28:1145(150)CA - DOD, Defense Criminal Investigative Service; Defense Logistics Agency And Defense Contract Administration Services Region, NY and AFGE Local 2567 -- 1987 FLRAdec CA
[ v28 p1145 ]
The decision of the Authority follows:
28 FLRA No. 150
DEPARTMENT OF DEFENSE, DEFENSE CRIMINAL INVESTIGATIVE SERVICE; DEFENSE LOGISTICS AGENCY AND DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, NEW YORK Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2567 Charging Party Case No. 2-CA-50351
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached Decision of the Administrative Law Judge filed by the General Counsel. An opposition to the exceptions was filed by the Defense Criminal Investigative Service (DCIS). 1 The issue is whether the Respondents violated section 7116(a)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by denying employees their right under section 7114(a)(2)(B) of the Statute to union representation at investigatory examinations. For the reasons discussed below, we find that DCIS violated section 7116(a)(1) and (8) of the Statute by interfering with the right of employees to union representation under section 7114(a)(2)(B). We also find that no further violation was committed by DCIS or the other Respondents.
The facts are fully set forth in the Judge's Decision. Briefly, they indicate that the American Federation of [PAGE] Government Employees is the exclusive representative of a consolidated unit of employees of the Defense Logistics Agency (DLA). The Defense Contract Administration Services Region, New York (DCASR NY) is a field component of DIA. Within DCASR NY is the Defense Contract Administration Services Management Area, Springfield, New Jersey (DCASMA), at which the Charging Party, AFGE Local 2567, is the local representative. Organizationally, at all times relevant to this case, DLA was "a separate (a)gency of the Department of Defense under the direction of the Assistant Secretary of Defense (Manpower, Reserve Affairs and Logistics)." Posthearing Brief of DLA and DCASR NY at 17.
DCIS is the criminal investigative component of the Office of Inspector General in the Department of Defense (DOD). Organizationally, DCIS is within the Office of the Assistant Inspector General for Investigations who, together with other Assistant Inspectors General, reports to the Inspector General. The latter, in turn, reports to the Secretary of Defense.
The functions of the Inspector General and DCIS are more fully described by the Judge in his Decision. we note here that DCIS has various responsibilities within DOD, including the authority to investigate alleged criminal incidents involving DLA employees in connection with their official duties. Once DCIS decides to conduct an investigation, no one within DOD may interfere with the investigation except the Secretary of Defense and then only on matters affecting national security.
An incident occurred in January 1985, involving an alleged gun shot at the home of a DCASMA supervisor. The incident was reported to the local police as well as to the Deputy Director of DCASMA. The latter, in turn, notified DCASR NY which then referred the matter to DCIS. As a part of its investigation, DCIS separately interviewed two employees employed at DCASMA. One of the employees was named as a possible suspect by the supervisor at whose home the shooting occurred. The other employee was thought to own a vehicle matching the description of one observed in the vicinity of the supervisor's home. Both employees were interviewed at their place of employment by an investigator from DCIS and a member of the local police force. The Deputy Director of DCASMA provided a room for the interviews and had the employees summoned to the interviews.
Prior to the interview with the first employee, the Deputy Director informed the DCIS investigator that the [ v28 p2 ] DLA-AFGE collective bargaining agreement provided that a union representative was entitled to be present during the questioning of an employee, if the employee requested representation and if the employee reasonably believed that the questioning could lead to disciplinary action. The DCIS investigator informed the Deputy Director that DCIS was not bound by the parties' agreement and that the so-called "Weingarten rule" did not apply to DCIS investigations. In each of the interviews, the employees requested and were denied union representation by DCIS and the local police. No request for union representation was made to DCASMA and no one from DCASMA, DCASR NY or DLA was present at either of the interviews.
III. Judge's Decision
The Judge concluded that neither DLA nor DCASR NY violated the Statute as alleged. In reaching that conclusion, he found that if the interviews had been conducted by DLA, DCASR NY or DCASMA, the employees would have had a right to union representation under section 7114(a)(2)(B) of the Statute and the denial of their requests for representation would have violated section 7116(a)(1) and (8). However, the Judge further found that in this case neither DLA nor any of its constituent components questioned or examined the employees.
