[ v52 p16 ]
The decision of the Authority follows:
52 FLRA No. 2
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER
VETERANS CANTEEN SERVICE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
August 16, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and a cross-exception filed by the Respondents, Department of Veterans Affairs Medical Center, Denver, Colorado (Medical Center) and Veterans Canteen Service, Denver, Colorado (Canteen Service), to the attached decision of the Administrative Law Judge recommending dismissal of the complaint. The Respondents filed an opposition to the General Counsel's exceptions.
The Judge found that the Respondents did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when they failed to give the Charging Party notice and an opportunity to bargain over the impact and implementation of the installation and use of covert surveillance cameras in the course of an investigation.
Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
II. Background and Judge's Decision
The facts are fully set forth in the attached Judge's decision and are briefly summarized here. In 1993, the chief of the Canteen Service at the Denver Medical Center became aware of unexplained losses in the Canteen's cafeteria. After initial investigations failed to disclose the reason for the losses, management installed covert surveillance cameras in the ceiling over the cash registers for a period of 6 days. Video tapes from the surveillance showed four cashiers engaging in improper activities. When management met with the cashiers and their Union representatives, the Union learned for the first time of the installation and use of the covert surveillance cameras. Thereafter, the Union requested to bargain "on all surveillance cameras, videos and new equipment installed in the VA Canteen Cafeteria approximately 3 weeks ago." G.C. Exhibit 2. The General Counsel issued a complaint, which alleged that the Respondents violated section 7116(a)(1) and (5) of Statute when the Respondent failed to give the Union notice and an opportunity to bargain over the installation and use of covert video cameras "prior to October 6, 1993." G.C. Exhibit 1(b).
The Judge stated that the issue before him concerned the Union's right to negotiate over Respondents' "installing video cameras and engaging in covert surveillance of cashiers' cash registers in the course of its investigation of theft." Judge's Decision at 2. The Judge found that there were no limits on the Agency's conduct of investigations or on the Agency's use of investigative techniques under the parties' Master Agreement, except that, under Article 12,(1) investigations had to be timely, and that, under Article 10, Section 4, mutual consent was required for electronic recordings of conversations between unit employees and management officials. The Judge also determined that the bargaining history of Article 12 showed that the parties had specifically discussed under-cover investigations and had agreed that such investigations could be undertaken by the Respondents without observing contractual requirements, including notice to employees, applicable to other investigations. In this regard, the Judge found that the bargaining history, submitted as Respondents' Exhibit 6 (hereinafter, Exhibit 6), stated that:
on November 14, 1980, the Union wanted, "[m]anagement to advise employee of his right to representation prior to conducting an investigation [and for the] investigation to be cooperative[,]" to which the agency had responded [that it] "has a responsibility for these actions and cannot share this w[ith the] union - cannot be a joint endeavor;" that [after] "Under-cover investigations" was discussed [and the Union had proposed that] "1. Employees shall be notified immediately when they are to be the subject of any investigation[,]" [the Union conceded that, with regard to proposal 1., it had] "no intent to cover 'under-cover' situations with the language," [and that, in subsequent bargaining,] the agency again reiterated [its concern] that ". . . people are not first alerted of a suspicion prior to investigation."
Judge's Decision at 7 (emphasis in original).
Consistent with the foregoing, and applying U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), the Judge concluded that the subject matter of the Union's bargaining request was covered by Article 12. The Judge also found that the "intent of the parties" to permit the Respondents to engage in covert surveillance as in this case was "demonstrated by the long practice of the agency's use of covert cameras in conducting investigations . . . ." Judge's Decision at 11-12. The Judge stated, however, that this latter finding was "not necessary, inasmuch as the [parties'] Master Agreement expressly covers the matter in dispute[.]" Id. at 11.
Finally, the Judge found the General Counsel's reliance on Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220 (1994) (VA, Nashville) to be misplaced because, according to the Judge, that case did not involve: (1) an investigation; (2) a claim that the subject was covered by the parties' Master Agreement; or (3) "true" covert surveillance operations. Judge's Decision at 12.
Based on the foregoing, the Judge concluded that the Respondent had properly rejected the Union's bargaining request and recommended that the complaint be dismissed.(2)
III. Positions of the Parties
A. General Counsel
In the first exception, the General Counsel claims that the Judge misstated and improperly narrowed the complaint to pertain only to the Union's rights to bargain on surveillance cameras "'in the course of [Respondents'] investigation of thefts[,]'" and that the Judge thereby "interfered with the General Counsel's presentation of this case and unreasonably narrowed his analysis to consider investigations in the disciplinary context only." Exceptions at 4, 9. The General Counsel asserts that the Agency's obligation to bargain is not confined to the October 1993 investigation but concerns the use of surveillance cameras "for any purpose, at other times, and at other places within [the Medical Center], Denver." Id. at 9.
Second, the General Counsel contends that the Judge abused his discretion by admitting and considering Exhibit 6. The General Counsel claims that the exhibit was offered into evidence by a witness who could not authenticate it and who could not identify any of the unpaginated, undated, unattributable sets of notes and proposals that it contains. The General Counsel also asserts that the exhibit contains material extraneous to the bargaining history.
