[ v05 p473 ]
05:0473(60)CA
The decision of the Authority follows:
5 FLRA No. 60
LACKLAND AIR FORCE BASE EXCHANGE,
LACKLAND AIR FORCE BASE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2911, AFL-CIO
Charging Party
Case No. 6-CA-219
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 A SUPPORTING BRIEF.
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 RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS.
ORDER
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 LACKLAND AIR FORCE BASE EXCHANGE,
LACKLAND AIR FORCE BASE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) REQUIRING ANY BARGAINING UNIT EMPLOYEE TO TAKE PART IN AN
EXAMINATION OR INVESTIGATIVE INTERVIEW IN CONNECTION WITH AN
INVESTIGATION, WITHOUT UNION REPRESENTATION BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2911, AFL-CIO, THE BARGAINING UNIT'S
EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION
HAS BEEN REQUESTED BY THE EMPLOYEE, AND IF THE EMPLOYEE REASONABLY
BELIEVES THAT THE EXAMINATION OR INVESTIGATIVE INTERVIEW MAY RESULT IN
DISCIPLINARY ACTION AGAINST SUCH 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) POST AT ITS FACILITIES AT LACKLAND AIR FORCE BASE, TEXAS, COPIES
OF THE ATTACHED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY
THE LACKLAND AIR FORCE BASE EXCHANGE MANAGER, 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 EXCHANGE MANAGER SHALL TAKE
REASONABLE STEPS TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VI, 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., APRIL 17, 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 REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION
OR INVESTIGATIVE INTERVIEW IN CONNECTION WITH AN INVESTIGATION, WITHOUT
REPRESENTATION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2911, AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE
EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION OR
INVESTIGATIVE INTERVIEW MAY RESULT IN DISCIPLINARY ACTION AGAINST 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
STATUTE.
(AGENCY OR ACTIVITY)
DATED:
BY:
(SIGNATURE)
EXCHANGE MANAGER, LACKLAND AIR FORCE
BASE EXCHANGE, LACKLAND AIR FORCE
BASE, TEXAS
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 OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION VI,
WHOSE ADDRESS IS: BRYAN & ERVAY STREETS, OLD POST OFFICE BUILDING, ROOM
450, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS: (214)
767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ROBERT E. EDWARDS, ESQUIRE
FOR THE RESPONDENT
IRENE JACKSON, ESQUIRE
FOR THE GENERAL COUNSEL
ERNEST CANTU, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT. 1191, 5 U.S.C. 7101, ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
ON JANUARY 28, 1980, A COMPLAINT WAS FILED BY THE REGIONAL DIRECTOR,
REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS, TEXAS, AGAINST THE
LACKLAND AIR FORCE BASE EXCHANGE (RESPONDENT), ON BEHALF OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2911 (UNION), THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR BARGAINING UNIT MEMBERS EMPLOYED
BY THE LACKLAND AIR FORCE BASE EXCHANGE. THE COMPLAINT, AS AMENDED,
ALLEGED THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE
STATUTE BY DENYING ONE NATALIE SOLIZ, A BARGAINING UNIT MEMBER, UNION
REPRESENTATION AFTER A REQUEST HAD BEEN MADE FOR SUCH REPRESENTATION,
AND AFTER NATALIE SOLIZ FORMULATED A REASONABLE BELIEF THAT THE
EXAMINATION MIGHT RESULT IN DISCIPLINARY ACTION. /1/
RESPONDENT TAKES THE POSITION THAT VIOLATIONS OF SECTIONS 7116(A) (1)
AND (8) DID NOT OCCUR BECAUSE SOLIZ WAS NOT QUESTIONED BY
REPRESENTATIVES OF THE RESPONDENT; THAT SHE WAS MERELY DETAINED FOR
LATER QUESTIONING BY A SPECIAL AGENCY EMPLOYED BY THE AIR FORCE OFFICE
OF SPECIAL INVESTIGATIONS (OSI), LACKLAND AIR FORCE BASE, TEXAS; AND
FURTHER THAT SUCH A PERIOD OF DETENTION IS NOT AN "EXAMINATION" WITHIN
THE MEANING OF SECTION 7114(A)(2)(B) OF THE STATUTE. RESPONDENT ARGUES
THAT THE RIGHT PROVIDED BY SECTION 7114(A)(2)(B) DOES NOT BECOME
OPERATIVE UNLESS AN ORAL INTERROGATION ACTUALLY COMMENCES AND THE
EMPLOYEE THEREAFTER REQUESTS REPRESENTATION; AND THAT SINCE SOLIZ DID
NOT SPECIFICALLY REQUEST UNION REPRESENTATION AFTER OSI INITIATION OF
INTERROGATION, NO DEPRIVATION OF ANY SECTION 7114(A)(2)(B) RIGHT
OCCURRED. (RESPONDENT BRIEF AT 4-5).
ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
REPRESENTING THE GENERAL COUNSEL AND COUNSEL REPRESENTING THE
RESPONDENT. THESE HAVE BEEN DULY CONSIDERED. /2/ BASED UPON THE ENTIRE
RECORD HEREIN, INCLUDING MY OBSERVATIONS OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, /3/ AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS:
FINDINGS OF FACT
ON JULY 14, 1979, AT ABOUT 11:30 A.M., NATALIE SOLIZ, A CASHIER
EMPLOYED BY THE RESPONDENT AT THE LACKLAND MAIN EXCHANGE, LACKLAND AIR
FORCE BASE EXCHANGE, WAS APPROACHED BY HER IMMEDIATE SUPERVISOR, LELA
MCDONALD, AND AIRMAN SUSAN SPACHT. SOLIZ WAS ASKED IF SPACHT HAD MADE A
PURCHASE THROUGH SOLIZ'S REGISTER; AND SOLIZ REPLIED THAT SHE HAD DONE
SO. SOLIZ WAS INFORMED BY MCDONALD THAT SPACHT FELT SHE HAD NOT
RECEIVED A DISCOUNT THAT SHE WAS ENTITLED TO IN CONNECTION WITH THE
PURCHASE OF SWIM WEAR. SOLIZ STATED THAT SHE COULD NOT REMEMBER WHETHER
SHE HAD DISCOUNTED THE PURCHASE OR NOT.
