Hearing held on February 26 and 27, 2008 in Rockville, MD
Before: Stephen E. Alpern, Arbitrator
For the Union For the Employer
Sharon Quinn Harris, Esq. Sara McAndrew, Esq
Iryll Umel, Esq. Laura Zaccari, Esq.
Statement of the Case
This matter arises under a collective bargaining agreement (“the Agreement”), effective April 1, 2005 to March 19, 2008, between the Union and the Employer (“the NRC”). The undersigned was selected by the parties under the auspices of the Federal Mediation and Conciliation Service. The dispute involves two separate grievances. The first, “the past practice grievance” arose out of the “termination” of a grievance by the NRC because it had been untimely appealed by the Union. The second, “the Weingarten grievance,” also presented the past practice grievance issue, but, in addition, raised an issue relating to rights of bargaining unit employees who are subject to interviews which may result in the loss of the employee’s security clearance to request union representation. These rights, known in the private sector as Weingarten rights (NLRB v. J. Weingarten, Inc., 420 U. S. 251 (1974)), are generally extended to employees in the federal sector by 5 U.S.C. §7114(a)(2)(B).
The parties were unable to agree on the issues before the arbitrator. After reviewing the arguments of the parties and the record before me, I have determined that the issues presented are:
1) Is the past practice grievance arbitrable?
2) If so, did the NRC violate the Union’s rights under either the Agreement or under the Federal Service Labor-Management Relations Statute (“the Act”), 5 U.S.C. § 710, et seq. by terminating or threatening to terminate a grievance because it was not timely appealed?
3) If so, what shall the remedy be?
4) Are employees entitled to Weingarten rights in examinations held to determine whether an employee’s security clearance should be revoked or suspended?
5) If so, were the employee’s rights denied in this case?
6) If so, what shall the remedy be?
Relevant Contractual Provisions
The Agreement contains the following relevant provisions:
Article 3
Employee Rights and Responsibilities
***
3.3 Weingarten Rights
The Union shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of NRC in connection with an investigation if:
3.3.1 The employee reasonably believes that the examination may result in disciplinary action against the employee; and
3.3.2 The employee requests representation.
Article 49
Contract Related and Other Negotiations
49.1 Application
The NRC or the Union may wish to negotiate proposed changes created by new laws, changes in existing laws or the agency's desire to establish or change any personnel policy, practice or condition of employment. After notice of such changes, the parties will meet within 15 workdays to discuss and bargain, as appropriate, Also, as appropriate, the provisions of Sections 49.2 and 49.3 will be followed. Negotiations pursuant to this Article may occur at any time during the life of this Contract. Term contract negotiations and mid-term contract reopeners are conducted in accordance with Article 53, Duration and Termination of Contract.
49.2 Bargaining Notification
When the NRC wishes to change any personnel policy, practice, or condition of employment not covered or controlled by the terms of this Agreement, the NRC will notify the Chapter President NTEU Chapter 208, in writing. This notice will include the following:
49.2.1 A description of the change;
49.2.2 An explanation of why the change is desired or required;
49.2.3 An explanation of how the change would be implemented and;
49.2.4 A description of probable impact on employees, if appropriate.
This notice will be sent to the Union at least 15 workdays prior to the proposed date of implementation. The Union will have the 15 workday notice period in which to invoke its right to negotiate the proposed change(s). These negotiations will be conducted in accordance with Section 49.3, unless mutually agreed upon alternatives are established.
Article 51
Grievance Procedures
***
51.11 Filing
The parties agree that all grievances under this agreement shall have two formal steps, Step A and Step B. A grievance must be filed with the Chief, Organization and Labor Relations or designee within 15 workdays after the occurrence of the matter out of which the grievance arose, or within 15 workdays after the date the aggrieved should reasonably have been aware of the occurrence of the matter out of which the grievance arose. The date of the occurrence, or date when the aggrieved party should reasonably have become aware of the occurrence, shall not be counted in computing timeliness.
***
Time frames for meetings, etc., will begin with receipt and date stamp of the grievance by the Chief, Organization and Labor Relations or designee.
