[ v22 p327 ]
22:0327(31)CA
The decision of the Authority follows:
22 FLRA No. 31
DEFENSE LOGISTICS AGENCY,
ALEXANDRIA, VIRGINIA AND DEFENSE
CONSTRUCTION SUPPLY CENTER,
COLUMBUS, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1148, AFL-CIO
Charging Party
Case No. 5-CA-40131
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions and a supporting brief to the Judge's
Decision and Respondent filed a brief in opposition to such exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order to the extent
consistent herewith.
In agreement with the Judge, the Authority concludes that, under the
circumstances in this case, the General Counsel failed to establish that
the Respondent implemented a change in the working conditions of unit
employees. Thus, as found by the Judge, the Respondent, Defense
Construction Supply Center (the Center), executed an agreement with the
U.S. Attorney to have three of the Respondent's attorneys appointed as
Special Assistant U.S. Attorneys under the supervision and direction of
the local U.S. Attorney. The three were needed to prosecute misdemeanor
offenses arising on the Center's facilities because the U.S. Attorney
had a large backlog of cases and was short-staffed, although he had
jurisdiction to prosecute such misdemeanor cases and had done so in the
past.
The Authority notes, in agreement with the Judge, that bargaining
unit employees have always been subject to prosecution by the U.S.
Attorney for their unlawful acts committed at the Center, and that the
implementation of the agreement with the U.S. Attorney did not result in
the imposition of any new penalties, new investigative procedures or
regulations. Given the Authority's finding that there was no change,
the Authority concludes that the complaint should be dismissed. See,
for example, Social Security Administration, Baltimore, Maryland, 19
FLRA No. 79 (1985), where the Authority determined that in the absence
of evidence that Respondent's actions constituted a change in personnel
policies, practices or matters affecting working conditions, no
violation of section 7116(a)(1) and (5) of the Statute had been
established. /1/
ORDER
The complaint in Case NO. 5-CA-40131 is dismissed in its entirely.
Issued, Washington, D.C., June 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-40131
DEFENSE LOGISTICS AGENCY, ALEXANDER, VIRGINIA AND DEFENSE
CONSTRUCTION SUPPLY CENTER, COLUMBIA, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1148,
AFL-CIO
Charging Party
H. Lowell Ralph and Fred L. Harris, For the Respondent
Judith H. Ramey, For the General Counsel
Federal Labor Relations Authority
Carmelita Burge Riley, For the Charging Party
Before: ISABELLE R. CAPPELLO Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
On February 17, 1984, the Charging Party filed with the Federal Labor
Relations Authority (the Authority) a charge that Respondent had
committed an unfair labor practice. Amended charges were filed on
February 27 and March 16. The charges were investigated by the
Authority's Region V Office and, on April 20, the complaint initiating
this action was filed by the Acting Regional Director of that Office.
The complaint alleges that, Respondent has failed and refused to
bargain in good faith with the Union, in violation of 5 U.S.C.
7116(a)(1) and (5), /2/ by the following acts and conduct:
Commencing in or about the month of January, 1984, the exact
date being unknown to the Regional Director, and continuing to
date, at the Center, Respondent unilaterally changed established
personnel policies, practices or terms and conditions of
employment of bargaining unit employees, by implementing a system
whereby minor criminal offenses that occur on the premises of the
Center are processed through the U.S. Magistrate System and
prosecuted by the Center's Office of Counsel, as representative of
the United States Attorney. Said action was taken by Respondent
without Respondent's having given advance notice to the Union of
said change and without having afforded an opportunity to the
Union to bargain with Respondent concerning the impact and
implementation of said change.
See G.C. 1(d), paragraph V. /3/ Respondent denies that it has
committed any acts violative of the Statute.
A hearing was held on June 5, 1984, in Columbus, Ohio. The parties
appeared, adduced evidence, and examined witnesses. Briefs were filed
by Respondent and the General Counsel on July 23, pursuant to an order
extending the briefing time until that date, as requested by Respondent.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, and the briefs, I enter the following
findings of fact and conclusions of law, and recommend entry of the
following order.
1. It is admitted that, at all times material herein, the Defense
Logistics Agency (DLA) has operated and supervised a facility in
Alexander, Virginia, known as the Defense Logistics Center (DLC) and,
through DLC, has operated and supervised a facility in Columbus, Ohio,
known as the Defense Construction Supply Center (DCSC or Center).