MCDONALD THEN TOOK SPACHT TO DONALD E. ATKINSON, STORE MANAGER OF THE
LACKLAND MAIN EXCHANGE. MCDONALD REPORTED TO ATKINSON THAT THEY HAD
FOUND THE SALES SLIP AND THAT THERE WAS AN "UNDERRING ON THE SALES SLIP"
(TR. 84). /4/ ATKINSON INSTRUCTED MCDONALD TO RETURN TO SOLIZ'S CASH
REGISTER AND TO "DO A CASH REGISTER READING AND A CASH COUNT TO
DETERMINE IF THERE WAS OR WAS NOT AN OVERAGE IN THE CASH REGISTER," AND
TO ASCERTAIN WHETHER THERE WAS ANY EVIDENCE OF WRONGDOING (TR. 85).
ATKINSON ALSO INSTRUCTED EXCHANGE DETECTIVE BOB CRABLE TO ACCOMPANY
MCDONALD, TO ASSIST HER, AND TO LOOK INTO THE CASE (TR. 86-87, 151-152).
/5/
CRABLE INFORMED SOLIZ THAT THE FACTS INDICATED "A POSSIBLE CASH
REGISTER MANIPULATION," AND THAT HE AND MCDONALD "WANTED TO CONDUCT A
SPOT CHECK OF THE CASH REGISTER AND THE TAPES," (TR. 152-154). MCDONALD
CONDUCTED THE COUNT IN SOLIZ'S PRESENCE WHILE CRABLE OBSERVED (TR. 133,
140, 152). AFTER THE COUNT WAS COMPLETED CRABLE INQUIRED WHETHER
SOLIZ'S REGISTER WAS OVER OR SHORT (TR. 39, R-1). HE WAS INFORMED THAT
THE CHECK OF THE REGISTER REFLECTED A $20.00 OVERAGE. CRABLE DETERMINED
THAT THE PRICE OF THE SWIM WEAR WAS $24.00, THAT SOLIZ HAD RUNG UP THE
SALE AS A $4.00 ITEM, THAT TWO $20.00 BILLS WERE USED BY SPACHT TO PAY
FOR THE PURCHASE, AND THAT $20.00 HAD NOT BEEN GIVEN OUT IN CHANGE ON
THE TRANSACTION (TR. 126, 145-146).
CRABLE INFORMED SOLIZ "THAT SHE WAS BEING TAKEN OFF OF THE CASH
REGISTER FOR POSSIBLE CASH REGISTER MANIPULATION" (TR. 127). SOLIZ
UNDERSTOOD CRABLE'S STATEMENT TO MEAN THAT SHE COULD BE SUBJECTED TO
POSSIBLE DISCIPLINARY ACTION AS A RESULT OF THE TRANSACTION (TR. 26).
HE THEN DIRECTED SOLIZ TO ACCOMPANY HIM TO THE SECURITY OFFICE (TR. 43),
A ROOM USED EXCLUSIVELY BY EXCHANGE DETECTIVES IN CONNECTION WITH THEIR
WORK (TR. 60-61, 68, 78-79). /6/
SOLIZ AND CRABLE DEPARTED THE CASH REGISTER AREA BETWEEN 12:00 NOON
AND 12:15 P.M. (TR. 53). ON THE WAY TO THE SECURITY OFFICE SOLIZ MADE
THE FIRST OF A NUMBER OF REQUESTS FOR A UNION REPRESENTATIVE TO ASSIST
HER (TR. 127). /7/ CRABLE REFUSED TO GRANT HER REQUEST AND ADVISED
SOLIZ THAT HE WAS NOT GOING TO ASK HER ANY QUESTIONS, THAT THE OSI WOULD
INTERROGRATE HER AND THAT SHE COULD ASK THE OSI ABOUT OBTAINING
ASSISTANCE (TR. 128). UPON REACHING THE SECURITY OFFICE SOLIZ AGAIN
ASKED CRABLE FOR A UNION REPRESENTATIVE, AND SHE SPECIFICALLY IDENTIFIED
ONE CATHY WASSON, A UNION STEWARD AT LACKLAND (TR. 26). CRABLE DID NOT
ACKNOWLEDGE THIS REQUEST (TR. 27). HOWEVER, CRABLE DID INQUIRE
CONCERNING THE REASON FOR THE OVERAGE. /8/ SOLIZ REPLIED THAT SHE WAS
"HUMAN AND PEOPLE MAKE MISTAKES" (TR. 41, 26). CRABLE DID NOT
ACKNOWLEDGE HER ANSWER. INSTEAD HE TOLD SOLIZ THAT HE WAS GOING TO CALL
IN THE OSI (TR. 26-27).
THE EVIDENCE REVEALED THAT ATKINSON REQUESTED CRABLE TO CALL IN THE
LACKLAND AIR FORCE BASE SECURITY POLICE BECAUSE ATKINSON THOUGHT THE
FACTS INDICATED THE EXISTENCE OF A MATTER WITHIN THE JURISDICTION OF THE
SECURITY POLICE (TR. 68, 91-92). ATKINSON ALSO ANTICIPATED THAT CRABLE
WOULD ARRANGE FOR STATEMENTS TO BE RECEIVED FROM SPACHT AND SOLIZ (TR.
92). THE SECURITY POLICE WERE A PART OF THE MILITARY ESTABLISHMENT (TR.
60-61, 68), AND TOGETHER WITH THE OSI, HAD RESPONSIBILITY FOR THE
DEVELOPMENT OF CRIMINAL CASES AT LACKLAND AIR FORCE BASE (TR. 112,
117-118). THE OSI HAD RESPONSIBILITY FOR DEALING WITH SERIOUS CRIMINAL
CASES INCLUDING FRAUD AND EMPLOYEE INTEGRITY MATTERS, WHEREAS THE
SECURITY POLICE DEALT WITH MINOR OFFENSES SUCH AS THOSE RELATING TO
SHOPLIFTING (TR. 99-100, 117-118, 128-129). IN RESPONSE TO ATKINSON'S
INSTRUCTION, CRABLE PHONED THE SECURITY POLICE; HOWEVER, HE WAS TOLD
THAT THE CASE WAS ONE WITHIN OSI JURISDICTION (TR. 128, 132, 155). /9/
CRABLE REQUESTED AN EXCHANGE MANAGEMENT OFFICIAL IDENTIFIED AS MR.
