U.S. Department of Justice, U.S. Penitentiary, Leavenworth, Kansas and U.S. Department of Justice, Office of Inspector General, Washington, D.C. and American Federation of Government Employees, Local 919 (Authority decision, December 3, 1992)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A bargaining unit employee at the Leavenworth penitentiary asked for union representation during an investigative interview. The Justice Department respondents denied the request, then told him he did not have to answer questions and was free to leave. He chose to continue without a representative. The Authority accepted the judge's finding that this was a voluntary, uncoerced choice to proceed without union representation. It dismissed the unfair labor practice complaint and did not reach the respondents' cross-exceptions.

Decision snapshot

• Authority: Investigatory interview representation under 5 U.S.C. § 7114(a)(2)(B).
• Outcome: Judge's dismissal adopted; unfair labor practice complaint dismissed.
• Key point: After being told he could refuse questions and leave, the employee voluntarily continued the interview without union representation.

Full text (FLRA public release)

[ v46 p820 ]
46:0820(72)CA

The decision of the Authority follows:

46 FLRA No. 72

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

U.S. PENITENTIARY

LEAVENWORTH, KANSAS

AND

U.S. DEPARTMENT OF JUSTICE

OFFICE OF INSPECTOR GENERAL

WASHINGTON, D.C.

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 919

(Charging Party)

7-CA-10454

DECISION AND ORDER

December 3, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondents filed an opposition to the General Counsel's exceptions and cross-exceptions to the Judge's decision.

The complaint alleged that the Respondents violated the Federal Service Labor-Management Relations Statute (the Statute) by denying a bargaining unit employee's request for union representation at an examination in connection with an investigation which the employee reasonably believed could result in disciplinary action against him. The Judge found that the Respondents did not violate the Statute because, after denying the employee's request for Union representation, the Respondents offered the employee the choice between continuing the interview without representation or having no interview at all and the employee made an uncoerced choice to continue the interview without representation. The Judge relied on U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 42 FLRA 834 (1991) (Border Patrol).

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the 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 recommendation that the complaint be dismissed.(1)

The General Counsel acknowledges that the record shows that: (1) the Respondents explained to the employee his rights under Miranda v. Arizona, 384 U.S. 436 (1966),(2) including the right to have an attorney represent him; (2) the employee requested and was denied Union representation; (3) the Respondents again explained the employee's Miranda rights and informed the employee that he was free to leave the interview at any time; and (4) the employee agreed to proceed with the interview without an attorney. However, according to the General Counsel, the record does not support the Judge's finding that, following the Respondents' denial of the employee's request for Union representation, the Respondents offered the employee a choice to either continue the interview without Union representation or have no interview at all. Moreover, the General Counsel asserts that a finding that the employee agreed to proceed with the interview in the absence of an attorney does not mean that the employee consented to proceed with the interview in the absence of a Union representative. The General Counsel argues that, under Border Patrol, the Judge should have found that the employee did not make a voluntary and uncoerced decision to continue the interview without Union representation.

We disagree. In Border Patrol, the Authority found that an employee's decision to continue to participate in an investigative interview without Union representation was not voluntary and uncoerced. In this case, the record supports the Judge's finding that the employee made a voluntary and uncoerced decision to continue the interview without Union representation. Specifically, the Judge found, based on the credited testimony of the Respondents' witnesses, that "after denying [the employee's] request for Union representation and prior to proceeding with the investigative examination, [the Respondents] did inform [the employee] that he had the right to remain silent, that he was not in custody, that he did not have to answer any questions and that he could leave at any time." Judge's Decision at 8. The Judge concluded that "such statements [were] tantamount to offering [the employee] 'the choice between continuing the interview without representation or having no interview at all'" and, accordingly, the "Respondents did not violate . . . the Statute when they continued the investigative interview of [the employee] without
[U]nion representation." Id. at 8-9. The Judge further found that management did not "put any pressure upon [the employee] to abandon his right to remain silent and/or to participate in the examination." Id. at 8.

The record supports the Judge's findings and conclusions that the Respondents did not coerce the employee's choice in this case to continue the investigative interview without Union representation. In particular, we find that when the employee was told, after his request for Union representation was denied, that he did not have to answer any questions and was free to leave at any time, his decision to continue the interview was uncoerced. Moreover, as the decision was made following the Respondents' denial of the employee's request for Union representation, we conclude that the choice was to continue without Union representation. Accordingly, we will dismiss the complaint in this case. See Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1077 (1990) ("[i]f, after having been given the option of continuing an interview without representation or having no interview at all, an employee elects to continue without representation, the employee has waived his rights under section 7114(a)(2)(B)" of the Statute).

II. Order

The complaint is dismissed.

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

1. In view of our decision, we find it unnecessary to pass
   upon the Respondents' cross-exceptions.

2. The employee was told "that he had the right to remain
   silent, that any thing that he said could be used against him, that he was not in custody, that he did not have to answer any questions, that he could leave at any time, and that he had the right to an attorney." Judge's Decision at 5.