Number 137                    September 2000

COURT DECISIONS  |   FLRA   |   MSPB

Department of Veterans Affairs and American Federation of Government Employees, Local 1687, CH-CA-80325, September 26, 2000, 56 FLRA No. 117.

FLRA disagreed with the ALJ and held that the agency committed a ULP when the agency's EEO investigator interrogated a union steward concerning a unit employee's statements to the steward and when the local EEO coordinator presented the steward with a settlement agreement concerning a supervisor's EEO complaint against the steward. Because the agency assigns individuals from other locations to conduct EEO investigations at the site involved in this case, FLRA ordered that copies of the mea culpa notice be distributed nationwide to all of the agency's EEO investigators. There is, however, no nationwide posting of the notice.

When a unit employee received a proposed admonishment, she had a conversation with a union steward who drafted and submitted a written response in which it was alleged, among other things, that the unit employee had been subjected to a "hostile environment" at work and that her supervisor had a "discriminatory bias" towards her. These statements prompted the supervisor to file an EEO complaint against the steward. An EEO investigator interrogated the steward about the basis for the statements made in the written response, including statements made by the unit employee to the steward. The EEO investigator subsequently found that a preponderance of the evidence supported a finding that the statements constituted "illegal discriminatory harassment" of, and created a "hostile working environment" for the supervisor! The local EEO coordinator then contacted the steward "to see what he would accept by way of a settlement" and provided him with a settlement agreement, which the steward rejected. A ULP complaint followed, alleging the agency violated section 7116(a)(1) by interrogating the steward and presenting him with a settlement agreement.

The ALJ found that the steward, by signing the written response to the proposed admonishment and submitting it to the agency, had waived the confidentiality of any statements made in the response. Finding that there was no evidence that the steward had been asked questions regarding the employee's confidential statements, or that the questioning had been coercive, the ALJ concluded that the interrogation didn't violate section 7116(a)(1) and recommended dismissal of the complaint.

In its exceptions, the General Counsel (GC) argued, among other things, that the ALJ erred by resolving the complaint on the ground that the steward waived the confidentiality of the communications, as the agency never raised a waiver defense. Based on its examination of the record, the Authority agreed with the GC. A waiver defense was not raised in the agency's answer to the complaint, and the transcript revealed that the waiver issue wasn't discussed during the hearing. FLRA concluded that the ALJ improperly relied on a defense that was not raised by the agency.

FLRA noted that there was no dispute that the steward was required to disclose the substance of the unit employee's statements to the steward during the course of the steward's representation of the employee in a disciplinary proceeding. Nor was there a dispute that the steward was aware that he could have been disciplined if he didn't cooperate during the investigation. "[E]ven if the EEO investigator's questions were not asked in a coercive manner, the steward could have reasonably drawn a coercive inference from the questions, i.e., that he would be subject to discipline if he did not provide full and accurate answers." Citing Customs Service, 38 FLRA No. 103 (requiring a union representative to disclose, under threat of disciplinary action, the substance of statements made by an employee to the representative in the course of a disciplinary proceeding violates section 7116(a)(1)), FLRA concluded the agency violated the Statute by interrogating the steward.

FLRA also found the settlement offer (requiring the steward to assure the EEO complainant that the harassment and "any other intimidating activity will stop immediately") violated section 7116(a)(1).

Put simply, the settlement agreement sought to limit the steward's representation of unit employees in connection with disciplinary proceedings. . . . As such . . . the settlement agreement would tend to coerce or intimidate employees in the exercise of protected rights.

FLRA rejected the agency's claim that its obligation to conduct EEO investigations required it to interrogate the steward about confidential communications and present him with a settlement agreement discouraging future protected activities. "Nothing in the EEO regulations specifies what actions agencies are required to take in conducting EEO investigations." Moreover, in Boggs v. Department of Veterans Affairs, No. 98-1368, 2000 WL 366195, at *2 (E.E.O.C. Mar. 31, 2000), "the EEOC has held that EEO complaints cannot be predicated upon a union official's statements that were made during the course of representing another employee."

As part of its remedy, FLRA ordered that copies of the notice be sent to the agency's EEO investigators, nationwide. This nontraditional remedy was warranted because the agency assigns individuals from other locations to conduct EEO investigations at the location involved in this case, and such individuals aren't likely to see the posted notice, which FLRA limited to wherever local bargaining unit employees are employed. FLRA also denied the GC's request to have the person in charge of administering the agency's EEO program nationwide sign the notice. It instead determined that the notice should be signed by the highest management official at the location where the violations occurred.