TUCKER, TO STAY WITH SOLIZ WHILE HE LEFT THE SECURITY OFFICE TO PHONE
THE OSI AND WHILE HE OBTAINED THE STATEMENT OF AIRMAN SPACHT, WHO WAS
THEN IN THE OFFICE OF THE STORE MANAGER. CRABLE ADMITTED THAT SOLIZ WAS
CONSTANTLY WATCHED SO THAT SHE WOULD NOT DISPOSE OF INCRIMINATING
EVIDENCE (TR. 26-27, 129, 154-155). WHEN TUCKER ARRIVED IN THE
SECURITY OFFICE CRABLE LEFT FOR THE STORE MANAGER'S OFFICE (TR. 156).
WHILE TUCKER WAS IN CHARGE OF SOLIZ'S DETENTION, SOLIZ ASKED HIM TO
OBTAIN A UNION REPRESENTATIVE TO ASSIST HER. HOWEVER, TUCKER DID NOT
RESPOND TO, OR ACKNOWLEDGE HER REQUEST (TR. 45, 160-161). THE FACTS
CONCERNING THE REQUEST AND TUCKER'S FAILURE TO RESPOND WERE ADMITTED BY
THE RESPONDENT (TR. 160-161).
AFTER A PERIOD OF TIME TUCKER WANTED TO RETURN TO HIS MANAGERIAL
DUTIES. ARRANGEMENTS WERE MADE FOR EXCHANGE DETECTIVE RAUL OVALLE TO
ASSUME THE DUTY OF WATCHING SOLIZ IN THE SECURITY OFFICE UNTIL AN OSI
AGENT ARRIVED (TR. 28, 156). DURING THIS PERIOD SOLIZ ASKED OVALLE TO
SUMMON A UNION REPRESENTATIVE TO ASSIST HER; HOWEVER, OVALLE ALSO
IGNORED HER REQUEST (TR. 28). AFTER A PERIOD OF TIME SOLIZ BEGIN TO
FEEL ILL (TR. 29). SHE REQUESTED PERMISSION TO GO TO A REST ROOM. SHE
WAS ALLOWED TO DO THIS, BUT ONLY WITH A FEMALE ATTENDANT WHO OBSERVED
SOLIZ THROUGHOUT THE PERIOD THAT SHE WAS IN THE REST ROOM (TR. 28-29).
/10/
CRABLE PHONED THE OSI FOR THE PURPOSE OF INITIATING A CRIMINAL
INVESTIGATION (TR. 111-112). HE TELEPHONICALLY INFORMED THE OSI THAT
THE CASE INVOLVED POSSIBLE CASH REGISTER MANIPULATION (TR. 103-104,
157). CRABLE ALSO COMPLETED THE TAKING OF A STATEMENT FROM AIRMAN
SPACHT, WHO WAS THEN IN THE STORE MANAGER'S OFFICE (TR. 129). OSI
SPECIAL AGENT LEWIS A. STREET RESPONDED TO THE CALL BETWEEN 2:30 AND
2:45 P.M., AND WAS BRIEFED BY CRABLE AND OVALLE AS TO WHAT HAD HAPPENED
(TR. 53, 104-107, 130). /11/ STREET ALSO SPOKE WITH AIRMAN SPACHT (TR.
104). CRABLE INTENDED TO PARTICIPATE IN THE INTERROGATION OF SOLIZ, BUT
WAS INFORMED BY STREET THAT OVALLE SHOULD ASSIST HIM BECAUSE SOLIZ WAS
HOSTILE TO CRABLE (TR. 130, 139-140, 157-158). /12/ STREET ADVISED
SOLIZ OF HER CONSTITUTIONAL RIGHTS, THAT IS THAT SHE HAD THE RIGHT TO "A
LAWYER OR AN ATTORNEY," AND A RIGHT TO REMAIN SILENT; HOWEVER, SHE
WAIVED THESE RIGHTS (TR. 29, 107). SHE DID NOT AT THIS JUNCTURE AGAIN
RENEW HER REQUEST FOR UNION REPRESENTATION AT THE INTERVIEW BECAUSE SHE
THOUGHT IT WOULD BE FUTILE (TR. 51-53). /13/
IN THE PRESENCE OF OVALLE, STREET COMMENCED HIS EXAMINATION OF SOLIZ
(TR. 101). UPON LEARNING THAT SOLIZ FELT ILL, STREET TERMINATED THE
INTERVIEW (TR. 107-108). HOWEVER, AT STREET'S REQUEST SOLIZ CONSENTED
TO A RENEWAL OF THE INTERVIEW (TR. 108). THEY RETURNED TO THE SECURITY
OFFICE AGAIN, AND SOLIZ EXHIBITED TO STREET THE POSSESSIONS THAT SHE HAD
IN HER POCKETS (TR. 108). /14/ THE RECORD DISCLOSED THAT CRABLE WAS
ALSO PRESENT DURING THE SEARCH AS OVALLE HAD STEPPED OUT OF THE SECURITY
ROOM DURING THIS PERIOD (TR. 130-131, 139-140, 147-148). FOLLOWING THE
INTERVIEW OVALLE INSTRUCTED SOLIZ NOT TO LEAVE THE AREA UNTIL THE STORE
MANAGER COULD TALK TO HER. OVALLE CONTINUED TO WATCH HER UNTIL ATKINSON
ARRIVED (TR. 30). UPON ARRIVING ATKINSON PLACED SOLIZ ON ADMINISTRATIVE
LEAVE FOR THE WEEKEND. SHE WAS CARRIED AS BEING ON ADMINISTRATIVE LEAVE
UNTIL JULY 28, 1979 (TR. 30-32).
AGENT STREET BRIEFED CRABLE CONCERNING THE STATEMENTS MADE BY SOLIZ
DURING THE INTERVIEW (TR. 109), AND AN OSI REPORT WAS MADE AVAILABLE TO
THE ARMY AND AIR FORCE EXCHANGE SERVICE AS A RESULT OF A REQUEST
RECEIVED FROM THE ARMY AND AIR FORCE EXCHANGE SERVICE (TR. 110, 116).
