[ v13 p27 ]
13:0027(5)CA
The decision of the Authority follows:
13 FLRA No. 5
BUREAU OF GOVERNMENTAL FINANCIAL
OPERATIONS, HEADQUARTERS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 202
Charging Party
Case No. 3-CA-2646
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practice alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Exceptions to the Judge's Decision were filed by
the Respondent, and an opposition was filed by the Charging Party.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The Administrative Law Judge, upon concluding that interviews of unit
employees as witnesses in preparation for hearing before the Merit
Systems Protection Board (MSPB) are formal discussions of grievances
within the meaning of section 7114(a)(2)(A) of the Statute, found that
the Respondent herein violated section 7116(a)(1) and (8) of the Statute
by virtue of its failure to notify the Charging Party of a pre-trial
interview of an employee held prior to his appearance at an MSPB hearing
involving a fellow employee. The Authority disagrees.
Subsequent to the issuance of the Judge's Decision, the Authority
issued its Decision in Internal Revenue Service and Brookhaven Service
Center, 9 FLRA No. 132 (1982), wherein it concluded, in general, that
"fact-gathering sessions between a representative of the Respondent and
a unit employee wherein management was merely seeking information to aid
in the preparation of its cases for presentation at proceedings before a
third-party neutral, in the same manner as an exclusive representative
may gather the facts from employees prior to such proceedings," did not
constitute formal discussions within the meaning of section
7114(a)(2)(A). /1A/ Based on the entire record and for the reasons
expressed in Internal Revenue Service, the Authority finds that the
Respondent did not violate section 7116(a)(1) and (8) of the Statute by
not affording the Charging Party the opportunity to be present at a
pre-MSPB hearing interview between the Respondent's representative and a
bargaining unit employee. The complaint shall, therefore, be dismissed
in its entirety.
ORDER
IT IS HEREBY ORDERED that the complaint be, and it hereby is,
dismissed.
Issued, Washington, D.C., September 15, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-2646
Arthur S. Rosenzweig, Esquire
For the Respondent
Patricia Eanet Dratch, Esquire
For the General Counsel
Patricia Armstrong, Esquire
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5
U.S.C.Section 7101, et seq., and the Rules and Regulations issued
thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46,
No. 154, August 11, 1981, 5 C.F.R. Chapter XIV, Part 2411, et seq.
Pursuant to a charge filed on July 2, 1981, by the National Treasury
Employees Union and NTEU Chapter 202 (hereinafter called the NTEU or
Union), a Complaint and Notice of Hearing was issued on March 22, 1982,
by the Regional Director for Region III, Federal Labor Relations
Authority, Washington, D.C. The Complaint alleges that the Bureau of
Government Financial Operations, Headquarters (hereinafter called the
Respondent or BGFO), violated Section 7116(a)(1) and (8) of the Federal
Service Labor-Management Relations Statute (hereinafter called the
Statute or Act), by virtue of its actions in holding a formal discussion
with an employee without notifying the Union and giving it an
opportunity to be present.
A hearing was held in the captioned matter on April 27, 1982, in
Washington, D.C. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The Respondent and the Union
submitted post-hearing briefs on May 27, 1982, which have been duly
considered along with the General Counsel's closing argument made on the
record.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact
conclusions and recommendations.
Findings of Fact
The Union, the charging party herein, is the exclusive bargaining
representative of the Respondent's "non-professional non-supervisory
general schedule (GS) and wage grade (WG) employees. . . ."
On December 20, 1980, Mr. James Lewis, a Sorting and Review Clerk,
witnessed an altercation between Philip Murphy, a fellow employee, and
his supervisor Eleanor Johnson. Although not entirely clear from the
record, it appears that because of the altercation Respondent decided to
terminate Mr. Murphy's employment. Therefore, Mr. Murphy appealed his
removal to the Merit Systems Protection Board which set the matter down
for hearing in August 1981.
On June 8, 1981, Mr. John Maus, an attorney assigned to represent
Respondent in the scheduled MSPB hearing, along with Labor Relations
Specialists Harold Howard and Robert Johnson interviewed all the people
"that had given statements in the (Respondent's) investigative file."
Upon finishing the interviews with the employees who had previously
given statements, Mr. Maus decided to interview Mr. Lewis, because he,
Mr. Maus, was aware that Mr. Lewis was going to be called by the Union
as a witness in the MSPB hearing.
