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63 FLRA No. 60
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
PINE KNOT, KENTUCKY
OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF
PRISON LOCALS C-33
March 23, 2009
Before the Authority:
Carol Waller Pope, Acting Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This case is before the Authority on an application for review filed by the United States Department of Justice, Federal Bureau of Prisons, United States Penitentiary McCreary, Pine Knot, Kentucky (Activity) under § 2422.31 of the Authority's Regulations. [n1] The American Federation of Government Employees (AFGE), Local 614, National Council of Prison Locals C- 33, (Union) did not file an opposition to the Activity's application.
The Union filed a petition seeking to clarify the bargaining unit status of six Special Investigative Support (SIS) Technicians. [n2] The Regional Director (RD) determined that these employees are not primarily engaged in investigating other employees to ensure that they discharge their duties honestly and with integrity and, thus, that § 7112(b)(7) of the Federal Service Labor-Management Relations Statute (the Statute) does not bar their inclusion in the Union's collective bargaining unit. [n3]
For the reasons that follow, we deny the Activity's application for review.
II. Background and RD's Decision
The Activity is a high security penitentiary that houses approximately 1,100 to 1,500 male offenders and has a staff of approximately 346 employees. [n4] RD's Decision at 2. AFGE's National Council of Prison Locals C-33 is the exclusive bargaining representative of a nationwide unit of Bureau of Prisons employees. The Union represents the Activity's bargaining unit employees as an agent of the exclusive representative. Id.
The RD conducted an investigation of the Union's petition for clarification, during which he received affidavits prepared by the Special Investigative Agent (SIA) and one of the SIS Technicians. [n5] Id. at 3 n.3. Based on this evidence, the RD found that the disputed SIS Technicians are assigned to the SIS office, which is headed by the SIA. The SIS office is responsible for [ v63 p154 ] advising the Warden on security matters, investigating crime and misconduct allegedly committed by inmates and staff, and gathering intelligence through monitoring of inmate communications. Id. at 3. The RD found that the SIA manages two SIS Lieutenants and the six SIS Technicians who are in dispute in this case. Id. The SIS Technicians assist the SIA with inmate and staff investigations, administration of the inmate drug testing program, and monitoring of the facility's visiting room. Id. at 4.
The RD found, based on the statement of the SIA, that eighty percent of SIS investigations involve inmate misconduct, requests for protective custody, and injuries. Id. at 4 n.4. This type of investigation requires interviews of inmates and staff, searches of inmate property, and monitoring of inmate telephone calls and mail. Id. at 4. The remaining twenty percent of investigations conducted by the SIS office involve allegations of staff misconduct ranging from failure to follow policy to bringing contraband into the facility. Although the Activity's Office of Internal Affairs has primary responsibility over staff misconduct, it refers many such allegations to the SIS office for investigation. Id. The SIS office conducted 63 staff investigations in 2006 and 58 in 2007. Id. The RD found, in accordance with the statement of the SIS Technician, that the disputed employees spend approximately ten percent of their duty time working on staff investigations. Id. at 7. See also id. at 4 n.4. Staff investigations involve mail and telephone monitoring, video surveillance, property searches, and inmate and staff interviews. Id. at 4. SIS Technicians prepare reports of their staff investigations for the SIA, who personally oversees all such investigations. Id.
Based on the foregoing findings, the RD concluded that, although "SIS office investigations of staff misconduct clearly relate to Activity personnel whose `duties directly affect the internal security of the agency' and are undertaken to ensure that the duties are `discharged honestly and with integrity,' the SIS Technicians are not `primarily engaged' in staff investigations." Id. at 7. In this regard, the RD found that "[s]pending between [ten and twenty percent] of work time on investigation or audit functions relating to staff misconduct does not satisfy the `primarily engaged' requirement of [§] 7112(b)(7) of the Statute." Id. (citing AFGE, Local 3529, 57 FLRA 633, 637-38 (2001)). The RD found that most of the SIS investigations involve inmates and not individuals employed by the Activity. Id. For these reasons, the RD clarified the existing bargaining unit to include the disputed SIS Technician positions.
III. Activity's Application for Review
The Activity requests review on the grounds that, in determining that the SIS Technicians were not excluded under § 7112(b)(7) of the Statute, the RD: (1) committed a clear and prejudicial error concerning a substantial factual matter; and/or (2) failed to apply established Authority precedent. Application at 3-4.
