Department of the Treasury, United States Customs Service, El Paso, Texas, (Respondent) and National Treasury Employees Union, Chapter 143, (Charging Party) and Department of the Treasury, United States Customs Service, New Orleans, Louisiana, (Respondent) and National Treasury Employees Union, Chapter 168, (Charging Party) and (Authority decision, May 16, 2000)

Read the official release (flra.gov)

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

Customs began videotaping employee investigative interviews without giving the union notice and an opportunity to bargain. The Authority disagreed with the ALJ’s finding that the practice was outside management’s internal-security right, concluding that the agency established a reasonable link between obtaining reliable investigative information and safeguarding its operations. Selective use of videotaping did not defeat that link. The agency still violated the statute by failing to bargain over the impact and implementation of a change whose effects were more than minimal. The Authority limited the bargaining remedy accordingly and required requested copies and discussion of existing tapes, notice before future videotaping, and a posted notice. Chairman Wasserman concurred, emphasizing both the demonstrated security link and the law-enforcement context.

Decision snapshot

• Authority: Internal-security management rights and impact-and-implementation bargaining.
• Outcome: Unfair-labor-practice finding retained; bargaining order narrowed to impact and implementation.
• Key point: A protected security decision did not remove the duty to bargain over its effects on employees.

Full text (FLRA public release)

[ v56 p398 ]

56 FLRA No. 56

DEPARTMENT OF THE TREASURY

UNITED STATES CUSTOMS SERVICE

EL PASO, TEXAS

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 143

(Charging Party)

AND

DEPARTMENT OF THE TREASURY

UNITED STATES CUSTOMS SERVICE

NEW ORLEANS, LOUISIANA

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 168

(Charging Party)

DA-CA-60047

DA-CA-60048

_____

DECISION AND ORDER

May 16, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member. [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on the Respondent's exceptions to the attached decision of the Administrative Law Judge on remand from the Authority in Department of the Treasury, United States Customs Service, El Paso, Texas and Department of the Treasury, United States Customs Service, New Orleans, Louisiana, 55 FLRA 43 (1998) (Customs).

In Customs, the Authority remanded the case to the Judge to "analyze the record" as required by Authority precedent to determine whether "the Respondent's assertion that videotaping employee interviews constituted the exercise of management's reserved right under section 7106(a)(1) of the [Federal Service Labor-Management Relations Statute (the Statute)] to determine its internal security practices." Id. at 48.

On remand, the Judge found that the Respondent failed to show that videotaping employee interviews constituted the exercise of a reserved management right under section 7106(a)(1) of the Statute to determine its internal security practices. Accordingly, he concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to give the Union notice and an opportunity to bargain over its decision to videotape employee interviews prior to changing conditions of employment.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II. Background

A. Facts and Judge's Original Decision

The facts of this case are set forth in Customs, 55 FLRA 43, and are only briefly summarized here. On September 20, 1995, a Union representative questioned the absence of the usual microphones at a unit employee's interview in El Paso, and learned from an Internal Affairs (IA) agent that the Respondent was videotaping the interview. At about the same time, another Union representative learned that the Respondent had videotaped an interview in New Orleans. The Union representative called the Chapter President, who brought the matter to the attention of the Respondent's Center Director.

At a bargaining session in October 1995, the Union raised the issue of the videotaping. The parties reached a tentative agreement that permitted the Respondent to videotape, but also afforded employees the right to request a copy of the recording. However, the Respondent ultimately disapproved this tentative agreement, and it was not made part of the parties' final collective bargaining agreement.

On October 30, 1995, the Union filed two unfair labor practice charges concerning the Respondent's videotaping of employee interviews in El Paso and New Orleans, respectively. Thereafter, the General Counsel issued a consolidated complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the decision to videotape interviews of bargaining unit employees conducted by IA agents without notifying and bargaining with the Union [ v56 p399 ] to the extent required by the Statute. The Judge concluded that the Respondent had violated the Statute as alleged. The Respondent filed exceptions to the Judge's decision.

B. The Authority's Decision in 55 FLRA 43

The Respondent excepted to the Judge's decision on the grounds that the: (1) ULP charges were untimely; (2) videotape recording of employees during IA investigations is covered by the parties' collective bargaining agreement; and (3) videotape recording of employees during IA investigations is an internal security practice under section 7106(a)(1) of the Statute, and therefore, the Respondent has no duty to bargain on the matter. On December 31, 1998, the Authority issued its decision in 55 FLRA 43, and rejected the Respondent's defenses with respect to the first and second grounds. However, the Authority remanded the third ground to the Judge.

With respect to the third ground, the Authority stated that the right to determine the internal security practices of an agency "includes the policing of its own employees." Customs, 55 FLRA at 47. The Authority stated that neither the Judge nor the parties had cited any Authority case that determined whether the videotaping of employee interviews constitutes an internal security practice. However, the Authority referenced cases concerning polygraph examinations, where the Authority found that "techniques aimed at obtaining truthful and reliable information from interviewees may constitute internal security practices under section 7106(a)(1)." Id. quoting American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112, 1115-16 (1996) (Federal Bureau of Prisons), the Authority stated:

It is well-established that management's right to determine its internal security practices under section 7106(a)(1) includes the authority to determine the policies and practices that are part of its plan to secure or safeguard its personnel, physical property or operations against internal and external risks. E.g., National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 960 (1992). The Authority has concluded that, where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property or operations and the investigative technique designed to implement that objective, a proposal that "conflicts with" the selected investigative technique directly interferes with management's right under section 7106(a)(1). Id. at 961. The right includes the authority to determine the investigative techniques management will employ to attain its internal security objectives. Id. at 960. In addition, techniques aimed at obtaining truthful and reliable information from interviewees constitute internal security practices under section 7106(a)(1). E.g., National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789, 798 (1985) (GSA) (proposal barring sworn statements in certain circumstances held to directly interfere with management's right to determine internal security practices).

Customs, 55 FLRA at 47.

The Authority determined that the question yet to be resolved was whether the Respondent has established a reasonable connection between its decision to videotape employee interviews and the objective of safeguarding its personnel, property or operations. The Authority found that the Judge did not analyze the record as required by the referenced Authority precedent. Specifically, he did not "determine whether the Respondent established a reasonable connection between its decision to videotape employee interviews and its objective of safeguarding the Agency's personnel, property or operations." Id. at 48. Accordingly, the Authority remanded the case to the Judge for this purpose.

The Authority directed that, if on remand the Judge concluded that the Respondent had failed to establish a reasonable connection, then the admitted unilateral implementation of the decision to videotape employee interviews would constitute an unfair labor practice requiring rescission of the practice until the Union has received notice and an opportunity to negotiate whether employee interviews will be videotaped. On the other hand, if the Judge concluded that the Respondent has established the necessary reasonable connection, then implementation of the decision to videotape employee interviews without notifying the Union and providing it an opportunity to bargain over the impact and implementation of that decision would constitute an unfair labor practice unless the change in unit employees' conditions of employment was de minimis. Noting that the Respondent had not excepted to the Judge's finding that the change had more than a de minimis effect on unit employees, the Authority adopted this finding without reviewing it. Accordingly, the Authority [ v56 p400 ] remanded the case to the Judge for "appropriate findings, consistent with [the] decision." Id.