AN INCIDENT REPORT RELATING TO THE INVESTIGATION WAS PREPARED BY CRABLE
(G.C. 2, TR. 136-142). THIS REPORT WAS FORWARDED TO THE LACKLAND AIR
FORCE BASE EXCHANGE MANAGER AND TO THE LACKLAND AIR FORCE BASE PERSONNEL
OFFICE (TR. 70, 134). CRABLE'S SOURCES OF INFORMATION FOR THIS REPORT
WERE THE CASH REGISTER CHECK, CASH COUNT, SPACHT'S STATEMENT, AND
INFORMATION OBTAINED THROUGH THE INTERVIEW OF SOLIZ (TR. 140-142). /15/
ALTHOUGH COUNSEL FOR THE RESPONDENT ENDEAVORED TO INDICATE THE ABSENCE
OF AN INTEREST IN THE SOLIZ INTERVIEW, THE RECORD CLEARLY REFLECTED A
CLOSE AND IMPORTANT RELATIONSHIP BETWEEN RESPONDENT'S AGENTS AND THE
INTERVIEW. IN FACT, THE INCIDENT REPORT FILED BY CRABLE DESCRIBED THE
INTERVIEW IN THE FOLLOWING TERMS:
AT THIS TIME OSI WAS INFORMED AND SPECIAL AGENT LEWIS STREET CAME TO
THE STORE. MRS. SOLIZ
(SIC) RIGHTS WERE READ TO HER, THEN SA STREET AND MYSELF (ROY OVALLE
EXCHANGE DETECTIVE)
INTERVIEWED HER. . . (G.C. 2).
DISCUSSION AND CONCLUSIONS
SECTION 7116(A)(1) OF THE STATUTE PROVIDES THAT IT SHALL BE AN UNFAIR
LABOR PRACTICE FOR AN AGENCY TO INTERFERE WITH, RESTRAIN, OR COERCE ANY
EMPLOYEE IN THE EXERCISE OF ANY RIGHT PROVIDED BY THE STATUTE, AND
SECTION 7116(A)(8) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE TO
OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF CHAPTER 71 OF
THE STATUTE. SECTION 7102 OF THE STATUTE SET FORTH CERTAIN EMPLOYEE
RIGHTS INCLUDING THE RIGHT TO JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR
TO REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND FURTHER THAT EACH EMPLOYEE SHALL BE PROTECTED IN THE
EXERCISE OF SUCH RIGHT. SECTION 7114(A)(2)(B) PROVIDES:
(2) 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 BASIC QUESTION POSED IS WHETHER OR NOT SOLIZ WAS SUBJECTED TO AN
"EXAMINATION" WITHIN THE MEANING OF SECTION 7114(A)(2)(B). THE
LEGISLATIVE HISTORY OF SECTION 7114(A)(2)(B) DISCLOSES THAT IT WAS
ENACTED IN RESPONSE TO THE DECISION OF THE SUPREME COURT IN NATIONAL
LABOR RELATIONS BOARD V. J. WEINGARTEN, INC., 420 U.S. 251, 95 S. CT.
959 (1975). /16/ WEINGARTEN HELD, INTER ALIA, THAT UNDER THE NATIONAL
LABOR RELATIONS ACT AN EMPLOYEE HAS THE RIGHT TO THE PRESENCE OF A UNION
REPRESENTATIVE AT ". . . AN INVESTIGATIVE INTERVIEW WHICH HE REASONABLY
BELIEVES MAY RESULT IN THE IMPOSITION OF DISCIPLINE. . ." PRIOR TO THE
ENACTMENT OF THE STATUTE THERE EXISTED NO COMPARABLE RIGHT UNDER
EXECUTIVE ORDER 11491, TO REPRESENTATION DURING AN INVESTIGATIVE
INTERVIEW. THIS IS SPELLED OUT IN FEDERAL LABOR RELATIONS COUNCIL
STATEMENT ON MAJOR POLICY ISSUE NO. 75P-2 (DECEMBER 2, 1976), 4 FLRC
709.
AS ORIGINALLY PASSED BY THE HOUSE OF REPRESENTATIVES THE REFORM BILL
PROVIDED:
(2) BEFORE ANY REPRESENTATIVE OF AN AGENCY COMMENCES ANY
INVESTIGATIVE INTERVIEW OF AN
EMPLOYEE IN A UNIT CONCERNING HIS CONDUCT WHICH COULD REASONABLY LEAD
TO SUSPENSION, REDUCTION
IN GRADE OR PAY, OR REMOVAL, THE EMPLOYEE SHALL BE INFORMED OF THAT
EMPLOYEE'S RIGHT UNDER
PARAGRAPH (3)(B) OF THIS SUBSECTION TO BE REPRESENTED BY AN EXCLUSIVE
REPRESENTATIVE.
(3) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
. . . .
(B) ANY INVESTIGATIVE INTERVIEW OF AN EMPLOYEE IN THE UNIT BY A
REPRESENTATIVE OF THE
AGENCY IF--
(I) THE EMPLOYEE REASONABLY BELIEVES THAT SUCH INTERVIEW MAY RESULT
IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE; AND
(II) THE EMPLOYEE REQUESTS SUCH REPRESENTATION. /17/
THE SENATE VERSION OF THE BILL CONTAINED NO PARALLEL PROVISION
INCORPORATING THE WEINGARTEN RULE AND THIS ISSUE WAS ONE OF MANY
RESOLVED IN THE CONFERENCE COMMITTEE BEFORE THE FINAL PASSAGE OF THE
STATUTE. THE COMMITTEE REPORTED:
THE CONFEREES AGREED TO ADOPT THE WORDING IN THE HOUSE BILL WITH AN
AMENDMENT DELETING THE
HOUSE PROVISION REQUIRING THE AGENCY TO INFORM ITS EMPLOYEES ANNUALLY
OF THE RIGHT TO
REPRESENTATION. THE CONFEREES FURTHER AMENDED THE PROVISION SO AS TO
GIVE THE LABOR
REPRESENTATIVE THE RIGHT TO BE PRESENT AT ANY EXAMINATION OF AN
EMPLOYEE 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.
THE CONFEREES RECOGNIZE
THAT THE RIGHT TO REPRESENTATION IN EXAMINATIONS MAY EVOLVE
DIFFERENTLY IN THE PRIVATE AND
FEDERAL SECTORS, AND SPECIFICALLY INTEND THAT FUTURE COURT DECISIONS
INTERPRETING THE RIGHT IN
THE PRIVATE SECTOR WILL NOT NECESSARILY BE DETERMINATIVE FOR THE
FEDERAL SECTOR. /18/
THE FINAL WORDING OF SECTION 7114 OF THE STATUTE REFLECTS THIS
AGREED-UPON STATUTORY
LANGUAGE.