Third, the General Counsel asserts that, under SSA, the matter in dispute is not covered by the Master Agreement.(3) The General Counsel claims that the matter in dispute is neither expressly covered by Article 12 nor inseparably bound up with Article 12 investigations so as to preclude bargaining over "all 'use of surveillance cameras.'" Id. at 15. According to the General Counsel, the use of surveillance cameras is a subject that relates to Article 23, which permits the Union to bargain over technological change. Further, the General Counsel claims that the Judge erred in finding that the bargaining history showed that the parties intended to include under-cover investigations in Article 12. In this regard, the General Counsel states that Exhibit 6 supports a conclusion that bargaining over "under-cover situations" was left to local negotiations. The General Counsel claims that the Judge also erred in finding that the parties' intent could be shown by past practice because, according to the General Counsel, the past practice cited by the Judge occurred only at other Veterans Administration facilities.
Fourth, the General Counsel argues that the Judge erroneously distinguished VA, Nashville from this case. According to the General Counsel, both VA, Nashville and this case concern the use of covert surveillance cameras for the agency's security purposes.
Finally, the General Counsel maintains that the Judge failed, under 5 C.F.R. § 2423.19,(4) to "inquire fully into the facts" as they related to the complaint by prejudging the case, by browbeating witnesses and by prejudicially criticizing the position of the General Counsel.
The Respondents assert that the Judge did not improperly narrow the complaint and that the Judge properly differentiated between the Respondents' bargaining obligation with regard to its overt and covert use of cameras. The Respondents also assert that the Judge properly admitted and considered Exhibit 6. The Respondents claim that the Respondents' Deputy Assistant General Counsel certified the exhibit's authenticity and that the Union did not present any evidence or witnesses to contradict its authenticity or content.
The Respondents also claim that the Judge correctly found that the matter was covered by Article 12 because the use of covert cameras is an investigative technique that is inseparably bound up with and an aspect of the subject of investigations. The Respondents assert that Exhibit 6 shows that the parties discussed under-cover investigations during negotiations of Article 12 and that the Union attempted but did not succeed in limiting the Agency's discretion in conducting such investigations. Further, the Respondents maintain that the Judge did not prejudge the case, but properly exercised his broad discretion, under 5 C.F.R. § 2324.19, in conducting the hearing and in cross examining witnesses.
Finally, the Respondents renew their prior motion to dismiss the Medical Center as a respondent.(5)
IV. Analysis and Conclusions
A. The Judge Did Not Improperly Narrow the Complaint
The complaint states that the Union's bargaining request concerns the Respondents' installation of covert surveillance cameras in the Canteen "[p]rior to October 6, 1993[,]" and at the hearing, the General Counsel explained that the complaint pertained to "a period of time from September 27 through October 5, 1993[.]" G.C. Exhibit 1(b); Tr. at 253. From the wording of the complaint and the General Counsel's statements, it is clear that the complaint concerns only that period of time when an investigation was being conducted and when cameras were used for that purpose. Nothing in the record indicates that the General Counsel sought to amend the complaint at any time.
In addition to the complaint's wording and the General Counsel's statements, the record, as a whole, does not support the General Counsel's claim that the complaint invokes a broad obligation to bargain on surveillance cameras "generally" and "for any purpose, at other times, and at other places within [the Medical Center]. Exceptions at 5, 9. To the contrary, the record indicates that the parties have, in the past, bargained over other specific uses of surveillance cameras. For example, in 1988, the parties bargained over the use of overt surveillance cameras installed in the serving areas of the Canteen cafeteria. G.C. Exhibit 9; Tr. at 151-52. As agreements concerning Respondents' surveillance camera uses in other places and for other purposes already exist, there is no basis for the General Counsel's argument that a bargaining obligation over such other uses is a part of this complaint.
Based on the foregoing, we reject the General Counsel's argument that the Judge improperly narrowed the complaint.
B. The Judge Did Not Abuse His Discretion in Admitting and Considering Evidence
It is well established that the determination of the matters to be admitted into evidence is within the discretion of an Administrative Law Judge under section 2423.19(g) of the Authority's Regulations. For example, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1531 (1994) (Portsmouth Naval Shipyard). In this regard, the parties are not bound by the rules of evidence, and it is within the broad discretion of a judge to admit evidence and to determine whether such evidence is relevant. See 5 C.F.R. § 2423.17.
The General Counsel did not object to the accuracy of Exhibit 6 when it was admitted. Nor does the General Counsel argue now that the exhibit is inaccurate, unauthentic or that the parties' bargaining history is other than that identified in the exhibit.(6) Although the General Counsel argues that the Judge erred in admitting the exhibit because no foundation for it was established and because the management witness through whom the exhibit was introduced was not a member of the bargaining team, the record shows that the Judge took note of the witness's lack of knowledge regarding the exhibit.(7) In addition, although the General Counsel argues that the exhibit should not have been admitted into evidence because it contained sets of notes that were not "initialed off" by a Union negotiator, the General Counsel has not demonstrated that a requirement for such initialing exists. Exceptions at 13. Finally, even though Exhibit 6 included a post-contract document, the General Counsel does not indicate why such inclusion is improper, or, even if it were, that the Judge relied on that document in arriving at his conclusion that the disputed subject matter had been bargained.
In view of these facts, and given the broad discretion of the Judge under the Authority's Regulations, the General Counsel's exception provides no basis for finding that the Judge abused his discretion in admitting the parties' bargaining history exhibit. See Portsmouth Naval Shipyard, 49 FLRA at 1531.