III. Judge's Decision on Remand

Applying the test for determining whether an agency's practice constitutes an internal security practice set out in Federal Bureau of Prisons, the Judge found that the record did not "show that video-taping of witness interviews is part of any plan to secure or safeguard the personnel, physical property or operations of [the] Respondent . . . ; nor has Respondent shown a link, or reasonable connection between its objective of safeguarding its personnel, property or operations." Judge's Decision at 8. In so finding, the Judge evaluated record testimony. The Judge found that, according to a Union witness, Agent Fortunato of the New Orleans Office of IA, stated that "'the reason for videotaping . . . was to detect whether the employee was lying or not by what was captured by his body language on the videotape.'" Id. at 9 (quoting Transcript (Tr.) at 61). The Judge further found that Agent Fortunato testified that the employee was videotaped because:

. . . it was regarding the investigation of the employee who had been arrested and failed to report the arrest to his managers or the Office of Internal Affairs as described by the policies and procedures manual. The employee had been the target of an Internal Affairs investigation just prior to, within several weeks to maybe a few months. The nature of the violations that he was arrested for involved assaults and physical batteries, as they were. One involved a domestic violence. (Tr. 113)

. . . .

. . . a domestic violence situation where the employee was alleged to have physically assaulted his wife. The other . . . allegation was that he had threatened to kill someone who was trespassing on his property. Based on that, the fact that the crimes involved physical violence, . . . we felt it would warrant the videotaping of the interview. (Tr. 114)

Id. at 9-10 (emphasis omitted).

Evaluating this testimony, the Judge found that neither the employee's conduct, nor the objective of the investigation, showed any connection to the safeguarding of Agency personnel, property or operations. The Judge found that Agent Fortunato's assertion that the videotaping was to determine the employee's credibility--"'his body language on the videotape[]'--was not pursuant to Agency policy or plan to videotape all interviews but was a random, one time in seven and one-half years, selection because of alleged off-premises violence . . . and was not shown to have any reasonable relationship to any plan to secure or safeguard Respondent's personnel, physical property or operations." Id. at 10 (quoting Tr. at 61).

The Judge further examined Agent Doyle Walker's testimony. The Judge found that Agent Walker testified that the Texas Office of IA videotaped 20 to 25 percent of its interviews because "'it's the best evidence of an interview that you can have.'" Id. (quoting Tr. at 122). The Judge found that Agent Walker testified in response to the following:

Q: . . . is somehow the videotaping, the sound is better or something that makes it more understandable . . .

A: No, ma, am. But there's more to a conversation or an interview than just the verbal content. There's body language that goes on. There's facial expressions, which you don't capture on audio recordings. (Tr. 128)

[. . . .]

Q: . . . Is it true that the reason you wanted to videotape is so that you can determine by the demeanor of the person being interviewed . . . whether or not they were telling the truth?

A. That is part of it . . . . The other part is it also protects us from being accused of using coercive gestures and mannerisms. (Tr. 129)

Id. at 10-11.

The Judge evaluated the testimony and found "[t]hat a video is the best evidence of an interview is not doubted and is well supported by the widespread use of video depositions in civil jury trials." Id. at 11. The Judge determined that the Respondent's contention that the videotape protects both sides was unsupported and that the Respondent's contention "really [came] down to demeanor, as recorded on videotape, to determine credibility." Id. The Judge found that even though the Texas IA office "videotaped nearly one-fourth of their interviews . . . it, nevertheless, was not part of the Agency's plan or policy to videotape all interviews." Id.

The Judge further determined that Respondent's witnesses: (1) offered no evidence that Respondent utilizes any criteria which is related to internal security to determine whether or not the investigative interviews should be videotaped or which employees should be videotaped; and (2) did not assert that the allegations of [ v56 p401 ] physical violence directed against the employee that occurred outside of the workplace were related in any way to the maintenance of Respondent's internal security. The Judge found that there was no evidence in the record to show that the videotapes made by the Respondent are viewed by Respondent officials who were not present during the interview to evaluate the demeanor of the employee. The Judge also found, contrary to the Respondent's assertion, that a provision in National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., Case No. 0-NG-2356 (July 9, 1998) (Department of the Treasury) was distinguishable from this case. [n2]

Accordingly, the Judge found that the Respondent's decision to videotape the employee interviews was negotiable and the Respondent was obligated to give the Union notice and an opportunity to bargain before videotaping employee interviews. The Judge further found that even if videotape recording of employee interviews was a reserved management right, management was still obligated to bargain over the change which had more than a de minimis impact on unit employees. Consequently the Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute.

IV. Positions of the Parties

A. Respondent's Exceptions

Citing the test set forth in Customs for determining whether a matter constitutes an internal security practice under section 7106(a)(1) of the Statute, the Respondent particularly notes that the right includes the authority to determine the investigative techniques management will employ to attain its internal security objectives. The Respondent also notes that techniques aimed at obtaining truthful and reliable information from interviewees constitute internal security practices under section 7106(a)(1).

The Respondent asserts that it is "a law enforcement agency" and that its Office of IA is responsible for ensuring that Customs personnel comply with all operating policies, practices, and procedures. Exceptions at 3. The Respondent describes reasons why its practice constitutes an internal security practice. First, the Respondent asserts that "its practice of videotaping employee interviews is an investigative technique employed by the Office of [IA] to record the physical demeanor of the interviewee as [the interviewee] relates his[/her] version of the events in question." Id. at 4. The Respondent contends that this "investigative technique is aimed at obtaining truthful and reliable information from interviewees." Id.

The Respondent further argues that "videotaping is analogous to polygraph examination in that both . . . techniques permit the recordation of . . . physical cues for later examination by the investigators in their attempt to more accurately assess the truthfulness or reliability of the employee's responses." Id. In support, the Respondent cites American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1240 (1988), which it claims allows agencies wide latitude in their assessments of the efficacy of the internal security practice selected; and American Federation of Government Employees, AFL-CIO, Local 1858 and Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982).

Second, the Respondent asserts that videotaping is connected to its objective of safeguarding personnel, property, or operations because it provides a visual record of the actual interview which can later serve as evidence should the integrity of the interview process be questioned.

Third, the Respondent contends that videotaped interviews serve the objective of "safeguarding personnel, property, or operations in that the video camera stands in witness to potential physical altercations that may occur during the interview process." Exceptions at 5. The Respondent asserts that the videotaped interview is particularly relevant to investigations such as the one in New Orleans, "which involved an employee's alleged failure to report an arrest for assault." Id. The Respondent contends that the Judge erred when he stated that the videotaping of the employee was "'random'" and "'was not shown to have any reasonable relationship to any plan to secure or safeguard Respondent's personnel, physical property or operations.'" Id. at 6 (quoting Judge's Decision at 10.). The Respondent asserts that the employee "had already demonstrated a propensity for violence, and the experience of Agent Fortunato lead him to believe that he would be best protected by videotaping this interview." Id.