The Judge also found no violation by DCIS which, with the local police, refused the employees' requests for union representation. The Judge found that DCIS was independent of DLA and was not acting as an agent or representative of DLA. The Judge further found that DCIS itself was not obligated to afford the employees union representation under section 7114(a)(2)(B) since DCIS has no collective bargaining relationship with the Union.
In reaching his conclusions, the Judge found it unnecessary to determine whether use of DCIS reports by DLA to justify disciplining employees would have violated the Statute.
IV. Positions of the Parties
The General Counsel filed exceptions to numerous portions of the Judge's Decision including the Judge's finding that it was not necessary to reach any question regarding DCIS reports and their potential uses. The General Counsel argues that DCIS is a "representative of the agency" [ v28 p3 ] within the meaning of section 7114(a)(2)(B) of the Statute. Essentially, the General Counsel's position is that DCIS acted as an agent of DLA in conducting the interviews and, therefore, that both DCIS and DLA violated section 7114(a)(2)(B) of the Statute by failing to afford the employees their right to union representation. To remedy the alleged unlawful conduct, the General Counsel requests that any documents, reports and references to the interviews be expunged from the official personnel folders of the two employees, and that the Respondents be ordered to refrain from using any information obtained or derived from the interviews in any disciplinary action initiated against either employee subsequent to the date of the interviews.
In its opposition, DCIS argues that the Judge was correct in not making findings regarding the DCIS reports and was also correct in finding that no violation was committed by DLA, DCASR NY, or DCIS. More specifically, as to the reports, DCIS noted that no reports had been provided to DLA concerning the investigation and no disciplinary action had been taken against any employees as a result of the investigation.
Under section 7114(a)(2)(B) of the Statute, in any examination of a unit employee by a representative of an agency in connection with an investigation, the employee has the right to have a union representative present if the employee reasonably believes that the examination may result in disciplinary action and the employee requests representation. United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA No. 97 (1987); Department of the Treasury, Internal Revenue Service, Jacksonville District and Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection, 23 FLRA No. 108 (1986). There is no question here that the employees had a reasonable belief that disciplinary action might result from the examinations and that the employees requested union representation. The Judge noted that the employees were each advised prior to the examination that a criminal investigation was being conducted and that both employees made their requests for union representation to DCIS. The parties disagree, however, as to whether the examinations were conducted by a "representative of the agency" within the meaning of section 7114(a)(2)(B).
As to that point of disagreement, we agree with the Judge's finding that DCIS, which conducted the examination [ v28 p4 ] with the local police, was not acting as an agent or representative of DLA. As described above, DCIS and DLA are organizationally separate from each other. DCIS is empowered to conduct criminal investigations within DOD and reports to the Secretary of Defense. However, we find that DCIS, as an organizational component of the Department of Defense was acting as a "representative of the agency," that is, DOD, within the meaning of section 7114(a)(2)(B). Clearly, DOD is an "agency" within the definition of that term in section 7103(a)(3) of the Statute as the parties have acknowledged in the complaint and answers in this case. As the investigative arm of DOD, DCIS was conducting an investigation into alleged criminal activity involving DLA employees. That a criminal investigation may constitute an "examination in connection with an investigation" was recognized by the Authority in the Internal Revenue Service case cited above, and is not in dispute in this case. Accordingly, we find that each of the interviews with the employees constituted an examination in connection with an investigation within the meaning of section 7114(a)(2)(B) of the Statute at which the employees were entitled to union representation, upon request.
We have previously noted that the purpose of Congress in enacting section 7114(a)(2)(B) of the Statute was to create a right to representation in investigatory interviews for Federal employees similar to the right of private sector employees as described by the Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). For example, Bureau of Prisons, 27 FLRA No. 97, slip op. at 5-6. Under Weingarten, when an employee makes a valid request for union representation in an investigatory interview, the employer must: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview unaccompanied by a union representative or having no interview. Id. at 6.
