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52 FLRA No. 43


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  • 52 FLRA No. 43


    The case link above takes everyone who was at El Reno then, back to a very bad time in history. Rick Miller was fired as a result of his representational activities. Happily, he was later rehired and reimburssed all of his back pay and all of the overtime that he would have worked had he not been illegally terminated. This case is an eloquent example of what this agency is capable of doing to you if they want to get you. It also demonstrates the need for knowledgeable and dedicated union representatives and, the need for Professional Liability Insurance such as that offered through AFGE or by Wright and Company.

    The dissenting opinion by Mr. Donald S. Wasserman is the most important part of this case and should be read first--before trying to wade through the garbage of the actual decision. Mr. Wasserman demonstrated his fundamental fairness & objectivity in his dissent. The same can't be said of the other two Authority members. Here is his dissent:

    Dissenting Opinion of Member Wasserman

    Initially, I disagree with the majority that the Respondents did not have adequate notice of the allegation that the Union was prevented from obtaining clarification of the questions asked of the employee. I believe that the complaint, although broadly worded, is sufficient to encompass this allegation, especially in view of the claim in the General Counsel's opening statement that the union representative was not permitted "to assist [the employee] in seeking clarification of the question." Transcript at 12.

    Having put the Respondents on notice that the issue would be litigated, the General Counsel in fact litigated it. For example, the General Counsel asked the employee if his representative was "allowed to clarify any of the questions . . . asked of you during the interview[.]" Id. at 27. The General Counsel later asked the representative whether he had been allowed to clarify the questions and what response he had received when he had attempted to do so. Id. at 48-49. The fact that the Respondents may not have taken the General Counsel's statement and questioning seriously and therefore, did not respond to this allegation has no bearing on whether the Respondents understood (or should have understood) what was in dispute.(*/) Therefore, as I would find that the Respondents had an opportunity to fully and fairly defend against this allegation, I would conclude that they were accorded due process.

    With regard to the allegation addressed by the majority decision, I agree with the Judge and my colleagues that we must evaluate the Respondents' actions to determine whether those actions interfered with the union representative's active and effective participation in the employee's defense. However, applying this approach, I conclude, contrary to the majority, that the General Counsel met his burden of demonstrating that the requirements of section 7114(a)(2)(B) were met. The Authority has consistently held that a union representative must be allowed to take an active role in assisting an employee's defense. In my view, a representative cannot adequately perform the "active role" required by Authority precedent, see, e.g., Headquarters, National Aeronautics and Space Administration, Washington, D.C., 50 FLRA 601, 607 (1995), petition for enforcement filed sub nom. FLRA v. National Aeronautics and Space Administration, Washington, D.C. and NASA, Office of the Inspector General, Washington, D.C., No.á95-6630 (11th Cir. Julyá31, 1995); United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 440 (1990), if he or she is not permitted sufficient privacy to confer with an employee when the employee most needs assistance. Thus, in my view, the question in this case is not whether the employee and his representative were wrongly denied the right to leave the room, but whether they were denied the right to hold a meaningful conference in private, regardless of location.

    In some cases, an agency may meet the requirements of section 7114(a)(2)(B) if the representative can meet privately with the employee before the Weingarten interview begins. In this case, however, a meaningful pre-interview conference was not possible because the employee was summoned to appear at the interview with no advance notice of the scope of the inquiry or the nature of significant portions of the questioning. In other cases, where the scope of the interview and its possible effects on the employee are clear, the representative may be able to give adequate assistance if permitted to confer with the employee in the interview room during the questioning. This is definitely not that sort of case.

    In this case, the only advance notice the employee received regarding the interview was that the questioning would concern improprieties that allegedly occurred during an investigation in which he had represented another employee. In fact, he was questioned about events that were unrelated to that earlier investigation and that had allegedly occurred during a time period that "long pre-dat[ed]" the matter that he had been summoned to discuss. Judge's Decision at 5. Thus, with virtually no advance notice, the Respondents required the employee under investigation to endure a highly intimidating situation, in which two high-level representatives of his agency (accompanied by an agent of the Federal Bureau of Investigation (FBI) in the next room) engaged in far-ranging questioning covering events that had occurred years earlier. Clearly, the presence in El Reno, Oklahoma of investigators from Phoenix, Arizona and Washington, D.C. and an FBI agent from Oklahoma City conveyed to the employee that the matter was of the utmost seriousness and that the full weight of the Bureau of Prisons, FBI and Department of Justice could be brought to bear against him.