The Respondent takes issue with the Judge's reliance on the testimony of a certain Union witness concerning a conversation with Agent Fortunato and submitted an affidavit of Agent Fortunato which it claims provides an accurate account of the conversation. [ v56 p402 ]

The Respondent contends that, contrary to the Judge's statement that all interviews must be videotaped in order for videotaping to be a part of the Agency's internal security practice, the Assistant Commissioner of IA testified that the Office of IA "does not videotape all interviews of employees, but rather interviews are videotaped at the discretion of the investigator." Id. The Respondent argues, based on the above, that a reasonable connection exists between its objective of safeguarding personnel, property, or operations, and its practice of videotaping employee interviews.

The Respondent cites Department of the Treasury in support for its position that videotaping is not subject to impact and implementation bargaining.

B. General Counsel's Opposition

The General Counsel asserts that there is no evidence in the record to support any of the Respondent's arguments, "which is demonstrated by the fact that [the] Respondent[] did not refer to any citations to the record in [its] exceptions." Opposition at 4. Referencing section 2423.40(a)(2) of the Authority's Regulations, the General Counsel contends that the Respondent's failure "to refer to any citations to the record in its exceptions is in effect an admission that the record contains no facts to support their contention that the videotaping of employee interviews constitutes an internal security practice." Id. at 5. The General Counsel argues, therefore, that the Respondent's exceptions constitute nothing more than a statement of position and, thus, should be disregarded by the Authority. The General Counsel also references its brief to the Judge as further support for its position that the record does not support Respondent's assertions.

Referencing section 2429.5 of the Authority's Regulations, the General Counsel requests the Authority to disregard the affidavit submitted by the Respondent in its exceptions because the Respondent is seeking to introduce evidence that was not offered at the hearing.

V. Analysis and Conclusions

A. The Respondent's Videotape Recording of Employees During Internal Affairs Investigations Constitutes an Internal Security Practice under section 7106(a)(1) of the Statute

1. Preliminary Matters

We reject the General Counsel's assertion that the Respondent's failure to include with its exceptions citations to the record constitutes an admission that there is no evidence in the record to support its argument that the videotaping of employee interviews constitutes an internal security practice, and, as such the arguments should be disregarded. We find that the Respondent's exceptions adequately set forth relevant facts to support the arguments presented in its exceptions.

Further, to the extent the General Counsel's assertion suggests that the exceptions fail to satisfy a requirement of section 2423.40(a)(2) of the Authority's Regulations because they fail to include citations to the record, we find that under Authority precedent interpreting the former section, the exceptions would satisfy the requirements of section 2423.40(a)(2). [n3] See U.S. Department of Veteran Affairs, Medical Center, Long Beach, California, 39 FLRA 1347, 1347-48 n.* (1991). As there is no substantive difference between section 2424.40(a)(2) and the former section, we find that the exceptions satisfy the requirements of section 2423.40. Accordingly, based on the above, we deny the General Counsel's request.

As to the subject affidavit, section 2429.5 of the Authority's Regulations provides that the Authority will not consider evidence that was not presented in the proceedings before the Administrative Law Judge. The affidavit of Respondent's witness who testified at the hearing was not presented to the Judge. Although the affidavit addresses the Judge's decision, it refutes material in the record on matters that were before the Judge. The Authority will not consider evidence that was not presented in the proceedings before the Judge. Therefore, [ v56 p403 ] the affidavit will not be considered. See, e.g., U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA 987, 1004-05 n.10 (1998) (NOAA). Accordingly, we grant the General Counsel's request.

2. Merits

The question to be resolved is whether the Judge erred in concluding that the Respondent did not establish a reasonable connection between its decision to videotape record employee interviews and the objective of safeguarding its personnel, property, or operations.

As stated in Section II.B., above, the Authority has held that an agency's right to determine its internal security practices include the policing of its own employees. The right to determine its internal security practices also includes the right to determine the investigative techniques management will employ to attain its internal security objectives. In addition, subject to a legitimate link with internal security, techniques aimed at obtaining truthful and reliable information from interviewees constitute internal security practices under section 7106(a)(1). Customs, 55 FLRA at 47. Under long-standing precedent, where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property or operations and the investigative technique designed to implement that objective, a proposal that "conflicts with" the selected investigative technique directly interferes with management's right under section 7106(a)(1). Id. (quoting National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 961 (1992)).

Authority precedent does not specifically define what is meant by "safeguarding" but it encompasses actions taken by an agency to prevent misconduct or threats to personnel, property or operations, including an agency's choice of the investigative techniques that it will use to obtain probative evidence regarding misconduct. For example, in Federal Bureau of Prisons, 51 FLRA at 1116, the Authority found that the agency established, as an investigative technique, the requirement that investigators not ask certain interviewees to review and sign a certain form. The Authority stating that "there is a clear and logical connection between techniques designed to promote candid and truthful answers during investigations of employee wrongdoing and the [a]gency's objective to safeguard its personnel, property, or operations" found that the agency established a reasonable link between its practice and the objective of safeguarding its personnel, property or operations. Id.

Additionally, in Department of Veterans Affairs Medical Center, Denver, Colorado, 52 FLRA 16, 35-37 (1996), the investigative technique of using a covert video camera to uncover misconduct was found to constitute an internal security practice. In GSA, 18 FLRA at 798, the Authority found that an agency's decision to use sworn (rather than unsworn statements) to ensure its obtaining truthful and reliable information in conducting investigations is an internal security practice under section 7106(a)(1); and also, found that an agency's use of polygraph tests constituted an internal security practice because it was an investigative technique used by the agency to conduct its investigations.

We now apply the above Authority law to this case. The Respondent argues that it established that its decision to videotape record employee interviews constitutes an internal security practice. Specifically, the Respondent argues that its practice of videotape recording employee interviews: (1) is an investigative technique employed by the Office of IA to record the physical demeanor of the interviewee--that is, it is aimed at obtaining truthful and reliable information from interviewees; (2) is analogous to polygraph examination in that both techniques permit the recordation of physical responses for later examination by investigators in their attempt to more accurately assess the truthfulness or reliability of the employee's response; (3) is connected to the Agency's objective of safeguarding personnel, property, or operations because it provides a visual record of the actual interview which can later serve as evidence should the integrity of the interview process be questioned; and (4) safeguards personnel, property, or operations in that the video camera stands in witness to potential physical altercations that may occur during the interview process and further has a calming effect on witnesses.

