U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

U. S. Customs Service, Office of Internal Affairs, Tucson, Arizona and National Treasury Employees Union, Chapter 116, DE-CA-80776, -80829, July 29, 2001, 57 FLRA No. 66.

The Authority (Member Wasserman dissenting) agreed with the ALJ in finding that the agency overcame the union's presumptive right to designate a particular representative in an investigatory examination. It found that there was a potential conflict of interest justifying the limitation on the employee's choice of representative. It also found that there was sufficient need to justify the two questions the special agent asked a union representative about an otherwise protected conversation between the representative and an employee.

During a counseling session, in which the employee was represented by the union VP, the supervisor counseled the employee over alleged excessive telephone calls. Following the counseling session, the supervisor advised a special agent that a couple of individuals reported that the employee made threats to physically harm the supervisor for having counseled the employee. Before examining the employee about making such threats, the special agent interviewed the supervisor. During that interview, the supervisor reported that a union steward had said that he had overheard the union VP advise the employee to lie in his rebuttal to the counseling.

This prompted the special agent to interview the employee and, when the employee again asked to be represented by the union VP, to say that the union VP couldn't represent the employee because of a potential conflict of interest. The VP then stated that she'd assign a steward (other than the steward who allegedly overheard the union VP advise the employee to lie) to represent the employee.

In interviewing the employee, the special agent advised the employee that he could be subject to disciplinary action for failure or refusal to answer proper questions. Although most of the special agent's questions related to the alleged threatening statements, she also asked a couple of questions related to whether the union VP had instructed the employee to lie in his response to the supervisor's counseling. The special agent then interviewed the steward who allegedly overheard the union VP advise the employee to lie.

After being advised by the employee and the steward that the alleged conduct by the union VP did not occur, the special agent dropped that issue. She eventually submitted a report which dealt only with the alleged threats about the supervisor.

The Authority, Member Wasserman dissenting, agreed with the ALJ who found that the agency didn't commit ULPs when it (1) didn't allow the employee, as part of its investigatory examination, to choose the union VP as his representative, and (2) compelled the employee to partially disclose communications between the employee and the union VP.

Citing 54 FLRA No. 133, FLRA said that "a union's presumptive right to designate a particular representative for an investigatory examination may be overcome if the agency establishes 'special circumstances' that warrant precluding a particular individual from serving as a representative." Noting that, unlike 54 FLRA No. 133, the union VP was not a witness but the subject of the investigation, FLRA agreed with the ALJ that there was a potential conflict of interest justifying the limitation on the employee's choice of representative.

Citing 44 FLRA No. 83, FLRA noted that confidential communications between a union representative and employee made during the course of representation is a protected activity and that "[a]n agency may not interfere with the confidentiality of such communication unless 'the right to maintain the confidentiality of the conversations has been waived or some overriding need for the information has been established.'" Here, FLRA found that there was sufficient need to justify the two questions the special agent asked the employee regarding the alleged advice to lie. "The special agent limited the questioning to the critical issue, and ended this line of questioning immediately on being told by the employee that there had been no instruction to provide false information." FLRA accordingly adopted the ALJ's dismissal of the complaint.

In reaching its decision, the Authority rejected the General Counsel's contention that the examination should have been split in two in which the union VP would be not allowed to represent the employee during that portion of the interview dealing with the alleged advice to lie, but would be allowed to represent the employee during that portion of the interview dealing with the alleged employee threats to harm the supervisor.

This argument—that the Respondents should have split the examination in two—has no support in the wording of the Statue or in the case law. With respect to the former, nothing in the Statute requires that an employee be permitted separate representatives for separate lines of questioning. With respect to the latter, case law establishes that employers are granted latitude in determining the form and timing of examinations, especially in situations where alternative representatives are available and the unavailability of a designated representative is not the fault of the employer. See 54 FLRA at 1511-13. . . . Similarly, the [NLRB] has held that an employee may not insist on the representation of an off-site representative who is not readily available where an on-site representative is available. Pacific Gas & Elec. Co., 253 NLRB 1143 (1981).

Consistent with the foregoing precedent, there is no basis to find a violation of the Statute based on Respondent's failure to restructure the examination in such a way that the vice president could represent the employee as to some, but not all, matters under investigation.

Member Wasserman dissented, largely on the basis that the agency should have examined the union steward who reported to the supervisor having overheard the VP advising the employee to lie before examining the employee, rather than vice versa.

This case is unusual because it involves exceptions to the rules that (1) an agency has to honor the union's designation of its representative for Weingarten examinations, and (2) confidential communication between a union representative and an employee made during the course of representation constitutes protected activity. There is a "special circumstances" exception to the former (such as the nonavailability of the requested representative where alternative representatives are available and, as in this case, conflict of interest situations). And there are waiver-of-confidentiality and "overriding need for the information" exceptions to the latter.

Agency investigators will certainly welcome the majority's rejection of the view advanced by the General Counsel that the employee be permitted separate representatives for separate lines of questioning. Do we really need to add more complications to Weingarten examinations?