    I find it significant that the questions that evoked the requests to confer were directed not at the employee's conduct, but at potentially criminal activities of members of his family. The record does not establish that the employee had any advance knowledge that the inquiry would cover such matters. Moreover, although he had been given assurances that his testimony could not be used in a criminal proceeding (assurances that did not lessen the potential -- and actual -- effect on his job status), he had no such assurances that statements regarding his family would not have dire consequences for them. It is this type of intimidation, and the fear that it engenders, that the Supreme Court sought to mitigate by requiring employers to permit knowledgeable representation during investigatory interviews. NLRB v. Weingarten, Inc., 420 U.S. 251, 262-63 (1975) ("A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.").

    In light of these unique circumstances, I cannot conclude that the employee had a sufficient opportunity to confer with his union representative. Instead, I would find that effective representation in this case required a level of privacy that simply was not afforded. In support of my position, I note the following:

    The placement of the employee and representative during the questioning allowed no real privacy. Rather, they were seated within a foot of the desk at which the investigators were also seated. The ability to hold whispered conferences several feet from one's interrogators does not, in my view, afford sufficient privacy to meet the requirements of section 7114(a)(2)(B).
    In view of the fact that the employee and representative were never left alone in the interview room, I disagree with the Judge that they could have held an adequate conference had they moved to the back of the room.
    Even though Mr. Pfistner periodically left the room, they still could not converse openly without fear of being overheard by Mr. Winn. In a case such as this, where an investigator is always present, leaving the room may be the only means open to an employee for a truly private conference with his or her representative. Thus, in the circumstances of this case, I conclude that the failure to request leave to speak elsewhere in the room establishes nothing.

    I also disagree that the employee should have anticipated that the ninth question would concern his son's conduct and that he should have used the break period to confer with his representative regarding his response to that question. Although the Judge found that there was a pattern to the questioning that should have alerted the employee to the probability of such an inquiry after the break, I note that the employee and/or his representative requested a recess to confer much earlier in the questioning, before any such pattern was evident. Moreover, even after eight questions, the employee could not necessarily have been expected to detect such a "pattern." (This point is incredible. Here it looks as if one must bring their crystal ball with them to the interview in order to know what question that the interviewer will ask before he asks it. Otherwise one will not have an appealable issue!!)

    The majority acknowledges that the employee and his representative "may have been prevented from leaving the interview room at the precise times they desired," slip op. at 18, but conclude nonetheless that the record does not indicate that they were denied the right to confer. Timing is, as the cliche goes, often everything. Where, as here, an employee requests a conference with his representative in order to respond to a particular question or line of questioning, it is of little value that hourly breaks may have been rigidly scheduled solely at management's convenience.

    Having been rebuffed twice in their request for a recess, the employee and his representative reasonably could have thought that it would be futile to try again. Therefore, I draw no inferences from their failure to do so. In particular, I accord no weight to the fact that they did not reiterate the request after the investigator "explained" the relevance of his line of questioning and gave them permission to confer in the interview room.

    There was no evidence that granting the requests for recesses would have caused any disruption to the investigation. Indeed, the Judge so found. Judge's Decision at 12 ("[T]here is no indication that such a brief conference outside the hearing of the investigator would have been unduly disruptive or would have interfered with the objective or integrity of the investigation."). I note in this regard that Mr. Pfistner showed no reluctance to "disrupt" his line of questioning at least six times when he left, apparently to confer with the FBI agent outside the room.

    Finally, I stress that this was an investigation with potentially serious consequences; in fact, the employee was terminated following the investigation. This employee truly needed the effective union representation contemplated by the Statute. I do not believe that he received it. Consequently, I dissent.