In this case, although DCIS was not the employing entity of the employees, once it was aware of the employees' statutory right to union representation in the interview, it could not act in such a manner so as to unlawfully interfere with that right. 2 [ v28 p5 ]
DCIS was informed by the Deputy Director of DCASMA that the employees were entitled to union representation upon request. 3 When the employees requested representation, DCIS should have (1) granted their requests, (2) discontinued the interview, or (3) offered the employees the choice between continuing the interview unaccompanied by a union representative or having no interview.
However, DCIS failed to properly act on the requests and instead denied the requests and continued with the examinations. DCIS therefore interfered with the statutory right of the employees to have union representation at the examinations. Accordingly, we find that DCIS violated section 7116(a)(1) and (8) of the Statute.
As noted above, the General Counsel disagreed with the Judge's finding that it was not necessary to reach any questions regarding reports prepared by DCIS. We find that the matter of DCIS' reports is not properly before us. The complaint in this case contained no allegation that the reports were in any way violative of the Statute. Also, as noted by DCIS, no reports were submitted to DLA following the investigation and no employee was disciplined as a result of the investigation.
To remedy DCIS' violation of the Statute, we shall order that DCIS cease and desist from unlawfully interfering with the statutory rights of employees represented by the Charging Party to union representation at examinations in connection with investigations. We find no basis on which to grant the General Counsel's request that the Respondents be ordered to expunge any documents referring to the examinations from the official personnel folders of the two employees interviewed and to refrain from using information from the [ v28 p6 ] interviews in any action initiated against the employees. The record before us does not indicate that any documents were placed in the employees' official personnel folders or that any action was initiated against the employees.
Finally, we believe that it would be appropriate for the Secretary of Defense, the Inspector General or other officials with administrative responsibility for DCIS, to advise DCIS investigators of the pertinent rights and obligations established by Congress in enacting the Federal Service Labor - Management Relations Statute. More particularly as to matters raised in this case, DCIS investigators should be advised that they may not engage in conduct which unlawfully interferes with the rights of employees under the Statute.
A. The Department of Defense, Defense Criminal Investigative Service shall:
1. Cease and desist from:
(a) Interfering with the right of employees of the Defense Logistics Agency represented by the American Federation of Government Employees, Local 2567 to union representation at examinations in connection with investigations.
(b) In any like or related manner, interfering with, restraining, or coercing employees employed by the Defense Logistics Agency and represented by the American Federation of Government Employees, in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Post at all locations within the Defense Logistics Agency copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Defense Criminal Investigative Service, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. [ v28 p7 ]
(b) pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
B. The remaining allegations of the complaint are dismissed.
Issued, Washington, D.C., September 24, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v28 p8 ]
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with the right of employees of the Defense Logistics Agency represented by the American Federation of Government Employees, Local 2567, to union representation at examinations in connection with investigations.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees employed by the Defense Logistics Agency and represented by the American Federation of Government Employees, in the exercise of their rights assured by the Statute.
______________________________________ Defense Criminal Investigative Service Dated: __________ By:______________________________________ (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, New York 10278, and whose telephone number is: (212) 264-4934. [PAGE]
DEPARTMENT OF DEFENSE, DEFENSE CRIMINAL INVESTIGATIVE SERVICE, AND DEFENSE LOGISTICS AGENCY; AND DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, NEW YORK Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2567 Charging Party Case No.: 2-CA-50351 Margaret Altman, Esquire Michael Montefinese, Esquire For Defense Logistics Agency and Defense Contract Administration Services Region, New York Beth Hirsh Berman, Esquire For Defense Criminal Investigative Service Cecile M. O'Connor, Esquire E. A. Jones, Esquire For the General Counsel of FLRA Before: SAMUEL A. CHAITOVITZ Administrative Law Judge
Statement of the Case
This is a proceeding under the Federal Service Labor - Management Relations Statute, chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et. seq., 92 Stat. 1191 (hereinafter [PAGE] referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2410 et. seq.