With respect to the Respondent's first argument, the Judge acknowledged that "a video is the best evidence of an interview," which is "well supported by the widespread use of video depositions in civil jury trials." Judge's Decision at 11. However, the Judge found that the Respondent did not establish that videotape recording an interviewee to capture the employee's demeanor had any reasonable relationship to any plan to secure or safeguard Respondent's personnel, physical property, or operations. [ v56 p404 ]

Contrary to the Judge, the record supports a conclusion that the Respondent established a reasonable link between its investigative technique--videotape recording an employee subject to an investigation by the Office of IA, to capture the demeanor of the employee interviewee--and its objective of safeguarding its personnel, property, or operations. In this regard, the record shows that the Respondent, a law enforcement agency, Office of IA, is responsible for conducting investigative interviews concerning employee misconduct and that the "mission of the Office of Internal Affairs is to assist executive management and the Commissioner of Customs with preserving the overall integrity of the Customs Service." See Tr. at 102. See also Judge's October 31, 1997 Decision at 8-9 and General Counsel's Exhibit (G.C. Exh.) 6. The record further shows that the subject of the New Orleans interview was being investigated because he failed to report certain arrests to the Office of IA as described by the Respondent's policies and procedures manual and that a reason for videotape recording the employee was "to determine [his] credibility," that is, to "detect whether the employee was lying or not by what was captured by his body language on the videotape." Judge's Decision at 10, Tr. at 61.

The record also shows that an IA Agent from Texas, testified that his office "videotaped 20 to 25 percent of its interviews" because "it is the best evidence of an interview that you can have." Id. at 10, Tr. at 122. In terms of videotaping verses audio, the Agent testified "'there's more to a conversation . . . than just the verbal content. There's body language . . . facial expressions, which you don't capture on audio recordings.'" Id., (quoting Tr. at 128).

Based on the above, we find that the evidence shows that in New Orleans and Texas, the videotape was used by the IA office as an investigative technique to obtain truthful and reliable information in the conduct of employee investigative interviews. This use of the videotape to discern truth via body language or the demeanor of the witness in an investigative interview is as legitimate as obtaining "truthful and reliable" information from a witness through a polygraph test. Moreover, even the Judge recognized that the video is the best evidence of an interview. Judge's Decision at 11. However, the Judge rejected this reason because videotape recording employee interviews "was not part of the Agency's plan or policy to videotape all interviews." Id.

The Judge's rejection of the Respondent's argument on the basis that the Respondent did not videotape all interviews is erroneous because the discretion to determine under what circumstances certain security action is warranted is an integral part of an agency's plan to determine its internal security practices. See American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19 FLRA 778, 782 (1985) (U.S. Army Armor Center) (Authority found that the discretion to determine under what circumstances certain security action was warranted was an integral part of the agency, a military installation, plan to determine its internal security practices); GSA, 18 FLRA at 799 (the Authority found that management has the discretion to determine the practices (sworn rather than unsworn statements) it will use to ensure its obtaining of truthful and reliable information in conducting investigations); Federal Employees Metal Trades Council and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 12 FLRA 361, 362 (1983) (Department of the Navy) (a proposal that sought to require the agency to extend its security practice to all employees was found outside the duty to bargain because it conflicted with the agency's decision to limit the application of the security practice).

Here, the Assistant Commissioner of IA testified that the Office of IA does not videotape all interviews of employees, but rather interviews are videotaped at the "discretion of the investigator." Judge's Decision at 11, Tr. at 104. The evidence shows, therefore, that the Agency decided not to videotape record all investigative interviews, but left the discretion to determine what interviews needed to be videotaped to the discretion of the investigator. We find that the videotaping of all internal affairs interviews need not be undertaken by the Respondent in order for such technique to be considered a part of its internal security plan. Rather, consistent with the Authority decisions cited above, predicated on an actual link to internal security, the Respondent has the right to determine under what circumstances internal affairs investigative interviews will be videotaped. Accordingly, the Judge erred by finding that videotape recording employee interviews was not part of the Agency's plan or policy because the Respondent did not videotape all interviews. See, e.g., U.S. Army Armor Center; Department of the Navy.

Based on the above, we find that the Respondent established a reasonable link between its objective of safeguarding its personnel, property or operations and its investigative technique of videotape recording employees subject to IA investigations. Accordingly, the practice constitutes an internal security practice under section 7106(a)(1) of the Statute. [n4] [ v56 p405 ]

B. The Respondent Violated section 7116(a)(1) and (5) of the Statute by Failing to Bargain over the Impact and Implementation of its Decision to Videotape Record Interviews of Employees Subject to IA Investigations

In Customs, 55 FLRA at 48, the Authority stated that if the Respondent established the necessary reasonable connection, then implementation of the decision to videotape employee interviews without providing the Union an opportunity to bargain over the impact and implementation of that decision would constitute an unfair labor practice unless the change in unit employees' conditions of employment was de minimis. The Authority noted that the Judge had found that the change had more than a de minimis effect on unit employees. As the Respondent did not except to the Judge's finding, the Authority adopted the finding.

Therefore, the Respondent's decision to videotape record employees' interviews had more than a de minimis effect on unit employees. Consequently, the Respondent is obligated to bargain over the impact and implementation of the change in employees' conditions of employment. Additionally, the Respondent's reliance on Department of the Treasury, to support its claim that it is not obligated to bargain over the impact and implementation over the change in this case is inappropriate because that case concerned different circumstances.

Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by changing a condition of employment without giving the Union notice and an opportunity to bargain over the impact and implementation of the change.

Having found that the Respondent committed an unfair labor practice based on its failure to notify the Union and bargain over the impact and implementation of the change, and in the absence of any exception to the scope of the Judge's remedy, we modify the Judge's recommended order, where it concerns the Respondent's obligation to bargain, to add language that limits the scope of bargaining to impact and implementation of the change.

VI. Order

Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Treasury, United States Customs Service shall:

1. Cease and desist from:

(a) Changing conditions of employment of bargaining unit employees at El Paso, or at New Orleans, Louisiana, by videotaping employee interviews without giving the National Treasury Employees Union (NTEU), the exclusive representative of its employees, notice and opportunity to bargain over the impact and implementation of its decision to videotape employee interviews.

(b) In any like or related manner interfering with, restraining or coercing bargaining unit employees at New Orleans, Louisiana, or El Paso, Texas in the exercise of their rights assured them by the Statute.

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

(a) Upon request of NTEU, provide any employee at El Paso, Texas, and any employee at New Orleans, Louisiana, whose interview has been videotaped, a copy of the videotape if the employee has not previously been furnished a copy of the videotape.

(b) Upon request of NTEU, discuss the use of any videotape made of any employee interview at El Paso, Texas, or at New Orleans, Louisiana.

(c) Before videotaping any employee interview at El Paso, Texas, or at New Orleans, Louisiana, give NTEU notice and, upon request, bargain on the impact and implementation of such decision.

(d) Post at its facilities in El Paso, Texas, and in New Orleans, Louisiana, 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 Commissioner of Customs and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places at El Paso, Texas, and at New Orleans, Louisiana, 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.

(e) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Dallas Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v56 p406 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of the Treasury, United States Customs Service violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees at El Paso, Texas and at New Orleans, Louisiana, that:

WE WILL NOT change conditions of employment of bargaining unit employees at El Paso, Texas or at New Orleans, Louisiana, by videotaping employee interviews without giving the National Treasury Employees Union (NTEU), the exclusive representative of our employees, notice and opportunity to bargain over the impact and implementation of our decision to videotape employee interviews.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our bargaining unit employees at El Paso, Texas or at New Orleans, Louisiana, in the exercise of their rights assured them by the Statute.

