, TO ACCORD FULL REPRESENTATION FOR THE EMPLOYEE.
THEREFORE, I CONCLUDE RESPONDENT HAS FAILED TO COMPLY WITH THE STATUTORY
REQUIREMENTS AS AFORESAID AND HAS VIOLATED SECTIONS 7116(A)(1) AND (8).
/7/
REMEDY
THE RESPONDENT RESISTS THE IMPOSITION OF ANY REMEDY WHICH CALLS FOR
THE REMOVAL OF THE REPRIMAND LETTER FROM VALDEZ'S PERSONNEL FILE. IT
PREDICATES THIS CONTENTION ON THE THEORY THAT NO NEXUS EXISTS BETWEEN
THE INVESTIGATORY INTERVIEW AND THE DISCIPLINARY ACTION SO AS TO JUSTIFY
SUCH A REMEDY. THUS, IT ARGUES, ONLY A CEASE AND DESIST ORDER IS
WARRANTED IN THE EVENT A VIOLATION EXISTS HEREIN.
RECORD FACTS SHOW, HOWEVER, THAT NO DISCIPLINARY ACTION IS TAKEN BY
RESPONDENT IN THESE INSTANCES UNTIL AN INVESTIGATORY INTERVIEW IS
CONDUCTED AND A FULL REPORT IS TRANSMITTED TO THE REGIONAL
COMMISSIONER'S OFFICE. THIS REPORT INCLUDES THE STATEMENT OBTAINED FROM
THE EMPLOYEE AT THE INTERVIEW AS WELL AS ANY INFORMATION INCLUDED BY
RESPONDENT'S AGENT. THE FACT THAT THE REPRIMAND LETTER DID NOT ALLUDE
TO THE INVESTIGATION OR EXAMINATION OF VALDEZ DOES NOT, IN MY OPINION,
WARRANT THE INFERENCE THAT THE DISCIPLINE WAS EFFECTED WITHOUT REGARD TO
THE INTERVIEW. IT IS REASONABLE TO INFER THAT RESPONDENT DID NOT
UNDERTAKE THE INVESTIGATION AS A VAIN GESTURE. NOR MUST ONE ASSUME THAT
IF THE EXAMINATION ESTABLISHED VALDEZ'S INNOCENCE TO THE SATISFACTION OF
RESPONDENT THE LATTER WOULD HAVE ISSUED THE REPRIMAND LETTER. THE
NEXUS, WHICH THE EMPLOYER MAINTAINS IS LACKING, BETWEEN THE
INVESTIGATION AND THE ULTIMATE ACTION TAKEN BY RESPONDENT IS APPARENT.
IN THE FACE OF A FAILURE TO EXTEND FULL UNION REPRESENTATION TO THE
EMPLOYEE AT THE INTERVIEW, THE SUBSEQUENT DISCIPLINE BY THE EMPLOYER
JUSTIFIES THE REMOVAL OF THE REPRIMAND LETTER. OTHERWISE, THE
CONSEQUENCES OF RESPONDENT'S UNFAIR LABOR PRACTICE REMAINS UNREMEDIED IN
RESPECT TO THE EMPLOYEE INVOLVED HEREIN.
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF
THE ACT BY REASON OF ITS FAILURE TO AFFORD MARIA ANTONIETA VALDEZ UNION
REPRESENTATION AT AN INVESTIGATORY INTERVIEW ON APRIL 13, 1979, WHICH
SHE HAD REASON TO BELIEVE COULD RESULT IN DISCIPLINARY ACTION AGAINST
HER, I RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING ORDER.
ORDER
PURSUANT TO SECTION 7117(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
IS HEREBY ORDERED THAT U.S. CUSTOMS SERVICE, REGION VII, LOS ANGELES,
CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING OR FAILING TO ACCORD AN OPPORTUNITY, UPON REQUEST, TO
THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, TO BE REPRESENTED AT AN EXAMINATION OF MARIA ANTONIETA
VALDEZ, OR ANY OTHER BARGAINING UNIT EMPLOYEE, IN CONNECTION WITH AN
INVESTIGATION WHICH COULD REASONABLY RESULT IN DISCIPLINARY ACTION
AGAINST HER OR SUCH EMPLOYEE.
(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 ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND
POLICIES OF THE ACT:
(A) WITHDRAW AND REMOVE FROM THE PERSONNEL FOLDER OF MARIA ANTONIETA
VALDEZ THE REPRIMAND LETTER, DATED JUNE 15, 1979, WHICH IT ISSUED TO HER
FOR ALLEGEDLY BRINGING AN INFANT INTO THE UNITED STATES WITHOUT
DECLARING IT TO BE A MEXICAN CITIZEN.