A charge was filed herein on June 11, 1985, by American Federation of Government Employees, Local 2567, hereinafter called AFGE. 4 Local 2567 and the Union, against Defense Logistics Agency, hereinafter called DLA, and Defense Contract Administration Services Region, New York, herein-after called DCASR. A first amended charge was filed herein on August 1, 1985 by AFGE Local 2567 against DLA, DCASR and Department of Defense, 5 Defense Criminal Investigation Service, hereinafter called DCIS. Pursuant to the above described charge, as amended, the General Counsel of the FLRA, by the Director of Region II, issued a Complaint and Notice of Hearing on August 30, 1985 alleging that, DLA, DCASR and DCIS 6 violated Sections 7116(a)(1) and (8) of the Statute by failing to comply with the provisions of Section 7114(a)(2)(B) of the Statute by denying union representation to DLA employees Raymond Nazare and Irene Fedoriw at interviews which the employees reasonably believed would result in disciplinary action. Respondents filed timely Answers denying they had violated the Statute. Various pre-hearing motions for summary judgement and to dismiss were made by Respondents, were opposed by General Counsel of the FLRA and were denied by the Chief Administrative Law Judge.
A hearing in this matter was conducted before the undersigned in New York, NY. DLA, DCASR, DCIS, and General Counsel of the FLRA were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Briefs were filed and have been fully considered.
Based on the entire record in this matter, my observation of the witnesses and their demeanor, and my evaluation of the record I make the following: [ v28 p 2 ]
Findings of Fact
DLA and DCASR
The Defense Contract Administration Services Management Area, Springfield, New Jersey, herein called DCASMA, is an office of DCASR which, in turn, is a field activity of DLA, which is an entity within DOD.
DLA, created pursuant to 32 CFR 359.1 et. seq., is established as a separate agency of DOD under the direction of the Assistant Secretary of Defense for Manpower, Reserve Affairs and Logistics. DLA is headed by a director who may establish subordinate organizational elements, one of which is DCASR.
AFGE is the certified exclusive collective bargaining representative for a consolidated nationwide unit of employees of DLA including the employees at DCASMA, including Nazare and Fedoriw. At all times material herein AFGE has delegated to the National Council of DLA Locals (herein called the Council) authority to act as AFGE's representative and AFGE Local 2567 has acted as the representative of the Council for DLA's employees at DCASMA.
Alvin Markowitz is the District Deputy of DCASMA, making him the highest ranking civilian at the facility and the highest level supervisor of Nazare and Fedoriw, as well as the other 450 DCASMA employees. Markowitz has the authority to direct the civilian employees of DCASMA and to discipline such employees.
Pursuant to the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3, Pub. L. 95-452, hereinafter called IG Act, the DOD Office of the Inspector General, herein called DOD OIG, was established. The IG Act provides the office of the IG is to be set up "... create independent and objective units; (1) to conduct and supervise audits and investigations relating to programs and operations...; (2) to provide leadership and coordination and recommend policies for activities designed (A) to promote economy, efficiency, and effectiveness in the administration of, and (B) to prevent and detect fraud and abuse in, such programs and operations; and (3) to provide a means for keeping the head of the establishment and the Congress fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and [ v28 p3 ] the necessity for any program of corrective action." IG Act Section 2. The Offices of Inspector General are to be the investigative arms for their agencies. In order to fulfill that mission the DOD OIG has Several different capacities: investigation, criminal investigations and audit. The DOD OIG has its own budget and retirement system. Its mission is not coextensive with any other DOD agency. It is a separate agency within DOD. The DOD OIG is required by statue to furnish reports to Congress on a semi-annual basis; these reports are formalized in bound volumes. The DOD OIG responds to Congress and the Secretary of Defense.
DCIS is the chief constituent entity within the DOD OIG which is charged with DOD connected criminal investigations. The DCIS agent job description is broad and the investigative powers cover all street crime, employee crime and contract violations that impact on the Department of Defense and subordinate agencies. DCIS has twelve worldwide field offices. The Director of DCIS reports directly to the Inspector General who in turn reports to the Secretary of Defense through the Deputy Secretary of Defense. No one in DOD may interfere in the conduct of a DCIS investigation except the Secretary of Defense, and then only with regard to matters involving national security. Were the Secretary of Defense to interfere in an investigation, Congress would have to be notified immediately.
DLA exercises no control over DCIS and they do not conduct joint investigations but DCIS and DLA have a close working relationship due primarily to the volume of procurement fraud work in the New York - New Jersey geographic area. DCIS recommends prosecution of cases to State and Federal authorities and, even if those authorities decline prosecution, DCIS is required to complete criminal, civil and administrative aspects of a case as long as there is some impact on DOD.