C. The Judge Properly Applied Authority Precedent
In SSA, the Authority established a three prong approach for determining whether it should sustain a respondent's assertion that it has no duty to bargain based on the terms of an existing negotiated agreement. The Authority stated that, under the first prong, it looks to the express language of the provision of the agreement to determine whether it reasonably encompasses the subject in dispute. 47 FLRA at 1018. In this connection, an exact congruence of the language is not required. Id. The Authority stated that, under the second prong, it determines whether the subject in dispute is "'inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract.'" Id. (quoting C & S Industries, Inc., 158 NLRB 454, 459 (1966)) (citation omitted). In other words, the Authority determines whether the subject in dispute is "so commonly considered to be an aspect of" a subject set forth in a provision of a contract that negotiations over that subject are presumed foreclosed. Id. The Authority stated that the third prong applies in cases where it is difficult to determine whether the subject matter sought to be bargained is an aspect of matters already negotiated. In such cases, the Authority will give controlling weight to the parties' intent. Id.; Navy Resale Activity, Naval Station, Charleston, South Carolina, 49 FLRA 994, 1002 (1994). In making these determinations, the Authority will, "examine all record evidence[,]" including the parties' bargaining history and prior agreements, to determine whether "the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances." SSA, 47 FLRA at 1019.
Examining the record evidence in this case, we conclude that it supports the Judge's finding that the matter in dispute is covered by the parties' agreement. In particular, both the parties' bargaining history and the practice under that agreement persuades us that the parties agreed that the Respondents could undertake under-cover investigations without providing advance notice to employees or the Union and without bargaining with the Union before undertaking such investigations.(8)
With regard to bargaining history, the record demonstrates that under-cover investigations were discussed several times in the course of bargaining and that, after those discussions, proposals were tailored to accommodate the Respondents' concerns by permitting the Respondents to undertake such investigations without observing any contractual requirements. In commencing bargaining, the Union stated that it wanted "[m]anagement to advise [an] employee of his rights to representation prior to conducting an investigation." Exhibit 6, notes dated January 13, 1980 at 13. Subsequently, the Union offered eight proposals on the subject of investigations, which provided, among other things, that:
management agrees to investigate any alleged misconduct in the following manner:
1. Employees shall be notified immediately when they are to be the subject of any investigation.
Exhibit 6, notes dated March 4, 1981.
Exhibit 6 further indicates that, during the discussion about the foregoing proposal, management took the position that employees would not be given advance notice of any investigations, to which the Union responded that there was:
no intent to cover "under cover" situations with the language of [section 1]."
Exhibit 6, notes dated March 11, 1981. When the parties resumed bargaining, the proposals had been reformulated to eliminate advance notice to employees and dissemination of information before completion of an investigation as follows:
Supervisors, employees and union representatives will not, except as specifically authorized, disclose any information about an investigation.
Exhibit 6, notes dated September 14, 1981 at 2-3.
From Exhibit 6, we are persuaded, in agreement with the Judge, that the parties discussed under-cover investigations and bargained over the Union's proposal for advance notification of employees prior to the initiation of such investigations. The Union made concessions on the issue of whether all investigations were to be covered by certain proposals and explicitly clarified that advance notification, as proposed, would not be required in "under-cover" situations. Further, after management stated its concern about dissemination of information prior to the completion of an investigation, the proposals were re-formulated to eliminate unauthorized disclosure of "any information about an investigation." Exhibit 6, notes dated September 14, 1981 at 2-3; Appendix, Parties' Agreement, Article 12, Section 6.D.
The General Counsel offered no testimonial or documentary evidence contradicting or refuting Exhibit 6. Moreover, we find no other support for the General Counsel's bare assertion that the Union's intent, with regard to the above-mentioned discussions and proposals, was to reserve bargaining over these matters for local negotiations. In this connection, we find that the General Counsel's reliance on the dissenting opinion in U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA 1444, 1455-57 (1994) (Scott AFB), to support its claim that there was no reliable bargaining history evidence, is misplaced. In Scott AFB, no written bargaining history was submitted as evidence. Here, by contrast, Exhibit 6 was uncontradicted and unrefuted by any evidence.
With regard to the parties' practice, we note that resolution of the complaint in this case involves a determination as to what the parties agreed to in negotiations for their master agreement. That is, the case involves "an interpretation of the contract at issue." NLRB v. U.S. Postal Service, 8 F.3d 832, 837 (D.C. Cir. 1993). As such, evidence of the practice under the agreement is probative. See, e.g., United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960) ("[T]he practices of the industry and the shop [are] equally a part of the collective bargaining agreement although not expressed in it."). Cf. Frank Elkouri & Edna A. Elkouri, How Arbitration Works 454 (4th ed. 1985) ("[c]ustom and past practice are used very frequently to establish the intent of contract provisions which are so ambiguous or so general as to be capable of different interpretations[.]").
The Judge concluded that the parties' "intent" in negotiating the master agreement was demonstrated by:
the long practice of the agency's use of covert cameras in conducting investigations for . . . twelve years under the Master Agreement . . . with notice of the investigation required, and/or given, only at the time the employee is questioned.
Judge's Decision at 11-12. We agree with the Judge. In particular, it is undisputed that covert surveillance has been undertaken in at least 19 separate Canteen Service locations since agreement was reached on the Master Agreement in 1982. Resp. Exh. 5. It is also undisputed that this covert surveillance was undertaken without collective bargaining. Tr. at 249, 255. The fact that this amount of covert surveillance has taken place without requests for bargaining supports our conclusion that, consistent with the bargaining history discussed above, the parties agreed that under-cover investigations were not to be constrained by advance notice or bargaining. Further, the General Counsel's reliance on the fact that the past practice cited by the Judge involved Veterans Affairs facilities other than the one in this case is unavailing. The collective bargaining agreement involved in this case is a national -- not a local -- agreement. As such, the practice at locations throughout the bargaining unit is relevant in determining the meaning of the agreement.