As for the first ground, the Activity argues that the RD "failed to properly consider the work that SIS [T]echnicians do and how that work clearly exempts them from being included in a bargaining unit pursuant to § 7112(b)(7)." Id. at 5. In this regard, the Activity argues that, although only twenty percent of SIS investigations begin as inquiries into staff misconduct, the remaining eighty percent "always have the potential to become investigations into staff misconduct." Id. The Activity asserts that this potential arises from the fact that investigations of inmate incidents "[i]nherent[ly]" involve a review of whether staff could have prevented the incident and whether staff misconduct "contributed to the failure to prevent" the incident. Id. at 5-6. For example, according to the Activity, an investigation into an inmate injury could "potentially lead to an investigation into staff misconduct if it is determined [that] the inmate was injured by a staff member, because of staff inaction, because a staff member failed to properly occupy his post, or other reasons." Id. at 6-7.
As for the second ground, the Activity contends that the Authority has previously held that employees who perform investigations with the "potential for uncovering employee fraud, misuse of funds, or malfeasance" come within the scope of § 7112(b)(7). Id. at 7 (citing United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Marion, Ill., 55 FLRA 1243, 1248 (2000) (USP Marion); and United States Small Bus. Admin., 34 FLRA 392, 402 (1990) (SBA)). The Activity argues that, because there is a potential for uncovering "employee fraud, misuse of funds, or malfeasance" in every case investigated by SIS Technicians, the RD should have applied the foregoing precedent to find that they are barred by § 7112(b)(7) from being included in the bargaining unit. Id. at 7-8.
IV. Analysis and Conclusions
A. The RD did not commit a clear and prejudicial error concerning a substantial factual matter.
The Authority may grant review of an application for review if it is demonstrated that the RD committed a clear and prejudicial error concerning a substantial factual matter. 5 C.F.R. § 2422.31(c)(3)(iii). As set forth above, the Activity contends that the RD's failure to [ v63 p155 ] properly consider that inmate investigations undertaken by the SIS Technicians have the potential to become investigations into staff misconduct constitutes a clear and prejudicial error.
The record in this case consists of the RD's investigation and the two affidavits previously summarized. On review of this record, we find that the evidence does not establish that the RD committed a clear and prejudicial error concerning a substantial factual matter. In this regard, the SIA stated that SIS staff members interview staff as part of their inmate investigations, but did not state that these investigations involve inquiries into staff performance or behavior. SIA Affidavit at 2, 3. In addition, although the SIA stated that investigations into staff misconduct arise from "a variety of sources," he did not mention inmate investigations in a list that included "information provided by inmates, other staff, the subjects themselves and the outside community." Id. at 3. Likewise, the SIS Technician, who stated that he spends "the majority of [his] time investigating inmate misconduct by conducting interviews with inmates and developing other evidence[,]" did not state that these investigations involve reviews of staff behavior. SIS Technician Affidavit at 2. The SIS Technician stated that he had received information about possible staff misconduct through an informant and through other staff members, but did not state that he received this information in the course of inmate investigations. Id. at 3-4.
In light of the statements of the SIA and the SIS Technician, which support the RD's determination that inmate investigations are not investigations of individuals employed by the Activity, we find that the Activity has not established that the application for review should be granted on this ground. See United States Dep't of Commerce, Nat'l Weather Serv., Silver Spring, Md., 62 FLRA 472, 476-77 (2008) (finding no ground for granting a petition for review where RD's determination and weighing of evidence were supported by factual findings).
Accordingly, we find that the Activity has failed to establish that the RD committed a clear and prejudicial error.
B. The RD did not fail to apply established law.
The Authority may grant review of an application for review if it is demonstrated that the RD failed to apply established law. 5 C.F.R. § 2422.31(c)(3)(i). In determining whether a specified investigative or audit position is properly excluded from a bargaining unit, the Authority considers whether: (1) the incumbents are primarily engaged in investigation or audit functions; (2) these functions relate to the work of individuals employed by the agency whose duties directly affect the internal security of the agency; and (3) these functions are undertaken to ensure that the duties are discharged honestly and with integrity. 5 U.S.C. § 7112(b)(7). See also AFGE, Local 3529, 57 FLRA at 637-38 (addressing the "primarily engaged" and "honestly and with integrity" elements); USP Marion, 55 FLRA at 1248 (addressing the "honestly and with integrity" element); United States Dep't of the Navy, Naval Audit Serv., Se. Region, 46 FLRA 512, 518-19 (1992) (Naval Audit) (addressing the "relating to" and "honestly and with integrity" elements); SBA, 34 FLRA at 401-02 (addressing the "honestly and with integrity" element); United States Dep't of Labor, Office of Inspector Gen., Region I, Boston, Mass., 7 FLRA 834, 835-36 (1982) (Dep't of Labor) (addressing the "primarily engaged" element).