DOD employees are required to report criminal wrongdoing connected with the DOD to DCIS. DCIS routinely receives reports of criminal misconduct from agencies within the DOD. DCIS investigates where warranted, after a review by the Special Agent-In-Charge. The mission of DCIS is to investigate fraud, waste and abuse in DOD. Pursuant to a DLA regulation, DLAM 5705.1, DCIS has primary responsibility for the investigation of all criminal incidents affecting or involving Military Service members assigned to DLA, civilian employees of DLA in connection with their official duties, or loss of Government property under DLA jurisdiction, and all criminal offenses occurring in areas under DLA control in the continental United States. [ v28 p4 ]
At the commencement of an investigation, DCIS notifies the agency by letter that due to their referral DCIS is opening a criminal investigation. DCIS does not always notify an agency of its investigations, particularly when the suspect is a contractor. When the referring agency is DCASR, the material is furnished to the Fraud Counsel in the DCASR NY office located at 201 Varick Street, New York, New York. Where the referring element is DLA, DLA regulation, DLAM 5705.1, provides a follow-up system to track DCIS referrals. Further, the regulation mandates that every effort will be made to obtain a DCIS report for enclosure in the DLA final report and where such report is not available, an effort is made to record the findings that the DCIS agent is willing to communicate orally.
When cases are referred by DOD agencies, in situations when there are no criminal prosecutions, DCIS regularly furnishes final investigative reports to the agencies when the investigation uncovers facts which impact in any way on the efficiency of the agency. DCIS agents include all admissions of misconduct in their reports and if the admission does not pertain to the case under investigation the DCIS agent compiles a separate report reflecting that misconduct. The DCIS final reports to the DOD agencies contain the notation, "(t)he facts in this report are presented to you for whatever administrative action you deem appropriate."
Investigation of the Incident
On or about January 3, 1985, early in the morning, a gun shot was allegedly fired through a window of the home of Otto Miller, a DCASMA supervisor. Miller reported the incident to the Mine Hill, New Jersey, police, indicating that he suspected Nazare may have been responsible for the incident. Markowitz was advised of the shooting incident by Miller and Edward Levereth, a DCASMA supervisor. Miller furnished Markowitz a written report of the events.
Markowitz reported the incident to Joseph P. Marcotullio, Chief Counsel of DCASR and furnished Miller's written report to Marcotullio. Nazare was a suspect because there had been a pattern of incidents of vandalism following criticism or discipline of Nazare.
Marcotullio then referred the matter to Donald Mancuso, DCIS Special Agent-In-Charge of the New York field office. Mancuso reviewed the matter and decided that his office [ v28 p5 ] would investigate it and so notified DCASR by letter. DCIS Special Agent Katherine Johnson was assigned to investigate the matter.
Johnson contacted Mine Hill Police Sergeant Charles Canfield, who was also investigating the incident, and they decided to work together and to interview the employees at their place of employment.
Prior to February 1, 1985 Johnson met with Markowitz and discussed the theory that Nazare was a suspect because of a pattern of disciplinary actions and acts of vandalism.
On January 31, 1986 Johnson conducted a partial telephonic review of Nazare's personnel file through the office of DCASR Counsel. She was advised by the Counsel of a proposed removal action against Nazare based on tardiness and falsification of an official log and travel voucher regarding the attendance at a union meeting.
Johnson and Canfield came to Markowitz' office on February 1, 1985. Johnson and Canfield asked Markowitz to get Nazare so they could question him. They also requested a room in which to talk to Nazare. Markowitz provided a conference room for the interview and he sent for Nazare.
Markowitz informed Johnson that the collective bargaining agreement between DLA and AFGE provided that a union representative was entitled to be present during questioning if the employee requested it and if the employee reasonably believed that the questioning could lead to discipline. Johnson told Markowitz that DCIS was not bound by the collective bargaining agreement and, after checking telephonically with Mancuso, that the "Weingarten" rule did not apply to DCIS interviews.