***
51.12 Timeliness
The issue of timeliness may be raised by the respondent at the initial step (Step A) with respect to matters relating to the initial filing and at the final step (Step B) with respect to matters occurring since the initial step meeting.
***
51.15 Step A Guidelines
51.15.1 The Step A official will meet with the grievant and the grievant's representative(s), if any, and the Chief, Organization and Labor Relations or designee within 10 workdays after the receipt of the grievance, for the purpose of discussing the grievance.
***
51.15.2 The Step A official will render a written decision within 20 workdays after the date of the meeting or the date on which the meeting is waived. If the grievant is not satisfied with the Step A decision, the decision may be appealed to the Step B official within 10 workdays after the date of receipt of the written decision. The Step B official will be designated by the NRC in the Step A written decision. The appeal from Step A must clearly specify the reasons on which the appeal is based and the issues in dispute.
***
51.16 Step B Guidelines
51.16.1 The Step B official, the grievant, and the grievant's representative(s), if any, and the Chief, Organization and Labor Relations or designee shall meet within 10 workdays after the date of receipt of the written appeal to discuss the appeal. The meeting will provide an opportunity to discuss the decision of the Step A official, including any claimed inaccuracies, any failures to meet or resolve any issues, any issues which remain unresolved, and any respects in which any remedy or proposed resolution of the matter is considered inappropriate by the grievant, and other relevant matters.
51.16.2 Step B officials shall render a written decision within 20 workdays after the date of the meeting or after the date on which the meeting is waived.
51.17 Final Step Appeal
If after reaching the last step in the grievance chain available to a particular grievant the grievant is not satisfied with the final decision, then NTEU may, at its option, appeal the matter to arbitration. Should NTEU elect to exercise this option it must invoke arbitration within 20 workdays of receipt of the final step official's decision.
51.18 Time Extension
The parties agree that by mutual consent the time limits in this Article may be extended; and/or any step of this grievance may be waived. Failure on the part of a Step official to observe the time limits for any step shall have the effect of a grievance being denied at that step, at which point the grievance may be appealed to the next step. Failure on the part of the grievant to observe time limits for any step shall have the effect of terminating the grievance.
***
51.23 Non-grievability and Non-arbitrability
If the NRC alleges that a grievance is non-grievable or non-arbitrable then the NRC shall notify the Union, within or prior to the Step A decision letter, of the reasons for such a determination. Upon its request, NTEU will be provided this information in writing. When the NRC alleges an issue is non-grievable or nonarbitrable, the Union will have 5 workdays to amend and refile the grievance if it wishes. The grievance will be resubmitted and proceed through the grievance procedure. Questions of non-grievability and/or non-arbitrability when raised shall be joined to the grievance. Unresolved issues of nongrievability and/or nonarbitrability shall be resolved by the arbitrator as part of the full case.
***
Article
52
Arbitration Procedures
52.1 Invocation
An unresolved grievance processed through the last step of Article 51 "Grievance Procedures" may be appealed by the Union or the NRC to binding arbitration.
***
52.2 Appeal to Arbitration
Appeals to arbitration must be in writing and either be hand delivered or sent by certified or registered mail to the Chief, Organization and Labor Relations, or to the NTEU National President with a copy to the President, NTEU Chapter 208.
52.2.1 If an appeal is to be hand delivered to the Chief, Organization and Labor Relations, the person making delivery of the written appeal must obtain the signature of the Chief or his/her designee on the original copy of the appeal and date and time the appeal was received in Labor Relations. A photocopy of the original with the date and signature of receipt should be made for the Union to retain for its records.
52.2.2 If hand delivered, an appeal must be received in Labor Relations no later than 5:00 p.m. on the 20th workday after the date of receipt of the final step decision in the negotiated grievance procedure or after the date of receipt of the notice of decision of an adverse action. If sent by certified or registered mail, the appeal must be postmarked by the Postal Service with a date no later than the 20th workday after the date of receipt of the final step decision, or after the date of receipt of the notice of decision of an adverse action. (See Article 39, Section 39.9 regarding direct appeal of adverse actions to arbitration.)
