United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas (Respondent/Activity) and American Federation of Government Employees, Local 0922, AFL-CIO (Charging Party)

[ v57 p787 ]

57 FLRA No. 175

UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
FORREST CITY, ARKANSAS
(Respondent/Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 0922, AFL-CIO
(Charging Party)

DA-CA-00510

_____

DECISION AND ORDER

May 24, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

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. The Respondent filed an opposition to the General Counsel's exceptions.

      The Judge found that Respondent Federal Bureau of Prisons, Forrest City, Arkansas Institution (Activity) did not violate §§ 7114(a)(2)(B) and 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (Statute) when a unit employee's request for union representation was denied during an examination in connection with an investigation conducted by agents from the Department of Justice's Office of Inspector General (OIG).

      Upon consideration of the Judge's decision and the entire record, we deny the General Counsel's exceptions and adopt the Judge's findings, conclusions, and recommended Order.

II.      Background and Judge's Decision

      The Activity, a component of the Department of Justice (DOJ), received allegations from an inmate concerning certain conduct of an employee. The Activity referred the matter to the OIG, another component of DOJ, which conducted a criminal investigation that included an interview and a polygraph examination of the employee at the Activity's location. The Activity provided the interview room and summoned the employee for the interview. The Activity was not present during the interview and had no input into how the examination would be conducted, but an Activity representative was permitted to listen to the polygraph examination from an adjacent room.

      At the beginning of the interview, the employee requested union representation. The OIG agents denied the request on the ground that the matter was a criminal investigation. After answering questions and taking the polygraph examination, the OIG informed the employee and the Activity that the employee had passed the examination. Subsequently, the OIG sent a copy of the final investigative report clearing the employee to the Activity.

      The Judge, applying § 7114(a)(2)(B) of the Statute, found that the OIG conducted an examination in connection with an investigation and that the employee requested and was denied union representation. The Judge also found that the complaint charged only the Activity and not either the OIG or DOJ. The Judge rejected the GC's contention that the Activity was liable for the OIG agent's conduct, finding that the collaboration between the Activity and the OIG was insufficient for such liability. Based on his finding that the only Respondent in the proceeding -- the Activity -- did not violate the Statute, the Judge recommended that the complaint be dismissed.

III.     Positions of the Parties

A.     GC's Exceptions

      The GC contends that DOJ is a party because DOJ was named in both the charge and the complaint, and was represented at the hearing by a senior attorney from DOJ. According to the GC, DOJ is the "agency" for § 7114(a)(2)(B) purposes because its name appears in the caption of the complaint. Also, according to the GC, the failure to plead DOJ and the Activity as separate respondents is not an "insurmountable barrier" in this case. Exceptions at 13, citing, Dep't of Defense, Defense Criminal Investigative Serv., 28 FLRA 1145, 1149 (1987) (DCIS), aff'd sub nom. DCIS v. FLRA, 855 F.2d 93 (3d Cir. 1988); United States Dep't of Labor, Mine Safety and Health Admin., 35 FLRA 790 (1990) (MSHA); and United States Dep't of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 36 FLRA 748 (1990) (Ogden). The GC contends, in this regard, that the caption of the complaint is essentially identical to the captions of decisions in negotiability and arbitration cases. Finally, the GC claims that the Judge erred in relying on United States PTO, 45 FLRA [ v57 p788 ] 886, 892 (1992) (PTO) and United States DOJ, Wash., D.C., et. al., 46 FLRA 1526, 1528 n.4 (1993) (DOJ, INS), because: (1) unlike DOJ here, the parent agency was not named in the caption in PTO; and (2) the Authority stated in NASA that it would no longer follow DOJ, INS.

      The GC further argues that, even if the Authority finds that DOJ is not a party, the Judge erred in failing to find that the Activity was responsible for the conduct of the OIG. The GC emphasizes that the Activity initiated the investigation, spoke directly with and supplied supporting information to the OIG, summoned the employee for the interview, could hear the polygraph examination, was informed by the OIG that the employee had been cleared, and received a copy of the final investigative report.