According to Mr. Maus, whose testimony is corroborated by Mr.
Johnson, he had Mr. Johnson call up Mr. Lewis and tell him to report to
Mr. Johnson's office. When Mr. Lewis entered Mr. Johnson's office, Mr.
Maus identified himself and told Mr. Lewis that they were investigating
the December 20, 1980, incident between Mr. Murphy and Ms. Johnson. Mr.
Maus then proceeded to ask Mr. Lewis a number of questions concerning
the events of December 20, 1980, and made notes thereon. Mr. Lewis
testified that upon entering Mr. Johnson's office the three individuals
present only identified themselves by name not affiliation and that he
was under the impression that they represented the Union. Subsequently,
when he, Mr. Lewis, noticed that the questions being propounded were
"slanted against Mr. Murphy," he stopped answering the questions.
Whereupon, the individuals identified themselves as agents of the
Respondent and informed him that "it would be in the best interest of
everybody if he cooperated, but he did not have to." Thereafter, he
answered a few more questions. According to Mr. Lewis, during the
meeting which lasted some 20 to 30 minutes, he was asked how he felt
about the incident and his impressions of Mr. Murphy and Ms. Johnson.
/1/
Discussion and Analysis
The sole issue to be decided herein is whether a pre-trial interview
of a potential union witness in preparation for a scheduled hearing
before the Merit Systems Protection Board is a formal discussion within
the meaning of Section 7114(a)(2)(A) of the Statute to which the Union
must be accorded notice and an opportunity to attend.
The Union and the General Counsel, relying primarily on the
Authority's decision in Internal Revenue Service, Fresno Service Center
and NTEU, 7 FLRA No. 54, and the Assistant Secretary's decisions in U.S.
Air Force, McClellan AFB, California, and Local 1857, AFGE, AFL-CIO,
A/SLMR No. 830, 7 A/SLMR 350; and Internal Revenue Service, South
Carolina District and NTEU, A/SLMR No. 1172, 8 A/SLMR 1370, would answer
the question in the affirmative.
The Respondent, on the other hand, noting the pending decision of
Administrative Law Judge Mason in U.S. Department of Treasury, United
States Customs Service, Region V and NTEU, Case No. 6-CA-237, March 20,
1981, wherein Judge Mason found pre-trial witness interviews in
connection with unfair labor practice proceedings not to be formal
discussions within the meaning of 7114(a)(2)(A) of the Statute, would
answer the question in the negative.
Respondent takes the position that Section 7114(a)(2)(A) involves
only discussions concerning labor relations and is not applicable to
adversary proceedings initiated under the MSPB pursuant to the
discretion accorded employees by Section 7121(e)(1) of the Statute.
Finally, Respondent takes the position that the meeting was not a
discussion and that at best it was an examination in connection with an
investigation within the meaning of Section 7114(a)(2)(B), wherein the
Union was only entitled to attend if the employee reasonably believed
that discipline was in the offing and requested union representation.
In this latter context the Respondent points out that "there was no
reasonable basis for believing that he (Mr. Lewis) would be disciplined"
and "no indication that Mr. Lewis requested representation prior to, or
during, the meeting."
Section 7114(a)(2)(A) which is similar in all pertinent respects to
Section 10(e) of Executive Order 11491, as amended, provides as follows:
(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 practices or other general conditions of employment.
Both a literal reading of the above cited section of the Statute and
the existing case precedent make it clear that in order for a violation
to be established herein it must be shown that (1) the meeting was
formal, (2) a discussion occurred between representatives of management
and a bargaining unit employee, and (3) the subject matter concerned a
grievance or any personnel policy.
Inasmuch as the meeting involved herein was called by management,
held away from Mr. Lewis' work area in Respondent's office and marked by
the taking of notes by the high level agency representatives, I find
that the meeting to be "formal." Internal Revenue Service, Fresno
Service Center; U.S. Air Force McClellan AFB, California; and IRS,
South Carolina, supra.
With respect to the second item, i.e. whether the meeting was a
discussion between representatives of management and a bargaining unit
employee, as noted above, Respondent takes the position that there was
no "discussion" as defined in Webster's Seventh New Collegiate
Dictionary since there was no informal debate or formal treatment of a
topic. Respondent would also distinguish the facts of the instant case
from IRS, Fresno Service Center, supra, since the interview or meeting
in Fresno concerned a meeting between the EEO complainant and management
and not as here a meeting between a possible witness and management.