Nazare came to Markowitz' office in response to a telephone call from Markowitz' secretary. Markowitz introduced Nazare to Johnson and Canfield who identified themselves stating their official positions. Johnson asked Nazare if she and Canfield could speak to him in private Nazare did not ask Markowitz for union representation. 7 [ v28 p6 ]
Johnson, Canfield and Nazare went to the conference room. Johnson advised Nazare that they were conducting a criminal investigation in connection with a shooting incident at the home of Miller. Nazare then requested union representation. Canfield and Johnson denied Nazare's request. Canfield and Johnson then commenced the questioning. Some period after the questioning commenced, Johnson's and Canfield's questioning became personal, involving Nazare's personal life. Nazare on a few of these occasions became agitated and Canfield told Nazare that Nazare could leave if he didn't want to talk to them. Nazare did not leave. Also, some 30 to 40 minutes after Nazare's questioning commenced, Canfield advised Nazare of his "Miranda" rights. 8 At the conclusion of the questioning, Nazare left. Markowitz was not present during the questioning of Nazare by Johnson and Canfield.
Canfield and Johnson decided to question Fedoriw because Nazare had described Fedoriw's car and it was similar to one that had been observed near Miller's home at the time of the shooting. Johnson went to Markowitz' office to request that Fedoriw be called to his office so that she could speak to her. Markowitz complied with the request. Fedoriw came to Markowitz' office in response to a call from Markowitz' secretary. Johnson met Fedoriw in the reception area to Markowitz' office and introduced herself. Johnson explained that she was conducting a criminal investigation and that she would like to speak with her in private. Johnson and Fedoriw then proceeded to the conference room where Fedoriw was introduced to Canfield.
Fedoriw asked Canfield and Johnson for union representation during the interview. They denied her request. Markowitz was not present at Fedoriw's interview nor did he participate in any way in said interview. Fedoriw never requested union representation from Markowitz and, in fact, did not see Markowitz prior to, during or after her interview.
Fedoriw never sought to end the interview and during the interview she was advised that she was entitled to have an attorney present. Fedoriw was not advised that the interview was voluntary and that she was free to leave. [ v28 p 7 ]
Johnson and Canfield asked questions solely in furtherance of their criminal investigation of the shooting at the Miller home on or about 3 January 1986. Johnson and Canfield asked questions concerning administrative disciplinary action taken by DCASR against Nazare. These questions were asked to establish whether it was more likely or not that Nazare was involved in the shooting incident. 9
Subsequent to the February 1, 1985 examination Markowitz, continued to provide information to Johnson. In connection with the Nazare investigation Markowitz furnished a memo to Johnson regarding Levereth, who was the victim of a subsequent tire slashing incident in the DCASMA parking lot. When asked by Markowitz, Johnson explained that there was no indictment in the case as yet. DCIS currently maintains an office at the DCASMA facility.
On February 11, 1985 Johnson received and reviewed the Official Personnel File (OPF) of Nazare while she was in the office of DLA's Counsel. The data from her review became part of the investigation file. Johnson reviewed Fedoriw's OPF in the same manner.
On April 17, 1985 Marcotullio forwarded to DCIS Nazare's grievance, as well as the supporting documents, concerning DLA's decision to remove Nazare from the employment rolls. Marcotullio also forwarded a report on the vandalism to Levereth's car.
Information obtained by either Johnson or Canfield may become available to DCASR, but only at the sole discretion of DCIS and the Mine Hill New Jersey Police Department. Any such information provided by either the Mine Hill New Jersey Police or DCIS could be used as the basis for administrative disciplinary action if appropriate and no objection is made by DCIS or the Mine Hill New Jersey Police Department.
DCASR has referred reports of criminal allegations to criminal investigative agencies other than DCIS, such as the FBI, Naval Investigative Services, Customs Service, Local Police and District Attorneys Offices. DCASR has had occasion to receive information from these investigative agencies and to use that information in connection with disciplinary action against employees. [ v28 p8 ]
Discussion and Conclusions of Law
Section 7114(a)(2) provides, inter alia:
"(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at -
(A) . . .
(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if -
(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and
(ii) the employee requests representation."