(B) POST AT ITS FACILITY AT U.S. CUSTOMS SERVICE, REGION VII, LOS
ANGELES, CALIFORNIA COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX," ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER,
U.S. CUSTOMS SERVICE, REGION VII, AND THEY SHALL BE POSTED FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE REGIONAL
COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY
THEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: JULY 29, 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 THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT REFUSE OR FAIL TO ACCORD AN OPPORTUNITY, UPON REQUEST, TO
THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, TO BE REPRESENTED AT AN EXAMINATION OF MARIA ANTONIETA
VALDEZ, OR ANY OTHER BARGAINING UNIT EMPLOYEE, IN CONNECTION WITH AN
INVESTIGATION WHICH COULD REASONABLY RESULT IN DISCIPLINARY ACTION
AGAINST HER OR SUCH EMPLOYEE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL WITHDRAW AND REMOVE FROM THE PERSONNEL FOLDER OF MARIA
ANTONIETA VALDEZ THE REPRIMAND LETTER, DATED JUNE 15, 1979, WHICH WAS
ISSUED TO HER FOR ALLEGEDLY BRINGING AN INFANT INTO THE UNITED STATES
WITHOUT DECLARING IT TO BE A MEXICAN CITIZEN.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 350
SOUTH FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS ANGELES, CA
90071 AND WHOSE TELEPHONE NUMBER IS: (213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY HAS MODIFIED THE AFFIRMATIVE PORTION OF THE
ADMINISTRATIVE LAW JUDGE'S ORDER (PARAGRAPH 2) TO REQUIRE THE
RESPONDENT, IN THE FUTURE, TO COMPLY WITH SECTION 7114(A)(2) OF THE
STATUTE.
/2/ WHILE VALDEZ AND HERSCH ATTEST TO THE FACT THAT FARRELL DID
INDICATE, IN THE MORNING SESSION, THAT THE UNION REPRESENTATIVE WOULD BE
SO RESTRICTED DURING THE TAPING, RESPONDENT'S WITNESSES CONTROVERTED
SUCH TESTIMONY. NOTE IS TAKEN THAT THE AFFIDAVIT OF FARRELL, INTRODUCED
AS AN EXHIBIT HEREIN, ATTESTS TO THE FACT HE DID ADVISE HERSCH THAT THE
LATTER COULD NOT SPEAK DURING THE TAPING. THE VERSION RECITED BY
GENERAL COUNSEL'S WITNESSES IS CREDITED IN THIS REGARD.
/3/ THOUGH FARRELL DENIES HE MENTIONED THAT DISCIPLINE MIGHT RESULT
IF VALDEZ WAS NOT COOPERATIVE, HE STATED IN THIS AFFIDAVIT THAT "THERE
WAS REASONABLE CAUSE TO BELIEVE THIS." THE UNDERSIGNED CREDITS THE
TESTIMONY OF VALDEZ IN THIS REGARD.
/4/ JUST PRIOR TO COMPLETING THE TAPED SESSION, FARRELL ASKED VALDEZ
IF THERE WAS ANYTHING SHE WISHED TO ADD TO HER STATEMENT. NO SUCH
QUESTION WAS ASKED AT THE INFORMAL INTERVIEW.
/5/ IT DOES NOT APPEAR THAT FARRELL REFUSED TO ALLOW THE EMPLOYEE TO
CONFER WITH HERSCH DURING THE TIME THAT THE TAPE WAS TURNED OFF, AND I
MAKE NO SUCH FINDING. ACCORDINGLY, I FIND IT UNNECESSARY TO DETERMINE
WHEN FARRELL ANNOUNCED HIS INTENTION BEFOREHAND TO TURN OFF THE TAPE
SINCE IT WOULD NOT, IN MY OPINION, BE MATERIAL TO THE DECISION HEREIN.
/6/ SEE TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1979, 96TH
CONGRESS, 1ST SESSION, COMMITTEE PRINT NO. 96-7 (NOVEMBER 19, 1979) PP.
644, 651 824 AND 926.
/7/ CF. A.T.&T. CO. AND COMMUNICATIONS WORKERS OF AMERICA, LOCAL
12150 AFL-CIO, NLRB CASE NO. 16CA 7855 (JD109-79) WHERE THE EMPLOYEE DID
NOT REQUEST REPRESENTATION, RAISED NO OBJECTION TO THE PROCEDURE, AND
HIS UNION AGENT MADE NO EFFORT TO SPEAK OUT. IN THE CASE AT BAR I AM
SATISFIED THAT UNION REPRESENTATION WAS SOUGHT BY VIRTUE OF HERSCH'S
CONTACTING FARRELL IN THIS REGARD. FURTHER, THE ROLE OF THE UNION
REPRESENTATIVE HEREIN AT THE INVESTIGATION WAS SIGNIFICANTLY DIFFERENT
THAN THAT EXHIBITED BY THE REPRESENTATIVE IN THE CITED CASE.