      Finally, the GC argues that if the Authority finds that the Activity is not liable for the OIG conduct and that DOJ was liable, but was not properly named, then under Authority precedent it would be "contrary to justice, equity and the purposes of the Statute to dismiss the complaint." Exceptions at 16. The GC maintains that in cases where a parent agency is not named, the Authority will hold that an activity violated the Statute even if the activity was merely complying with orders from the parent agency. See id., citing, for example, United States Dep't of the Treasury, IRS, 23 FLRA 774 (1986).

B.     Activity's Opposition

      The Activity contends that the Judge's finding that DOJ is not a party is correct. The Activity also claims that the Judge's finding that the Activity was not responsible for the conduct of the OIG is proper, and supported by DCIS.

IV.     Analysis and Conclusions

A.     The Judge did not err by finding that DOJ is not a party.

      Due process requires that every respondent in an unfair labor practice proceeding be adequately notified of the matters of fact and law asserted in order to have "a meaningful opportunity to litigate the underlying issue." AFGE, Local 2501, Memphis, Tenn., 51 FLRA 1657, 1660 (1996), (quoting Road Sprinkler Fitters Local Union No. 669 v. NLRB, 778 F.2d 8, 16 (D.C. Cir. 1985)). The requirement is satisfied if an issue is expressly alleged in the complaint or, if the complaint is ambiguous, if the issue was "fully and fairly" litigated. Bureau of Prisons, Office of Internal Affairs, Wash., D.C. and Phoenix, Ariz., 52 FLRA 421, 429 (1996). The test of full and fair litigation is "whether the respondent knew what conduct was at issue and had a fair opportunity to present a defense." Id. Fairness requires that any "doubts about due process be resolved in favor of the respondent." Id. at 431.

      In this case, a central issue is whether the Respondent is only the Activity, or whether DOJ is also a party. This distinction is important because the facts necessary to prove liability for the conduct of the OIG during an investigation are different for an activity and a parent agency. Compare United States DOJ, Wash., D.C., et. al., 56 FLRA 556, 560 (2000) (parent agency liable for statutory violations by OIG when the parent agency had no involvement in the investigation), affirmed as to other matters, DOJ, Wash., D.C., et. al., 266 F.3d 1228 (D.C. Cir. 2001), with PTO, 45 FLRA at 892 (subordinate activity liable for statutory violations committed by OIG only where there is "close collaboration" between the two entities during the investigation)

      We conclude that the due process principles set out above are an appropriate framework to resolve the issue of whether DOJ is a party to these proceedings.

1.     The Judge did not err based on the wording of the complaint.

      Section 2421.11 of the Authority's Regulations defines the term "party" to include, as relevant here, an employing agency or activity named as a respondent in a complaint. [n1] In this case, the complaint names "Department of Justice[,] Federal Bureau of Prisons[,] Federal Correctional Institut[ion], Forrest City, Arkansas" as the "Respondent." GC Exhibit 1(b) at 1. A natural reading is that this references only the Activity as a component of DOJ -- and not DOJ as a separate entity -- because there is no "and" in the caption and the term "Respondent" is singular. However, the complaint does include the phrase "Department of Justice" and, therefore, could be interpreted as naming both DOJ and the Activity as parties. Thus, on its face, the complaint may be viewed as ambiguous.

      The GC argues that the circumstances in this case are the same as in DCIS, where the Authority noted that the parent agency (DOD) was an "agency" for § 7114(a)(2)(B) purposes even though it was not named in the caption separately from its investigative component, DCIS. See DCIS, 28 FLRA at 1149. However, in [ v57 p789 ] that case the Authority did not consider DOD as a party and did not find that DOD violated the Statute. Instead, it found that DCIS -- the investigatory component that was named in the complaint --violated the Statute. See id. at 1149-51. Thus, the GC's reliance on DCIS is misplaced; if anything, DCIS supports the Judge's conclusion that DOJ is not a party.