    Dissenting Opinion Footnote Follows:

    */ I am puzzled by the fact that the Respondents, part of a major Federal agency, plead ignorance of allegations against them that were articulated and litigated at a formal hearing and yet argue that a beleaguered employee did not need additional assistance to understand and respond to questions that were unforeseen and fraught with danger for the employee and his family.
    Last edited by hankrearden2000; 04-02-2007, 01:30 AM.
    "Keep up the good fight, pass the word, and teach others to fight back when unjustly assaulted--be it on the street or in the courtroom. Self-defense is a normal, moral act. So teach your family, friends, and students practical defense against both physical and legal marauders." by Jerry VanCook www.PrisonOfficer.Org

  • #2

    Interesting. But what is one to do when the admin types refuse a meeting with you unless you are without rep. Other than elected officials, where does one turn? I've found that politicians do work quite well


    • #3
      They can't legally refuse to meet with, you without a union representative if you request one. To do so is an Unfair Labor Practice and is illegal under the FLRA. Your union, or you, should have filed a grievance on that. And you still can if it's been less than 40 calendar days. Here's your Master Agreement: http://cpl33.info/sitebuildercontent...ragreement.pdf
      "Keep up the good fight, pass the word, and teach others to fight back when unjustly assaulted--be it on the street or in the courtroom. Self-defense is a normal, moral act. So teach your family, friends, and students practical defense against both physical and legal marauders." by Jerry VanCook www.PrisonOfficer.Org


      • #4
        Originally posted by hankrearden2000
        They can't legally refuse to meet with, you without a union representative if you request one. To do so is an Unfair Labor Practice and is illegal under the FLRA. Your union, or you, should have filed a grievance on that. And you still can if it's been less than 40 calendar days. Here's your Master Agreement: http://cpl33.info/sitebuildercontent...ragreement.pdf
        What he said, and if it's not too late, get on it quick. There's no need for that kind of treatment of employees, and it needs to be addressed in one way or another.


        • #5
          Here's a little background on the case, which I remember and have discussed the details of over the years with some of the people involved.

          Prior to the opening of the Federal Transfer Center in April 1995, El Reno performed the inmate transportation hub for inmates function in addition to housing about 1300 of its own High-In and Medium-In commitment inmates.

          Roger Alexander, who is mentioned in the case, was working a holdover unit at FCI El Reno. One of the practices of the institution had the officers distributing prescribed medication to the inmates in the unit. One day during "pill line" Roger gives to an inmate a syringe containing the inmate's insulin. The inmate injects himself and instead of placing the cap back on the needle before handing the syringe back to Roger, accidentally sticks Roger in the hand with the used needle.

          Roger does what he's required to do by BOP policy. He reports the injury to his supervisor and the supervisor did what he's required to do and helps Roger fill out the infamous "CA-1" which is the report of injury form for workman's compensation purposes.

          Now the agency has a problem. Its own policies require medical staff to dispense medications and now some dumbass Knuckledragger Guard has managed to stick himself with a needle and he will probably want the agency to pay his medical bills if he comes down with a communicable disease too! Well, that ain't gonna happen if the BOP has anything to say about it.

          Under Workman's Compensation rules, in order for an on the job injury to be covered, the injury must occur within the scope of the injured party's employment. In other words, if you get hurt on the job doing something you're not supposed to do, then you get to pay your own medical bills. Since the agency had a policy requiring medical staff to dispense medication, ol' Roger must have taken it upon himself to dispense the medications to the inmates. So the BOP contested the workman's compensation claim.

          The up side is that they didn't launch a criminal investigation into ol' Roger's breaking into the institutional pharmacy, stealing medications, and providing them to inmates. They probably didn't think that going THAT FAR would fly too well. But they had less extreme ways to handle ol' Roger. More on that to come shortly.