Addressing the General Counsel's remaining arguments, the Judge stated that "the Master Agreement expressly covers the matter in dispute[.]" Judge's Decision at 11. However, it is clear from the decision as a whole that the Judge's conclusion was based on the parties' bargaining history and past practice, and not on the express wording of Article 12. Further, we find no support for the General Counsel's claim that the Judge precluded bargaining over "all 'use of surveillance cameras.'" Exceptions at 15. As discussed above, the complaint is limited to the Respondent's bargaining obligation regarding its installation and use of covert surveillance cameras in the course of an investigation and the Judge limited his decision to that subject. See Decision at section IV.A., supra. In addition, the General Counsel has offered no arguments or evidence to show that the Judge erred in finding that Article 23 did not apply in this case because it pertained only to technological changes in the performance of work. We also find that the Judge properly distinguished VA, Nashville from this case. As the Judge found, that case did not involve a claim that the subject was covered by the parties' agreement.
In sum, we find that the Judge properly applied SSA in finding that the subject matter of the installation and use of covert surveillance cameras in the course of an investigation is covered by Article 12 of the parties' collective bargaining agreement. Accordingly, we conclude that the Respondents had no obligation to provide notice and engage in impact and implementation bargaining when they installed the surveillance cameras for the investigative period involved in this case.
D. The Judge Made a Full Inquiry into the Facts of this Complaint as Required by 5 C.F.R. § 2423.19
The Authority's Regulations grant wide discretion to Administrative Law Judges in conducting a hearing and, specifically, in limiting the lines of questioning or testimony. See 5 C.F.R. §§ 2423.19 and 2423.19(h). The hearing transcript demonstrates that, although the Judge disagreed with the General Counsel over the issue of the extent and scope of Respondent's bargaining obligation, the Judge did not limit the General Counsel's line of questioning and introduction of testimony and other evidence, even on issues over which there was disagreement. Accordingly, there is no support for the claim that the Judge did not inquire fully into the facts relating to the issue before him or that he prejudged the case.
E. The Respondents' Cross-exception Does Not Meet the Requirements of 5 C.F.R. § 2423.27
In accordance with section 2423.27(a)(3) of the Authority's Regulations, exceptions to an Administrative Law Judge's decision must "state the grounds for the exceptions, and include the citation of authorities[.]" The Respondents' cross-exception seeking to dismiss the Medical Center as a respondent does not state any grounds or cite any authorities in support of the cross-exception. Therefore, the Respondents have not supported their cross-exception or provided a basis on which to reverse the Judge's decision on this point. See Department of Veterans Affairs, Veterans Affairs Medical Center, Washington, D.C., 51 FLRA 896, 899 (1996). Consequently, the Respondents' cross-exception is denied and the Judge's findings, conclusions, and recommended order with regard to this matter are adopted.
The complaint is dismissed.
Article 12, INVESTIGATIONS, DISCIPLINE AND ADVERSE ACTION, provides, in relevant part:
Section 4 - Timeliness
Investigations and disciplinary/adverse actions shall be timely. Timeliness will be based upon the circumstances and complexity of each case.
Section 5 - The Union shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the VA in connection with an investigation, if the employee reasonably believes that the examination may result in disciplinary action against him/her and the employee requests representation. . . .
Section 6 - Investigations
A. Before being questioned in a formal investigation, the employee will be informed as to why he/she is being questioned.
B. At the time the employee who is the subject of a formal investigation is being questioned, he/she will be informed of the nature of the allegations.
C. While being questioned or being required to provide a written or sworn statement, the employee will have the right to be represented by the Union. . . .
D. Supervisors, employees and union representatives will not, except as specifically authorized, disclose any information about an investigation.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, DENVER, COLORADO
VETERANS CANTEEN SERVICE DENVER, COLORADO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2241
Gregory A. Burke, Esquire
Mr. Joseph R. Tober
Barry M. Tapp, Esquire
For the Respondent
Ms. Emma Sneed
For the Charging Party
Hazel E. Hanley, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. (1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether Respondent violated §§ 16(a)(5) and (1) by installing video cameras and engaging in covert surveillance of cashiers' cash registers in the course of its investigation of theft without prior notice to the Union and/or whether Respondent violated §§ 16(a)(5) and (1) by its refusal to negotiate the impact and implementation of covert video surveillance.
This case was initiated by a charge filed on October 21, 1993 (G.C. Exh. 1(a)). The Complaint, which named only the Medical Center, and Notice of Hearing issued on April 29, 1994 (G.C. Exh. 1(b)) and set the hearing for a date, time and place to be determined later. By motion dated June 1, 1994, Respondent Department of Veterans Affairs moved to substitute the Veterans Canteen Service for the Medical Center (G.C. Exh. 1(e)); General Counsel on June 13, 1994, filed a response opposing substitution (G.C. Exh. 1(f)); the Regional Director, by Order dated June 16, 1994 (G.C. Exh. 1(g)) added the Veterans Canteen Service as a Respondent; and by Order dated August 12, 1994, this matter was set for hearing on September 22, 1994, in Denver, Colorado, pursuant to which a hearing, was duly held on September 22, 1994, in Denver, Colorado, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which General Counsel and Respondent exercised. At the close of the hearing, October 24, 1994, was fixed as the date for mailing post-hearing briefs. Respondent and General Counsel each timely mailed a brief, received on, or before, October 27, 1994, which have been carefully considered. Upon the basis of the entire record(2), I make the following findings and conclusions:
1. The American Federation of Government Employees, AFL-CIO (hereinafter, "AFGE") is the exclusive representative of a nationwide consolidated unit of employees appropriate for collective bargaining including employees of Respondent Medical Center, Denver, Colorado (hereinafter, "Medical Center").