The Activity argues that Authority precedent requires employees to be excluded from bargaining units if they perform audits or investigations with the "potential for uncovering employee fraud, misuse of funds, or malfeasance." Application at 7. Contrary to the Activity's argument, Authority precedent demonstrates that the "potential for uncovering employee fraud, misuse of funds, or malfeasance" has been considered only in cases involving audits or investigations of agency programs or employees. See Dep't of Labor, 7 FLRA at 835 ("potential" considered where auditors conducted audits of agency "programs and the employees who run these programs"); SBA, 34 FLRA at 401-02 ("potential" considered where auditors performed audits of agency "programs, contracts, operations and program participants"). Here, the Activity alleges that the potential for discovering staff misconduct arises in the context of inmate investigations, not employee investigations, as the precedent requires. Consistent with the recommendation above, the Activity has not established that inmate investigations are investigations of Activity employees.
The RD found that the SIS Technicians are not excluded from the bargaining unit under § 7112(b)(7) because the amount of time that they spend on staff investigations does not satisfy the "primarily engaged" element of the Statute. RD's Decision at 7. We note, initially, that "the word `primarily' is capable of a range of meanings extending from `first' or `chief' to `substantially.'" Kerr-McGee Chemical Corp. v. United States Nuclear Regulatory Comm'n, 903 F.2d 1, 7 (D.C. Cir. 1990) (citing Bd. of Governors v. Agnew, 329 U.S. 441, 446-47 (1947)). We further note that the term "primarily [ v63 p156 ] engaged" is not explained in the legislative history of the Statute and was not interpreted by the Authority prior to AFGE, Local 3529.
In the absence of arguments to the contrary, we apply AFGE, Local 3529, where the Authority found that quality assurance auditors were not excluded from a bargaining unit, even though they performed some audits that fell within the scope of § 7112(b)(7), because the "the preponderance" of their duties did not involve such audits. Id., 57 FLRA at 638. Cf. Obremski v. Office of Pers. Mgmt., 699 F.2d 1263, 1270 (D.C. Cir. 1983) (court interpreted OPM statute to find that an employee who spent thirty percent of his time doing work related to detention "would not be `primarily' engaged" in detention). The Authority found that the facts in AFGE, Local 3529 were different from those in Naval Audit, where "every audit . . . was undertaken to ensure that duties were discharged honestly and with integrity." Id. at 637-38 (emphasis in original). See also Dep't of Labor, 7 FLRA at 835-36 (finding that the "primarily engaged" test would be met where employees would "exclusively deal with internal audits" which fell under § 7112(b)(7)). The RD's conclusion comports squarely with the "preponderance" interpretation of "primarily engaged" adopted in AFGE, Local 3529 because he found that only ten to twenty percent of SIS Technicians' time involves investigations of staff members. RD's Decision at 7. Consistent with the recommendation above, the Activity has failed to establish that the RD committed a clear and prejudicial error in this regard. Therefore, based on the foregoing, we find that the Activity has not established that the RD failed to apply established law.
The Activity's application for review is denied.
Footnote # 1 for 63 FLRA No. 60 - Authority's Decision
(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
Footnote # 2 for 63 FLRA No. 60 - Authority's Decision
The Union also sought clarification of one Time and Leave Clerk. The Regional Director found that the clerk was not barred from inclusion in the bargaining unit as a confidential employee within the meaning of 5 U.S.C. § 7103(a)(13) or as an employee engaged in personnel work within the meaning of 5 U.S.C. § 7112(b)(3). RD's Decision at 1. As the Activity does not challenge this determination, we do not further address it.
Footnote # 3 for 63 FLRA No. 60 - Authority's Decision
5 U.S.C. § 7112(b)(7) excludes from a bargaining unit "any employee primarily engaged in investigative or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity."
Footnote # 4 for 63 FLRA No. 60 - Authority's Decision
Footnote # 5 for 63 FLRA No. 60 - Authority's Decision