[01-10-02] Oregon AFSCME Council 75, Local 3940, Complainant v. State of Oregon, Department of Corrections, Respondent / Case No. UP-3-00
The Board heard oral argument on June 14, 2001, on objections filed by Respondent to a recommended decision issued by Administrative Law Judge (ALJ) William Greer on January 2, 2001, following a hearing on May 31, 2000, in Ontario, Oregon. The hearing closed on August 15, 2000, upon receipt of the parties' post-hearing briefs.
Allison Hassler, Legal Counsel, AFSCME Council 75, 1174 Gateway Loop, Suite 112, Springfield, Oregon 97477, represented Complainant.
Stephen D. Krohn, Assistant Attorney General, Labor and Employment Section, Department of Justice, 1162 Court Street N.E., Salem, Oregon 97301-4096, represented Respondent.
Several officers working at Snake River Correctional Institute (SRCI) witnessed a lieutenant hit an inmate after the inmate assaulted a corrections officer. These witnesses did not include the lieutenant's actions in their initial reports of the incident. Shortly thereafter, however, they reported what the lieutenant had done. The State of Oregon, Department of Corrections (State or DOC), asked the DOC's Special Investigation Unit (SIU) to conduct an investigation of the incident. The officers who witnessed the lieutenant's actions were interviewed. Prior to the SIU interviews, they requested union representation. The SIU investigator denied them representation on the grounds that they were witnesses, not subjects, of the investigation.
Oregon AFSCME Council 75, Local 3940 (AFSCME) filed this complaint on January 31, 2000, alleging that the State refused to permit AFSCME representatives to accompany bargaining unit members in the above interviews, in violation of ORS 243.672(1)(a). On February 17, the State filed a motion to make the complaint more definite and certain. The ALJ permitted AFSCME, in lieu of responding to the motion, to file an amended complaint. AFSCME filed the amended complaint on May 5, 2000. The State's answer, filed May 24, admitted and denied portions of the complaint, asserted an affirmative defense, and requested a civil penalty.
The issues are:
1. Did the State refuse to permit AFSCME representatives to accompany bargaining unit members to investigatory interviews where the unit members were witnesses to another employee's alleged misconduct, in violation of ORS 243.672(1)(a)?
2. Is it appropriate for this Board to order AFSCME to pay a civil penalty to DOC?
The ALJ found, based upon the totality of the circumstances, that it was reasonable for the officers to believe that their witness interviews could lead to disciplinary action against them. The ALJ, therefore, concluded that DOC violated ORS 243.672(1)(a) by denying the officers' requests for union representation at the interviews. We agree, and adopt, as modified, the recommended decision of the ALJ.
Having the full record before it, this Board makes the following:
RULINGS
1. At hearing, DOC's counsel learned that AFSCME had grieved DOC's refusal to allow AFSCME representatives to assist bargaining unit members during the investigatory interviews. On June 7, 2000, he requested the ALJ to defer processing this complaint pending arbitration of that grievance. On June 13, AFSCME objected to the motion.
On July 13, the ALJ agreed to postpone processing the complaint pending completion of the grievance process. On July 18, AFSCME withdrew the grievance and requested this Board to resume processing the complaint. DOC's counsel agreed that exhaustion of the grievance procedure was no longer an issue. Accordingly, we need not review the correctness of the ALJ's ruling.
2. The ALJ's other rulings have been reviewed and are correct.
FINDINGS OF FACT
1. AFSCME, a labor organization, is the exclusive representative of a bargaining unit of strike-prohibited personnel employed by DOC. The bargaining unit includes corrections officers and sergeants. The State employs bargaining unit personnel at SRCI.
Lieutenant assault on inmate
2. On December 8, 1999, a SRCI inmate assaulted a corrections officer. After other corrections officers had subdued the inmate, a lieutenant hit the inmate.(1) Sergeant Hanger, Corrections Officer McNitt, and Corrections Officer Sherrell observed the lieutenant hit the inmate.
3. Hanger. Hanger submitted a report of the incident that did not refer to the lieutenant hitting the inmate. Hanger was troubled that his report was incomplete. On December 9, he discussed the situation with AFSCME Local President Jackson. Jackson arranged a meeting with Institution Security Manager Klika. Before that meeting, Hanger submitted a second report about the incident. He stated that the lieutenant hit the inmate "two to three times * * *."