WE WILL, upon request of NTEU, provide any employee at El Paso, Texas, and any employee at New Orleans, Louisiana, whose interview has been videotaped, a copy of the videotape if the employee has not previously been furnished a copy of the videotape.

WE WILL, upon request of NTEU, discuss the use of any videotape made of any employee interview at El Paso, Texas or at New Orleans, Louisiana.

WE WILL, before videotaping any employee interview at El Paso, Texas, or at New Orleans, Louisiana, give NTEU notice and, upon request, bargain on the impact and implementation of such decision.

______

(Agency)

Date: __ By: ___

Commissioner of Customs

Washington, D.C.

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 the Regional Director of the Federal Labor Relations Authority, Dallas Region, whose address is: 525 South Griffin Street, Suite 926, LB 107, Dallas, Texas 75202-1906, and whose telephone number is: (214) 767- 4996.

Chairman Wasserman, concurring.

I join in the conclusion that the right to determine internal security extends to the Agency's decision to use videotaping as an investigative technique. In addition to the points made above, I weigh as a factor the nature of the Agency's mission, which is law enforcement. As we noted in Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas and American Federation of Government Employees, Local 3828, AFL-CIO, 55 FLRA 848, 856 (1999), although in a different context, special security concerns an agency would have, such as in a prison setting, should receive careful consideration. Such concerns are not dispositive, however, because they are a part of the "totality of the circumstances" which the Authority will weigh in unfair labor practice cases.

It is always critical that an agency establish the link between its action and internal security in order to bring the action within the scope of section 7106(a)(1). Whether it is videotaping or some other claimed security action, an agency must do more than simply designate it as a "security" matter. In this case, I find that the evidence of the use of the videotape as a legitimate security technique, combined with the law enforcement context, is sufficient for me to conclude that the use of the videotape is linked to the Agency's right to determine its internal security. I contrast this case to National Treasury Employees Union and U.S. Customs Service, Washington, D.C., 55 FLRA 1174 (1999) in which I dissented to finding that providing investigative videotapes to the employee who are interviewed a matter involving internal security. In that case, the proposal did not hamper the use of videotapes, and there was no evidence that the previous practice of giving employees a copy of the tape had an adverse effect on internal security.

File 1: Authority's Decision in 56 FLRA No.
56

File 2: ALJ's Decision

Footnote # 1 for
56 FLRA No. 56

• Authority's Decision

Chairman Wasserman's concurring opinion appears at the end of this decision.

Footnote # 2 for
56 FLRA No. 56

• Authority's Decision

On December 23, 1999, the Authority issued a decision in this case. See Department of the Treasury, 55 FLRA 1174 (Provision 9) (Member Wasserman dissenting in part), , petition for review filed, No. 00-1058 (D.C. Cir. Apri1 24, 2000).

Footnote # 3 for
56 FLRA No. 56

• Authority's Decision

Section 2423.40(a)(2) provides, in pertinent part, that exceptions shall consist of the following:

(2) Supporting arguments, which shall set forth, in order: all relevant facts with specific citations to the record; the issues to be addressed; and a separate argument for each issue, which shall include a discussion of applicable law.

As relevant here, there is no substantive difference between section 2424.40(a)(2) and the former section of the Authority's Regulations, section 2423.27 (1997). See Air Force Flight Test Center, Edwards Air Force Base, California, 55 FLRA 116, 118 n.6 (1999).

Footnote # 4 for
56 FLRA No. 56

• Authority's Decision

In view of this determination, we find it unnecessary to reach the Respondents' other contentions that the videotaping of employee investigative interviews by IA constitutes an internal security practice.

[ v56 p407 ]

Office of Administrative Law Judges

DEPARTMENT OF THE TREASURY

UNITED STATES CUSTOMS SERVICE

EL PASO, TEXAS

Respondent

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 143

Charging Party

AND

DEPARTMENT OF THE TREASURY

UNITED STATES CUSTOMS SERVICE

NEW ORLEANS, LOUISIANA

Respondent

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 168

Charging Party

Case Nos. DA-CA-60047

DA-CA-60048

(55 FLRA 43)

Currita Waddy, Esquire

Octave Weber, Esquire

For the Respondents

Walter E. Dresslar, Esquire

For the Charging Party

John M. Bates, Esquire

Charlotte A. Dye, Esquire

For the General Counsel

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION ON REMAND

Statement of the Case

My decision in this case issued on October 31, 1997, OALJ 98-02, and the facts are fully set forth therein. The Authority's decision herein issued December 31, 1998, 55 FLRA 43; 55 FLRA No. 16 (1998), and remanded the case to the undersigned, "for appropriate findings, consistent with this decision, concerning the Respondent's assertion that videotaping employee interviews constituted the exercise of management's reserved right under section 7106(a)(1) of the Statute to determine its internal security practices." (id. at 48 [slip op. at 11]). By Order dated January 5, 1999, the parties were invited to file supplemental briefs to the undersigned, on or before January 22, 1999. General Counsel and Respondent each timely mailed a Supplemental Brief, received on, or before January 26, 1999, which have been carefully considered. Upon the basis of the entire record, I make the following findings and conclusions.

FINDINGS

1. Mrs. Geraldine (Gerry) M. Seymour, nee Wilson, an Operational Analysis Specialist and Steward (Tr. 54-55),
   with respect to the Internal Affairs interview of Mr. Charles Christian on October 12, 1995, at which she was Mr. Christian's representative, testified, in part, as follows:

"A When I questioned about the camera, he told me that this was the new procedure for Internal Affairs to interview employees.

"Q It was a new procedure to videotape?

"A To videotape, yes.

"Q Is that why he didn't want the chairs to move?

"A Exactly. (Tr. 58)

. . .

"Q Had you ever been at an Internal Affairs interview previously that was videotaped, to your knowledge?

"A Not videotaped. (Tr. 59)

. . .

"Q Once you had this discussion about their new policy of videotaping, how did the interview proceed at that point?

"A He proceeded to read to Charles Christian his administrative rights and administered the oath, asked him to sign, and proceeded the interview. Then the interview was interrupted. There was a knocking on the wall. And Mr. Fortunato stopped the interview.

"Q What do you mean, there was a knocking on the wall?

"A There was an adjacent room with the equipment for the audio and, I guess, the video. Not the audio. The videotaping. The equipment was in that adjacent room. And there was a third agent operating the equipment. (Tr. 60) [ v56 p408 ]

. . .

"Q Did Fortunato tell you how the video and audiotapes were going to be used?

"A Yes, he did. I asked about that. He said that the reason for videotaping, this new procedure of videotaping, was to detect whether the employee was lying or not by what was captured by his body language on the videotape." (Tr. 61).

2. Mr. Guy Fortunato, a Senior Special Agent, Office of Internal Affairs, New Orleans (Tr. 110), who conducted
   the interview of Mr. Christian, above, testified, in part as follows:

"Q BY MS. WADDY: How many times have you videotaped Internal Affairs interviews of bargaining unit employees?