2. On August 13, 1982, AFGE and the Veterans Administration entered into a Master Agreement (Res. Exh. 1); in 1987, the Veterans Administration became the Department of Veterans Affairs (G.C. Exh. 1(e) footnote, p.2); the 1982 Master Agreement remains in full effect (Tr. 89-99) and covers about 600 employees at the Medical Center (Tr. 41), including approximately ten to twelve employees at Respondent Veterans Canteen Service, Denver, Colorado (hereinafter "Canteen Service"(3) (Tr. 42).
3. American Federation of Government Employees, AFL-CIO, Local 2241 (hereinafter "Union") is an agent of AFGE for the purpose of representing employees at the Medical Center (G.C. Exhs. 1(b) and 1(c).
4. During the summer and early fall of 1993, and before September 27, 1993, Ms. Bonnie Sheeder, then Chief, Canteen Service, Denver (Tr. 209), and since July, 1994, Chief, Canteen Service, Indianapolis, Indiana (Tr. 208), became aware of serious, unaccounted for, losses of from two to four thousand dollars per month at the Canteen's cafeteria (Tr. 211-212). Although Ms. Sheeder was told that an identified cashier was permitting merchandise to be taken from the cafeteria without payment (Tr. 211-212), her personal observation of that identified cashier, as well as all other cashiers, failed to disclose misconduct (Tr. 212). Nevertheless, after double checking of inventories, reports of receipts and sales the losses persisted (Tr. 213).
5. Ms. Sheeder discussed the July and August, 1993, drop in gross income with her supervisor, District Manager Thomas Patrick Way (Tr. 245, 257-258) and, as other means had failed to disclose the cause of the losses, Mr. Way told Ms. Sheeder he would come to the Denver Canteen, which at that he had not visited, and install covert cameras to observe the cashiers. Mr. Way and Ms. Sheeder, on the evening of September 27, 1993, installed pinhole video cameras in the ceiling over the cash registers in the Canteen's cafeteria (Tr. 218-219, 257). The cameras were removed on the evening of October 5, 1993 (Tr. 219, 257).
6. Mr. Way advised the Medical Center Director (Tr. 249) and his (Way's) superior, Regional Director Roger Jenke (Tr. 262), of his intent to install the cameras but informed no one else and instructed Ms. Sheeder not to inform anyone else of the installation of the cameras (Tr. 219)(4).
7. The video tapes showed four cashiers engaging in improper activity by the failure to charge for merchandise or by failing to charge properly for merchandise. Inasmuch as the identity of these individuals is unnecessary for the purpose of this proceeding, they will be referred to only as cashiers (employees) A, B, C and D. On October 6, 1993, after the surveillance had been terminated and the cameras removed (Tr. 219, 257), Ms. Sheeder, Mr. Way and Ms. Michele Kellogg Cottingham, Employee Relations Specialist (Tr. 268), met separately with cashiers A, B, C and D, each being accompanied by one or more Union representatives: Emma Sneed (President), Melvin Ingram, Jr. (Vice President) and Mike [Michael Tr. 27,] Heim (steward Tr. 155)(Tr. 45, 97, 98, 154, 222, 223, 259, 269).(5)
In each instance, the employee was told of the specific misconduct alleged and a video tape, spliced to show the particular acts of the employee in question, was run on a VCR and watched on a TV receiver by the employee, the Union representative or representatives and Respondent's representatives. This was the first knowledge of the Union, and of the employees involved, of the presence of covert cameras which recorded their activity at work.
8. On October 20, 1993, the Union filed a demand to bargain(6),
". . . on all Surveillance cameras videos and new equipment installed in the VA Canteen Cafeteria approximately 3 weeks ago. . . ." (G.C. Exh. 2).
9. Without waiting for a response to its demand to bargain, above, the Union on October 21, 1993, filed the charge herein in which it alleged that,
"On or about October 6, 1993, the Charging Party became aware that the Charged Party had implemented video surveillance on its cafeteria cashiers without notifying the Charging Party or affording it the opportunity to bargain." (G.C. Exh. 1(a)).
10. On October 27, 1993, Respondent replied to the Union demand to bargain (Par. 8, supra), as follows:
"This is in regards to your memorandum dated October 20, 1993, demanding to bargain on the use of video surveillance in the Canteen Service. As outlined under section 7106(a)(1) of the Statute, Management has the right to determine the internal security practices of the agency. Therefore, the use of video surveillance is non-negotiable." (G.C. Exh. 3).
11. On November 10, 1993, notices of proposed removal were sent to employees: A (Res. Exh. 4a); B (Res. Exh. 4b); C (Res. Exh. 4c); and D (Res. Exh. 4d). Each notice specified infractions observed by means of video surveillance; each notice set forth the right to reply and to be represented.
