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