"A One time.

"Q Why did you choose to videotape that particular interview?

"A In the instance that we videotaped, it was regarding the investigation of the employee who had been arrested and failed to report the arrest to his managers or the Office of Internal Affairs as described by the policies and procedures manual. The employee had been the target of an Internal Affairs investigation just prior to, within several weeks to maybe a few months. The nature of the violations that he was arrested for involved assaults and physical batteries, as they were. One involved a domestic violence.

. . .

"THE WITNESS: The nature of the arrest, as I say, one involved a domestic violence situation where the employee was alleged to have physically assaulted his wife. The other, he was arrested for threats where he had
-- the allegation was that he had threatened to kill someone who was trespassing on his property. Based on that, the fact that the crimes involved physical violence, the allegations of violence, we felt it would warrant the videotaping of the interview." (Tr. 113-114).

3. Mr. Doyle Wayne Walker, a Senior Special Agent, Office of Internal Affairs, McAllen, Texas (Tr. 120), testified,
   in part, as follows:

"Q Okay. Why did Internal Affairs choose to videotape these interviews?

"A There was a number of reasons. The primary reason is because it's the best evidence of an interview that you can have. It is the interview recorded on videotape. Other agencies have used it for civilian suspects, if you could call them that. The U.S. Attorneys are all for it.

"It protects both sides. It protects us from being accused of coercion, of not giving the proper warnings. It protects the employee because there's no question of what the question was, what the response was. There's no
he misunderstood' orthat's not what he asked' or anything like that. It's there on the tape. It's great evidence." (Tr. 122).

. . .

"Q Okay. And in terms of videotaping as opposed to audiotaping, is somehow the videotaping, the sound is better or something that makes it more understandable, the spoken word?

"A No, ma'am. But there's more to a conversation or an interview than just the verbal content. There's body language that goes on. There's facial expressions, which you don't capture on audio recordings.

"Q Okay. By the use of videotaping, you wanted to be able to capture these facial gestures and body language?

"A It's all part of the interview. Yes, ma'am.

"Q And for what purpose would you want to capture this?

"A For purpose of evidentiary value.

"Q What kind of evidence do you suppose it gave you is what I asked you.

"A The -- if it's played back in a judicial proceeding, the jury or the magistrate can view the videotape and see the way the interview was conducted.

"Q What's the difference between audiotaping and videotaping in terms of -- what's the visual image going to give you that you can't hear?

"A May I give you an example?

"Q Let me ask you a question. Is it true that the reason you wanted to videotape is so that you can determine by the demeanor of the person being interviewed, by their body language or how they [ v56 p409 ] looked or whatever, whether or not they were telling the truth?

"A That is part of it, yes, ma'am. The other part is it also protects us from being accused of using coercive gestures and mannerisms.

"Q Are you generally in these videos?

"A Yes, ma'am." (Tr. 128-129).

CONCLUSIONS

§ 6(a)(1) of the Statue provides, in pertinent part, as follows:

"§ 7106. Management rights

"(a) Subject to subsection (b) of this section [n1] , nothing in this chapter shall affect the authority of any management official of any agency--

"(1) to determine the . . . internal security practices of the agency . . . ." (5 U.S.C. § 7106(a)(1)).

The Authority noted in its holding in American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112 (1996) (hereinafter, "Bureau of Prisons "), that,

"It is well-established that management's right to determine its internal security practices under section 7106(a)(1) includes the authority to determine the policies and practices that are part of its plan to secure or safeguard its personnel, physical property or operations against internal and external risks. E.g., National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 960 (1992). The Authority has concluded that, where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property or operations and the investigative technique designed to implement that objective, a proposal that `conflicts with' the selected investigative technique directly interferes with management's right under section 7106(a)(1). Id. at 961. The right includes the authority to determine the investigative techniques management will employ to attain its internal security objectives. Id. at 960. In addition, techniques aimed at obtaining truthful and reliable information from interviewees constitute internal security practices under section 7106(a)(1). E.g., National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789, 798 (1985) (GSA) (proposal barring sworn statements in certain circumstances held to directly interfere with management's right to determine internal security practices)." (51 FLRA at 1115-1116).

(See, also American Federation of Government Employees, AFL-CIO, Local 1592 and Army-Air Force Exchange Service, Hill Air Force Base, Utah, 6 FLRC 613, 619-620 (1978); Department of Health and Human Services, Social Security Administration, Region VI, and Department of Health and Human Services, Social Security Administration, Galveston, Texas District, 10 FLRA 26, 39-40 (1982); American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440, 444-445 (1982); American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA 40 (1984); National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789, 795-798 (1985); United States Department of Defense, Department of the Army McAlester Army Ammunition Plant, 20 FLRA 606 (1985) (hereinafter, "McAlester") [This case involved the change of delivery of employee pay checks from hand delivery on the work premises to mail delivery only, to a home address or to a bank. In my decision, 20 FLRA at 609-641, I had rejected Respondent's assertion that bargaining was precluded by § 6(a) or § 6(b)(1) (negotiable only at the election of the agency) (Internal security -- § 6(a)(1) -- was discussed at length at 632-635 and I concluded that, ". . . Respondent's proposal to terminate the hand delivery of pay checks was not excepted from the obligation to bargain by § 6(a)(1) of the Statute." 20 FLRA at 635.) The Authority reversed, holding that the matter was a permissive subject of bargaining under § 6(b)(1), and, accordingly, Respondent's refusal to bargain did not violate 16(a)(5) or (1) of the Statute and dismissed the Complaint. 20 FLRA at 608. Because it found the matter subject to § 6(b)(1), the Authority did not address any § 6(a)(1) assertion of Respondent. McAlester was appealed to the D.C. Circuit. In the meantime, an earlier decision of the Authority, 16 FLRA 619 (1984), which involved a substantially identical issue and which the Authority had followed in [ v56 p410 ] McAlester, was reversed by the Ninth Circuit Court of Appeals, 778 F.2d 1429 (9th Cir. 1985). The Authority requested the D.C. Circuit to remand McAlester for further consideration in light of the Ninth Circuit's decision, and, following the Court's remand, the Authority reversed its previous decision, 26 FLRA 177, 178 (1987) and held, ". . . in agreement with the Judge, that the Respondent's decision to mail paychecks . . . did not constitute a determination 'with respect to contracting out' within the meaning of section 7106(a)(2)(B) of the Statute. Therefore, we find in agreement with the Judge that the
. . . refusal to bargain . . . over the proposed change . . . violated section 7116(a)(1) and (5) of the Statute." (26 FLRA at 180)]; Department of Veterans Affairs Medical Center, Denver, Colorado, 52 FLRA 16 (1996).

