22:0327(31)CA - DLC, Alexandria, Virginia and Defense Construction Supply Center, Columbus, OH and AFGE Local 1148 -- 1986 FLRAdec CA



[ 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