The FLRA has held that Section 7114(a)(2)(B)(i) and (ii) of the Statute provides that the exclusive representative shall be afforded the opportunity to be present at any examination of a bargaining unit member by a representative of the agency in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee and the employee requests representation. The denial of such a request for union representation by an agency constitutes a violation of Section 7116(a)(1) and (8) of the Statute. U.S. Department of the Navy, U.S. Marine Corps, Marine Corps Logistics Base, Albany, Georgia, 4 FLRA 397 (1980); Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Hartford District Office, 4 FLRA 237 (1980) aff'd 671 F.2d 560 (D.C. Cir. 1982).
In the subject case if the interviews of Fedoriw and Nazare concerning the shooting at Miller's home had been conducted by DLA, DCASR or DCASMA, Section 7114(a)(2)(B) of the Statute would have provided the employees with the right to union representation and the denial of their requests would have violated Sections 7116(a)(1) and (8) of the Statute. In this regard the fact that the subject of the interview, the gun shot, might have involved criminal activity did not destroy the right to union representation. See Internal Revenue Service, Washington, D.C. and Internal [ v28 p9 ] Revenue Service, Hartford District Office, supra, and Lackland Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA 473 (1981); see also Department of the Treasury, Internal Revenue Service, Jacksonville District and Department of the Treasury, Internal Revenue Service, Southeast, Regional Office and Inspection, 4-CA-40568, OALJ 86-18 (1985).
DLA, and its components, were required to permit requested union representation because DLA is the "agency" within the meaning of Section 7114(a)(2) of the Statute. AFGE is the collective bargaining representative for the nationwide unit of DLA employees including the employees at DCASR and DCASMA. Further, it is admitted, DLA is an agency within the meaning of Section 7103(a)(3) of the Statute. In the instant case, however, neither DLA nor any of its components questioned or examined either Nazare or Fedoriw. All Markowitz did was call the two employees to his office and introduce them to Johnson and Canfield, who conducted the investigation. Further, I find that neither employee asked Markowitz for union representation.
In addition, although DCIS and DLA are both part of the DOD, I conclude DCIS is so independent of DLA, and in fact is so independent within DOD, that DCIS, and its investigators are not agents nor representatives of DLA. Under the IG Act, DCIS is statutorily charged with conducting criminal investigations and to do so independently and without interference by other DOD components. In fact, the Secretary of Defense can interfere with DCIS investigations only in instances of national security. The relationship of DLA and DCIS is similar to the relationship of Bureau of the Mint and the Secret Service dealt with by Administrative Law Judge William B. Devaney in Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 7-CA-876, OALJ 82-26 (1981), hereinafter called Bureau of the Mint Case. In the Bureau of the Mint Case, supra, Judge Devaney found that a criminal investigation by Secret Service Agents, where no union representation was afforded to the employees, did not constitute a denial of the employees' Section 7114(a)(2)(B) rights by Bureau of the Mint, because the Secret Service was sufficiently independent and separate from Bureau of the Mint so that the Secret Service was not an agent of Bureau of the Mint. Although not binding, I find the analysis of Judge Devaney persuasive and hereby adopt it.
In the subject case the DCIS is at least, if not more, as independent of DLA as the Secret Service is of the Bureau of the Mint, and therefore DCIS is not an agent of DLA. [ v28 p10 ]
The FLRA recognized this independence of the Inspector Generals established by the IG Act, in National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789 (1985), herein called the GSA Case. In the GSA Case, supra, the FLRA found non-negotiable a union proposal to GSA that would establish procedures under which the Inspector General would conduct investigations of unit employees. The FLRA found the IG Act created the Inspector General to be independent of agency influence except, to a very limited extent, the agency head. In the subject case DLA has no control over the DCIS and even the Secretary of Defense has very limited control over DCIS.