12. Effective January 21, 1994, employee B was terminated (G.C. Exh. 4); effective January 20, 1994, employee C (G.C. Exh. 5) resigned; effective January 21, 1994, employee D was terminated (G.C. Exh. 6); and effective January 21, 1994, employee A resigned (G.C. Exh. 7). Subsequently, employee B was reinstated with back pay (Tr. 271).
13. Article 12 of the Master Agreement is entitled, "Investigations, Discipline and Adverse Action" (Res. Exh. 1, Art. 12). Article 12 does not place any limitation on the agency to conduct investigations(7) or on investigative techniques.(8) Thus, Section 5 provides, in part, that,
"Section 5 - The Union shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the VA in connection with an investigation, if the employee reasonably believes that the examination may result in disciplinary action . . . and the employee requests representation. . . ." (Res. Exh. 1, Art. 12, Section 5);
and Section 6, entitled. "Investigations", provides in relevant part as follows:
"Section 6 - Investigations
"A. Before being questioned in a formal investigation, the employee will be informed as to why he/she is being questioned.
"B. At the time the employee who is the subject of a formal investigation is being questioned, he/she will be informed of the nature of the allegations. . . ." (Res. Exh 1, Art. 12, Section 6, subsections A and B).
The legislative history of the negotiations which resulted in the Master Agreement of August 13, 1982 (Res. Exh. 6), shows, inter alia, that: on November 14, 1980, the Union wanted, "Management to advise employee of his right to representation prior to conducting an investigation" (Emphasis supplied); "investigation to be cooperative", to which the agency had responded, "Mgt - has a responsibility for these actions and cannot share this w/ union - cannot be a joint endeavor"; that on February 10, 1981, "Under-cover investigations" was discussed; that the Union, in its March 4, 1981, proposal, proposed, inter alia, that, "1. Employees shall be notified immediately when they are to be the subject of any investigation. . . ." (Res. Exh. 6)(Emphasis supplied); that on March 11, 1981, the Union stated that it had, ". . . no intent to cover 'under cover' situations with the language", in lines 31-34 of its March 4, 1981, proposal; and on September 14, 1981, the agency again reiterated that, ". . . people are not first alerted of a suspicion prior to investigation." (Res. Exh. 6).
14. Union steward Heim was shown on the video tape as a recipient of a discounted meal (Tr. 270). Mr. Way testified that Mr. Heim's involvement reinforced his view that the Union should not have been given notice of the covert investigation (Tr. 260).
15. Mr. Way testified, without contradiction, that Canteen income rose about $1,500.00 per month after the misconduct had been detected and the employees involved were removed (Tr. 261).
16. Mr. William Harper, Director of Police and Security Service for the Department of Veterans Affairs (Tr. 274), testified that covert surveillance, to his knowledge, had been conducted by the Veterans Administration and/or the Department of Veterans Affairs since 1973 (Tr. 273); that he had conducted an estimated 25 covert surveillance operations at VA facilities which were part of AFGE's bargaining unit (Tr. 276); and that use of covert cameras had never been disclosed to the Union before the investigation had been completed (Tr. 276). Mr. Way also testified that he personally was involved in twenty covert surveillance operations which from 1988 through September 21, 1994, had resulted in disclosure of employee misconduct as shown on Respondent Exhibit 5; and that he had also been involved in the installation, from 1983 to 1994, of covert cameras on seventeen instances, as also shown on Respondent Exhibit 5, in which no illegal activity was observed (Tr. 254, 255).
1. MASTER AGREEMENT GAVE AGENCY UNQUALIFIED RIGHT TO CONDUCT INVESTIGATIONS INCLUDING UNDER COVER SURVEILLANCE, ADDRESSED PROCEDURES AND ARRANGEMENTS REGARDING INVESTIGATIONS, AND SPECIFICALLY WITHHOLDS NOTICE OF INVESTIGATION UNTIL EMPLOYEE IS QUESTIONED.
Article 12 of the Master Agreement covers Investigations. There is one limitation on the manner of conducting activities in Article 10, namely, that, "No electronic recording of any conversation between a unit employee and a VA official may be made without mutual consent." (Res. Exh. 1, Art. 10, Section 4), and the qualification in Article 12 that, "Investigations . . . shall be timely . . . based upon the circumstances and complexity of each case." (Res. Exh. 1, Art. 12, Section 4). Except for the timeliness qualification, Article 12 imposes no limitation on the Agency's conduct of investigations. Moreover, notice of an investigation is not required until the employee is questioned (Res. Exh. 1, Art. 12, Section 6, subsection A and B).
§ 6 of the Statute provides, in part, that,
"(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency -
"(1) to determine . . . internal security practices of the agency. . . ." (5 U.S.C. § 7106(a)(1)).
The Authority has made it clear that,
"An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and practices that are part of its plan to secure or safeguard its personnel, physical property, and operations against internal and external risks . . . An agency's right to determine its internal security practices also includes the right to determine the investigative techniques the agency will use to achieve its internal security objectives." (National Federation of Federal Employees, Local 28, 47 FLRA 873, 877 (1993))(hereinafter, "NFFE, Local 28").
To like effect, see also: National Association of Government Employees, Locals R14-22 and R14-89, 45 FLRA 949, 960 (1992); National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144, 42 FLRA 1285, 1298 (1991); American Federation of Government Employees, Local 1164 35 FLRA 1193, 1197 (1990).
