17:0227(34)CA - Justice, INS and AFGE Local 38 -- 1985 FLRAdec CA



[ v17 p227 ]
17:0227(34)CA
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