2. It is also admitted that, at all times material herein, the DLA
Council of American Federation of Government Employees, AFL-CIO, Locals
(AFGE) has been the exclusive representative of a consolidated
bargaining unit of employees, including, inter alia, Respondent's
non-supervisory employees at the Center, with certain exclusions not
material to this case, and that Local 1148 (Union) is the agent of AFGE
with respect to employees at the Center in Columbus. Carmelita Burge
Riley is the President of Local 1148 and the union official to whom
management at the Center provides notice of proposed changes in working
conditions.
3. In the latter part of 1982 and during 1983, Ms. Riley was engaged
periodically in negotiations with management concerning a new Magistrate
System for the supervision of traffic violations at the Center. At no
time before or during these negotiations, which began in about October
1982 and ended with the implementation of the new system in January
1984, did management advise Ms. Riley that is was, during the same
period, implementing some new procedures for the prosecution of minor
criminal offenses (misdemeanors) at the Center. Ms. Riley became aware
of this when she read an article about it in the November 1983 issue of
the Center's newsletter, The Supply Line. She then took the initiative
to question management about the matter, on two occasions early in
January, at a monthly personnel meeting and at a staff meeting. On
these occasions, she attempted to determine what exactly it was to which
The Supply Line article had referred, but obtained little information.
Meanwhile, on December 19, 1983, a memorandum concerning the "Federal
Magistrate System" was issued to all employees. It informed them that
moving traffic violations, as well as minor criminal offenses that occur
on the Center's premises, will "be processed through the Federal
Courts." It stated that Ohio traffic laws will be so enforced, as well
as "minor offenses such as assault, theft or trespassing," which are
governed by Federal statutes.
4. Still having little information about the misdemeanor procedures,
Ms. Riley wrote a memorandum to Fred Harris, the Center's Labor
Relations Officer, on January 31, 1984. She asked, inter alia, why the
employer had not consulted/negotiated with the Union concerning the
matter.
5. On February 6, 1984, Mr. Harris responded to Ms. Riley. He
stated, inter alia, that: "there was no negotiation on this system
because we cannot negotiate laws" (G.C. 8).
6. In a subsequent telephone conversation with Mr. Harris, Ms. Riley
brought up the subject again, stating that she believed that the Union
had the right to negotiate the impact and implementation of the matter.
7. Shortly thereafter, Ms. Riley filed the unfair labor practice
charge. At the time, she was still not entirely sure of what the new
misdemeanor procedures were or when they had been implemented. Because
of the above circumstances, Local 1148 has not yet submitted any
proposals to Respondent.
The alleged violative acts and conduct
8. Certain Department of Defense (DOD) directives have, since 1978,
directed that the Department's investigation agency (now called the
Defense Criminal Investigative Service or DCIS), provide criminal
investigative support to DOD components, including the Center. When
investigations have produced evidence of crimes, including misdemeanors,
they have been referred to the local U.S. Attorney for possible
prosecution. The U.S. Attorney "frequently declined" prosecution of
misdemeanor cases so referred "because of a heavy case load and limited
manpower" (Jt. 1, para. 9 at page 3). This problem at the U.S.
Attorney's office was having "some impact" at the Center, in that it was
decreasing the number of prosecutions of employees at the Center, and
hindering and slowing down those which were brought (Tr. 81).
9. A number of events occurred prior to January 1984 that
considerably increased the likelihood that a person committing a minor
criminal offense on the Center would be prosecuted. These included the
issuance of a complete revision of DLA Regulation 5705.2, Criminal
Investigative Support to the Defense Logistics Agency, on January 23,
1979, and a revision of DLA Regulation 5700.5, Command Security Program,
on January 15, 1979. The latter regulation established a new Command
Security Program and required the appointment of a Command Security
Office at each primary level field activity, such as the Center. Also,
fraud, waste, and abuse is now given "high priorty in the Department of
Justice" (Tr. 82).
10. Another important event that significantly increased the
likelihood of criminal prosecution of minor criminal offenses at the
Center was the hiring of two detectives in February 1982, particularly
since one of them, George Lutz, was experienced, highly motiviated, and
very determined in investigating offenses, and very effective in
presenting cases for prosecution. The work of Mr. Lutz was a major
factor in the increased likelihood of prosecution of misdemeanor
offenses occurring on the Center.
11. The DCIS office providing support to the Center is located in
Dayton, Ohio. It was not shown to be bound by any agreements between
Respondent and Local 1148. The Center's Office of Counsel provides
legal services to the Dayton DCIS offices. In June 1983, DCIS officials
talked with Walter R. Pierce, an Attorney in the Center's Office of
Counsel, about difficulties they were having persuading the U.S.