Background
The Union filed a Step A grievance on August 15, 2006, alleging that NRC unilaterally charged a past practice relating to the processing of grievances. The incident giving rise to the allegation was a July 21, 2006 e-mail from an NRC labor relations specialist to the Union which “terminated” an earlier grievance. That earlier grievance, filed on November 10, 2005, and known as the Cornelius grievance, challenged the performance rating given to an employee. Notwithstanding the requirements of the Agreement, NRC failed to meet the 10-day limit for holding a Step A meeting. However, the Union did not appeal the grievance to Step B within 10 workdays after the date on which the Step A meeting should have been held. In spite of the purported termination of the grievance, the parties did hold a Step A meeting on August 10, 2006. On September 18, 2006, NRC issued a Step A decision, which itself was untimely, partially granting the grievance. The Union did not file a Step B appeal of that decision. Instead, on September 19, 2006, the Union filed a Step B appeal of the August 15, 2006 past practice grievance. No Step B meeting was held and no Step B decision was issued. On March 12, 2007, the Union invoked arbitration of the past practice grievance.
Subsequent to the interview, M.D.’s security clearance was suspended and then revoked. M.D. was apparently removed from the service and his removal was unsuccessfully challenged. The parties have stipulated that no remedy is available to M.D. in this proceeding.
1) The Past Practice Grievance
The Union asserts that the parties have a long-standing practice of basically disregarding the time limits of the grievance procedure. The Union points out that in virtually every grievance processed since 2000 the time limits were not followed after the initial filing by one or both parties at some step of the grievance procedure. In very few of these cases was there an agreement to waive time limits. Yet the NRC never terminated a grievance under Article 51.18 of the Agreement, with the exception of the Cornelius and the Weingarten grievances. Citing court and Federal Labor Relations Authority (“FLRA”) precedents, the Union argues that the practice of not terminating untimely grievances was consistently exercised over a significant period of time and became a condition of employment which could not be lawfully terminated by the NRC without first bargaining with the Union. The Union challenges the NRC’s assertion that the past practice agreement is not arbitrable. The Union notes that there is a strong presumption in favor of arbitrability. Although the Union did not file a Step B appeal within twenty workdays of its Step A filing, this was consistent with the past practice of the parties. Further NRC did not raise the timeliness issue at Step B and thus, according to the Union, it cannot be raised for the first time in arbitration. In response to the NRC’s argument that the Cornelius grievance was never really terminated, the Union asserts that the NRC’s e-mail explicitly stated that it was. Further, the NRC did not raise this arbitrability issue prior to the arbitration as required by Article 51.23.
2) The Weingarten Grievance
The Union argues that the grievance is arbitrable, even though it was never appealed to Step B, because the Union received notification on February 22, 2007, that NRC “terminated” the grievance and it then timely invoked arbitration. The effect of the termination, according to the Union, was to indicate that Step B was no longer available to the Union. Regarding the Union’s failure to timely appeal to Step B within the Agreement’s time frames, the Union raises the same arguments it raises in the past practice grievance.
As to the substance of the Weingarten grievance, the Union contends that 5 U.S.C. §7114(a)(2)(B) does not exempt security clearance interviews from its purview. The Union points to the language of the statute, which contains no exemption, and to the legislative history, which supports a broad reading of the statute. Dep’t of the Navy v. Eagan (“Eagan”), 484 U.S. 518 (1988) does not undercut this argument, because Eagan holds that only the merits of agency security decisions are not reviewable. In contrast, this case concerns the procedures of security clearance interviews and not the merits of a security determination. The NRC interview of M.D. was an examination within the meaning of the statute and the Agreement, M.D. reasonably believed that discipline might result from the interview, and he requested a Union representative. Thus, the Weingarten rights afforded by the statute apply. Finally, according to the Union, the record demonstrates that the Union representative was not permitted to actively participate in the examination, contrary to the dictates of Weingarten and its federal sector progeny.
