Number 136                    July 2000

COURT DECISIONS  |   FLRA   |   MSPB

Treasury, Customs Service and National Treasury Employees Union, Chapters 143 and 168, DA-CA-60047 and 8, May 16, 2000, 56 FLRA No. 56.

Citing 52 FLRA No. 2 (use of covert video cameras) and 18 FLRA No. 97 (use of sworn statements and polygraph tests), FLRA held that videotaping interviews is "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 investigative interview is as legitimate as obtaining 'truthful and reliable' information through a polygraph test." Although the decision is reserved to management, FLRA found that the agency was guilty of an impact and implementation (I&I) ULP when it didn't notify the union of its decision to videotape a couple of interviews. As part of the remedy, it ordered the agency to furnish the union, on its request, with copies of the videotapes.

The NTEU contract had, for years, given employees the right to receive a verbatim transcript of any interview for which a "tape recording" or stenographic record was made. When the union inadvertently learned that the employer did not notify the union and afford it an opportunity to bargain when it unilaterally used videotaping rather than audiotaping when conducting internal investigation interviews, it filed a couple of ULPs that were consolidated for decision. As a defense the employer claimed, among other things, that the matter was "covered by" the agreement's reference to "tape recording."

In 55 FLRA No. 16, the Authority, applying its 3-prong "covered by" test (express language, inseparably bound up and an aspect of the express language, and bargaining history), rejected this contention. The agreement had no express reference to videotaping. Nor was "videotaping . . . inseparably bound up with and plainly an aspect of audio tape recording." And bargaining history showed that the parties didn't contemplate videotaping when they agreed to the "tape recording" language. Thus the agency committed a ULP when it didn't give the union notice of the decision to videotape and afford it an opportunity to bargain on the matter. (Actually, there had been bargaining before the ULPs were filed, but that tentative agreement had been disapproved by the Respondent.)

However, in order to determine the scope of the bargaining order (on the decision itself or only on its impact and implementation), FLRA remanded the case to the ALJ to determine whether or not, as claimed by the agency, the decision to videotape was reserved to management by its right to determine its internal security practices. (The ALJ didn't determine whether the employer established a reasonable connection between its decision to videotape employee interviews and its objective of safeguarding the Agency's people, property and operations.) In his remand decision, the ALJ found no reasonable connection .

On appeal, FLRA, citing 52 FLRA No. 2 (use of covert video cameras) and 18 FLRA No. 97 (use of sworn polygraph tests), disagreed with the ALJ's conclusion.

[W]e find that the evidence shows that . . . the videotape was used . . . 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.

The fact that the agency didn't use videotaping in all interviews (which was the basis for the ALJ's finding of no reasonable connection), doesn't alter FLRA's holding as "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."

The Authority accordingly found that the agency was guilty of an I&I ULP. As a remedy, it ordered the agency, at the request of NTEU, to provide any employee at the two locations where employees had been videotaped to provide the employee with a copy of the videotape (keep in mind that the existing contract provided for copies of audiotapes) and to discuss the use of any videotapes made at those locations. FLRA also directed the agency to give NTEU notice, and, upon request, bargain on the impact and implementation of any decision to videotape before videotaping any employees at the two locations.