Neither Lackland Air Force Base Exchange, Lackland Air Force Base, Texas, supra, hereinafter called the Lackland AFB Case, nor Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Hartford District Office, supra, hereinafter called the IRS Case, both relied upon by the General Counsel of the FLRA, are dispositive of the subject case. In the Lackland AFB Case, supra, the examination of the employee was conducted jointly by the base exchange and the Air Force Office of Special Investigation Lackland Air Force Base. Section 7114(a)(2)(B) of the Statute was found to extend to the interview because it was jointly conducted. Similarly in the IRS Case, supra, the interview of a Revenue Officer was conducted by Inspectors from the New Jersey Office of the IRS Inspection Service, Internal Security Division. The FLRA held that Section 7114(a)(2)(B) of the Statute did apply to the interview because the employees conducting the interview, eventhough called Criminal Investigators, were undeniably employees of the agency, the IRS. Both cases are therefore inapposite to the subject case, because in the subject case the DCIS investigator is not an agent of DLA, the agency herein, and the interviews were not jointly conducted by DLA and DCIS.
Accordingly, I conclude DLA and DCASR did not refuse to permit Nazare and Fedoriw union representation and did not violate Sections 7116(a)(1) and (8) of the Statute.
The remaining issue is whether the DCIS itself was obliged to afford Nazare and Fedoriw union representation pursuant to Section 7114(a)(2)(B) of the Statute.
In light of the foregoing discussion it is clear DLA, is the agency that would be required to afford Nazare and Fedoriw the union representation in any investigation DLA is conducting. DCIS has no collective bargaining relationship with AFGE with respect to Nazare and Fedoriw. Section 7114(a)(2) [ v28 p11 ] provides "(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented. . . ." The unit to which Nazare and Fedoriw belong is not in DCIS, it is in DLA. Accordingly, the Section 7114(a)(2) requirements were not applicable to DCIS when it interviewed Nazare and Fedoriw. DCIS, being an independent investigative body established by statute, therefore was not obliged to afford Nazare and Fedoriw union representation.
It is troubling to have two employees interviewed in circumstances that might result in their discipline and yet to deny them the fundamental statutory right to union representation. But in the subject case the relationship between DLA and DCIS are such, with DLA exercising no control over DCIS, that I must conclude that the employees had no such right to union representation during the DCIS investigation. 10 Again I note DCIS is a statutorily created criminal investigative body independent of DLA and only under limited control by the Secretary of Defense. Thus, this is not a situation of an organization within an agency, where the agency has separated out investigative functions from administrative functions so as to avoid the Section 7114(a)(2) rights.
In light of all of the foregoing I conclude that DLA, DCASR and DCIS did not violate Sections 7116(a)(1) and (8) of the Statute by denying Nazare ana Fedoriw union representation. Accordingly, it is recommended that the Authority issue the following:
The Complaint in Case No. 2-CA-50351 be, and the same is hereby, dismissed.
SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: September 25, 1986 Washington, D.C.
Footnote 1 An opposition to the General Counsel's exceptions filed by the Respondents Defense Logistics Agency and Defense Contract Administration Services Region, New York was untimely filed and therefore has not been considered.
Footnote 2 An organizational entity of an agency not in the same "chain of command" as the entity at the level of exclusive recognition violates section 7116 of the Statute by unlawfully interfering with the rights of employees other than its own. See Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA No. 93 (1986).
Footnote 3 Although not alleged as a violation of the Statute, we note that the conduct of the DCASMA Deputy Director in providing a room and having the employees summoned for the interviews did not constitute a violation in the circumstances presented. As previously stated, no one within DOD may interfere with a DCIS investigation except the Secretary of Defense, and then only in limited circumstances. For DCASMA to have refused to provide a room or to summon the employees for the interviews arguably would have interfered with the investigation.
Footnote 4 Hereinafter American Federation of Government Employees, AFL-CIO is referred to as AFGE.
Footnote 5 Hereinafter Department of Defense will be referred to as DOD.
Footnote 6 Collectively referred to as Respondents.
Footnote 7 Although there are differences between the testimony of the various witnesses, I find there were not fundamental differences, except I do find Nazare was a less credible witness than the others.
Footnote 8 With respect to this questioning there was little disparity in the testimony of Johnson, Canfield and Nazare, but I find Canfield and Johnson the more credible and reliable.
Footnote 9 Miller and Levereth had previously imposed discipline on Mr. Nazare and had also allegedly been the victims of threats and/or vandalism.
Footnote 10 In holding that DCIS was not obliged to afford Nazare and Fedoriw union representation, I need not reach the question of whether the use of a DCIS report by DLA to justify disciplining the employees would violate the statute.