[ v13 p156 ]
13:0156(34)CA
The decision of the Authority follows:
13 FLRA No. 34
U.S. CUSTOMS SERVICE
REGION VIII
SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-20118
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practice alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party (the Union) filed exceptions to the Judge's Decision and
a brief in support thereof.
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 in this case, the Authority
hereby adopts the Judge's findings, conclusions and recommendation that
the complaint be dismissed.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 9-CA-20118 be,
and it hereby is, dismissed.
Issued, Washington, D.C., September 28, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 9-CA-20118
Gary B. Landsman, Esq.
For the Respondent
Patricia Jeanne Howze, Esq.
For the General Counsel
David S. Handsher, Esq.
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (herein called the Statute or Act). It stems from a
first amended charge filed on February 25, 1982 by National Treasury
Employees Union (herein called the Union) against U.S. Customs Service,
Region VIII, San Francisco, California (herein called Respondent). /1/
The Complaint and Notice of Hearing, predicated on said amended
charge, was issued on February 26, 1982 by the Acting Regional Director
for the Federal Labor Relations Authority, San Francisco, California
Region. It was alleged therein, in substance, that on or about December
14, 1981, Respondent met with bargaining unit employee Walter Lisowski
re his testimony at the arbitration hearing on the grievance of unit
employee Chester Lewandowski; that the Union was not advised of the
meeting nor given an opportunity to attend; that Respondent failed to
comply with Section 7114(a)(2)(A) of the Statute by conducting a formal
discussion with a unit employee re a grievance and did not provide the
Union with notice or an opportunity to attend - all in violation of
Section 7116(a)(1), (5), and (8) of the Statute.
Respondent's answer, dated March 19, 1982, admitted that the meeting
occurred on December 14, 1981, as alleged, but denied it constituted a
formal discussion and that Respondent violated the Statute as averred in
the Complaint.
A hearing was held before the undersigned on June 16, 1982 at San
Francisco, California. 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. /2/
At the hearing the parties entered into a written Stipulation of
Facts (Joint Exhibit 2), which, together with the transcript and other
exhibits, shall constitute the entire record herein. Accordingly, based
on the said Stipulation of Facts, as well as the exhibits herein, I make
the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the certified collective bargaining representative of the following
employees in an appropriate unit:
"All nonprofessional employees assigned to the Headquarters
office, and to Regions I, II, III, IV, V, VI, VII, VIII and IX of
the U.S. Customs Service, excluding all professional employees,
all employees assigned to the Office of Investigations and the
Office of Internal Affairs, management officials, employees
engaged in Federal personnel work in other than a purely clerical
capacity, confidential employees, guards and supervisors."
2. Both Union and Respondent are parties to a collective bargaining
agreement covering the aforesaid unit of employees. The said agreement,
which became effective on April 18, 1980 for a period of two years,
contained a negotiated grievance procedure. Under Article 31 (Grievance
Procedure), Section 3(1) thereof, a grievance includes any complaint by
any bargaining unit employee concerning any matter relating to the
employment of the employee. The aforesaid bargaining agreement also
contains, under Article 32, an arbitration procedure wherein a party,
dissatisfied with final decision under the grievance procedure, may
invoke arbitration and obtain a hearing thereon. /3/
3. On or about August 25, 1981 the Union filed a grievance under the
negotiated grievance procedure, as aforesaid, on behalf of bargaining
unit employee Chester Lewandowski. In accordance with Article 32 of the
aforementioned agreement, arbitration was invoked by the Union and a
hearing was scheduled for December 16, 1981.
4. The arbitration concerned a disciplinary suspension of
Lewandowski by Respondent. Prior thereto bargaining unit employee
Walter Lisowski, pursuing his duties as a non-supervisory Customs
Assignment Inspector, engaged in a disputed conversation re an upcoming
overtime assignment. Management based its disciplinary action of
Lewandowski upon Lisowski's version of that disputed conversation which
the latter reported to management. The employer considered Lisowski's
testimony as necessary to its case.
5. On or about December 14, 1981 Lisowski, who was stationed as an
inspector at the Seattle/Tacoma Airport, was told by his immediate
supervisor to report to the federal building at Seattle, Washington that
day to meet with Sterl Miller and Jack Hammegar. The record reflects
that, at all times material herein, Miller was Respondent's Director,
Labor Relations Office, San Francisco Region - a position having no line
authority over bargaining unit positions; that Hammegar, at all such
times, was Respondent's Director of Inspection and Control, Seattle
District - a position having line authority over Lisowski (his 4th level
supervisor) and other bargaining unit positions.