Later on December 9, Jackson, Hanger, and the lieutenant met with Klika to discuss the incident. Hanger felt awkward being in the meeting with his supervisor, the lieutenant whose conduct was in question. As a result, Hanger did not tell Klika the number of times that the lieutenant had hit the inmate. During the meeting, Klika gave assurances to Hanger that he would not be disciplined. Klika did not read Hanger's second report--which stated the actual number of times that the lieutenant hit the inmate--until after the meeting.
4. McNitt. McNitt's initial report also did not refer to the lieutenant striking the inmate. McNitt later told Hanger of that omission. Hanger told McNitt to call Klika. Klika said that the focus of the investigation was on the lieutenant, not on McNitt. Klika told McNitt to write a second report. On December 13, McNitt submitted his second report. In it, he said that the lieutenant had hit the inmate twice on the back of the head with an open hand.
5. Sherrell. Sherrell's first report addressed only his own conduct in the incident with the lieutenant. Klika asked him if he wanted to submit a second report. On December 10, Sherrell submitted his second report. In it, he said that the lieutenant had used an open hand to hit the back of the inmate's head three times.
Code of ethics and code of conduct
6. The State has adopted a code of ethics and a code of conduct for its employees. The code of conduct provides, in part:
"Employees shall be truthful in rendering any report, in giving testimony, or in giving any official statement about any action taken that relates to the employee's employment or position. Every employee is obligated and shall promptly report to the proper line authority any illegal acts, acts that would pose an immediate threat to the safety, security and welfare of staff and inmates, violations of post orders, rules, regulations, policies and procedures. An employee who has knowledge of such conduct by other employees is encouraged to inform those employees committing the act that unless they turn the information in themselves, the employee will have to do it for them. Employees who possess factual knowledge of behavior that should be communicated to the proper authority and choose not to report it may be subject to disciplinary action."
7. The State may discipline an employee who adheres to an existing, informal "code of silence" and fails to report conduct that violates the code of ethics. DOC has told employees that "* * * staff persons who possess knowledge of behavior that should be communicated to the administration and choose not to report it may be subject to disciplinary action equal to that received by the person committing the act. This would be true unless mitigating circumstances are involved."
SIU investigations
8. SIU's primary focus is investigating staff misconduct. SIU interviews some employees as witnesses to events. If an employee, in an interview, admits to misconduct, the investigator may inform the employee that he or she may have become the subject of another investigation. The investigator may then ask whether the employee wants to obtain representation from a union representative. Pending the employee's decision about union representation, the investigator may terminate the interview.
However, there have been occasions in which employee-witnesses later became the subjects of an investigation without being told. Officer Kevin Trees was involved in a special investigation in which he initially was told he was a witness. He, therefore, did not ask for union representation. He was interviewed again and later disciplined. Sergeant Jackson (the current AFSCME local president) was once a lieutenant. He was interviewed as a witness in an investigation. He was demoted to sergeant after the investigation. He was not informed that he was a subject of investigation.
9. The State has disciplined some corrections officers who failed to file complete reports regarding acts of misconduct that they observed. The State did not permit officers Rood and Stills to have union representation during SIU interviews of them as witnesses to others' alleged misconduct.(2) The State terminated Rood because he failed to report a sergeant's assault on an inmate. The State demoted Stills because he filed a false initial report.
December SIU investigation
10. On December 14, SRCI Superintendent Lampert signed a report stating that the lieutenant's conduct was not in compliance with DOC rules. Lampert also directed SIU Inspector General Dolecal to begin an investigation.
11. An SIU investigator investigates alleged misconduct and submits findings in a report. Investigators do not have authority to recommend or impose discipline. That authority lies with the Superintendent.
12. SIU Inspector Bratton investigated the lieutenant's conduct. Bratton wanted to determine whether the lieutenant had hit an inmate; failed to report the assault; and pressured Hanger, McNitt, and Sherrell not to report the assault. Captain Orr directed Hanger, McNitt, and Sherrell to attend interviews with Bratton.
13. Before questioning employees who are suspected of wrongdoing, SIU notifies them of their right to union representation. The parties' collective bargaining agreement provides, in part, that "[e]mployees who are the subject of a formal Agency complaint or investigation * * * shall be informed of the nature of the complaint or charges before the employee is required to respond to questions concerning the complaint or charges." Bratton did not provide that notice to Hanger, McNitt, and Sherrell, and he never told them that they were the subject of the investigation he was conducting.
