17:0227(34)CA - Justice, INS and AFGE Local 38 -- 1985 FLRAdec CA
[ v17 p227 ]
The decision of the Authority follows:
17 FLRA No. 34 DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 38, AFL-CIO Charging Party Case No. 1-CA-20126 DECISION AND ORDER The Administrative Law Judge issued his 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. The General Counsel filed exceptions to the Judge's Decision. The Respondent filed a cross-exception and an opposition to the General Counsel's exceptions, and the General Counsel filed an opposition to the Respondent's cross-exception. 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, /1A/ the Authority hereby adopts the Judge's findings, conclusions and recommended Order. ORDER IT IS ORDERED that the complaint in Case No. 1-CA-20126 be, and it hereby is, dismissed. Issued, Washington, D.C., March 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr. Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 1-CA-20126 James R. Collins and Peter F. Dow, Esqs. For the General Counsel Judith Dec For the Respondent Frank Crowley For the Charging Party Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on January 4, 1983 by the Regional Director for the Federal Labor Relations Authority (herein called the Authority), Region III, a hearing was held before the undersigned on February 28, 1983, in Boston, Massachusetts. This case arose under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based upon a charge filed on February 24, 1982 by the American Federation of Government Employees, Local 38, AFL-CIO (herein called the union), against the Department of Justice, Immigration and Naturalization Service, Boston, Massachusetts (herein called the respondent). The Complaint alleged that respondent unilaterally changed existing conditions of employment by requiring investigators to properly update and complete the "Daily Activity Report" for the prior week before the respondent would authorize its investigators to use a government-owned vehicle during other than normal duty hours, without furnishing the union with notice and/or an opportunity to bargain concerning the alleged change and the impact and implementation of said change. Respondent filed an Answer denying the material allegations of the Complaint as well as the commission of any unfair labor practices in violation of section 7116(a)(1) and (5) of the Statute. All parties were represented at the hearing. Each was afforded an opportunity to be heard, to adduce evidence, and to examine and cross-examine witnesses. Thereafter, briefs were timely filed with the undersigned and have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence addressed at the hearing, I make the following findings and conclusions. Findings of Fact Respondent operates field offices throughout the United States and in several foreign countries. It administers the Immigration and Naturalization laws relating to the admission, exclusion, deportation, and naturalization of aliens; investigates alleged violations of the above laws; and patrols the borders of the United States to prevent illegal entry. Respondent and the union are parties to a collective bargaining agreement which was in effect at all times material herein. Mr. Thomas Doolin, is employed by respondent in its Boston District Office as a Criminal Investigator. At the time of the incident which gave rise to the unfair labor practice charge herein Mr. Doolin was about to complete a term as the union president in that office. Mr. Doolin, was at all times material herein, assigned to the investigative squad supervised by Mr. Richard Gallant. The investigative section of the Boston District Office is divided into two squads. As previously noted, Mr. Gallant supervises one squad and the other is supervised by Mr. Robert A. Hurley. Criminal investigators, such as Mr. Doolin conduct fraud-type investigations; general investigations which include character investigations, criminal, moral and narcotic investigations, and what is called control type investigations which involve searches for illegal aliens. The work of the criminal investigator requires that he be in the field almost every day. The criminal investigator is assigned government-owned vehicles to facilitate his work. During the week, criminal investigators in the Boston District keep their assigned government car at their respective residences. In order to obtain authorization to keep the vehicle at his residence overnight the investigator must fill out a Form G-291, Request for Use of Government Owned Vehicle During Other Than Duty Hours. The Form G-291 is generally submitted the first work day of the week. The form indicates the type of investigation being planned; the name of the subject; the file number of the subject; the hours the investigator plans to use the car; and the car number. Normally, the criminal investigator does not wait for specific approval of the Form G-291 before he leaves the office for field assignment. However, under certain circumstances for example, if an individual investigator had been involved in a recent accident with one of the vehicles, the investigator might be required to await approval. Sometime around July 1981, respondent began requiring criminal investigators to submit a Daily Activity Report, Form G-378. The purpose of the G-378 is to provide a means of accounting for daily accomplishments. There is no connection between this form and the Form G-291. However, both forms are required to be completed as part of the criminal investigators job. Later in December 1981 respondent and the union, at the national level, executed an agreement concerning the use of the Form G-378 which provided a procedure for supervisors to counsel criminal investigators on their use of the Form G-378. The agreement provides: 5(a). Any written comments regarding an employee deficiencies, discrepancies or achievements relating to Form G-378 will be noted by the supervisor under the comments section discussed with the employee and initialled by the employee within a reasonable period of time after the form is submitted. 