Immigration and Naturalization Service, San Diego and AFGE Local 2544 (Authority decision, April 7, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice proceeding. 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

An Immigration and Naturalization Service employee in San Diego requested union representation at an investigatory interview, but the agency denied the request and proceeded. The Authority initially dismissed the unfair labor practice case after finding that a grant of immunity removed any reasonable fear of discipline. The court of appeals reversed that finding and returned the case for an order. Applying the court's ruling, the Authority found that the agency violated the employee's representation rights and ordered it to stop the practice and post a notice at its San Diego facilities.

Decision snapshot

• Authority: Investigatory interview representation under 5 U.S.C. § 7114(a)(2)(B) and unfair labor practices under § 7116(a)(1) and (8).
• Outcome: Violation found on remand; cease and desist order and employee notice required.
• Key point: A requested representative must be allowed when the employee reasonably believes an investigatory interview may lead to discipline.

Full text (FLRA public release)

[ v21 p240 ]

21:0240(33)CA

The decision of the Authority follows:

21 FLRA No. 33

U.S. IMMIGRATION AND NATURALIZATION
SERVICE, SAN DIEGO, CALIFORNIA
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2544
Charging Party

Case No. 8-CA-1195
(15 FLRA 383)

DECISION AND ORDER ON REMAND

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit, which directs the Authority to issue an appropriate order directing the Respondent agency to cease and desist from certain unfair labor practices.

II. History of the Case

A. The Authority's Decision

On July 24, 1984, the Authority issued its Decision and Order in U.S. Immigration and Naturalization Service, San Diego, California, 15 FLRA 383 (1984), adopting the Decision of its administrative Law Judge that the respondent had not violated the Stature by denying the request of Gregory Reed, a unit employee, for union representation at an investigatory interview, or by conducting the interview despite the denial of Reed's request. As stated by the Judge, and adopted by the Authority, the grant of immunity to Reed by the respondent was sufficient to dispel any reasonable fear of disciplinary action.

B. The Court's Opinion

On December 24, 1985, the Court issued its opinion in American Federation of Government Employees, Local 2544 v. FLRA, 79 F.2d 719 (Judge Starr dissenting). The Court, while accepting the Authority's standard for determining "reasonable belief," found that the record evidence failed to support the conclusion adopted by the Authority that the employee could not reasonably have believed that disciplinary action might result from the interview. Thus, the Court, reversed the Authority's conclusion and remanded the case for the issuance of an appropriate order.

III. Conclusion

The Authority accepts the Court's opinion as the law of the case and, consistent with that opinion, finds that the Respondent, by denying the request of unit employee Gregory Reed for union representation at an investigatory interview of the employee on April 9, 1981, and by conducting the interview despite the denial of employee Reed's request, failed to comply with section 7114(a)(2)(B) of the Statute and thus violated section 7116(a)(1) and (8) of the Statute. Accordingly, we now issue the following order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the U.S. Immigration and Naturalization Service, San Diego, California, shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee to take part in an examination in connection with an investigation (investigatory interview) or conducting such an examination or interview, without representation by the employee's exclusive bargaining representative, if such representation has been requested by the employee, and if the employee reasonably believes that the examination or investigatory interview may result in disciplinary action against such employee.

(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 action in order to effectuate the
   purposes and policies of the Statute:

(a) Post at all facilities of the U.S. Immigration and Naturalization Service, San Diego, California, 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 Regional Commissioner responsible for such facilities, or a designee, 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 VIII, 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.

Issued, Washington, D.C. April 7, 1986

(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

NOTICE TO ALL EMPLOYEES

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 require any bargaining unit employee to take part in an examination in connection with an investigation (investigatory interview) or conduct such an examination or interview, if such representation has been requested by the employee, and if the employee reasonably believes that the examination or investigatory interview may result in disciplinary action against such employee.

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: ---
---
(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 with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805.