Attorney to prosecute criminal offenses because of his heavy case load.
At Mr. Pierce's suggestion, he and one of the DCIS officials met with an
Assistant U.S. Attorney, James Rattan, on June 17, to discuss the
possibility of having attorneys at the Center appointed as Special
Assistant U.S. Attorneys to prosecute minor misdemeanors committed on
the Center. They discussed the fact that such an arrangement already
existed between Counsel's Office at the Defense Electronic Supply Center
(DESC), Dayton, Ohio, and the U.S. Attorney.
12. On June 29, 1983, the Dayton DCIS office provided information
about the DESC Counsel-U.S. Attorney agreement and encouraged Mr.
Newton, head of the Center's Office of Counsel, to seek a similar
agreement.
13. On July 12, 1983, the Center's Command Security Officer wrote a
memorandum to the Office of Counsel, stressing the importance of filing
criminal charges, where warranted, and requested that a procedure be
established for presenting all criminal investigations to the U.S.
Attorney's Office for prosecution. The memorandum cited the delegation
of additional investigative responsibilities to the Office of Command
Security by the Office of Assistant Inspector General for
Investigations, an activity under DOD, and the increase in cases
warranting criminal prosecution because of the activities of the
Detective Section.
14. On July 13, 1983, Mr. Pierce followed up on the meeting of June
17, by submitting to the U.S. Attorney a proposed Memorandum of
Understanding and a request that he and two other attorneys, Daniel A.
Bellman and Philip L. Brady, be appointed as Special Assistants to the
U.S. Attorney.
15. On September 2, 1983, the U.S. Attorney signed the Memorandum of
Understanding, returned it to Mr. Pierce, and sent a letter to the U.S.
Department of Justice, requesting the appointment of Messrs. Pierce,
Bellman and Brady as Special Assistants to the U.S. Attorney.
16. On September 9, 1983, the Department of Justice appointed
Messrs. Pierce, Bellman and Brady as Special Assistants to the U.S.
Attorney. On November 1, 1983, Mr. Newton authorized the three
attorneys to perform their duties under these appointments. The
appointments were valid through September 30, 1984.
17. On December 23, 1983, the three judges of the local U.S.
District Court issued an order directing that misdemeanor complaints and
information offenses occurring within the jurisdiction of any agency
scheduled pursuant to the Court's rule 6.2.3 be referred to the U.S.
Magistrate. This included offenses occurring at the Center.
18. Prior to the court order of December 23, 1983, misdemeanor cases
were tried before the U.S. Magistrate, but were initially filed with the
Clerk of the U.S. District Court and then referred to a District Court
Judge, who would decide whether to refer it to the U.S. Magistrate. The
court order by the U.S. District Court Judges was issued "(b)ecause they
were advised that DCSC . . . . is referring additional cases . . . into
the U.S. Attorney's office, and the U.S. Attorney's office has decided
to prosecute those" (Tr. 87). Respondent concedes that the appointment
of three Center attorneys as Special Assistants to prosecute
misdemeanors from the Center before the U.S. Magistrate was a factor in
the court order of December 23. However,the change was not made because
of "any particular desire or any overt action taken by DCSC officials"
(Tr. 52).
19. At the present time, both DCIS and the Center's Command Security
Office submit reports of suspected misdemeanor offenses to Mr. Pierce.
In his capacity as a Special Assistant to the U.S. Attorney, he reviews
the reports and forwards to the U.S. Attorney's office the cases that he
believes warrant criminal prosecution. The U.S. Attorney makes the
final decision on the cases that should be prosecuted, signs the
necessary criminal informations or complaints, and files them in the
U.S. District Court. The Clerk of the Court sends the cases to the
Magistrate. The U.S. Attorney's Office advises Mr. Pierce of the filing
of criminal informations and complaints and he, Mr. Bellman, and Mr.
Brady are assigned to represent the U.S. Attorney in prosecuting the
cases before the Magistrate.
20. Between June 17, 1983 and May 31, 1984, 11 investigations of
suspected misdemeanor offenses at the Center have been referred to Mr.
Pierce for possible prosecution. Three of these cases were investigated
by DCIS and the remainder by the Center's security personnel. Acting in
his capacity as Special Assistant U.S. Attorney, Mr. Pierce determined
that six of these should be prosecuted. Of these six cases, the U.S.