As an investigative technique, use of covert cameras to achieve its internal security objectives was, and is, a right reserved to management by § 6(a)(1) of the Statute. The negotiations which led to the Master Agreement show that AFGE fully recognized the agency's right under § 6(a)(1) to determine the investigative techniques for any investigation concerning its internal security; the parties discussed under-cover operations; and AFGE engaged in bargaining, in accordance with the qualification of § 6(a)(1), pursuant to § 6(b)(2) and (3)(9) (which we, somewhat euphemistically, categorize as, "impact and implementation", or "I&I", bargaining), inter alia, by addressing procedures and appropriate arrangements, and the bargaining history further shows that I&I was addressed by AFGE seeking to require notification before management conducted any investigation; and/or seeking to make investigations cooperative. As AFGE abandoned its I&I proposals after their rejection by the agency, it is unnecessary to speculate as to whether any, all, or none, of its proposals would have directly interfered with the agency's freedom to determine its investigative techniques. When an agreement is executed, ". . . an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining. . . ." U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1018 (1993) (hereinafter, "HHS - SSA"). Where, as here, the agreement addresses procedures and appropriate arrangements for the exercise of the agency's right to conduct investigations [e.g., inter alia, Timeliness (Art. 12, Sec. 4); notice at, or before, questioning of why he/she is being questioned and/or nature of allegations (Art. 12, Sec. 6 A and B); right to union representation (Art. 12, Sec. 6 C); copy of any statement (Art. 12, Sec. 6 C); non-disclosure of information about an investigation (Art. 12, Sec, 6 D); processing disciplinary/adverse action (Art. 12, Secs. 7 and 8); appeal rights (Art. 12, Sec. 9)] the Union's bargaining request properly was rejected because the subject matter of the request was covered by the Master Agreement. The Authority further stated in HHS - SSA, supra,
". . . we agree with the court in Marine Corps [Department of the Navy, Marine Corps Logistics Base, Albany, Georgia and Marine Corps Logistics Base, Barstow, California v. FLRA 962 F.2d 48 (D.C. Cir. 1992)] that the issues raised by the unions in that case involving the reassignment of four employees and the implementation of new performance standards were inseparably bound up with provisions of the extant contracts dealing with procedures and appropriate arrangements for, respectively, the detailing of employees and the establishment of performance appraisal systems." (HHS - SSA, supra, 47 FLRA at 1018).
More recently, the Authority, in Navy Resale Activity, Naval Station, Charleston, South Carolina, 49 FLRA No. 96, 49 FLRA 994 (1994)(hereinafter," Navy Resale, Charleston"), stated, in material part, as follows:
"In SSA [47 FLRA 1004 (1993)], we set forth a framework for deciding whether an agency has a duty to bargain over an otherwise bargainable matter by determining whether the matter in dispute is contained in or covered by a provision in an existing agreement. See, for example, Sacramento Air Logistics Center, McClellan Air Force Base, California, 47 FLRA 1242, 1244-45 (1993).
"In SSA we stated, as relevant here, that in determining whether an agreement provision covers a matter in dispute, we will initially examine whether the matter is expressly contained in the collective bargaining agreement. If the language of the agreement provision does not expressly encompass the subject matter of the proposals, we will next determine whether the subject matter is so commonly considered an aspect of the matter set forth in the agreement that the subject is "'inseparably bound up with and . . . plainly an aspect of . . . a subject expressly covered by the contract.'" 47 FLRA at 1018 (quoting C & S Industries, Inc., 158 NLRB 454, 459 (1966)) (citation omitted). We stated that "[i]n this regard, we will determine whether the subject matter of the proposal is so commonly considered to be an aspect of the matter set forth in the provision that the negotiations are presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision." Id. If so, we will conclude that the subject matter is covered by the agreement provision. In making these determinations, we will, "where possible or pertinent, examine all record evidence." Id. at 1019 (citation omitted). When it is difficult to determine whether the matter is plainly an aspect of a subject covered by the agreement, we give controlling weight to the parties' intent. If we conclude that the subject matter was not one that should have been contemplated as within the intended scope of the provision, we will find that it is not covered by that provision, and there will be a continued obligation to bargain." (49 FLRA at 1001-1002).
Here, as noted above, the Master Agreement contains provisions which address procedures and appropriate arrangements, i.e., I&I bargaining; the bargaining history further shows: discussion of under-cover operations and additional union I&I proposals; and, further the intent of the parties, although not necessary, inasmuch as the Master Agreement expressly covers the matter in dispute, is demonstrated by the long practice of the agency's use of covert cameras in conducting investigations for ten or more years before the negotiation of the Master Agreement and for twelve years under the Master Agreement in conducting investigations with notice of the investigation required, and/or given, only at the time the employee is questioned.
2. GENERAL COUNSEL'S RELIANCE ON VA - NASHVILLE MISPLACED
General Counsel's reliance on Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, Case No. AT-CA-30628, OALJ 94-40 (May 6, 1994)(hereinafter, "VA - Nashville") is misplaced. First, VA-Nashville, supra, was decided on motion for summary judgment; although "covert electronic surveillance" is referred to, it is highly questionable that the cameras were to be used in true covert surveillance operations as: (a) Respondent informed the union; and (b) Respondent asserted an intention to, "install surveillance cameras in selected work places throughout the facility." Indeed, the cameras in VA - Nashville, notwithstanding reference to "covert", were, in reality, like the "overt", or open, cameras installed in the retail part of the canteen of the present case as to which the Union was given notice and opportunity to bargain (Tr. 43). Second, VA - Nashville did not involve an investigation; made no reference to the Master Agreement; and neither decided, nor purported to decide, respondent's right, pursuant to § 6(a)(1) of the Statute, to use covert cameras as an investigative technique. Consequently, I do not find VA - Nashville, supra, either on the facts involved or the questions of law involved, applicable, and I specifically decline to follow that decision in this case.