COUNSEL FOR THE RESPONDENT ARGUES THAT NO "EXAMINATION OF AN
EMPLOYEE" OCCURRED IN THIS CASE UNTIL THE OSI COMMENCED AN INTERROGATION
OF SOLIZ, AND THAT AT SUCH TIME SOLIZ WAS PROVIDED WITH AN OPPORTUNITY
TO OBTAIN COUNSEL. THIS VIEW OF THIS CASE IS BASED UPON ASSERTIONS THAT
SOLIZ WAS QUESTIONED BY THE OSI ONLY, THAT RESPONDENT'S REPRESENTATIVES
WERE NOT INVOLVED IN THE QUESTIONING PROCESS, AND THAT UNTIL THE OSI'S
QUESTIONING OF SOLIZ COMMENCED, SOLIZ HAD NO RIGHT TO A REPRESENTATIVE
UNDER THE PROVISIONS OF SECTION 7114(A)(2)(B). A CAREFUL REVIEW OF THE
RECORD AND RELEVANT AUTHORITIES DISCLOSES THAT THE RESPONDENT'S VERSION
OF THE FACTS AND THE LAW MUST BE REJECTED. THE CONDUCT OUTLINED HEREIN
REFLECTS THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) BY INTERFERING
WITH, RESTRAINING, AND COERCING SOLIZ IN HER EXERCISE OF RIGHTS PROVIDED
IN SECTION 7102 OF THE STATUTE. THE SAME CONDUCT CONSTITUTES A
VIOLATION OF 7116(A)(8) IN THAT IT REPRESENTS A FAILURE ON THE PART OF
THE RESPONDENT TO COMPLY WITH THE PROVISIONS OF SECTION 7114(A)(2)(B).
COUNSEL FOR THE RESPONDENT ACKNOWLEDGES, AND THE LEGISLATIVE HISTORY
OF SECTION 7114(A)(2)(B) ESTABLISHES, THAT AT A MINIMUM, THE RIGHT TO
UNION REPRESENTATION EXISTS WHEN AN EMPLOYEE IS QUESTIONED BY AN AGENCY
DURING AN INVESTIGATORY INTERVIEW WHICH THE EMPLOYEE REASONABLY BELIEVES
MAY RESULT IN THE IMPOSITION OF DISCIPLINE, AND THE EMPLOYEE REQUESTS
REPRESENTATION. THAT IS, THE SECTION WAS ENACTED TO PROVIDE RIGHTS OF
THE TYPE UPHELD BY THE SUPREME COURT IN WEINGARTEN. INTERNAL REVENUE
SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE, HARTFORD
DISTRICT OFFICE, 1-CA-77 (ADMINISTRATIVE LAW JUDGE DECISION, MARCH 13,
1980); U.S. CUSTOMS SERVICE, REGION VII, LOS ANGELES, CALIFORNIA,
8-CA-193 (ADMINISTRATIVE LAW JUDGE DECISION, JULY 29, 1980); INTERNAL
REVENUE SERVICE, DETROIT, MICHIGAN, 5-CA-332 (ADMINISTRATIVE LAW JUDGE
DECISION, AUGUST 8, 1980). A NEARLY IDENTICAL FACTUAL PATTERN IS
PRESENTED HERE.
AN INVESTIGATION WAS IN PROCESS AND SOLIZ HAD A REASONABLE BELIEF
THAT SHE MIGHT BE SUBJECTED TO DISCIPLINE AS A RESULT OF THE
INVESTIGATION. THIS BELIEF WAS ESTABLISHED JUST BEFORE THE CASH
REGISTER CHECK, WHEN CRABLE INFORMED SOLIZ THAT THE FACTS INDICATED A
"POSSIBLE CASH REGISTER MANIPULATION," AND IT WAS SUBSEQUENTLY
REINFORCED BY THE STATEMENTS AND CONDUCT OF RESPONDENT'S REPRESENTATIVES
DURING AND AFTER THE CASH REGISTER CHECK. CRABLE INFORMED SOLIZ AFTER
THE CHECK, "THAT SHE WAS BEING TAKEN OFF THE CASH REGISTER FOR POSSIBLE
CASH REGISTER MANIPULATION." THIS STATEMENT, WITHOUT MORE WAS SUFFICIENT
TO GENERATE A REASONABLE BELIEF THAT DISCIPLINARY ACTION MIGHT BE TAKEN
BY THE RESPONDENT. BASED UPON THIS BELIEF SOLIZ REQUESTED THAT SHE BE
ALLOWED TO HAVE A UNION REPRESENTATIVE PRESENT DURING THE INTERVIEW.
DESPITE THIS REQUEST CRABLE HAD A DISCUSSION WITH SOLIZ WHEREIN SHE WAS
ASKED THE REASON FOR THE OVERAGE IN HER CASH REGISTER. THIS QUESTION
WENT TO THE HEART OF THE MATTER AND WAS DESIGNED TO ELICIT FROM SOLIZ A
COMPLETE EXPLANATION. IT DID IN FACT GENERATE A RESPONSE FROM SOLIZ
WITHOUT BENEFIT OF REPRESENTATION. SOLIZ'S SECTION 7114(A)(2)(B) RIGHT
WAS INFRINGED AT THIS POINT SINCE THE QUESTION COMPRISED THE INITIAL
PHASE OF AN INVESTIGATORY INTERVIEW.