      The GC also argues that the Authority's decisions in DOJ, INS; DCIS; Ogden; and MSHA demonstrate that the failure to plead DOJ and the Activity as separate respondents is not an "insurmountable barrier" to finding DOJ a party in this case. Exceptions at 13. However, in all of these decisions -- with the exception of MSHA -- the entities named in the caption were clearly separated from one another by the word "and." See DOJ, INS, 46 FLRA at 1547; DCIS, 28 FLRA at 1154; Ogden, 36 FLRA at 752. In addition, the judge in DOJ, INS and DCIS referred to the named entities as "respondents," and, in Ogden, the judge's dismissal of the portion of the complaint against the parent entity demonstrates that he considered it to be a separate party. [n2] See DOJ, INS, 46 FLRA 1526, 1548 (1993), vacated and remanded on other grounds sub nom. United States DOJ, Wash., D.C., et. al. v. FLRA, 39 F.3d 361 (D.C. Cir. 1994); DCIS, 28 FLRA at 1155; Ogden, 36 FLRA at 753 n.1.

      In the only exception -- MSHA -- the parent agency was not separated in the caption of the decision from the activity. See MSHA, 35 FLRA at 794, 806. However, the judge in MSHA found that the activity violated the Statute and there is no indication that the judge considered the two entities to be separate parties. That is, the issue of whether the parent agency was a party was neither explicitly nor implicitly addressed by the Judge or the Authority. As such, it is an insufficient basis to reject the Judge's conclusion.

      The GC also argues that the caption of the complaint is "essentially identical" to the manner in which the Authority has captioned decisions in negotiability and arbitration cases where the parent agency and activity involved were identified as the "agency" and treated as the same entity. Exceptions at 12. However, in the cases cited by the GC, the issue of whether the parent agency was a party was not in dispute, nor was it germane to the outcome of the Authority's decision.

      In further support of its argument that DOJ is a party, the GC contends that the Judge erroneously relied on PTO and DOJ, INS, for his conclusion to the contrary. However, the Judge did not rely on those cases for his conclusion that DOJ was not a party. Rather, he relied on those cases for the proposition that an activity is liable for the actions of the OIG only where there is close collaboration between the entities. The issue of whether the parent agency was a party was not in dispute in those cases. See PTO, 45 FLRA at 887-93; DOJ, INS, 46 FLRA at 1547-89.

      In sum, the GC's arguments do not establish that the Judge erred in concluding that DOJ is not a party. At best, the complaint is ambiguous on this point.

2.      The Judge did not err based on the course of litigation.

      Nothing in the record demonstrates that DOJ understood, or should have understood, that it was a party. In response to general questions from the Judge at the hearing regarding identification of the Respondent, the GC Counsel made no attempt to identify DOJ as a party. See Transcript (Tr.) at 71-72. In fact, the record indicates that at no point prior to its exceptions did the GC dispute opposing Counsel's characterization of the Respondent as the Activity, or assert that DOJ was a respondent as well.

      The record also indicates that Respondent's Counsel took the position throughout the litigation that the Activity was the only Respondent. In the opening statement at the hearing, Respondent's Counsel referred to the Respondent as the "Bureau of Federal Prisons, [Federal Correctional Institution,] Forrest City, Arkansas." Tr. at 12. In support of the argument that the OIG agents were not representatives of the Activity, Respondent's Counsel repeatedly elicited testimony demonstrating that the OIG agents were not employees of or acting on behalf of the Activity and that the officials of the Activity had no substantive input into the OIG's investigation. See Tr. at 49-50, 56-57, 59, 78, 94-95. Respondent's Counsel also argued at the hearing that its "theory" of the case was that the Activity was not automatically liable for the conduct of the OIG simply because the two entities are both components of DOJ. Id. at 100. Further, Respondent's Counsel argued in the post-hearing brief that the Activity was the only named Respondent in this case and that the evidence does not support a finding that the OIG agents acted on behalf of the Activity. Respondent's Post-Hearing Brief at 6-7.

