U.S. Department of Labor, Mine Safety and Health Administration and American Federation of Government Employees, National Council of Field Office Locals, Local 3316 (Authority decision, April 27, 1990)

Final FLRA decision. The Authority adopted an unfair labor practice finding under 5 U.S.C. § 7116(a)(1) and (8) because the agency denied requested union representation during an investigatory examination. Judicial review is governed by 5 U.S.C. § 7123(a).

Plain-English summary

An MSHA employee requested union representation during an examination connected to an investigation that the employee reasonably believed could lead to discipline. The agency denied the request. An administrative law judge found that this violated the employee's statutory representation right. The Authority rejected the agency's challenge to the judge's credibility findings and adopted the unfair labor practice decision. It ordered MSHA to stop interfering with representation at investigatory examinations and to post an employee notice.

Decision snapshot

• Authority: 5 U.S.C. §§ 7114(a)(2)(B), 7116(a)(1), and 7116(a)(8).
• Outcome: Unfair labor practice finding adopted; cease and desist and notice posting ordered.
• Key point: An employee who reasonably fears discipline can request union representation during an investigatory examination.

Full text (FLRA public release)

[ v35 p790 ]
35:0790(84)CA

The decision of the Authority follows:

35 FLRA No. 84

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF
LABOR

MINE SAFETY AND HEALTH
ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

NATIONAL COUNCIL OF FIELD OFFICE
LOCALS

LOCAL 3316

(Charging
Party/Union)

3-CA-80179

DECISION AND ORDER

April 27,
1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying an employee's request for union representation under section 7114(a)(2)(B) of the Statute during an examination in connection with an investigation which the employee reasonably believed could result in disciplinary action. The Respondent filed exceptions to the Judge's Decision.1/ The General Counsel filed an opposition to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.(2)

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Department of Labor, Mine Safety and Health Administration shall:

1. Cease and desist from:

(a) Interfering with the right of its employees
represented by the American Federation of Government Employees, National Council of Field Office Locals, Local 3316, AFL-CIO to union representation at examinations in connections with investigations.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative actions in order to
   effectuate the purposes and policies of the Statute.

(a) Post at its U.S. Department of Labor, Mine Safety and Health Administration facilities copies of the attached Notice on forms to be furnished by the Federal labor Relations Authority. Upon receipt of such forms, they shall be signed by the Assistant Secretary of Labor for Mine Safety and Health and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken 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 III, Federal Labor Relations Authority, 1111 - 18th Street, N.W., P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY

AND TO EFFECTUATE THE POLICIES OF
THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT interfere with the right of our employees represented by the American Federation of Government Employees, National Council of Field Office Locals, Local 3316, AFL-CIO, to union representation at examinations in connection with investigations.

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.

__________
(Activity

Dated___
By_______

(Signature) (Title)

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 the Regional Director of the Federal Labor Relations Authority, Region III, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-5800.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. The Respondent excepted to
   certain credibility findings made by the Judge. The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 961 (1988).

2. Compare United
   States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431 (1990) (where employee's right to union representation was denied and discipline ensued, appropriate remedy was to require respondent to (1) repeat the investigatory interview, upon request of the union and employee, affording the employee full rights to union representation, and (2) reconsider the discipline and, if the discipline was mitigated, make the employee whole to the extent consistent with the decision on reconsideration). See also U.S. Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 35 FLRA No. 76 (1990).