B. The NRC’s Arguments
1) The Past Practice Grievance
The NRC argues that the Cornelius grievance was not actually terminated because after the purported termination the parties actually held a Step A meeting. As a result of that meeting the NRC issued a Step A decision granting partial relief together with notification of Step B appeal rights. The Union did not appeal to Step B. Accordingly, because the Cornelius grievance was never terminated, the past practice grievance, which was based on the alleged termination, must be denied. Further, because no Step B meeting was held and no Step B decision was issued on the past practice grievance, the Union’s invocation of arbitration was untimely. The NRC also argues that past practice analysis is inapplicable because the language of the agreement is unambiguous, and past practice cannot modify clear contract language. Under the clear language of the Agreement, both the Cornelius grievance and the Weingarten grievance were properly terminated by the NRC. Even if past practice analysis was to apply, the record shows “that both sides regularly did not adhere to their respective time limits” and that the NRC did not unilaterally change this practice. The only difference was that prior to 2004 the NRC simply “dropped” grievances that had not been pursued by the Union without any formal notification, while subsequently the NRC formally notified the Union that a grievance was terminated. This was only a matter of style and not of past practice. The fact that the NRC allowed untimely grievances to be processed because of an employee friendly policy does not constitute acquiescence to a practice. In any event, according to the NRC, the Union never voiced its objection to the NRC’s statements that it could terminate or drop untimely processed grievances.
2) The Weingarten Grievance
This grievance is not arbitrable because the Union failed to appeal the grievance to Step B prior to invoking arbitration, and the NRC did not agree to waive any time limits or an appeal to Step B in the processing of the Weingarten grievance. Further, the Union was untimely in its invocation of arbitration. On the merits, NRC argues that Weingarten rights do not apply to agency determinations of security clearance eligibility. Under Eagan, generally applicable statutes may not be construed in a manner which would encroach upon the Executive Branch’s authority to determine security clearance eligibility “unless Congress specifically has provided otherwise.” Eagan, 484 U.S. at 530. With respect to federal sector Weingarten rights established by 5 U.S.C. §7114(a)(2)(B), neither the language of the statute, nor the legislative history indicate that Congress intended for this generally applicable labor law rule to apply to security clearance investigations. The NRC has the right, it asserts, to determine the investigative techniques used in security clearance investigations and it was exercising those rights when it restricted the activities of Yeilding during the interview of M.D. In any event, even if a Weingarten analysis applied, Yeilding’s behavior was clearly unacceptable.
A. The Past Practice Grievance
1) Arbitrability
The NRC’s principal argument concerning arbitrability is that the Cornelius grievance was never terminated and thus, presumably, there was nothing to arbitrate. While the record shows that the Cornelius grievance was processed by the NRC after it notified the Union that the grievance was terminated, the fact is that the NRC asserted its right to unilaterally terminate a grievance in its notification that the Cornelius grievance was terminated. The NRC makes this clear when it argues that “the Agency correctly applied the plain meaning of Art. 51.18 in stating that the grievance was terminated because the Union did not advance it when the Agency failed to schedule a step meeting within the prescribed time.” (NRC Brief, p. 35.) Indeed, the NRC argues that the Union’s failure to challenge the NRC’s statement in an earlier grievance that it could have “closed” or “dropped” that grievance even though it continued processing it, demonstrates that the Union “sat on its rights.” (NRC Brief, p. 38.) Thus, although the Cornelius grievance was not actually terminated, the Union had the right to challenge the NRC’s assertion that it could unilaterally terminate an untimely appealed grievance.
The NRC also argues that Union’s invocation of arbitration was untimely. Because there was no Step B meeting or decision, Article 51.8 appears to require that the Union appeal to arbitration within 20 work days after the meeting should have been held. This procedural issue is intertwined with the merits of the past practice grievance. If, as urged by the Union, the NRC’s actions had the effect of excusing untimely filings, the invocation of arbitration may be timely.