          Now with the claim denied, Roger has no choice but to file a grievance or be prepared to pay for his AIDS or Hepatitis C treatment should it turn out that he contracted one of those diseases from the needle stick. Things are starting to get a bit ugly now. The union has to get involved to help ol' Roger with his grievance, and everyone in the institution knows that it's a common and supervisor sanctioned practice for holdover unit officers to dispense medications to the inmates in their respective units. Health Services staff have all that they can do meeting the needs of the 1300 resident inmates, to spend time doing something so routine as to dispense medications to transient inmates who only stay two or three weeks typically before shipping out to their destination prison. Being the transportation hub, most of the inmates in the BOP also know that it's common for holdover unit officers to dispense medications because the vast majority of BOP inmates traveled through El Reno going to other places.

          So, the union begins to build its case by taking statements from staff as to the practice of officers dispensing medications to inmates. The fact that the agency has a policy against some practice makes no difference if it takes no steps to enforce that policy and instead encourages the prohibited practice, such as happened here. Such a practice falls under what the FLRA has labeled as "past practice" and becomes an official practice over time.

          Now the agency is in the position of having to admit its wrongdoing, or deny the grievance and loose in arbitration later. But wait, there's another way out! Wouldn't it just be easier to persuade Roger Alexander to drop the whole thing? Well, emotions are running pretty high, so he's unlikely to drop it just so that we don't look bad, and run the risk of having to pay his medical bills if it comes to that. But there are other ways. Let's find a reason to fire him, and use that as a lever to make him want to drop the case!

          So, one day some manager or supervisor notices that Roger has a tattoo, which is new, on his forearm. Later ol' Roger learns that he's under investigation for a "Code of Conduct" violation because he received a tattoo from an inmate while at work. They even have an inmate who will provide a statement! But, "wait a minute Roger says, I have my receipt from where I got the tattoo in Texas while on my days off." (At this time tattooing is illegal in Oklahoma, so everyone who wants one usually goes to the Dallas, TX area to get one) "Well, Roger, this charge will probably not be sustained. Do you remember that grievance you filed after getting stuck with that needle?" "No deal" says Roger, so the charges are sustained and the warden proposes termination. (This is the same warden who was warden of the Federal Transfer Center when Kenneth Trantadue died BTW.)

          The union prepares Roger's defense. Rick Miller, the union's vice president handles the case. Roger is terminated but is reinstated after the union successfully takes the wrongful termination grievance to arbitration and wins. Roger is reinstated with all of his back pay, leave, and for the overtime that he would have worked had he not been wrongfully terminated.

          The End? Hardly! Now the agency is mighty ****ed at the union in general, and Rick Miller in particular, for making it look stupid & corrupt--in public. Now Rick Miller is in the crosshairs, hence the case linked to the first post in this thread. So, the agency finds a couple of staff members, future managers and supervisors, who will testify that mean ol' Rick Miller intimidated them while taking their statements in preparation for his defense of Roger Alexander. So, to make a long story short, Rick is terminated because he was "intimidating" in his representational duties.

          The case above is only a piece of his story, but I'm getting tired of typing, so this is all for now. Suffice it to say that, Rick Miller gets his job back along with leave and overtime that he never got the chance to work, and he retired about three years ago and is working as a consultant for the union. Roger Alexander is still working at El Reno. The warden moves on to the Federal Transfer Center where Trentadue dies four months after it's opened. One of the Associate wardens involved retires, then 2 1/2 years later murders his wife and kills himself. For those who do read the above case, like I'm sure that JDH will. They will see mention for a guy named John Fox, a.k.a. "Father John." Father John was recently the warden at FCI Bastrop, TX and is now the warden at the low-level FCI in Beaumont, TX. Father John figures prominently in the events of this thread. But don't judge Father John too harshly. After, all Father John is doing is living The BOP Way.
          Last edited by hankrearden2000; 04-03-2007, 04:14 PM.
          "Keep up the good fight, pass the word, and teach others to fight back when unjustly assaulted--be it on the street or in the courtroom. Self-defense is a normal, moral act. So teach your family, friends, and students practical defense against both physical and legal marauders." by Jerry VanCook www.PrisonOfficer.Org


          • #6

            The corruption of the KGB never ceases to amaze me. Watch the I/Ms close but watch the bosses closer.


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