6. The purpose of the meeting, to be attended by Lisowski, Miller,
and Hammegar, as aforesaid, was to enable Miller, who would serve as
Respondent's representative at the arbitration hearing on December 16,
1981, to prepare for said hearing by having a discussion with Lisowski.
The said representative proposed to conduct an interview of Lisowski to
ascertain or confirm facts within the knowledge of said employee re his
disputed conversation with Inspector Lewandowski and the report of the
incident submitted to Lisowski to management.
7. The interview was conducted on December 14, 1981 as scheduled.
The only people present thereat were Sterl Miller, Jack Hammegar and
Walter Lisowski. The Respondent did not notify the Union of the
interview nor allow Erick Lick, who was the Union Steward and its
representative assigned to the Seattle, Washington federal building, or
any other representative, to be present during the meeting.
8. At the commencement /4/ of the aforesaid interview Miller told
Lisowski that management wanted to call him as a witness at the
scheduled arbitration hearing; that questions to be asked that day
would be like those asked at the hearing; that it was voluntary for
Lisowski to answer these questions at the interview; that no reprisals
would be taken if Lisowski refused to answer any of the questions at the
interview.
9. Miller had asked Lisowski if he would agree to be a witness at
the arbitration hearing, and Lisowski agreed to do so. After being
informed by Miller of the information set forth in paragraph 8 above,
Lisowski agreed to answer questions put to him at the interview and to
testify at the forthcoming arbitration hearing. Whereupon, Miller
questioned Lisowski re the incident being arbitrated on December 16,
1981. No questions were related to internal Union business, and the
interview or meeting lasted about 15 minutes.
10. The arbitration hearing was held, as scheduled, on December 16,
1981 and Lisowski testified thereat as a witness for management.
Conclusions
The issue posed for determination herein is as follows: did the
interview, which Respondent conducted with employee Walter Lisowski in
preparation for an arbitration hearing involving disciplinary suspension
of another unit employee, constitute a "formal" discussion requiring the
employer to provide the Union an opportunity to be represented thereat?
Under Section 7114(a)(2)(A) of the Statute an exclusive bargaining
representative must be given an opportunity to be represented at "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." In the instant case it is conceded that no
notification was given to the Union re the interview management held on
December 14, 1981 with Lisowski, nor was the bargaining representative
allowed to attend and be represented. Thus, if the meeting between
Respondent's officials, Miller and Hammegar, and Lisowski may be deemed
a "formal" discussion, a failure to allow the Union to be represented
thereat will run afoul of 7114(a)(2)(A) and be violative of Section
7116(a)(1), (5), and (8) of the Statute. Department of Health,
Education and Welfare, Region IV, Atlanta, Georgia, et al. 5 FLRA No.
58.
The lead case in the public sector involving the particular issue
raised herein is Internal Revenue Service and Brookhaven Service Center,
9 FLRA No. 132. Two different situations were involved therein. In one
instance the bargaining representative had filed an unfair labor
practice charge against the respondent employer. Counsel for the latter
met with employee Diane Frisina in order to prepare for the forthcoming
hearing. He advised the employee of his intentions; that he desired to
ask her about the facts in the case; that she was not obliged to speak
to him; and there would be no reprisal against her in any event. They
discussed the facts re the unfair labor practice proceeding, but Frisina
refused to give a written statement or testify at the hearing. Counsel
did not notify the Union of the meeting.
In the second situation the respondent employer decided it would be
necessary to call two employees as its witnesses at a forthcoming
arbitration hearing. The employer's representative, Elliot Carlin,
advised William White, the union's Associate General Counsel, of his
intention. Moreover, Carlin told the Associate General Counsel that he
planned on interviewing one of these employees beforehand. White
requested that a union representative be present at any meeting between
Carlin and the employees, but his request was denied. The employer's
officials met separately with each employee. He told the individuals
that there was no requirement to speak with him; that the purpose of
the interview was to prepare respondent's case for the arbitration
hearing; that no reprisal would be taken against the employees if they
chose not to be interviewed; that each could have a representative
present if so desired. Each agreed to be interviewed and neither
requested the presence of a union representative.