As the Authority noted, it long has held that use of polygraphs is a matter of internal security within the meaning of § 6(a)(1) of the Statute, 55 FLRA at 47; 55 FLRA No. 16, slip opinion p. 9; American Federation of Government Employees, AFL-CIO, Local 1858, supra [1982]; American Federation of Government Employees, Local 32, supra [1984]; National Federation of Federal Employees, Local 1300, supra; American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, Provision 1, 1239-40 (1988) (Sierra Army Depot). A polygraph as no purpose other than as an investigative tool; but, because of its inherent unreliability, courts rarely permit the introduction of test results. See, U.S. Department of Justice, U.S. Marshals Service and U.S. Marshals Service, District of New Jersey, 26 FLRA 890, 899 n.10 (1987). Video taping of an interview is not so intrusive a technique as the polygraph; has no inherent investigative characteristic; and its function and purpose is, simply, to make a visual picture of the interview, by means of an electronic camera, together with a sound recording of the interview. The device has become immensely popular as a camcorder for home use. As the video tape requires no developing, it may immediately be played on a VCR.

The record does not show that video-taping of witness interviews is part of any plan to secure or safeguard the personnel, physical property or operations of Respondent, Bureau of Prisons, supra; nor has Respondent shown a link, or reasonable connection between its objective of safeguarding its personnel, property or operations. For example, in American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Service Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347 (1982) (hereinafter, "INS"), negotiability issues, the Union's proposal 8, in pertinent part, provided, ". . . [in] conflict-of-interest situations, no employee will be required to give a statement under oath except as may be required by law." (id. at 361) and its Proposal 9, in pertinent part, provided, "When a recording is made of an interview the employee or the representative will be allowed to also record the entire proceedings. . . ." (id. at 363). The Authority held each proposal to be non-negotiable. As to Proposal 8, the Authority stated, in part, as follows:

". . . the right to determine internal security practices also extends to the establishment of rules applicable to internal investigations relating to the integrity of an agency's opera-tions vis-a-vis actual or alleged conflicts of interest . . . the Agency's decision to require oaths . . . is an internal security practice under section 7106(a)(1). . . ." (id. at 362);

and as to Proposal 9, the Authority sated, in part, as follows:

". . . the Union's proposal would grant Union Officials essentially an uncontrolled right . . . to maintain recordings and transcriptions of Agency investigative interviews . . . Such a proposal would deny the Agency's authority under section 7106(a)(1) of the Statute to prevent unauthorized disclosure of investigative material, i.e., determine its internal security practices . . . ." (id. at 364).

As to Proposal 8, the Agency's decision to require oaths in conflict of interest investigations, as the Authority found, was directly connected to the Agency's plan to safeguard its operations and Proposal 9 likewise directly related to the Agency's plan or policy to protect its personnel, physical property and operations by preventing the unauthorized disclosure of confidential material, investigative material and interference with ongoing investigations.

Here, Special Agent Fortunato told Steward Seymour, Mr. Christian's representative at his October 25, 1995, interview that, ". . . the reason for videotaping . . . was to detect whether the employee was lying or not by what was captured by his body language on the videotape." (Tr. 61). Mr. Fortunato said that during his seven and one-half years as a Senior Special Agency in New Orleans (Tr. 110), Mr. Christian's was the only interview he had videotaped (Tr. 113), and he said Mr. Christian's was videotaped because,

". . . it was regarding the investigation of the employee who had been arrested and failed to report the arrest to his managers or the Office of Internal Affairs as described by the policies and [ v56 p411 ] procedures manual. The employee had been the target of an Internal Affairs investigation just prior to, within several weeks to maybe a few months. The nature of the violations that he was arrested for involved assaults and physical batteries, as they were. One involved a domestic violence. (Tr. 113)

. . .

"THE WITNESS: The nature of the arrest . . .one involved a domestic violence situation where the employee was alleged to have physically assaulted his wife. The other . . . allegation was that he had threatened to kill someone who was trespassing on his property. Based on that, the fact that the crimes involved physical violence, the allegations of violence, we felt it would warrant the videotaping of the interview." (Tr. 114)

Mr. Christian may not have conducted himself in keeping with his name, but neither his conduct nor the objective of the investigation -- failure to report an arrest -- shows any connection to the safeguarding of its personnel, property or operations. Mr. Fortunato's assertion to the Union that the videotaping was to determine Mr. Christian's credibility, ". . . his body language on the videotape." (Tr. 61), was not pursuant to Agency policy or plan to videotape all interviews but was a random, one time in seven and one-half years, selection because of alleged off-premises violence on the part of the witness, and was not shown to have any reasonable relationship to any plan to secure or safeguard Respondent's personnel, physical property or operations. Indeed, the events, except the failure to report an arrest, occurred off Respondent's premises and concerned domestic violence.

Senior Special Agent Doyle said that the McAllen, Texas, Office of Internal Affairs videotaped 20 to 25 percent of its interviews (Tr. 121, 129) because,

". . . it's the best evidence of an interview that you can have. It is the interview recorded on videotape. . . .

"It protects both sides. It protects us from being accused of coercion, of not giving the proper warnings. It protects the employee because there's no question of what the question was, what the response was. . . ." (Tr. 122)

. . .

"Q . . . is somehow the videotaping, the sound is better or something that makes it more understandable . . .

"A No, ma'am. But there's more to a conversation or an interview than just the verbal content. There's body language that goes on. There's facial expressions, which you don't capture on audio recordings. (Tr. 128)

. . .

"Q . . . Is it true that the reason you wanted to videotape is so that you can determine by the demeanor of the person being interviewed . . . whether or not they were telling the truth?

"A That is part of it, yes, ma'am. The other part is it also protects us from being accused of using coercive gestures and mannerisms." (Tr. 129).

That a video is the best evidence of an interview is not doubted and is well supported by the widespread use of video depositions of doctors in civil jury trials -- both plaintiff and defendant attorneys being in agreement that to the jurors, the video is like having the doctor present in the courtroom. But Mr. Doyle's insistence that videotape protects both sides was shown to be unsupported. Mr. Doyle conceded that there was nothing in a videotape that makes it more understandable and, accordingly, on audio the questions and answers and the warnings would be just as plain as on videotape. It is true that a "black skullcap" if carried by an inquisitor would not be "seen" on audio but his tone of voice and manner of questioning would be indelibly recorded. In short, Mr. Doyle's contention really come down to demeanor, as recorded on videotape, to determine credibility. Although McAllen videotaped nearly one-fourth of their interviews, many surreptitiously, it, nevertheless, was not part of the Agency's plan or policy to videotape all interviews.

As General Counsel states, inter alia, in his Supplemental Brief:

". . . Respondent introduced no evidence at the hearing which would establish a link or reasonable connection between its objective of safeguarding its personnel, property or operations and the practice of videotaping employee interviews. To begin with, Respondent's witnesses offered no evidence that Respondent utilizes any criteria which is related to its internal security to determine whether or not the investigative interview of an employee should be videotaped. Homer Williams, who is employed with Respondent as its Assistant Commissioner
[ v56 p412 ] for Internal Affairs, testified that the Office of Internal Affairs does not videotape all interviews of employees, but rather interviews are videotaped at the discretion of the investigator. Williams further testified that the practice of videotaping employees in investigative interviews may be followed in some offices, but not in others, depending upon the preference of the investigator. (TR 104)." (General Counsel's Supplemental Brief, pp. 5-6).