14. After being directed to attend the SIU interview, Hanger and McNitt asked Jackson about having the assistance of a union representative in the interview. Jackson called Bratton to discuss union representation. Bratton told Jackson that only an individual who was the subject of an investigation was entitled to union representation. Bratton said that he was going to interview Hanger, McNitt, and Sherrell only as witnesses to the lieutenant's conduct.
15. Bratton said that a witness who refused to participate in an interview without a union representative would be subject to being reported for being uncooperative. Bratton did not inform the officers that they were immune from being disciplined for conduct to which they admitted in the interviews.
16. Jackson advised Hanger and McNitt that Bratton said he was going to interview them as witnesses, and they were not entitled to union representation in that situation. Jackson also told them that he thought they had the right to union representation but advised them to attend the interviews to avoid upsetting Bratton. Jackson said that Hanger, if he felt threatened, could request Bratton to stop the interview.
Hanger and McNitt interviews
17. On December 22, 1999, Bratton interviewed Hanger "solely as a witness." Bratton questioned Hanger for about an hour. He asked Hanger background questions--about the events of December 8 and about the reporting of those events. During the interview, Bratton asked specifically whether Hanger's first memorandum documented the entire incident. Hanger responded that it did not, and Bratton asked him to explain why the first report did not describe how the lieutenant assaulted the inmate. Later in the interview, Bratton asked Hanger whether his failure to report the lieutenant's conduct was part of a cover-up: "Either you covered it up and you did in fact cover it up a little bit, to some degree." Bratton also asked Hanger: "What you're struggling with now -- at the time -- is frankly, do I report something that I didn't think was proper. Am I incorrect in that, Jim?" Hanger responded: "No, you're right."
Hanger was uncomfortable during the interview and did not think that he had an option to leave it. Hanger did not request that Bratton stop the interview.
18. On December 22, Bratton also interviewed McNitt. It is not clear from the record how long the interview lasted, but Bratton made inquiries into the same topics he covered with Hanger. At the outset of the interview, Bratton said that McNitt was "just a witness" and was "not even suspected of any wrongdoing at this point in time." (Emphasis added.)
After discussion of the lieutenant's conduct, Bratton said to McNitt: "* * * Now frankly I need to get to what your thoughts are about reporting this incident." McNitt described his first report and how, the next morning, he spoke with Hanger about the incident. Bratton then said: "Well well, well and, and let me ask you this [McNitt], cause obviously now you're starting to second guess, okay." They then discussed how McNitt decided to submit a second report. As to the lieutenant's hitting of the inmate, Bratton stated: "And you originally did not include it. Why?" McNitt responded: "* * * it kinda slipped my mind."
McNitt was uncomfortable and stressed during the questioning. He did not request that Bratton stop because he did not want to be charged with being uncooperative.
Sherrell interview
19. On January 10, 2000, AFSCME representative Messersmith accompanied Sherrell to Bratton's office for an interview. Bratton refused to permit Messersmith to enter the interview area. Messersmith asserted that Sherrell had the right to a union representative during the interview. Bratton disagreed.
20. Bratton said that he would report Sherrell as uncooperative if Sherrell refused to participate in the interview without Messersmith. Sherrell decided to participate in the interview without Messersmith, and Bratton conducted the interview.
21. Bratton asked Sherrell about the events of December 8 and his record-keeping regarding the incidents of that day. The interview lasted slightly less than 20 minutes. During the interview, Bratton observed that Sherrell had submitted two reports and then asked: "* * * How come you submitted another memo?" Sherrell responded that Klika directed him to submit a second report. Later, Bratton asked: "* * * Now, and the question is, how come no body, how come you did not turn in a memo regarding the incident in the intake area during your--at the first, during that first use of force [between the assaulted officer and the inmate]? To include the things that occurred in the intake area [between the inmate and the lieutenant]?"
CONCLUSIONS OF LAW
1. This Board has jurisdiction over the parties and subject matter of this dispute.
2. DOC's refusal to permit an AFSCME representative to attend Bratton's interviews of Hanger, McNitt, and Sherrell violated ORS 243.672(1)(a).
DISCUSSION
In the presence of Sergeant Hanger, Corrections Officer McNitt, and Corrections Officer Sherrell, a lieutenant hit an inmate, shortly after the inmate had assaulted a staff member. The three officers' initial reports of the incident were incomplete, because they did not include the lieutenant's assault on the inmate. DOC rules require officers to submit complete reports of misconduct. DOC prohibits employees from using the "code of silence" to avoid reporting misconduct. The three officers later submitted second, complete reports. DOC began an SIU investigation of the incident and directed them to attend interviews with an SIU investigator. The officers requested that a union representative be allowed to accompany them to the interviews, but the SIU investigator denied their request. The investigator told them that they were being interviewed as witnesses.