The Authority concluded that the meetings with the employees in the
Brookhaven Service Center case, supra, were not formal discussions
within the meaning of Section 7114(a)(2)(A) of the Statute. It stated
that these meetings were, in truth, fact-gathering sessions; that
management was merely seeking information to aid in the preparation of
its cases for prosecution before a third-party neutral, in the same
manner as the exclusive representative might gather facts prior thereto.
Under these circumstances, the Authority maintained, the agency was not
required to give the bargaining representative an opportunity to be
present, and its failure to do so did not constitute an unfair labor
practice. /5/ The rationale adopted in the cited case was adhered to in
United States Department of the Treasury, United States Customs Service,
Region V, 9 FLRA No. 134 (involving interviews with employees to gather
facts for unfair labor practice hearing).
The Union herein attempts to distinguish the instant matter from the
recent decisions handed down by the Authority. It contends that in both
previous cases management conducted interviews in order to ascertain
necessary facts, whereas the Respondent herein already knew the facts
prior to the interview. Further, the Union would distinguish instances
where a bargaining representative ascertains facts from those where
management interviews an employee. It adverts to the inability of the
union to order a supervisor, during working hours, to have the employee
report to the union office.
Upon due consideration I am constrained to conclude that the asserted
dissimilarities among these cases are distinctions without a difference.
Respondent's representative Miller conducted the same type of interview
of Lisowski as took place in the Brookhaven Service Center and U.S.
Customs Service case, supra. In essence, management sought to interview
Lisowski in order to discuss the facts concerning that employee's
conversations with Inspector Lewandowski - all in preparation for
calling Lisowski as a witness at the arbitration hearing scheduled for
December 16, 1981. In the cited cases management interviewed employees
in order to verify factual data and present the individuals as witnesses
on behalf of the employer in forthcoming hearings. While the Union
herein might not welcome the holding by the Authority in the Brookhaven
Service Center and U.S. Customs Service cases, I deem the facts therein
equitable to those in the case at bar. Accordingly, I find that said
decisions are determinative of the issue raised in the instant matter
and conclude the interview management held with Lisowski was not a
formal discussion under 7114(a)(2)(A) of the Statute. Therefore
Respondent was not obliged to permit the Union herein to be represented.
Its failure to do so was not violative of Section 7116(a)(1), (5), and
(8) as alleged.
Accordingly, and in view of the foregoing, I recommend the Authority
adopt the following Order:
ORDER
It is hereby ordered that the Complaint in Case No. 9-CA-20118 be,
and it hereby is, dismissed.
WILLIAM NAIMARK
Administrative Law Judge
Date: October 22, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The said amended charge also named U.S. Customs Service,
Washington, D.C. as a party against whom it was filed. However, the
complaint herein is limited to U.S. Customs, Region VIII, San Francisco,
California.
/2/ In a motion dated September 8, 1982 the General Counsel moved the
undersigned to remand this case to the Regional Director for withdrawal
of the Complaint based on recent Authority decisions in Internal Revenue
Service and Brookhaven Service Center, 9 FLRA No. 132, and U.S.
Department of the Treasury, U.S. Customs Service, Region V, 9 FLRA No.
134. The undersigned issued an Order To Show Cause on September 14,
1982 why such motion should not be granted. A Response to said Order To
Show Cause was filed with the undersigned on October 1, 1982 by the
Charging Party. The latter, in opposing the said Motion, contended
there are factual distinctions between the case at bar and the
Brookhaven case, supra. Further, it asserts the circumstances herein
call for a different conclusion, and that the interview by Respondent
met the criteria of a "formal" discussion. In view of those
contentions, and since the Charging Party indicates it desires to
preserve its rights of appeal, the undersigned hereby denies the General
Counsel's Motion to remand the case for withdrawal of the Complaint.
/3/ Under Article 32 arbitration may be invoked only by the Union or
the employer.
/4/ Respondent's representative had previously identified specific
and general questions he intended to ask the employee. Miller had a few
written notes with him at the interview.
/5/ In its decision the Authority pointed out that such
fact-gathering sessions may not be conducted without limitation. Thus,
its questioning must not be coercive, and the employee must be assured
no reprisal will ensue if he refuses to participate in the session. In
the case at bar no allegation is made in the complaint, nor is it
contended, that Respondent engaged in coercive questioning in violation
of 7116(a)(1) of the Statute. Moreover, it is conceded that the
employee was assured his participation was voluntary and no reprisal
would follow if he refused to answer any questions.