. . .

". . . Fortunato did not assert that the allegations of physical violence directed against the employee which occurred outside of the workplace were related in any what to the maintenance of Respondent's internal security. Moreover, Fortunato also offered no testimony which would establish that he utilizes any criteria related to Respondent's internal security to determine which employee interviews are to be videotaped. Fortunato also did not testify that he videotapes all employee interviews which involve allegations of physical violence. . . ." (id., at 7).

. . .

"Respondent's witnesses offered various rationales for its decision to videotape some of the employee interviews which its Office of Internal Affairs conducts, but none of the rationales provided by these witnesses establish that Respondent's practice of videotaping some employee interviews is based upon internal security consideration." (id., at 8).

. . .

". . . there is no evidence in the record that the videotapes of employee interviews which are made by Respondent are viewed by Respondent's officials who were not present during the interview for the purpose of evaluating he demeanor of the employee. Finally, Walter's argument that videotaping of employee interviews protects the Internal Affairs Officer conducting the interview from being falsely accused of using coercive gestures or mannerisms during the interview may provide a legitimate rationale for Respondent to videotape employee interviews, but it is not a rationale that has any connection to the maintenance of Respondent's internal security." (id., at 10).

. . .

". . . General Counsel respectfully submits that Respondent has not established by a clear preponderance of the evidence that a link or reasonable connection exists between its objective of safeguarding its personnel, property, or operations and the practice of videotaping some investigative interviews of its bargaining unit employees." (id., at 11).

Respondent cites and relies upon National Treasury Employees Union and U.S. Department of the Treasury U.S. Customs Service, Washington, D.C., Case No. 0-NG-2356, OALJ 98-31 (July 9, 1998), a decision by Judge Jesse Etelson, asserting that, ". . . the administrative law judge ruled that a proposal requiring the Agency to provide a copy of the tape-recording to the employee was not a negotiable procedure." (Respondent's Supplemental Brief, p. 4). That Judge Etelson found the union's Provision 9 non-negotiable because it provided, in part, that, ". . . the employee may receive a copy of the tape-recording and the transcript. . . ." is debatable, inasmuch as Provision 9 also provided, ". . . The employee may elect to tape record the interview . . . .", a like provision in INS, supra ("when a recording is made of an interview the employee or the representative will be allowed to also record the entire proceedings. . . ." (8 FLRA at 363)) which the Authority held rendered the union's proposal 9 non-negotiable and Judge Etelson specifically stated, ". . . I conclude, therefore, that the Authority's holding in INS controls the negotiability of Provision 9 and that it is nonnegotiable. . . ." (slip opinion, p. 23). INS, supra, is fully considered hereinabove.

For reasons set forth above, Respondent failed to show in this case any link or reasonable connection between any policy or plan to secure or safeguard its personnel, physical property or operations against internal and external risks and the random videotaping of interviews of bargaining unit employees. Accordingly, Respondent's decision to videotape the employee interviews in this case was negotiable and Respondent was obligated to give the Union notice and opportunity to bargain before videotaping employee interviews. However, if, contrary to this conclusion, video recording of employee interviews were a reserved right of management, then, nevertheless, Respondent was obligated to bargain, the change having had more than a de minimis impact, pursuant to § 6(b)(2) and (3) of the Statute, as the Authority noted herein (55 FLRA at 48; slip opinion pp. 10-11). Respondent was obligated, therefore, to give the Union notice and an opportunity to bargain, whether about the decision to videotape or its impact and implementation, before changing conditions of employment at El Paso and at New Orleans. Because Respondent unilaterally changed conditions of employment at El Paso and at New Orleans by videotaping bargaining unit employee interviews, it violated §§ 16(a)(5) and (1) of the Statute and it is, again, recommended that the Authority adopt the following: [ v56 p413 ]

ORDER

Pursuant to § 2423.41, of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41, and § 18, of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the United States Department of the Treasury, United States Customs Service, shall:

1. Cease and desist from:

(a) Changing conditions of employment of bargaining unit employees at El Paso, Texas, or at New Orleans, Louisiana, by videotaping employee interviews without giving the National Treasury Employees Union, the exclusive repre-sentative of its employees (hereinafter, "NTEU"), notice and opportunity to bargain to the extent required by the Statute.

(b) In any like or related manner, interfering with, restraining, or coercing its employees at New Orleans, Louisiana, or El Paso, Texas, 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) Upon request of NTEU, provide any employee at El Paso, Texas, and any employee at New Orleans, Louisiana, whose interview has been videotaped, a copy of the videotape if the employee has not previously been furnished a copy of the videotape.

(b) Upon request of NTEU, discuss the use of any videotape made of any employee interview at El Paso, Texas, or at New Orleans, Louisiana.

(c) Before videotaping any employee interview at El Paso, Texas, or at New Orleans, Louisiana, give NTEU notice and, upon request, bargain to the extent required by the Statute.

(d) Post at its facilities in El Paso, Texas, and in New Orleans, Louisiana, 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 Commissioner of Customs and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places at El Paso, Texas, and at New Orleans, Louisiana, where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to § 2423.41(e), of the Authority's Rules and Regulations, 5 C.F.R., § 2423.41(e), notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, LB 107, Dallas, Texas 75202-1906, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

____

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: February 16, 1999

Washington, DC

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of the Treasury, United States Customs Service, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES AT EL PASO, TEXAS AND AT NEW ORLEANS, LOUISIANA, THAT:

WE WILL NOT change conditions of employment of bargaining unit employees at El Paso, Texas, or at New Orleans, Louisiana, by videotaping employee interviews without giving the National Treasury Employees Union, the exclusive representative of our employees (hereinafter, "NTEU"), notice and opportunity to bargain to the extent required by the Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees at El Paso, Texas, or New Orleans, Louisiana, in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request of NTEU, provide any employee at El Paso, Texas, and any employee at New Orleans, Louisiana, whose interview has been videotaped, a copy of the videotape if the employee has not previously been furnished a copy of the videotape.

WE WILL, upon request of NTEU, discuss the use of any videotape made of any employee interview at El Paso, Texas, or at New Orleans, Louisiana.

WE WILL, before videotaping any employee interview at El Paso, Texas, or at New Orleans, Louisiana, give NTEU notice and, upon request, bargain to the extent required by the Statute.

UNITED STATES DEPARTMENT OF THE TREASURY UNITED STATES CUSTOMS SERVICE

Date: ___ By: ______

Commissioner of Customs

Washington, D.C.

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 the Regional Director of the Federal Labor Relations Authority, Dallas Region, 525 Griffin Street, Suite 926, LB 107, Dallas, Texas 75202-1906, and whose telephone number is: (214) 767-4996.

File 1: Authority's Decision in 56 FLRA No. 56

File 2: ALJ's Decision

Footnote # 1 for
56 FLRA No. 56

• ALJ's Decision

Subsection (1) of section (b) of this section addresses negotiating at the election of the agency; and subsections (2) and (3) of section (b) concerns procedures (2) or appropriate arrangements (3) (I & I bargaining).