2) The Merits
The Union argues that the parties had, over the years, established a practice of tolerating each other’s regular failure to adhere to the time limits established in the Agreement for processing grievances. More specifically, the Union contends that the NRC had established a practice of not terminating untimely grievances. The Union must first show, by a preponderance of the evidence, that there was such a practice. The record clearly shows that each party’s usual practice was to disregard the established grievance processing time limits without objection by the other party. In fact, the extent and degree to which the parties did not comply with the time limits is remarkable. Of the 132 grievances processed from January 2000 until December 2007 only two were processed through the grievance procedure in a timely manner at every step. It appears that the Union usually filed grievances at Step A in a timely manner. There were, however, some instances of Step A grievances being untimely filed without objection by the NRC. Frequently the parties did not hold Step A meetings until months after the Step A grievance was filed, even though the Union should already have appealed to Step B by the time the Step A meeting was held. The usual practice was for the NRC to issue its Step A decision after the time limit had passed. Often many months passed. In those cases where there was either no Step A meeting or where a Step A decision was untimely, the Union rarely appealed to Step B within 10 work days after the Step A meeting should have been held.
The consistent practice of the NRC was not to assert that the grievance had been “terminated” or “dropped” upon, or shortly after, the expiration of the Union’s time to appeal. Similarly, it was unusual for the parties to hold a Step B meeting in a timely manner, or for the NRC to issue a Step B decision in a timely manner. Again, the delays were often not a matter of days, but of weeks or months. Against this evidence the NRC argues that the record demonstrated a past practice “that both the Union and the Agency terminated grievances, without the consent of, or notifying the other.” (NRC Brief, p. 36.) In support of this argument, the NRC points out that the Union elected not to pursue thirty-seven grievances without notifying the NRC. Of course, it is a common and salutary practice for a Union to abandon grievances that it believes should not be pursued, but absent a contractual provision to the contrary, it has no obligation to notify the employer that it is dropping or abandoning the grievance. Under Article 51.18 of this Agreement, however, a grievance not pursued is deemed “terminated.”
The NRC cites to evidence that it “closed” or “dropped” grievances without notifying the Union. These actions took place long after the grievances should have been “terminated” by operation of Article 51.8 and simply reflected the fact that the Union had long since abandoned the grievance. In fact, in 2001, Michael Fox, the agency’s then Chief of Labor Relations wrote to the Union that “[i]f the Union sits on something 3-4 years, I consider that dropped.” This is a far cry from asserting that if the Union does not meet the time limits provided in the Agreement, the grievance is then automatically terminated. Instead of treating the expiration of time limits as terminating a grievance, the NRC either did nothing, perhaps hoping the grievance would go away, or eventually inquired whether the Union intended to pursue the grievance, and threatening to close it, if the Union did not act. While there were several instances beginning in late 2004 where the NRC asserted that a grievance could be terminated, it was always couched in terms that the already untimely grievance would be terminated, unless the Union took action to pursue it. Not until the Cornelius grievance in 2006, did the NRC state that a grievance would be terminated, regardless of whether the Union intended to pursue it. I thus conclude that the parties had a clearly established practice of disregarding grievance time limits and that the practice has been consistently exercised by both parties over a significant period of time. See, United States Patent & Trademark Office, 57 FLRA 185, 191 (2001).
That there was a clearly established practice does not end the matter. The NRC argues that a past practice cannot overcome clear language in an Agreement to the contrary. Generally speaking, NRC is correct that past practice can not ordinarily be used to overcome clear contract language. See, Professional Airways System Specialists and FAA, 48 FLRA 764 (1993) and Elkouri & Elkouri, How Arbitration Works, 627 (6th ed. 2003). On their face, some FLRA cases may appear to be contrary to this general principle, but, as explained below, I believe they are not. In several cases, including Defense Distribution West and AFGE, Local 1546, 47 FLRA 1131 (1993) and U.S. Patent Office and POPA, 39 FLRA 1477 (1991) the FLRA has held that past practice can overcome clear contract language. I believe that these cases reflect a generally recognized exception to the general rule. That exception is, if by their past practice, the parties mutually evidence an intent to modify the contract, or if one party assents to such a modification by past practice, the practice will be deemed an amendment of the Agreement’s clear language. Elkouri & Elkouri, at 629-630, and cases cited therein; and Defense Distribution West, at 1141.