5(b). To the extent that a supervisor omits to inform an employee of such deficiency, etc., further proceedings therein will be governed by the protection set forth in Article 21 and 31 of the collective-bargaining agreement. Articles 21 and 31 deal with derogatory material placed in an employees files and disciplinary actions, respectively. On the morning of February 16, 1982, Mr. Doolin filled out his form G-291. Subsequently Mr. Gallant approached him and stated that he was interested in Mr. Doolin's providing additional information on his G-378's completed for the previous week ending February 12, 1982. Mr. Doolin informed him that if he wanted to make changes, he could provide Local 38 written notice of the change in accordance with the collective bargaining agreement. Mr. Gallant did not respond, but took the G-378's and placed them on Mr. Doolin's desk. Mr. Doolin removed the forms and put them on an empty desk behind his own. Mr. Gallant then returned to his cubicle. Mr. Doolin placed his completed G-291 on Mr. Gallant's desk. Mr. Gallant then told Mr. Doolin, "I am not going to authorize the G-291 until the G-378's are correct." Mr. Doolin responded that "they were correct." Whereupon, Mr. Gallant turned to a Mr. Timbone, who was sitting close by and said, "Did you hear that, Vinny? I am not going to authorize the 291 until the 378's are correct." Mr. Doolin again stated that they were correct. Mr. Doolin then left the office without supervisory approval of the G-291. Testimony of other witnesses including Mr. Hurley and investigator Provencal confirm that a disagreement existed as to the correctness of Mr. Doolin's G-378. Mr. Hurley acknowledged that he overheard the heated exchange between Mr. Doolin and Mr. Gallant. Hurley testified that Gallant was using the word "correct" and Doolin was using the word "change." However, Mr. Hurley adds that Gallant said, "You will not leave the office until you correct those." In addition to the one conversation, a note was placed on the squad sign-in sheet by Gallant around February 16, 1982 requiring that his squad "complete the G-378 for the prior week in order to get the G-291 approved." Prior to February 16, 1982 there was no such requirement for Gallant's squad. Although Gallant's squad is still required to complete the G-378 prior to approval of the G-291, Mr. Hurley has not initiated such action for his squad. By way of explanation, Mr. Gallant testified that he had difficulty with his squad satisfactorily filling out the G-378's in that the forms were not up to date, complete and correct and that his action in February 1982 was designed to combat the problems he was having with some squad members who were continually late with their G-378's. As earlier noted, the G-378 is a requirement of the criminal investigator's job. In addition, criminal investigators are required to complete and submit a monthly report, form G-2212. With regard to the G-2212 the evidence disclosed that if an investigator had not completed that form, he would be called back into the office to complete the task by his supervisor. Later in the day, at around 4:30 p.m. on February 16, 1982, Mr. Doolin placed a required call to Mr. Gallant on the car radio. At that time, Mr. Gallant informed Mr. Doolin that he was "still not authorized to keep a car overnight." Mr. Doolin asked what he was to do with the car and after some rather heated conversation, Mr. Gallant refused to respond any further. Mr. Doolin did not return the car that evening and was subsequently disciplined for his actions in not returning the a car. The discipline included a 30-day suspension which Mr. Doolin subsequently appealed to the Merit Systems Protection Board. Thereafter on February 21, 1982, Mr. Doolin filed the instant unfair labor practice charge. On the same day, Mr. Doolin requested certain information be furnished the union concerning the alleged change of February 16. Respondent replied to this request on March 1, 1982 by furnishing the requested information, but added that no negotiations were necessary. Discussion and Conclusion Indeed as Respondent argues, section 7106(a)(2)(A) and (B) /1/ of the Statute clearly establishes management's right to assign work. If management has a right to assign work, which it does, it can readily be inferred that it has the concomitant right to establish priorities for such work assignment. Any restrictions or modifications, if it has the ability to set such priorities, conflicts with its right under the Statute to either assign work to a particular employee or to determine the order in which particular work would be assigned. See for example, U.S. Mint, Denver, Colorado, 3 FLRA No. 7 (1980); National Labor Relations Board, Region 19, 2 FLRA No. 98 (1980). Thus, as respondent argues, if its supervisor is unable to require investigators to perform a legitimate function, in a particular order, that supervisor's right as a manager is clearly negated contrary to section 7106(a)(2)(A) and (B). The instant matter, in my view, was precipitated by a misunderstanding of the obligations of both parties and did not give rise to a bargaining situation. Even conceding, as the General Counsel argues, that the use of the government-owned vehicle was negotiable, there is no question of negotiability here. The real question is as respondent declares, whether or not it has the right to assign work. The corroborated record clearly discloses that Mr. Gallant's interest was in receiving completed G-378's from his squad and that on February 16, he merely wanted corrections on Mr. Doolin's G-378. Mr. Doolin obviously construed this request for correctness as a change and sought bargaining on an alleged "change". Any change about which there was an obligation to bargain is not reflected in this record. Thus, the action here appears to be purely disciplinary and, as later stated, the contractual machinery provides a method by which this matter could have been resolved. Contrary to Mr. Doolin's assertion, at the time the request to bargain was made, if indeed a bargaining obligation existed, Gallant had not suggested that he would withhold authorization on the G-291, so this could not have been a subject for negotiation at that particular time. The net effect of Gallant's action was to require completion of the previous week's assignment and account for the previous week's work on the G-378 prior to commencing the