AFSCME claims that Hanger, McNitt, and Sherrell were unlawfully denied a union representative at the investigatory interviews. The State responds that the denial was not unlawful because the officers and their AFSCME representative had no reasonable basis for believing that the interviews could lead to discipline. The State contends the officers were told by the investigator that they were witnesses, not subjects, of the investigation.(3) The State also asserts that all of its conduct was consistent with such representations.
Under ORS 243.672(1)(a), the Public Employee Collective Bargaining Act (PECBA) right to representation arises during an interview when: "1) the employee reasonably believes that disciplinary action [against the employee] is being contemplated or may result; 2) the employer insists on the interview; and 3) the employe requests representation." ATU v. Tri-Met, Case No. UP-21-88, 11 PECBR 480, 488 (1989).(4)
We also have explained that the right to representation does not arise in "* * * conversations between a manager and an employe in which the latter is only given instructions, training, or needed corrections of his or her work techniques.* * * Nor does it apply to noninvestigatory counseling sessions or meetings in which an employe is simply informed of disciplinary action." ATU v. Tri-Met, 11 PECBR at 488 citing AFSCME Local 328 v. Oregon Health Sciences University, Case No. UP-119-87, 10 PECBR 922 (1988).
In deciding a complaint alleging an unlawful denial of union representation, we examine the totality of the circumstances, not just the announced purpose of the interview.
Required attendance at interview and Employee request for representation To prove its allegation that the State violated ORS 243.672(1)(a) by prohibiting union representation of the officers in the interviews, AFSCME must show that the officers were required to attend the interviews and that they requested union representation by asking the investigator to permit a union representative to attend their interviews.
The record shows that DOC required the officers to participate in the interviews. See Findings of Fact 12, 14, and 20.
With respect to asserting their right to union representation, Hanger and McNitt asked Jackson--the president of their bargaining unit--about having union representation at the SIU interviews. Jackson made that request to Bratton on their behalf. When Bratton denied the request, Hanger and McNitt participated in the interviews, without representation.
Sherrell requested the assistance of AFSCME representative Messersmith, who accompanied Sherrell to the Bratton interview. Bratton did not permit Messersmith to enter the interview room. Sherrell then participated in the interview, without union representation.
These facts establish that the officers properly asserted their PECBA representation right.
Employee reasonable belief
Next, we must determine the issue at the crux of this dispute: whether it was reasonable for the officers to believe that they could be disciplined as a result of the investigatory interviews.
In support of its argument that the officers were entitled to union representation in the interviews, AFSCME cites American Federation of Government Employees, Local 2544 v. Federal Labor Relations Authority, 779 F2d 719, 121 LRRM 2262 (DC Cir 1985) (AFGE).(5) In AFGE, the agency directed the employee to report for questioning as a witness regarding other employees' alleged misconduct. Knowing that the agency required employees to report other employees' misconduct, the employee requested union representation. The agency internal investigator denied the request, stating that the employee would be granted immunity from disciplinary action based on his interview responses. The court held that the agency's denial of union representation violated the statute, because, under the circumstances, the employee could reasonably doubt that the investigator had the authority to grant immunity.
In reaching its decision, the court stated that the Federal Labor Relations Authority has interpreted the statute to provide that it is "[t]he possibility, rather than the inevitability, of future discipline determines the employee's right to union representation." 779 F2d at 723 (emphasis in original). In addition, the court stated that "* * * a union has a right to represent an employee even if the employer does not contemplate taking any disciplinary action against the employee at the time of the interview, since disciplinary action will rarely be decided upon until after the results of the inquiry are known." 779 F2d at 724.
The AFGE court cited Internal Revenue Service v. Federal Labor Relations Authority, 671 F2d 560, 110 LRRM 2153 (DC Cir 1982) (IRS). In that case, the agency suspected that an auditor had disclosed confidential taxpayer information from a file assigned to a revenue officer. The agency directed the revenue officer to participate in a "third-party interview," as a witness, with investigators who were investigating the auditor's possible misconduct. The investigators denied the revenue officer's request for union representation.