On the record in this case, I find that the practices of the parties with respect to the time limits set forth in the Agreement did not evidence an intent to modify the clear language of the Agreement. Instead, the evidence shows that both parties were simply extremely loose in their adherence to the time limits, and each was usually forgiving of the behavior of the other. The NRC’s witnesses testified that they believed that allowing the Union to process untimely grievances was an “employee-friendly” policy. Likewise the Union often waited for untimely NRC grievance decisions, instead of appealing to the next step of the grievance procedure. Yet the parties were not consistent in their behavior. At times the NRC timely issued decisions, and at times the Union timely filed or appealed grievances. Although the loose compliance with the Agreement is not sufficient to support a finding that the parties modified the Agreement’s clear language, it is not without consequences.
The NRC’s tolerance of the Union’s disregard of the contractual time limits for filing and appealing grievances can be fairly said to have lulled the Union into a sense of security. One of the purposes of clear time limits in a grievance procedure is to give the parties certainty regarding their obligations. Here both parties eliminated that certainly by tolerating the loose practices of the other. In these circumstances arbitrators are not hesitant to excuse untimely filings and grievance appeals. See, Heekin Can, Inc., 101 LA 131, 134 (Feldman 1993); CBS, Inc. and International Sound Technicians, 75 LA 789 (Roberts 1980). Thus, absent clear notice to the Union, prior to the expiration of the time limits for appealing a case that the time limits would be enforced, the Union was entitled to believe that the time limits would not be enforced. Such notice was not given in the Cornelius grievance, in the past practice grievance, or in the Weingarten grievance. Absent such case specific notices, if the NRC wants the Union to adhere to the contractual time limits, it must so inform the Union, and both parties should then consistently follow the contractually agreed to time limits, unless they mutually agree to waive time limits in individual cases.
3) The Remedy
Based on the foregoing, the Union is not entitled to a specific remedy in these cases. The Cornelius grievance was ultimately processed and the Union did not seek to appeal the final resolution of the grievance. The past practice grievance and the Weingarten grievance will not be dismissed as untimely. The NRC has no obligation to bargain concerning enforcement of the time limits inasmuch as it is not seeking to change existing conditions of employment established by the Agreement.
B. The Weingarten Grievance
1) Arbitrability
As discussed above, the Weingarten grievance will not be dismissed because of the Union’s failure to appeal to Step B in a timely manner due to the NRC’s failure to advise the Union prior to expiration of the appeal period that the time limits would be strictly enforced.
NRC also argues that the Weingarten grievance is not arbitrable, because the Union never appealed that decision to Step B. Rather, the Union directly invoked arbitration. Under the circumstances of this case, this is not a bar to arbitrability. After the Union inquired as to the status of the Weingarten Step A decision, the NRC informed the Union that it should have appealed to Step B within 10 work days after the 20 work day period following the Step A meeting, as no Step A decision had been issued. Accordingly the grievance “was denied and terminated.” The NRC did not advise the Union how it could challenge that determination. If this was a Step A decision, it did not inform the Union of the time limits in which to appeal, as was the normal practice. Nor did it inform the Union of the Step B official to whom to appeal, as was required by Article 51.15.2. If it was a Step B decision, the Union had the right to invoke arbitration. In fact, a reasonable reading of the NRC’s communication was that it was asserting that the grievance would not be processed further. The Agreement provides in Article 51.17 that, if “after reaching the last step in the grievance chain available to a grievant” (emphasis added), the Union may appeal to arbitration. The Union reasonably interpreted NRC’s communication as stating that no further steps were available to the grievant in the grievance procedure, and thus reasonably appealed to arbitration.
Finally, the NRC argues that the Weingarten grievance is not arbitrable because it involves a security matter within the sole discretion of management. Although couched as an issue of arbitrability, this issue goes directly to the merits of the case. Clearly, the dispute is one arising under the Agreement, although it must necessarily be decided by reference to external law. The question is presented whether the NRC violated the Agreement by denying Weingarten rights to M.D. If, as the NRC asserts, employees do not have such rights in security clearance interviews, then the question is answered in the negative, but the arbitrator clearly has the authority to answer the question.
