Edwards, Silberman and Buckley, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Review of an Order of the Federal Labor Relations Authority.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS
This case presents a narrow issue: did the questioning of one federal employee under disciplinary investigation, by another federal employee at management's behest, abridge the questioned employee's right under 5 U.S.C. § 7114(a) (2) (1982) to have a union representative present during interrogation, even though the questioned employee was unaware that the questions were devised by management and that certain responses might result in disciplinary action or criminal penalties?
The Federal Labor Relations Authority answered this question in the negative, on the ground that no "examination" had taken place for purposes of section 7114(a) (2) . We agree with the FLRA's conclusion, although we phrase the analysis somewhat differently. We hold that, although an examination occurred, the questioned employee had no right to union representation during interrogation because she could not reasonably have believed that her responses might lead to disciplinary action against her. Therefore, under the plain terms of the statute, no violation can be found. Accordingly, we affirm the FLRA's decision and deny the petition for review. I. BACKGROUND
Sania Franken and Colleen Then were both nonmanagement employees of the Bureau of Alcohol, Tobacco and FIrearms in 1981. In March 1981, BATF received information suggesting that Franken had told the wife of a firearms merchant that her husband was under investigation. In order to verify that allegation, special agent Mugridge of BATF's Office of Internal Affairs asked Then on April 10, 1981, to telephone Franken and to ask Franken some questions. Mugridge had written out the questions for Then. When Then hesitated, Mugridge told her that if she refused to make the telephone call, she might have to explain her uncooperativeness to her superiors. Mugridge gave Then fifteen minutes to reflect; Then then decided to make the call, which Mugridge arranged to tape in case it should produce incriminating evidence. Although Then testified before an Administrative Law Judge that she cooperated because she thought that refusal to do so might jeopardize her job, see Transcript of Proceedings (Mar. 15, 1983), reprinted in Joint Appendix 55, 75, there is no evidence that Mugridge threatened to do more than inform his supervisor, who might in turn contact Then's superiors. J.A. 188. It is also undisputed that Then never sought assistance from the National Treasury Employees Union , the bargaining representative for employees in her work unit. J.A. 65. NTEU did not claim below, nor has it claimed on appeal, that Then was denied an opportunity to consult with a union representative or that she was improperly coerced into making the call.
Upon acceding to Mugridge's request, Then telephoned Franken and posed the questions she had been given. Franken did not know that Then had been asked to question her, nor did she know that the call was being monitored. Nevertheless, Franken denied compromising the investigation of the firearms dealer. On April 20, 1981, Franken reiterated her denial in the course of a formal interview with Mugridge. She was never charged with wrongdoing or disciplined in any way.
Prompted by NTEU's charge that BATF had committed unfair labor practices in conducting its investigation of Franken, the FLRA's General Counsel issued a complaint. The complaint alleged, first, that Mugridge's indirect questioning of Franken via Then without informing Franken that she was the target of a disciplinary investigation and that she had a statutory right to have a union representative present during questioning violated 5 U.S.C. § 7114(a) (2) *fn1 and, therefore, constituted an unfair labor practice under 5 U.S.C. § 7116(a) (1). *fn2 Second, the complaint alleged that by forcing Then to help with this examination, BATF again flouted § 7116 (a) (1) by interfering with Then's right under 5 U.S.C. § 71023 to assist NTEU, her bargaining representative, by not advancing BATF's plan to examine Franken secretly.
Following a hearing, an ALJ concluded that both charges were correct. Department of the Treasury, BATF, Southeast Regional Office, Atlanta, Ga., No. 4-CA-1138 (Oct. 21, 1983), reprinted in 24 F.L.R.A. 526 (1986). The ALJ recommended an order directing BATF to cease and desist from indirect questioning of the sort it employed in Franken's case and to cease and desist from the coercive enlistment of investigatory assistance. In addition, the recommended order would have required BATF to post notices of the cease-and-desist order in BATF's Jacksonville office. The ALJ declined to order the removal of material associated with Franken's examination from her personnel records because it was largely exculpatory and because he lacked authority to order the removal of incriminatory material obtained in other ways.
Both NTEU and BATF filed exceptions to the ALJ's findings and recommendations. NTEU desired that notices be posted over a larger geographical area; BATF contested the ALJ's determination that it had committed unfair labor practices.
Upon review, the FLRA agreed with BATF. Department of the Treasury, BATF, Southeast Regional office, Atlanta, Ga., 24 F.L.R.A. 521 (1986). In reasoning that no "examination" had taken place for purposes of 5 U.S.C. § 7114(a) (2) , the FLRA noted that five salient features of a recent case in which the FLRA had held that the Internal Revenue Service had not committed an unfair labor practice by secretly monitoring a telephone conversation between an IRS agent and a taxpayer were also present in this case. See Department of the Treasury, IRS, Jacksonville Dist. ("Jacksonville"), 23 F.L.R.A. 876 (1986). With respect to Franken's questioning, the FLRA found that:
(1) there was no direct questioning or examination of the employee by agency management, (2) management's involvement was limited to monitoring the conversation, (3) the employee was unaware that the questions and his answers were monitored, (4) the employee did not feel compelled to answer the ...