The IRS court concluded that the refusal of representation was unlawful, because the revenue officer could reasonably have feared discipline as a result of the interview. The court stated: "In this context, the statements of the inspectors that [the revenue officer] was not the subject of the interview, and that the [investigation] was aimed at another party, could not eliminate the risk that [the revenue officer] might be placed in jeopardy as a consequence of something he said to them." 671 F2d at 563.(6)
We find portions of the reasoning and analysis of AFGE and IRS to be persuasive and applicable here.
Hanger, McNitt, and Sherrell knew that they had submitted incomplete initial reports about the conduct of the lieutenant, and they knew that DOC rules required that reports of alleged misconduct be complete. It was reasonable for them to believe that Bratton would ask them questions that would result in disclosures that, in turn, could provide a basis for DOC to discipline them. Although Bratton told them that they were only witnesses, he did not promise them immunity, nor is there any indication he had the authority to do so. Similar to the investigators/inspectors in the AFGE and IRS cases, Bratton does not make disciplinary determinations. He lacks the authority to discipline or to make disciplinary recommendations. Rather, it is the superintendent who has the authority to make such determinations. Bratton's assurances thus could not bind the superintendent. Under these circumstances, regardless of Bratton's truthfulness and good intentions, it was still reasonable for the officers to believe that their disclosures in the interviews could lead to later disciplinary action.
In addition, other employees had been disciplined for submitting incomplete reports.(7) (See Finding of Fact 9.) And, other employees who were witnesses in investigations (including Jackson) later were disciplined for conduct related to such investigations. (See Finding of Fact 8.) These facts further support the reasonableness of the officers' belief that information elicited in their interviews could be the basis for disciplinary action.
There are several considerations that support the State's contention that an employee could conclude that the interviews were not intended to gather information that would lead to their being disciplined. As described above, Bratton stated directly that he was going to interview them only as witnesses to the lieutenant's alleged misconduct.(8) There was no evidence to suggest that Bratton was untruthful in making these representations.(9) In addition, Bratton did not provide the officers with the DOC notice that announces that an interview is being conducted regarding the interviewee's own alleged misconduct. The officers knew that Bratton had not provided them with such notice. (See Finding of Fact 13.) These considerations, however, are insufficient to override the other factors, identified above, that establish that it was reasonable for the officers to believe that discipline could result from information obtained in the interviews.
The State asserts that this Board is applying a "subjective" standard in determining whether these employees had a reasonable belief that discipline could result from the interviews. The question for us in such cases is always an objective one, from the perspective of the proverbial "reasonable employee:" would an employee, based on the facts known to the employee, reasonably conclude that discipline might result. The answer to that question is affirmative here.
As explained above, the evidence established that: (1) the employees had violated DOC policy in failing to report the lieutenant's conduct; (2) their failure to report was serious, and under DOC policy, could subject them to the same discipline as the lieutenant; (3) Bratton's function, as an SIU investigator, is to investigate employee misconduct; (4) Bratton did not and could not offer immunity for their statements; (5) Bratton did not make recommendations on discipline; (6) because Bratton had no authority or responsibility for discipline or immunity, his statements could not eliminate the risk of discipline based on the interviews; (7) other employees had been disciplined for submitting incomplete reports; and (8) other employees had been disciplined after being questioned as witnesses.
The Fifth Circuit Court of Appeals, in Lennox Industries v. NLRB, 637 F2d 340, 106 LRRM 2607(1981), U.S. cert den 452 US 963 (1981), described the "reasonable belief" standard this way:
"* * * An interview may well be 'investigatory' and may well reasonably include the 'risk of discipline' even though the employer is not seriously contemplating discipline at the time the interview is conducted. Indeed, a purpose of the interview may be to decide whether discipline against an employee is an option to be seriously considered. Furthermore, an interview in which work-related questions are asked of an employee, but which the employer does not intend to result in discipline may nevertheless result in discipline if the employee surprises his employer with an answer which the employer finds unsatisfactory or threatening. The Weingarten rule is designed to protect such 'fearful' or 'inarticulate' employees from the inadvertent results of their answers during work-related interviews. * * * For the Weingarten rationale to be effectively achieved, courts must not narrow the scope of the doctrine as enunciated by the Supreme Court: it is whenever the risk of discipline reasonably inheres in an investigatory interview that a union representative is required, and not merely when disciplinary action is 'probable' or 'seriously considered.'" Lennox Industries, 106 LRRM at 2610.