HOWEVER, ASSUMING THAT THIS QUESTION WAS NOT POSED BY CRABLE, AND
ASSUMING FURTHER THAT THE OSI CONDUCTED THE INTERROGATION OF SOLIZ,
RESPONDENT'S FACTUAL AND LEGAL POSITION MUST BE REJECTED FOR OTHER
REASONS. HERE THE RESPONDENT WORKED CLOSELY WITH THE OSI BECAUSE OF
INTERESTS COMMON TO BOTH AGENCIES. THE SERVICES OF THE OSI WERE FULLY
UTILIZED BY THE RESPONDENT IN CONNECTION WITH THE PERFORMANCE OF
RESPONDENT'S RESPONSIBILITY TO RESOLVE THE FACTUAL ISSUES INVOLVED IN
THIS CASH REGISTER MANIPULATION CASE. ALTHOUGH THE OSI HAD SEPARATE
CONCERNS RELATING TO THE RESOLUTION OF CRIMINAL INVESTIGATIONS, THE FACT
IS THAT THE RESPONDENT ALSO HAD RELATED INTERESTS WHICH WERE RESOLVED
THROUGH SERVICES PERFORMED BY THE OSI. THIS COMMUNITY OF INTEREST IS
CONCLUSIVELY SHOWN BY THE BRIEFING OF THE OSI BY CRABLE AND OVALLE, BY
CRABLE'S UNREALIZED DESIRE TO BE PRESENT THROUGHOUT STREET'S
INTERROGATION OF SOLIZ, BY OVALLE'S PRESENCE DURING THE INTERVIEW, BY
CRABLE'S PRESENCE DURING THE INTERVIEW WHEN OVALLE WAS NOT PRESENT, BY
THE RESPONDENT'S INTEREST IN THE POSSIBLE CASH REGISTER MANIPULATION,
AND BY THE USE OF THE OSI WORK PRODUCT FOR THE RESPONDENT'S OWN
ADMINISTRATIVE PURPOSES FOLLOWING THE INTERVIEW. THIS WAS THE
RESPONDENT'S OWN ADMINISTRATIVE PURPOSES FOLLOWING THE INTERVIEW. THIS
WAS NOT A CASE WHERE THE OSI INVESTIGATION WAS CONDUCTED INDEPENDENTLY
OF THE RESPONDENT AND WITHOUT RESPONDENT'S PRIOR AWARENESS OF THE OSI'S
INVESTIGATIVE ACTIVITY. IT WAS ONE INITIATED IN THE FIRST INSTANCE, AND
FACILITATED THROUGHOUT, BY THE RESPONDENT. RESPONDENT'S AGENTS ASSISTED
AND PARTICIPATED IN THE INVESTIGATIVE INTERVIEW. IN FACT, THE FINAL
PHASE OF THE INTERVIEW, INVOLVING THE SEARCH OF SOLIZ, WAS PRECIPITATED
BY CRABLE (TR. 145-146).
IT MUST BE DETERMINED ON THE BASIS OF THE EVIDENCE ADDUCED THAT THE
INTERVIEW OF SOLIZ AFTER THE ARRIVAL OF THE OSI, WAS PERFORMED JOINTLY
BY THE RESPONDENT AND THE OSI, AND NOT SOLELY BY THE OSI. IT IS
IMMATERIAL THAT THE OSI HAD THE SOLE RESPONSIBILITY TO CONDUCT A
CRIMINAL INVESTIGATION. IT IS SUFFICIENT THAT THE INTERESTS AND ACTIONS
OF THE RESPONDENT, AS EXPRESSED THROUGH CRABLE, OVALLE, AND ATKINSON,
WERE CLOSELY TIED, TO, AND IDENTIFIED WITH, THE INVESTIGATORY INTERVIEW
CONDUCTED. THUS, EVEN IF RESPONDENT'S VERSION OF THE FACTS WERE
ACCEPTED, AND A CONCLUSION REACHED THAT CRABLE POSED NO QUESTION OR
QUESTIONS, THE RESPONDENT WAS STILL UNDER AN OBLIGATION TO RESPOND
APPROPRIATELY TO SOLIZ'S REQUEST FOR UNION REPRESENTATION AT THE
INTERVIEW CONDUCTED JOINTLY BY THE RESPONDENT AND THE OSI. THE
RESPONDENT ANTICIPATED THE EARLY COMMENCEMENT OF THE INTERVIEW AFTER THE
DETENTION OF SOLIZ BUT TOOK NO ACTION AT ALL TO ENSURE THAT SOLIZ WAS
PROVIDED WITH REPRESENTATION.
LASTLY, IT SHOULD BE NOTED THAT SOLIZ WAS DETAINED FOR A PERIOD IN
EXCESS OF TWO HOURS PRIOR TO THE INTERVIEW. REPEATED REQUESTS FOR
REPRESENTATION WERE DENIED. IT IS IMMATERIAL THAT SOLIZ DECLINED AGENT
STREET'S OFFER TO PROVIDE LEGAL COUNSEL. A UNION REPRESENTATIVE WAS
SPECIFICALLY REQUESTED AND THIS TYPE OF REPRESENTATION IN PARTICULAR
SHOULD HAVE BEEN PROVIDED BY REASON OF SECTION 7114(A)(2)(B), AT LEAST
AS SOON AS THE COMMENCEMENT OF THE INTERVIEW. THE RECORD HERE
ESTABLISHES THAT SOLIZ RELINQUISHED HER RIGHT TO LEGAL COUNSEL BECAUSE
SHE THOUGHT THAT ANOTHER REQUEST WOULD BE FUTILE. THE EVIDENCE
INDICATED THAT SHE WAS UPSET, NERVOUS, ANGRY AND ILL AS A RESULT OF THE
EPISODE, AND THAT THESE ELEMENTS CREATED AN ATTITUDE OF FUTILITY.
HOWEVER, AS NOTED SOLIZ HAD ALREADY EXPRESSED HER DESIRE FOR UNION
REPRESENTATION PRIOR TO THE ARRIVAL OF SPECIAL AGENT STREET. THERE WAS
NO BASIS FOR THE RESPONDENT TO INSIST THAT SOLIZ REPEAT SUCH A REQUEST
TO THE OSI REPRESENTATIVE, SINCE IT WAS THE OBLIGATION OF THE RESPONDENT
TO ENSURE THAT SOLIZ'S REQUEST WAS HONORED. THERE WAS NO INDICATION IN
THE RECORD THAT HER PRIOR REQUEST FOR UNION REPRESENTATION WAS
WITHDRAWN. AT MOST, THE RECORD INDICATES THAT SOLIZ DECLINED AGENT
STREET'S OFFER TO ARRANGE FOR "A LAWYER OR AN ATTORNEY" TO BE PRESENT
DURING THE INTERVIEW. THIS RIGHT MAY BE DISTINGUISHED FROM THE RIGHT OF
THE EXCLUSIVE REPRESENTATIVE TO BE PRESENT DURING AN INVESTIGATIVE
INTERVIEW UNDER SECTION 7114(A)(2)(B).