2) The Merits
The parties do not dispute that Eagan precludes reviewing authorities from involving themselves in the substance of security clearance determinations. The NRC asserts that, in enacting 5 U.S.C. §7114(a)(2)(B), Congress did not give the explicit indication required by Eagan that it intended those federal sector Weingarten rights to intrude on the Executive Branch’s authority to determine security clearance eligibility. The Union argues to the contrary, and asserts that this is an issue of whether proper procedural protections have been provided. As discussed below, I need not reach this fairly debatable issue, as there is a narrower ground for resolving this grievance.
Under 5 U.S.C. §7114(a)(2)(B) the right to union representation in an examination is triggered by an employee request when “the employee reasonably believes that the examination may result in disciplinary action against the employee.” See, IRS v. FLRA, 671 F.2d 560 (D.C. Cir. 1982), aff’g 4 F.L.R.A. 237 (1980). If the purpose of the examination of M.D. was solely to determine whether M.D.’s clearance should be revoked, one could argue that 5 U.S.C. §7114(a)(2)(B) would be inapplicable in any event, because revocation of a security clearance is not a disciplinary action. The record in this case, however, demonstrates that this was not solely a security clearance examination, where Weingarten rights arguably do not apply. Instead it was an examination which could have resulted in disciplinary action, even if a determination had been made not to revoke M.D.’s clearance. It might fairly be denominated a dual purpose interview. Especially instructive is AFGE, Local 2544 v. FLRA, 779 F.2d 719 (D.C. Cir. 1985). There the Court found that Weingarten rights applied in an investigatory interview, even though the employee was told that he would be granted immunity from any disciplinary action based on the interview. The Court held that the employee’s fear of possible disciplinary action was reasonable because neither the employee nor his representative had ever heard of such immunity, and there were real questions as to whether such a grant of immunity was authorized. See also, Dept. of Veterans Affairs and AFGE, Local 2328, 51 FLRA 84 (1995). In the hearing in this matter, the NRC counsel acknowledged that information obtained in the course of a security clearance interview could be used in a disciplinary proceeding. Because of this, an employee has a reasonable fear that discipline, unrelated to security clearance matters, might result from the examination. This is especially significant as, due to the potential broad scope of security clearance issues, all but the most minor of employee transgressions could become the subject of security clearance investigations. There is nothing in the Agreement to prevent the NRC from conducting all investigations into potential employee conduct under the umbrella of a security clearance investigation. Because of the fact that all NRC employees must have a security clearance, the NRC would have the ability to almost totally erode the rights, granted by both statute and the Agreement, to union representation in investigatory interviews. As the Supreme Court recognized in Weingarten, the union representative in a Weingarten interview is protecting not only the particular employee’s rights, “but also the interests of the entire bargaining unit to make certain that the employer does not initiate or continue a practice of imposing unjust discipline.” 490 U.S. at 260-261.
If this were a case where the NRC, either by regulation or by clearly stated policy, insured that information developed in security clearance investigations would not be used in disciplinary actions, the result might be different. See, AFGE, Local 2544 v. FLRA, 779 F.2d at 723. Here, however, because M.D. reasonably believed that the interview might result in discipline, as opposed to revocation of his security clearance, he was entitled to Union representation.