After reviewing all of the circumstances here, we conclude the officers were entitled to union representation. Regardless of whether DOC was considering discipline at the time it interviewed the officers, for the reasons set forth above, these employees could reasonably believe that discipline might result from the interviews. DOC, therefore, violated ORS 243.672(1)(a) by denying the officers' request for union representation in the interviews. We shall order DOC to cease and desist.(10)
ORDER
DOC shall cease and desist from denying an employee's request for union representation during investigatory interviews, when the employee has an reasonable belief that the interview may result in discipline.
DATED this 10th day of January 2002.
1. DOC demoted the lieutenant to sergeant in the spring of 2000.
2. The State in its objections challenged evidence offered by Jackson concerning the discipline of other employees. The State argued that Jackson was improperly allowed to rely, in part, on a report prepared by DOC summarizing certain disciplinary actions. The State argues that the report does not contain information about whether union representation was provided, and that Jackson's testimony was clearly hearsay and lacked proper foundation. It was the State, however, on cross-examination that questioned Jackson about whether union representation was provided to certain individuals. The State had the opportunity to put on evidence rebutting Jackson's testimony, and it did not do so. Under the circumstances, we find Jackson's testimony reliable and credible on these matters.
3. The State also contends that the SIU investigator told officers expressly that they would receive no discipline. AFSCME disputes that contention. Based upon the totality of the circumstances, as discussed herein, our conclusion would be the same regardless of whether the investigator made such statements. Accordingly, we need not resolve this factual dispute.
4. Also see: Washington County Police Officers Association v. Washington County, Case No. UP-15-90, 12 PECBR 693, 701 (1991), adhered to on reconsideration 12 PECBR 727 (1991). Although our procedures for employee representation are grounded in the language of the PECBA, we have acknowledged that our decisions in Tri-Met and Washington County were based, in part, on the U.S. Supreme Court holding that the right to union representation exists, in certain circumstances, under the National Labor Relations Act (NLRA). NLRB v. Weingarten, Inc., 420 US 251, 88 LRRM 2689 (1975). In particular, the Weingarten court stated the NLRA "* * * guarantees an employee's right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres * * *." 88 LRRM at 2693 (emphasis added).
5. In that decision, the court interpreted 5 USC §7114(a)(2)(B), of the Federal Service Labor-Management Relations Act, which provides that the exclusive representative shall have the opportunity to be present at any examination of a bargaining unit employee if: "the employee reasonably believes the examination may result in disciplinary action against the employee; and * * * the employee requests representation." That statute is clearly patterned on the rights announced in Weingarten.
6. DOC argues that the threat of discipline for failing to participate in an interview does not warrant union representation, citing Alfred M. Lewis, Inc. v. NLRB, 587 F2d 403, 99 LRRM 2841, 2845 (CA 9 1978). In that decision, the Ninth Circuit stated that the right of representation arises "* * * when a significant purpose of the interview is to obtain facts to support disciplinary action that is probable or that is being seriously considered." 99 LRRM at 2845. The Lewis case is distinguishable from this case. Lewis involved meetings with employees in which they were informed of disciplinary action to be taken. The Lewis court said that in such circumstances, absent an interrogation, the protective role of union representation is not applicable. 99 LRRM at 2846.
7. Sherrell was also under a different form of pressure: Bratton, in essence, threatened him with discipline if he insisted on having a union representative in the interview. Under the NLRA, an employer violates the NLRA by threatening to discipline an employee for exercising Weingarten rights. See Southwestern Bell Tel. Co., 227 NLRB 1223, 94 LRRM 1305 (1977).
8. DOC cites Amoco Chemicals Corp., 237 NLRB 394, 99 LRRM 1017 (1978) to support its argument that an employee, after being informed that an interview will not result in discipline, cannot reasonably believe that discipline will result from statements made in the interview. Amoco is distinguishable: the interview there was limited to counseling an employee about the employer's attendance policy, and the employer stated that the fact that the counseling occurred would not be recorded in the employee's personnel file.
9. We have determined previously that an employee's initial fear that a meeting would be disciplinary was not reasonable--and the employee had no ORS 243.672(1)(a) right to union representation in a meeting--after a supervisor stated that the meeting would involve only instruction, not discipline. ATU v. Tri-Met, Case No. UP-21-88, 11 PECBR 480, 489 (1989).
10. In its answer, the State requests this Board to order AFSCME to pay a civil penalty. Given our conclusion, a civil penalty is not appropriate.