Having found that Respondent was free, pursuant to § 6(a)(1) of the Statute, to decide its investigative techniques, and that the Master Agreement of the parties covered the subject matter of the Union's proposals and Respondent was not obligated to bargain further, U.S. Department of the Air Force 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA No. 130, 49 FLRA 1440 (1994), it is recommended that the Authority adopt the following,
That the Complaint in Case No. DE-CA-40068 be, and the same is hereby, dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: Decmeber 29, 1994
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. Relevant sections of Article 12 are set forth in the Appendix to this decision.
2. The Judge also denied Respondents' motion to dismiss the Medical Center as a respondent. The Respondents argued at the hearing that the Canteen Service, and not the Medical Center, is responsible for the cafeteria's activities.
3. The General Counsel asserts, generally, that the record did not permit application of the SSA test because the Respondents failed to place the entire Master Agreement into evidence at the hearing. However, the General Counsel has not filed an exception on this point, and no grounds on which to find error on the part of the Judge in this regard are apparent. Accordingly, we will not address the assertion further.
4. Section 2423.19 provides, as relevant here, that "[i]t shall be the duty of the Administrative Law Judge to inquire fully into the facts as they relate to the matter before such judge."
5. We construe the Respondents' renewed motion as a timely filed cross-exception under 5 C.F.R. § 2423.28(b).
6. The record indicates that the exhibit was certified by the Respondents' Deputy Assistant General Counsel as an authentic copy of a public record of the Veterans Administration.
7. The Judge stated that "this witness was not personally present. He is not giving us his own recollection of what happened by way of negotiating history. So whatever is in the negotiating history, I think you can develop just as well by going through the documents and presenting it in your brief . . . ." Tr. at 294.
8. As we base our conclusion on both bargaining history and past practice, we do not address whether, as the Judge concluded, bargaining history alone supports a conclusion that the matter in dispute is covered by the parties' agreement.
ALJ's Footnotes Follow:
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(5) will be referred to, simply, as "§ 16(a)(5)".
2. General Counsel's motion to correct the transcript, which was not opposed, is granted and the transcript is hereby corrected as follows:
|8||9, et seq,||Henley||Hanley|
|153||3||" " "||" " "|
3. Respondent renewed in its Brief its prior motion (G.G. Exh. 1(e)) to dismiss the Medical Center as a Respondent (Respondent's Brief, pp. 1-2). For reasons already well stated by General Counsel (G.C. Exh. 1(f)) and by the Regional Director in her Order adding the Canteen Service as a Respondent (G.C. Exh. 1(g)), Respondent's motion is denied. Although the Medical Center is a proper party, it would not necessarily follow that any remedial order would be directed at the Medical Center. Department of Health and Human Services, Social Security Administration, Region VI, and Department of Health and Human Services, Social Security Administration, Galveston, Texas, District, 10 FLRA 26 (1982); Department of the Army and the Air Force, National Guard Bureau and Montana Air National Guard, 10 FLRA 553 (1982); rev'd on other grounds sub nom. Montana Air National Guard v. FLRA, 703 F.2d 577 (9th Cir. 1984).
4. Mr. Way's assertion, that the integrity of covert surveillance demands that knowledge of its use be kept to the absolute minimum of those with a need to know, certainly is unassailable (Tr. 250, 251). If a Canteen Service Chief were suspected of misconduct, obviously, he, or she, would not be advised of intended surveillance. Local security personnel are advised only when their assistance is required (Tr. 250, 262). Mr. Way said union officials were never given notice because he considered the risk of disclosure too great (Tr. 252), a conviction confirmed by the testimony of President Sneed (Tr. 80-82, 123) and Vice President Ingram (Tr. 162-163), each of whom said that if they knew they would, indeed, tell the employees who were to be under surveillance.
5. Ms. Sneed represented employee B (Tr. 45, 87, 97, 98, 229) and Messrs. Ingram and Heim represented employees A, C and D (Tr. 87, 154, 155, 223, 226, 227).
6. The Union also requested information pursuant to § 7114(b)(4) of the Statute. Respondent supplied information (Tr. 93) and gave the Union an opportunity to examine the tapes (Tr. 107) and supplied copies of the unedited tapes (Tr. 163). No issue concerning § 7114(b)(4) was litigated nor is any such issue before me.
7. Except, if considered a limitation, "Investigations . . . shall be timely. Timeliness will be based on the circumstances and complexity of each case." (Res. Exh. 1, Art. 12, Section 4).
8. Indeed, the only limitation on investigative techniques is contained in Article 10, entitled, "Employee Rights", Section 4, entitled, "Use of Recording Devices", which provides, in part, that, "No electronic recording of any conversation between a unit employee and a VA official may be made without mutual consent . . . Information obtained in conflict with this Section will not be used as evidence against any employee."
9. Section 6(b)(2) and (3) of the Statute provides as follows:
"(b) Nothing in this section shall preclude any agency and any labor organization from negotiating -
. . .
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials."
(5 U.S.C. § 7106(b)(2) and (3)).