Attorney declined prosecution in one case. The remaining five cases
resulted in convictions or guilty pleas. One of the five persons
convicted was a supervisor and a second person was not in the bargaining
unit. There are 4,000 to 4,200 bargaining unit employees at the Center.
21. It was not established just how many, if any, misdemeanors
committed by bargaining unit employees at the Center were prosecuted
before the three Center attorneys were deputized as Special Assistants
to the U.S. Attorney. Ms. Riley, who has been an employee at the Center
since 1965, and the President of Local 1148 since December 1981, knew of
none. Mr. pierce, the only witness for Respondent, had no knowledge of
any either. He has been employed at the Center since 1974. He
explained that, prior to his deputization, misdemeanor cases "weren't
referred through (him)" (Tr. 83). Paragraph 8 of the Stipulation of
Facts (Jt. 1, page 3) states that the U.S. Attorney "frequently"
declined to prosecute misdemeanors committed at the Center and referred
to him, prior to June 1983. There is an inference from this stipulation
that at least some may have been prosecuted.
22. Employees who are prosecuted under these procedures are and have
always been also subject to administrative disciplinary action.
23. No new agency regulations or procedures were established, or old
ones changed, when the three Center Attorneys were deputized to assist
the U.S. Attorney in prosecuting misdemeanors occurring at the Center.
Retroactive relief
24. In response to the fact that the General Counsel is seeking an
order that would "(a)pply retroactively to January 1984, as appropriate,
any agreements reached as a result of bargaining done" pursuant to any
bargaining order that may issue (G.C. 3, page 2), Respondent's counsel
questioned Mr. Pierce as to what impact such an order would have on
Respondent. See Tr. 73-79. Mr. Pierce opined that "(g)enerally, it
could have a devastating affect, depending on how it is framed" (Tr.
73). Mr. Pierce was unable to be specific, since no union proposals
have ever been made.
Discussion and Conclusions
The General Counsel has not established, by a preponderance of the
evidence, /4/ that Respondent has failed to bargain in good faith with
the Charging Party, and, thereby, interfered with its bargaining rights,
as alleged in the complaint.
As the General Counsel recognizes, proof of the alleged failure to
bargain hinges upon proof that the failure concerned "conditions of
employment." See G.C. Br. 9 and Sections 7114(b)(2) of the Statute,
declaring that the duty to negotiate includes the obligation "to discuss
and negotiate on any conditions of employment," and Section 7103(a)(14)
of the Statute, defining the term "conditions of employment" as meaning
"personnel policies, practices, and matters, whether established by
rule, regulation, or otherwise, affecting working conditions . . . ."
The General Counsel rests his case on the failure to bargain over the
assignment of attorneys in its Office of Counsel to serve "as
supplemental staff to the U.S. Attorney, so that employees are now being
prosecuted before the U.S. Magistrate for misdemeanors committed at the
workplace" (G.C. Br. 16). It was stipulated that before this change,
the U.S. Attorney "frequently declined" prosecution of misdemeanor cases
occurring on the premises of the Center "because of a heavy case load
and limited manpower." See finding 8, above. It was also stipulated
that between November 1, 1983, when three attorneys in the Office of
Counsel were deputized as Special Assistant U.S. Attorneys, and May 11,
1984, three bargaining unit employees were prosecuted for misdemeanors.
See finding 20. It is not clear how many misdemeanor prosecutions took
place prior to this deputization.
The General Counsel acknowledges the holdings of the Authority that
"conditions of employment" are only those which "directly relate" to
personal policies, practices, and matters affecting working conditions.
See G.C. Br. 12, citing National Treasury Employees Union and Internal
Revenue Service, 3 FLRA No. 112, 3 FLRA 692, 695 (1980) holding
negotiable a union proposal which would set criteria for approving
applications for outside employment, where the agency had a written
policy concerning outside employment that was determinative of whether
employees would be eligible for certain positions within the agency or
could continue to be employed by the agency, and American Federation of
Government Employees AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA No. 77, 2 FLRA 604, 605
(1980), holding negotiable a union proposal that the agency provide
space and facilities for a day care center, after noting that the
availability of such facilities could be determinative of whether an
individual would be able to accept a job with the agency and of whether
the employee could continue employment, and could affect employee
morale, tardiness and absenteeism, thus having an affect on use of leave
and productivity. Two other Authority cases cited by the General
Counsel each involve a finding of a failure to bargain over changes in
agency policy and regulations concerning traffic and parking violations,
which resulted in an additional penalty being imposed, namely a monetary
penalty. See G.C. Br. 14, citing Department of the Air Force, Malmstrom
Air Force Base, Montana and American Federation of Government Employees,
Local 2609, AFL-CIO, 2 FLRA No. 2, 2 FLRA 12, 18-19 (1979) and
Philadelphia Naval Shipyard, Department of the Navy and International
Federation of Professional and Technical Engineers, Local 3 and
Philadelphia Naval Shipyard, Department of the Navy and Philadelphia
Metal Trades Council, 15 FLRA NO. 7, 15 FLRA 26, 35 (1984). The last
case relied upon by the General Counsel involved a holding of
negotiability as to a union proposal that an agency try to keep
cafeteria prices down. See G.C. Br. 14, citing American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 8 FLRA No. 87, 8 FLRA 409 (1982).