Inasmuch as Mr. Lewis was only a witness and not the party-in-interest
as in Fresno, there was neither possibility of settlement of the adverse
action nor any foreseeable impact on existing conditions of employment.
Although Respondent has correctly set forth the Webster Dictionary
definition of "discussion" and the record evidence indicates that the
meeting with Mr. Lewis would more aptly fall within the definition of
"interrogation", i.e. to question formally and systematically, I am
constrained, upon the basis of existing case precedent, to find that the
meeting with Mr. Lewis was indeed a "discussion" between representatives
of management and a bargaining unit employee within the meaning of
Section 7114(a)(2)(A) of the Statute.
In reaching this conclusion I rely on the Assistant Secretary's
decisions in U.S. Air Force McClellan AFB, California and IRS, South
Carolina, supra.
In McClellan, Respondent's counsel, upon receiving a list of
potential witnesses to be called in the plaintiff's behalf at an
arbitration hearing to be held the following day, scheduled a meeting in
the personnel office the morning of the day of the hearing for purposes
of interviewing three witnesses on the list whose testimony he was
unaware of. In finding 19(a)(6) and (1) violation predicated upon
Respondent's failure to afford the Union the opportunity to be present
at the interviews, the Assistant Secretary stated, in pertinent part, as
follows:
In the instant case, I find that the Complainant, as the
exclusive representative of the employees in the unit, had a
legitimate interest in being represented at the interviews of the
unit employees involved which were conducted in connection with
the processing of a pending grievance. Thus, clearly, the
information discussed could potentially have affected the
disposition of the pending grievance. Moreover, in my view, under
the circumstances herein, including the fact that the witnesses
interviewed were those of the grievant, the Complainant's
representational responsibility, which under Section 10(e) of the
Order extends to all employees in the bargaining unit, outweighed
any impact its presence during the interviews might have had on
the Respondent's preparation of its case for arbitration.
Similarly, in IRS, South Carolina, supra, the Assistant Secretary
found a 19(a)(6) and (1) violation predicated upon Respondent's action
in interviewing a unit employee witness a week before a scheduled
arbitration hearing without affording the Union the opportunity to be
present at the interview. In reversing the Administrative Judges
decision to the contrary, the Assistant Secretary disagreed with the
Administrative Judges determination that the case was distinguishable
from McClellan on the grounds that the interview was held a week before
the scheduled arbitration hearing and the witness was not listed as a
potential witness for the Plaintiff. In the Assistant Secretary's
opinion, the distinctions between McClellan and the subject case were
immaterial. Thus, the Assistant Secretary concluded in pertinent part
as follows:
In my view, when an employee who is a member of the bargaining
unit at all times material to a pending grievance is interviewed
by management representatives concerning the events surrounding
the grievance, Section 10(e) of the Order grants the exclusive
representative the right to be represented at such a formal
discussion. As the Assistant Secretary stated in the McClellan
case, cited above, an exclusive representative has a legitimate
interest in being represented at the interviews of unit employees
conducted by management in connection with the processing of a
pending grievance, and the representational responsibilities
conferred by Section 10(e) of the Order in this regard outweigh
any impact its presence might have on management's preparation of
its case for arbitration.
Turning to the last element of Section 7114(a)(2)(A), i.e. whether
the discussion concerned grievances or any personnel policy or practice,
I find, based primarily on the Authority's decision in IRS, Fresno
Service Center, that the interview of Mr. Lewis, which has been found
above to be a "formal discussion", did concern "grievances or any
personnel policy or practice."
In IRS, Fresno, supra, the Authority concluded that "grievances"
cognizable under Section 7114(a)(2)(A) of the Statute were not to be
limited to only those grievances which had their genesis in the existing
collective bargaining agreements. In line with its conclusion in Fresno
the Authority found that an EEO complaint fell within the statutory
definition of "grievance" even though it was being processed under
another statute which contained an appeals procedure that was separate
and apart from the one established by the collective bargaining contract
between the agency and the union.
Inasmuch as the Fresno decision of the Authority makes it clear that
a "grievance" encompasses any complaint involving or impacting on
working conditions, irrespective of the ultimate forum which will decide
the merits of the complaint, it follows that the adverse action involved
herein falls within the statutory definition of a grievance as defined
by the Authority. Like the EEO complaint in Fresno, the adverse action
herein will impact upon the unit employees since the ultimate issue to
be decided by MSPB is what constitutes insubordination and what is the
proper penalty for the type of insubordination underlying the adverse
action.