There can be no doubt on this record that, given my finding that M.D. was entitled to Union representation, the NRC unduly restricted the Union representative and thus violated the Agreement and committed a violation of 5 U.S.C. §7114(a)(2)(B). These undue restrictions included instructing Yeilding not to speak to M.D. until M.D. had completely answered a question; not allowing M.D. to consult with Yeilding until after a question had been answered and then not permitting M.D. to further answer the question; instructing Yeilding not to point to documents while M.D. was answering questions; and, posing questions to M.D. by e-mail without notifying Yeilding. The NRC argues that Yeilding attempted to go far beyond the normal rights accorded to a union representative in disciplinary examinations. That misses the point, as the conduct of the NRC and not that of the Union is at issue here. While the rights of Union representatives in an examination most certainly are not unlimited, they do have the right to “actively participate” in the examination. See, e. g., NASA and AFGE, Local 3434, 50 FLRA 601(1995); INS, Border Patrol and AFGE, National Border Patrol Council, Local 2366 46 FLRA 363 (1992); and, U.S. Customs Service, Region VII and NTEU, 5 FLRA 297 (1981). While I need not determine each instance in which the Union representative’s right to “actively participate” in the examination was interfered with, the attempts to restrict Yeilding’s assistance of M.D. were not de minimus or inadvertent, but were intentional and designed to unduly limit his participation. Accordingly, I find that the NRC violated 5 U.S.C. §7114(a)(2)(B) and Article 3.3 of the Agreement.
3) The Remedy
As previously stated, the parties have stipulated that M.D. is not entitled to an individual remedy in this case. However, the Union argues that the arbitrator should issue a “cease and desist” order and require the NRC to post a notice similar to a notice that would be ordered posted by the FLRA in similar circumstances. The FLRA has held that arbitrators are authorized to issue cease and desist orders and orders to post notices, and that it is error for an arbitrator not to consider issuing such orders. NTEU and FDIC, 48 FLRA 566 (1993). In essence, the authority of an arbitrator to fashion a remedy for contract violations and unfair labor practices is at least as great as that of the FLRA. Here, where the NRC’s violation of the Agreement and of 5 U.S.C. §7114(a)(2)(B) was consistent with the clear policy of the NRC and would certainly continue in the absence of such an order, a cease and desist order is appropriate. Similarly, because the NRC’s policy affects every member of the bargaining unit as well as the Union’s institutional interests, the posting of a notice is appropriate.
The past practice grievance is granted, in part, and denied, in part. However, as discussed above, no remedy is appropriate, other than denying the NRC’s request to dismiss the past practice grievance and the Weingarten grievance as untimely.
The Weingarten grievance is granted, in part, and denied, in part. The
NRC violated Article 51.15.2 of the Agreement and 5 U.S.C. §7114(a)(2)(B) when it restricted a Union representative’s participation in a security clearance examination, where information obtained in that interview could be used in a non-security clearance disciplinary proceeding
.
Accordingly, it is ORDERED that the Nuclear Regulatory Commission
1. Cease and Desist from
a) denying employees the right under 5 U.S.C. §7114(a)(2)(B) to request and receive representation by representatives of National Treasury Employees Union, Chapter 208, in examinations regarding retention or revocation of security clearances where information obtained during those examinations may be used in subsequent non- security clearance related disciplinary actions (“dual purpose examinations”).
b) denying representatives of National Treasury Employees Union, Chapter 208, who are requested to represent employees in dual purpose examinations the right to actively assist the employees in such interviews as permitted by 5 U.S.C. §7114(a)(2)(B).
2. Take the following affirmative action:
a) Post the attached notice, or a similar notice as agreed to by the parties, signed by the Chief of Organization and Labor Relations, or an official of equal or higher rank, in places where it normally posts information for unit employees. The notice shall remain posted in all such locations for ninety days.
Dated this 14th day of June, 2008
Stephen E. Alpern
Arbitrator
NOTICE TO ALL EMPLOYEES
AS ORDERED BY an Arbitrator Selected under the Auspices of the
Federal Mediation and Conciliation Service
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
We will not deny employees the right under 5 U.S.C. §7114(a)(2)(B) to request and receive representation by representatives of National Treasury Employees Union, Chapter 208, in examinations regarding retention or revocation of security clearances where information obtained during those examinations may be used in subsequent non- security clearance related disciplinary actions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
We will not deny
representatives of the National Treasury Employees Union, Chapter 208,
who are requested to represent employees in examinations regarding
retention or revocation of security clearances, where information
obtained during those examinations may be used in subsequent non-
security clearance related disciplinary actions, the right to actively
assist the employees in such interviews as permitted by 5 U.S.C.
§7114(a)(2)(B).
___[signature]________________________
[Name]
[Title]
Dated:_____________