THE NATURE OF THE RESPONDENT'S OBLIGATION TO SOLIZ WAS FASHIONED IN
LARGE MEASURE BY SOLIZ'S REPEATED REQUESTS THAT THE UNION BE REPRESENTED
AT THE INVESTIGATIVE INTERVIEW, WHETHER SUCH WAS CONDUCTED SOLELY BY
RESPONDENT'S REPRESENTATIVES, OR JOINTLY BY THESE REPRESENTATIVES AND AN
OSI SPECIAL AGENT. HERE, THE RESPONDENT WAS, IN THE ABSENCE OF A
SPECIFIC WITHDRAWAL OF THE REQUEST FOR UNION REPRESENTATION, UNDER AN
OBLIGATION TO MAKE CERTAIN THAT THE UNION WAS REPRESENTED. INSTEAD, THE
ACTIONS OF RESPONDENT'S REPRESENTATIVES OPERATED TO DENY SUCH
REPRESENTATION DURING THE INVESTIGATIVE INTERVIEW.
IN VIEW OF THE FOREGOING DISCUSSION, IT IS UNNECESSARY TO DETERMINE
WHETHER SECTION 7114(A)(2)(B) APPLIES TO A PERIOD OF DETENTION WITHOUT
QUESTIONING, NOR IS IT NECESSARY TO DETERMINE WHETHER THE WORD
"EXAMINATION" IN SECTION 7114(A)(2)(B) SHOULD BE GIVEN A BROADER MEANING
THAN THE TERM "INVESTIGATORY INTERVIEW." HAVING FOUND THAT THE
RESPONDENT VIOLATED SECTION 7116(A)(1) AND (8) IN THE MANNER OUTLINED,
IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. 2423.29(B)(1), THE
AUTHORITY HEREBY ORDERS THAT THE LACKLAND AIR FORCE BASE EXCHANGE,
LACKLAND AIR FORCE BASE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) REQUIRING ANY BARGAINING UNIT EMPLOYEE TO TAKE PART IN AN
EXAMINATION OR INVESTIGATIVE
INTERVIEW IN CONNECTION WITH AN INVESTIGATION, WITHOUT UNION
REPRESENTATION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2911, AFL-CIO, THE
BARGAINING UNIT'S EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN
REQUESTED BY THE
EMPLOYEE, AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE
EXAMINATION OR INVESTIGATIVE
INTERVIEW MAY RESULT IN DISCIPLINARY ACTION AGAINST SUCH EMPLOYEE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING 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
PURPOSE AND POLICIES OF THE STATUTE:
(A) POST AT ITS FACILITIES AT LACKLAND AIR FORCE BASE, TEXAS, 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 LACKLAND AIR FORCE
BASE EXCHANGE MANAGER,
AND SHALL BE POSTED AND MAINTAINED 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 ENSURE THAT SAID NOTICES
ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE 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.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 28, 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 CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REQUIRE ANY UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION
OR INVESTIGATIVE INTERVIEW, IN CONNECTION WITH AN INVESTIGATION, WITHOUT
REPRESENTATION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2911, AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE
EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION OR
INVESTIGATIVE INTERVIEW MAY RESULT IN DISCIPLINARY ACTION AGAINST 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
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 OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION VI,
WHOSE ADDRESS IS : BRYAN & ERVAY STREETS, OLD POST OFFICE BUILDING,
ROOM 450, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS: (214)
767-4996.
--------------- FOOTNOTES$ ---------------
/1/ AT THE HEARING THE COMPLAINT WAS AMENDED TO ALLEGE A VIOLATION OF
SECTION 7116(A)(8) OF THE STATUTE.
/2/ UNDER AUTHORITY PROVIDED IN SECTION 2423.29(R) OF THE
REGULATIONS, 5 C.F.R. 2423.19(R), THE FOLLOWING CORRECTIONS ARE HEREBY
MADE IN THE HEARING TRANSCRIPT: (TABLE OMITTED)
/3/ HEREINAFTER REFERENCES TO THE TRANSCRIPT WILL BE DESIGNATED "TR.
. . .," AND REFERENCES TO EXHIBITS WILL BE DESIGNATED "G.C. . . ." OR
"R. ... ."
/4/ SPACHT DID NOT RECEIVE A SALES SLIP WITH HER PURCHASE AND THIS
CIRCUMSTANCE GAVE RISE TO INQUIRY (TR. 64, 105). THE SALES SLIP
PERTAINING TO THE TRANSACTION WAS RETRIEVED BY MCDONALD NEAR SOLIZ'S
REGISTER (TR. 84, 105-106, 125-126, 150-151, GENERAL COUNSEL EXHIBIT 2).
THE EVIDENCE DISCLOSED THAT MCDONALD AND/OR CRABLE ENTERED INTO A
DISCUSSION WITH SOLIZ CONCERNING THE WHEREABOUTS OF THE SALES SLIP (R. 1
AT 1).
/5/ EXCHANGE DETECTIVES REPORTED DIRECTLY TO THE EXCHANGE MANAGER,
LACKLAND AIR FORCE BASE EXCHANGE, AND NOT TO THE SEPARATE STORE MANAGERS
THEY SERVED. INDIVIDUAL STORE MANAGERS CALLED UPON THEM AS NEEDED (TR.
67-68). THEIR FUNCTION WAS TO DETECT CRIMINAL ACTIVITY AND TO DETAIN
SUSPECTS (TR. 133). THEIR JOB DESCRIPTION CHARGED THEM WITH
RESPONSIBILITY FOR "DETECTING SHOPLIFTERS AND EMPLOYEE PILFERAGE" (TR.
150). CRABLE AND ANOTHER EXCHANGE DETECTIVE, PAUL OVALLE, HAD
RESPONSIBILITY FOR THE EXCHANGES AT LACKLAND AND KELLY AIR FORCE BASES
(TR. 168-169).
/6/ THE OFFICE USED WAS IDENTIFIED AS ONE WHERE SHOPLIFTERS WERE
DETAINED FOR LAW ENFORCEMENT AUTHORITIES (TR. 78-79).
/7/ CRABLE ACKNOWLEDGED THAT HE COULD NOT REMEMBER EXACTLY WHAT SOLIZ
SAID TO HIM (TR. 154). HOWEVER, HE ADMITTED THAT SOLIZ "KEPT ASKING FOR
A UNION REPRESENTATIVE" AFTER HE INFORMED HER THAT SHE WAS BEING CHARGED
WITH POSSIBLE CASH REGISTER MANIPULATION (TR. 157).
/8/ CRABLE DISPUTES THE FACT THAT HE ASKED SOLIZ THIS QUESTION.
HOWEVER, THIS CREDIBILITY ISSUE MUST BE RESOLVED AGAINST CRABLE.