Accordingly, as interviews of witnesses in connection with the
processing of grievances have been found by the Assistant Secretary to
constitute "discussions" and since the Authority has defined
"grievances" to encompass or include any complaints by unit employees,
irrespective of whether or not such complaints are cognizable under the
Statute, it follows that interviews of witnesses in preparation for a
MSPB hearing are formal discussions of grievances within the meaning of
Section 7114(a)(2)(A) of the Statute. /2/
Having found that the pre-trial interview of Mr. Lewis on June 8,
1981, constituted a formal discussion within the meaning of Section
7114(a)(2)(A) of the Statute, I further find that the Respondent
violated Sections 7116(a)(1) and (8) of the Statute by virtue of its
actions in failing to notify the Union of the June 8, 1981, meeting and
affording it the opportunity to be present. Accordingly, I hereby
recommend that the Authority issue the following Order designed to
effectuate the purposes of the Statute.
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the Bureau of Government
Financial Operations, Headquarters, shall:
1. Cease and desist from:
(a) Conducting formal discussions between representatives of
the agency and employees in the unit or their respective
representatives concerning grievances or any personnel policy or
practices without affording the National Treasury Employees Union
or its representative the opportunity to be represented at such
discussions.
(b) Interfering with, restraining, or coercing its employees in
the exercise of their rights assured by the Statute by failing to
afford the National Treasury Employees Union or its
representatives the opportunity to be represented at formal
discussions between representatives of the agency and employees in
the unit or their respective representatives concerning grievances
or any personnel policy or practices.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Notify the National Treasury Employees Union or its
representative of, and afford it the opportunity to be represented
at, formal discussions between representatives of the agency and
employees in the unit or their respective representatives
concerning grievances or any personnel policy or practices.
(b) Post at the Bureau of Government Financial Operations
Headquarters in Washington, D.C. 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 a responsible official of the Bureau of Government
Financial Operations and they shall be posted for 60 consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. The Bureau of
Government Financial Operations 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 as to what steps have
been taken to comply herewith.
\ BURTON S. STERNBURG
Administrative Law Judge
Dated: August 2, 1982
Washington, D.C.
APPENDIX
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 formal discussions between representatives of the
agency and employees in the unit or their respective representatives
concerning grievances or any personnel policy or practices without
affording the National Treasury Employees Union or its representative
the opportunity to be represented at such discussions. WE WILL NOT
interfere with, restrain, or coerce our employees in the exercise of
their rights assured by the Statute by failing to afford the National
Treasury Employees Union or its representative the opportunity to be
represented at formal discussions between representatives of the agency
and employees in the unit or their respective representatives concerning
grievances or any personnel policy or practices.
(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, Region 3, 1111 18th Street, NW.,
Suite 700, Washington, D.C. 20036 and whose telephone number is (202)
653-8452.
--------------- FOOTNOTES$ ---------------
/1A/ In Internal Revenue Service the Authority also emphasized "that
an agency may not conduct such fact-gathering sessions without
limitation" and that certain necessary precautions which are set forth
therein must be taken to preserve the rights of employees. However, in
the instant case, the sole question before the Authority, as observed by
the Judge, is whether the interview in question was a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute.
/1/ Inasmuch as the complaint is limited solely to the failure of the
Respondent to give the Union an opportunity to attend a formal
discussion within the meaning of Section 7114(a)(2)(A) of the Statute, I
need not, and do not, resolve the conflict in testimony with respect to
whether or not Mr. Maus made it clear at the inception of the meeting
with Mr. Lewis that he and the other men in the room were representing
the Respondent.
/2/ As noted above, my conclusions in this respect are predicated
solely on existing case precedent. However, it should be noted that
Judge Mason in U.S. Department of Treasury, Case No. 6-CA-237, supra, a
pending case before the Authority, has reached a contrary conclusion
with respect to the pre-trial interviews of witnesses. Although I
subscribe to his position with respect to excluding pre-trial interviews
from "formal discussions" within the meaning of Section 7114(a)(2)(A),
for the reasons set forth in his decision, I feel that Section 7135(b)
of the Statute obligates me to follow case precedent until such time as
the Authority in its wisdom decides to effect a change therein.