next week's work. The respective obligations, as I see them, amounted to a supervisor's assigning the task of properly completing a required form to an employee before that employee proceeded with other assigned tasks. I find nothing improper about such action. Simply requiring one to complete an assignment, does not constitute a change in conditions of employment which raises a bargaining obligation. Respondent's supervisors undoubtedly have some responsibility in allowing use of government-owned vehicles, otherwise there would be no necessity for them to approve use of the vehicle overnight. The record does not disclose any change in the method of approval, but merely establishes a withholding of authorization for a reason considered valid by the supervisor. In my view, the General Counsel did not demonstrate that the criteria for approval of the G-291 was changed by this assignment. Here the supervisor merely exercised his authority to withhold use of the government-owned vehicle until all prior assignments had been completed. Finally, the parties had previously negotiated an agreement at the national level concerning the use of the G-378 in December 1981 clearly establishing the necessity for its use. While one might not agree with the method Mr. Gallant employed to enforce the priority of submitting correct and up-to-date G-378's, it is abundantly clear that the parties by previous agreement, negotiated in December 1981, provided a means by which an individual investigator could challenge alleged deficiencies found by a supervisor on the G-378 under the contractual procedures. That method, of course, did not provide for further negotiations concerning the content of G-378's, but anticipated use of the contractual procedures whenever such problems occurred. If indeed, Mr. Doolin had difficulty in correcting the G-378 as requested or if he felt that his G-378 was not deficient, the negotiated agreement supplied a method to settle such a question. Notwithstanding the previous agreement, Mr. Doolin, it appears, chose not to follow the already established procedure. Nevertheless, the use of the G-378 was agreed to by management and the union and a mechanism was provided for challenging employee deficiencies. In such circumstances, it is difficult to find an unfair labor practice violation premised on a management action designed to assure that the forms were submitted correctly and in a timely fashion. It is, therefore, found that conditioning of the approval of the G-291 on submitting a correct and complete G-378 does not constitute a change about which there is any obligation to negotiate nor does such action violate the Statute. Moreover, where such problems arose they should, in my view, be resolved as provided in the collective bargaining agreement between the parties and not by this forum. Likewise, I find no violation based on Mr. Gallant's notice of February 1982 requiring squad members assigned to him to turn in properly filled out G-378's before their G-291's would be authorized. As already noted, both the G-291 and G-378 are necessary, although not conditioned on each other, in order to account for an investigator's work hours and use of government property. Further the record demonstrated that Mr. Gallant had problems in obtaining from his squad G-378's submitted in a timely fashion and properly completed. Again, this notice in my opinion, merely established a priority in assignments and did not constitute a change in conditions of employment. Accordingly, it is found that the notice posted on the Gallant squad sign-in sheet around February 16, 1982 did not constitute a change in existing conditions of employment. Based on the foregoing, it is concluded that respondent did not violate section 7116(a)(1) and (5) of the Statute by making the approval of form G-291 contingent on satisfactory submission of form G-378, but ordered a specific individual to correctly complete his own G-378 before proceeding with other assigned work which action is within management's right to assign work within the meaning of section 7106(a)(2)(A) and (B) of the Statute. For this same reason, management's posting of a notice stating that such forms should be completed, before checking out a government vehicle overnight, is also clearly within management's right to assign priorities to work. Accordingly, it is recommended that the entire complaint in this matter be dismissed. /2/ ORDER Accordingly, it is ORDERED that the Complaint be, and it hereby is, dismissed. ELI NASH, JR. Administrative Law Judge Dated: July 28, 1983 Washington, D.C. --------------- FOOTNOTES$ --------------- /1A/ The General Counsel filed a motion to strike certain portions of the Respondent's brief arguing, inter alia, that it refers to a document which is not a part of the record in this case. In reaching its Decision, the Authority has relied only on matters contained in the record. Accordingly, the motion to strike is denied. /1/ Sec. 7106(a)(2)(A) and (B) provide in pertinent part: (A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; (B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted; /2/ In view of the above findings, it is unnecessary to decide whether the make whole remedy requested by the General Counsel and the Charging Party is appropriate. Assuming arguendo that a violation was found herein, it is my opinion however, such a remedy would not be precluded in this matter. Respondent argues that section 7116(d) would act as a bar. However, it is noted that the appeal filed before the Merit Systems Protection Board for employee Doolin, as an individual, would not bar the filing and processing of a matter which involved rights which run exclusively to the union i.e. whether or not respondent had failed and refused to negotiate concerning a change in working conditions. See Internal Revenue Service, Chicago, Illinois, 3 FLRA No. 75, 3 FLRA 478 (1980); Internal Revenue Service, Western Region, San Francisco, California, 9 FLRA No. 57, 9 FLRA 480 (1982). See also, Veterans Administration Regional Office, Denver, Colorado, 7 FLRA No. 100, 7 FLRA 629 (1982). In such circumstances, were a violation found any remedy which the Authority deemed would effectuate the purposes of the Statute could be granted.