CRABLE'S RECOLLECTION OF WHAT SOLIZ SAID IN CONNECTION WITH ANOTHER
CLOSELY RELATED AREA OF INTEREST, WAS ADMITTEDLY VAGUE (TR. 154). THE
QUESTION FITS APPROPRIATELY INTO THE GENERAL FACTUAL PATTERN DEVELOPED,
AND SOLIZ'S TESTIMONY AS TO WHAT CRABLE SAID TO HER WAS CLEAR AND
UNEQUIVOCAL. FURTHERMORE, THE RECORD ESTABLISHES THAT CRABLE WAS IN
FACT CHARGED WITH THE RESPONSIBILITY FOR ARRANGING THE INTERVIEW OF
SOLIZ; EXCHANGE DETECTIVES WERE CHARGED WITH SOME RESPONSIBILITY TO
DETECT CRIME; AND A CONSIDERABLE DEGREE OF INVESTIGATION WAS ACTUALLY
CONDUCTED BY CRABLE.
/9/ ALTHOUGH OSI POSSESSED CRIMINAL INVESTIGATIVE JURISDICTION IN
CASES OF THIS NATURE, THE OSI WAS AWARE OF OTHER LEGITIMATE INTERESTS OF
RESPONDENT AND RECOGNIZED THAT RESPONDENT'S REPRESENTATIVES MIGHT HAVE
TO MAKE CERTAIN "NECESSARY" INQUIRIES (TR. 112). IT WAS CLEAR THAT
EXCHANGE DETECTIVES AND OTHER MANAGEMENT REPRESENTATIVES OF THE
RESPONDENT HAD A CLOSE CONTINUING INTEREST IN THE DEVELOPMENT OF A
PROSECUTABLE VIOLATION, AND/OR THE RESOLUTION OF A PROBLEM RELATING TO
EMPLOYEE INTEGRITY. THIS INTEREST WAS MANIFESTED IN THE FORM OF A CLOSE
COLLABORATION WITH THE POLICE FOR THE PURPOSE OF PROTECTING AND
DEVELOPING A SINGLE INVESTIGATIVE EFFORT.
/10/ THE RECORD INDICATES THAT CRABLE AND OVALLE BOTH WATCHED SOLIZ
DURING PORTIONS OF THE PERIOD SPENT WAITING FOR THE OSI REPRESENTATIVE
(TR. 156).
/11/ ALTHOUGH IT WAS ANTICIPATED THAT THE OSI WOULD RESPOND PROMPTLY
TO THE INVESTIGATIVE REQUEST, A CONSIDERABLE PERIOD OF DELAY INTERVENED
BEFORE STREET ARRIVED ON THE SCENE.
/12/ THIS HOSTILITY WAS GENERATED BY THE REPEATED REFUSAL TO SUPPLY A
UNION REPRESENTATIVE AND CRABLE'S PRIOR INSISTENCE THAT SOLIZ WAS NOT
ENTITLED TO REPRESENTATION UNTIL AN OSI REPRESENTATIVE ACTUALLY BEGAN AN
INTERROGATION (TR. 157-159).
/13/ SOLIZ WAS SPECIFICALLY APPRISED OF HER RIGHTS UNDER MIRANDA V.
STATE OF ARIZONA, 384 U.S. 436 (1966) (RESPONDENT'S BRIEF AT 8).
MIRANDA ESTABLISHED THE RULE THAT STATEMENTS OBTAINED DURING CUSTODIAL
INTERROGATION OF A DEFENDANT MAY NOT BE UTILIZED UNLESS PRIOR TO THE
QUESTIONING THE PERSON IS "WARNED THAT HE HAS A RIGHT TO REMAIN SILENT,
AND THAT ANY STATEMENT HE DOES MAKE MAY BE USED AS EVIDENCE AGAINST HIM,
AND THAT HE HAS A RIGHT TO THE PRESENCE OF AN ATTORNEY EITHER RETAINED
OR APPOINTED." (DECISION AT 444).
/14/ CRABLE'S TESTIMONY ESTABLISHED THAT AIRMAN SPACHT HAD PAID FOR
HER PURCHASE WITH TWO $20.00 BILLS, THAT SHE HAD RECORDED THE NUMBERS OF
THESE BILLS, AND HAD FURNISHED THE NUMBERS TO CRABLE. ONE OF THE BILLS
WAS LOCATED IN SOLIZ'S CASH DRAWER. THE SEARCH WAS AIMED AT UNCOVERING
THE SECOND $20.00 BILL (TR. 145-146).
/15/ THE OSI REPORT REFLECTED SOLIZ'S CLAIM THAT THE IRREGULARITY WAS
DUE TO ADMINISTRATIVE ERROR OR MACHINE ERROR (TR. 117). SHE WAS NOT
DISCIPLINED.
/16/ THE FACTS IN THIS CASE CLOSELY RESEMBLE THOSE FOUND IN
WEINGARTEN. IN WEINGARTEN AN EMPLOYEE OF A RETAIL STORE REPRESENTED BY
RETAIL CLERKS UNION LOCAL 455 WAS SUMMONED TO AN INTERVIEW WITH THE
STORE MANAGER AND A SECURITY AGENT. THE EMPLOYEE WAS QUESTIONED ABOUT
AN ALLEGATION THAT SHE HAD ONLY PAID $1.00 FOR A $2.98 CHICKEN
BOX-LUNCH. SEVERAL TIMES DURING THIS INVESTIGATORY INTERVIEW THE
EMPLOYEE REQUESTED THE PRESENCE OF A UNION SHOP STEWARD, BUT HER
REQUESTS WERE DENIED. AFTER AN INITIAL CLOSING OF THE MATTER BASED ON
THE EMPLOYEE'S EXPLANATION, THE EMPLOYEE BURST INTO TEARS AND ADMITTED
THAT THE ONLY THING SHE HAD EVER GOTTEN FROM THE STORE WITHOUT PAYING
FOR WAS HER FREE LUNCH. THE MANAGER AND SECURITY AGENT PROCEEDED TO
QUESTION HER AGAIN, AND SHE ONCE MORE REQUESTED A UNION REPRESENTATIVE.
HER REQUEST WAS AGAIN DENIED. THEREAFTER, THE CASE WAS CLOSED BECAUSE
OF UNCERTAINTY ABOUT THE LUNCH POLICY.
/17/ 124 CONG. REC. H. 9696 (DAILY ED. SEPT. 13, 1978).
/18/ H.R. REP. NO. 95-1717, 95TH CONG., 2D SESS. 155-156.