Each of the above-cited cases bears a marked difference to the one
here involved. Day-care centers and cafeteria prices have a clearly
seen, immediate, and continuing impact on the work situation. In
contrast, the increased possibility of prosecution for violation of
Federal criminal statutes has a remote, nebulous impact on the work
situation and the employment relationship, particularly since the
possibility of prosecution has always been present anyway.
The cases involving traffic and parking violations have a somewhat
closer nexus to this case. However, in those cases employees were
presumably invited to bring their cars onto the agency's premises and to
park them there and may not have had any other reasonable mode of
transportation to their jobs. Here, the agency certainly does not
invite employees onto its premises to commit assaults, engage in acts of
thievery, or engage in other misdemeanors. Indeed, such unlawful acts
are the antithesis of a bona fide employment relationship and disrupt
the work situation.
A case which I find more persuasive is International Association of
Fire Fighters, AFL-CIO, CLC, Local F-116 and Department of the Air
Force, Vandenburg Air Force Base, California, 7 FLRA No. 18, 7 FLRA 123
and 127 (1981), in which the Authority found nonnegotiable a union
proposal to allow employees and their dependents to hunt and fish on the
premises of the base. While the hunting and fishing activities would
take place on the agency's premises, and be engaged in by employees,
they nevertheless involved personal, recreational acts and not ones
directly related to the employment relationship. So here, the increased
possibility of prosecution concerns actions which are taken by employees
on the agency's premises, but involve actions which are personal, not
employment related.
In addition, in this case, bargaining-unit employees at the Center
have always been subject to prosecution for their unlawful actions; no
new penalties have been imposed; no new investigative procedures have
been implemented; and no new regulations have been promulgated.
Futhermore, and in agreement with Respondent, I conclude that nothing in
the Statute "clearly gives federal employees any type of right to
protection against an increase in the possibility of criminal
prosecution, nor does it contain any provisions, implying such a
congressional interest" (R. Br. 10). Rather, "Congress stated
unequivocally that the public interest demands the highest standards of
employee performance" and that '(t)he provisions of the (Statute) should
be interpreted in a manner consistent with the requirement of an
effective and efficient Government'" (R. Br. 10, citing 5 U.S.C.
7101(a)(2) and (6). It would not promote such a Government to hold that
an agency must spend time in bargaining, and perhaps endure a prolonged
period of impasse procedures, before it can take steps to protect itself
against wayward employees who happen to violate Federal criminal
statutes while on its premises. /5/
Because of the above conclusion, other issues raised by the parties
need not be resolved.
Ultimate Findings and Recommended Order
Respondent has not engaged in unfair labor practices, in violation of
5 U.S.C. 7116(a)(1) and (5), as alleged in the complaint.
Accordingly, it is hereby ORDERED that the complaint in this case
should be, and hereby is, dismissed.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judges
Dated: November 1, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) With regard to the Judge's conclusion that the matter in this
case did not involve conditions of employment of unit employees,
Chairman Calhoun agrees with the Judge's conclusion; Member Frazier
finds it unnecessary to pass upon this conclusion of the Judge, in light
of the Authority's finding that no change was involved.
(2) 5 U.S.C. 7116(a)(1) and (5) provide as follows:
(a) For the purposes of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . .
(3) "G.C." refers to the exhibits of the General Counsel. Other
abbreviations to be used herein are as follows. "Jt." refers to the
joint exhibits, including the stipulated facts. "G.C. Br." refers to
the brief of the General Counsel, and "R. Br." to that of Respondent.
"R." refers to the exhibit of Respondent. "Tr." refers to the
transcript.
(4) This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7)
and (8).
(5) Perhaps in recognition of this problem, the General Counsel has
not sought a return to the status quo ante. See G.C. Br. 17-18.