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12/24/85 American Federation of v. Federal Labor

December 24, 1985





SERVICE, Intervenor 1985.CDC.300

Petition for Review of an Order of the Federal Labor Relations Authority.


Wald, Edwards and Starr, Circuit Judges. Opinion for the Court filed by Circuit Judge Wald. Dissenting opinion filed by Circuit Judge Starr.


The American Federation of Government Employees, Local 2544 challenges a decision of the Federal Labor Relations Authority dismissing an unfair labor practice complaint filed against the Immigration and Naturalization Service of the United States Department of Justice . The FLRA ruled that the INS did not commit an unfair labor practice by conducting an investigatory interview of a bargaining unit employee after denying the employee's request for union representation at the interview. *fn1 We reverse because we do not find substantial evidence in the record to support the FLRA's conclusion that the employee could not reasonably believe that disciplinary action might result from the interview. I. BACKGROUND

This case grows out of an investigation of INS border patrol agents for alleged theft of a government vehicle along with drinking and illicit sexual activities at the Tucson Patrol Sector. The Office of Professional Responsibility , the internal investigative unit of INS, conducted the investigation from March through April of 1981 and

On April 9, 1981, Patrol Agent Gregory Reed was told by his supervisor to report to sector headquarters to talk to the OPR representatives. Reed, who had been on duty the night of the alleged misconduct and knew of the ongoing OPR investigation, assumed that he would be questioned about the alleged misconduct of fellow agents. Reed also knew that under the Operations Instructions of the INS, border patrol agents were required to report immediately any acts of misconduct committed by other agents and that disciplinary action could be taken against any agent who failed to promptly report such misconduct. Reed had been advised of this obligation only three months earlier by his immediate supervisor, Deputy Chief Patrol Agent Edwin Barnette, at a station meeting attended by all patrol agents.

On his way to headquarters, Reed met Marvin Foust, the president of Local 2544 of the American Federation of Government Employees . AFGE was the exclusive representative of the unit which included the Tucson border patrol agents. Reed asked Foust to represent him at the meeting with the OPR investigators. Foust accompanied Reed to sector headquarters where they met OPR investigators Anthony Medici and Patrick Comey. The OPR investigators inquired about Foust's presence, and Reed stated that Foust was his union representative.

The investigators told Reed they wished to take a statement from him as a witness to alleged misconduct by other agents. They informed Reed that he would be granted immunity from any disciplinary action based upon his statement. Medici and Comey also told Reed that in view of the grant of immunity, Reed would not be allowed to have a union representative at the interview. In support of this immunity, the OPR agents showed Reed a piece of paper stating:

No administrative proceedings will be instituted against you on the basis of any statement you make in the course of this interview. Therefore, any statement you make . . . at this time relative to the aforementioned allegations of misconduct and the fruits thereof will not be used against you in any administrative proceeding initiated by the Service.

J.A. at 221. The paper bore no signature, J.A. at 59, and contained no citation of authority, J.A. at 60. *fn2

Neither Reed nor Foust had previously heard about administrative immunity. Foust left to telephone the union's national vice-president for more information but was unable to reach him. Upon Foust's return, he attempted to accompany Reed into the investigation room but was told to leave. Reed again requested union representation; again the request was denied. The OPR investigators began to question Reed while Foust remained outside the interview room. Foust repeatedly but unsuccessfully attempted to enter the room, knocking at the door and shouting messages to Reed. *fn3 Foust then left the area to speak with Deputy Chief Patrol Agent Barnette, the agent normally in charge of disciplinary measures for the Tucson border patrol agents. Barnette told Foust that he, Barnette, was the disciplinary officer and that Medici and Comey, the OPR investigators, had no authority to grant administrative immunity.

Barnette and Foust then consulted with OPR Associate Deputy Director Howard Dobbs. Although not normally based in Tucson, Dobbs was temporarily at the station to assist in the investigation. Foust asked Dobbs to show him something in writing to support OPR's authority to grant administrative immunity. Dobbs showed Foust a statement setting forth the agency's position on the use of immunity contained in a response to an agenda item proposed by the union for discussion between AFGE and INS in future contract negotiations. Dobbs then went into the interviewing room and asked Reed if the immunity had been explained to him. Reed acknowledged that it had. Although Dobbs did not tell Foust so at the time, Dobbs also considered the immunity to be authorized by a 1979 memo to all OPR investigators from Paul Kirby, the Director of OPR (the Kirby Memorandum). This memorandum described a recent attempt by an unidentified OPR employee to grant "administrative 'use immunity'" where the grant of immunity was made solely in order to remove an employee's entitlement to a union representative. The Kirby Memorandum referred to this attempt as a "misuse" of employees' right to union representation. *fn4

AFGE filed an unfair labor practice charge asserting that as the exclusive representative of the Tucson border patrol agents, it was entitled under § 7114(a)(2)of the Federal Service Labor-Management Relations Statute *fn5 to represent Reed at the interview. Section 7114(a)(2)of the FLMR provides that an exclusive representative shall have the opportunity to be represented at

any examination of an employee in the unit by a representative of the agency in connection with an investigation if --

(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(ii) the employee requests representation.

5 U.S.C. § 7114(a)(2).

The Administrative Law Judge concluded that AFGE had no right of representation under § 7114(a) (2)because the proffer of immunity to Reed relieved any reasonable fear of disciplinary action resulting from his statement. Although the ALJ found that Reed had made an effective request for union representation, *fn6 the ALJ was persuaded that, in this case, "it cannot be said that the 'risk of discipline reasonably inheres.' Inasmuch as the OPR agents specifically assured Reed that no administrative proceeding would be taken against him by reason of the interview, the employee had no basis to fear disciplinary conduct." 15 F.L.R.A. at 393 (footnote omitted).

The ALJ went on to address the General Counsel's contention that no legal support existed for the offer of immunity:

With respect to the argument that no statutory authority exists for the granting of immunity, I am persuaded that specific authorization, by way of statute or regulation, is not a requirement for the exercise thereof. The statutory provisions (8 USC 1103 (a)(b)[sic]) which sets [sic] forth the powers and duties of the Attorney General and the Commissioner of the Service include the power and right to control, direct and supervise employees in the Service. Moreover, he is authorized "to perform such acts as may be necessary for carrying out his authority" under the Statute. The right to grant immunity is necessarily implicit and inherent in the exercise of one's powers and duties on behalf of an agency. Further, the directive of June 26, 1979 by the OPR Director [the Kirby Memorandum] is, in my opinion sufficient authorization -- and more than an opinion as asserted by General Counsel -- for the action taken by the investigators. Since the granting of immunity to Reed, moreover, was approved and adopted by Respondent, I am satisfied that it was not illusory as maintained by General Counsel; that it was properly granted to the employee and binding upon the grantor.

15 F.L.R.A. at 394-95 (footnote omitted).

The FLRA adopted the ALJ's findings, conclusions and recommendations, and the union petitioned for review. We find that the FLRA's determination that Reed could not reasonably fear disciplinary action lacks substantial evidence in the record. *fn7 Accordingly, we reverse and remand the case to the FLRA to issue an ...

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