      Based on the wording of the complaint and the manner in which the case was litigated, and guided by the principle that doubts about due process must be resolved in favor of the respondent, we find that the Judge did not err in determining that DOJ was not a party. [ v57 p790 ]

B.     The Judge did not err by finding that the Activity is not responsible for the OIG's conduct.

      In concluding that the Activity was not responsible for the OIG agents' conduct, the Judge examined the level of collaboration between the two entities. The GC disputes the Judge's conclusion, but does not dispute the Judge's factual findings or the Authority precedent applied by the Judge. Under these circumstances, the Authority looks to whether the Judge's factual findings and the record as a whole support the Judge's conclusion. See Air Force Materiel Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 53 FLRA 1092, 1093 (1998).

      Several Authority decisions address the liability of an activity for the conduct of an investigative component of the parent agency during an investigatory interview of an employee. These decisions focus on the level of collaboration between the activity and the investigative component. In cases where the Authority has found the collaboration sufficient for an activity to be held responsible for the conduct of the investigative component, several facts have been present, including the presence of the activity's representative at the interview; discussion between the two entities of the statements obtained by the investigative component during the interview; meetings throughout the investigation; substantive briefings of the activity by the investigative component; and an active and continuing effort by the activity to be involved in the investigation. See Ogden, 36 FLRA at 764-68; Lackland Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA 473, 486 (1981) (Lackland).

      In contrast to the foregoing decisions, there was only limited contact in this case between the Activity and the OIG during the investigation; there was no substantive input by the Activity as to how the investigation would be conducted or any substantive briefings of the Activity by the OIG. See Tr. at 49-51, 55-59. Specifically, the contacts between the parties consisted of arranging the date, time and place for the interview, the exchange of the case file, the OIG agents informing a representative of the Activity of their arrival and departure on the day of the interview, and an Activity representative escorting the OIG agents within the building. See id. at 49, 56-57.

      This case is most similar to cases, particularly DCIS, where the Authority found that the collaboration between the parties was insufficient to render the activity responsible for the conduct of the investigative component. In those cases, as in this one, the activity initiated an investigation and referred it to the OIG. See PTO, 45 FLRA at 889, 892-93; DCIS, 28 FLRA at 1146. Also in those cases, as in this one, activity representatives were not present during the interview and statements obtained during the interview were not revealed to the activity. See PTO, 45 FLRA at 890, 892; DCIS, 28 FLRA at 1160-61, 1164. In DCIS, as here, the activity summoned the affected employee for an interview to a room it provided. See DCIS, 28 FLRA at 1146, 1150 n.3. Although an Activity representative in this case could hear the polygraph examination from an adjacent room and the Activity representatives were informed of the results of the examination, we find these differences insufficient to reach a different conclusion than in DCIS because these facts do not establish collaboration between the Activity and the OIG.

      Based on the foregoing, the Judge's conclusion that the Activity was not responsible for the conduct of the OIG during the interview is supported by the Judge's factual findings and the record as a whole. Thus, we find that the Judge properly concluded that the Activity did not violate the Statute.

C.     Dismissal of the complaint is not contrary to justice, equity and the purposes of the Statute.

      The GC argues that, if the Authority finds that the Activity is not responsible for the OIG and that DOJ was responsible but was not properly named, it would be contrary to justice, equity and the purposes of the Statute to dismiss the complaint against the Activity. In support of this argument, the GC cites Authority case law holding that in cases where a parent agency is in violation of the Statute but is not named in the complaint, an activity that is named in the complaint will be found to have violated the Statute although the activity was merely complying with orders from the parent agency. See Exceptions at 16.

      In all of the cases cited by the GC, the activity took the action that violated the Statute at the direction of the parent agency. The Authority held that, if the parent agency had been charged, then only the parent agency would have been found liable. However, the Authority also held that if the parent agency was not charged, then the activity remained liable for its own violation.

      Here, the Activity is not responsible for the actions of the OIG and is not charged with any other violations of the Statute on its own. As such, the cases cited by the GC do not support its argument. No other basis is provided for finding that it is contrary to the purposes of the Statute to dismiss the complaint in this case. Therefore, we find that the GC's argument does not provide a basis for reversing the Judge's decision.

V.     Order

      The complaint is dismissed.


File 1: Authority's Decision in 57 FLRA No. 175
File 2: ALJ's Decis