[ v13 p492 ]
13:0492(86)CA
The decision of the Authority follows:
13 FLRA No. 86
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
ARMAMENT DIVISION, AFSC
EGLIN AIR FORCE BASE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1897, AFL-CIO
Charging Party
Case No. 4-CA-874
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
certain unfair labor practices as alleged in the complaint and
recommending that the complaint be dismissed. The General Counsel filed
exceptions to the Judge's Decision and the Respondent filed an
opposition to the General Counsel's 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 recommendations. /*/
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-874 be, and it
hereby is, dismissed.
Issued, Washington, D.C., December 13, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
ARMAMENT DIVISION, AFSC
EGLIN AIR FORCE BASE,
Respondent
and
AMERICA FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1897, AFL-CIO
Charging Party
Case No. 4-CA-874
Lt Colonel Gordon B. Finley, Jr., Counsel for Respondent
Brenda S. Green, Counsel for the General Counsel Federal Labor
Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp. IV, 1980)
(hereinafter referred to as the "Statute"), and the rules and
regulations issued thereunder and published at 45 Fed. Reg. 3482 et
seq., 5 CFR sec.2411 et seq.
Pursuant to a charge signed on April 10, 1982 and filed on April 13,
by the American Federation of Government Employees, AFL-CIO, Local 1897,
AFL-CIO (hereinafter, the "Union"), the General Counsel of the Federal
Labor Relations Authority ("Authority") investigated and filed this
complaint.
The complaint alleges that Respondent has violated Sections
7116(a)(1) and (5) of the Statute. /1/ At issue is the fiscal year 1981
affirmative action plan which was implemented by Respondent on May 14,
1981. The complaint alleges that, on or about January 27, Respondent's
labor relations officer submitted the plan to the Union for "final
agreement," after incorporating into it certain Union proposals, that
the Union signed it on January 28, and that thereafter deletions were
made without notice to or collective bargaining with the Union
concerning the deletion.
Respondent admits that it used the term "final agreement" in
connection with the plan submitted to the Union on January 27, 1981, but
claims that it had earlier explained to the Union that the plan was
"tentative in nature, and had not been submitted to the Command
Section." See paragraph 7b of the answer to the complaint. Respondent
also claims that, before implementation of the plan, it did give the
Union notice of the changes made by Command Section and an opportunity
to bargain concerning them. It avers that the Union's conduct,
subsequent to April 29, constituted a refusal to bargain in good faith,
or a waiver of the Union's right to bargain further, or to invoke
impasse procedures provided for in the Statute.
A hearing was held on the matter on April 23, 1982, at Eglin Air
Force Base, Florida. The parties appeared, adduced evidence, and
examined witnesses. Briefs were filed on June 14, by Respondent and
June 16, by the General Counsel. The record and the briefs have been
fully considered, and based upon them, including my observation of the
demeanor of the witnesses, I make the following findings, conclusions
and recommended order.
Findings of Fact
1. It is admitted that the Department of Defense ("DOD") is an
agency, within the meaning of 5 U.S.C. 7103(a); that the Department of
the Air Force is a primary national subdivision of DOD, under 5 CFR
2421.5; and that the Armament Division, Eglin Air Force Base ("Eglin")
is an activity of the Air Force, under 5 CFR 2421.4. The Armament
Division was headed by Major General Robert M. Bond, during the period
here relevant. He was the senior installation commander at Eglin. This
Division is considered to be the "Command Section," at Eglin (TR 81),
/2/ Major General Bond had final authority over the plan at issue.
Douglas M. Johnson is Respondent's labor relations officer ("LRO"); and
he has authority to commit Respondent, in labor relations matters. John
H. Adkinson is Respondent's equal employment opportunity officer
("EEOO"); and he is responsible for the development of affirmative
action plans.
2. During all times relevant to this proceeding, the Union has been
and is now a labor organization within the meaning of 5 U.S.C.
7103(a)(4), and the exclusive representative of Civil Service employees
at Eglin Air Force Base, with certain exceptions not herein relevant.
The Union president is Thomas H. Newberry, Sr. He became president in
October 1980 and has served as a Union official, in different
capacities, since 1973. Maureen Preta serves as women's coordinator and
steward for the Union. Her responsibilities include assisting in
negotiations on affirmative action plans.
3. On or about January 13, 1981, /3/ a consent judgment was signed
by Eglin management in a class action involving equal employment
opportunity ("EEO") at Eglin. During the period here at issue, counsel
for Respondent concedes that a "charged atmosphere surround(ed) the
whole EEO program at Eglin, as a result of the pending or recently . . .
. I think in 1981 settled class action" (TR 14). There was also
pending, at that time, an unfair labor practice charge, filed by the
Union on January 29, 1980, over negotiations for the fiscal year 1980
EEO affirmative action plan at Eglin ("FY80 Plan"). /4/ The Union and
community groups were anxious to see what Eglin management would propose
for its fiscal year 1981 affirmative action plan ("FY81 Plan").
4. On January 13, the LRO presented Eglin's proposed FY81 Plan to
the Union. The FY81 Plan should have been in effect on October 1, 1980,
but was delayed because of late-received instructions. At this point,
Eglin was in a rush to complete it, in order to meet a suspense (due)
date imposed by headquarters. The presentation was made at a meeting of
seven persons which included Mr. Newberry and Ms. Preta. All attendees
who were available to testify at the hearing did so. All understood
that the Union was to review the Plan submitted to it and come back with
"comments" (TR 81). All understood that any Union proposals would have
to be reviewed by the senior installation commander, Major General Bond,
before final agreement could be declared. This was an "unusual manner"
in which to proceed (TR 85). The "normal procedure" is for management
to complete all the work on a proposal before presenting it to the Union
(TR 86). The Union officials at the January 13 meeting seemed "a little
surprised" by the procedure, but made no objections to it (TR 87).
5. In a letter dated January 19, the Union requested certain
information and set forth four "negotiating positions" (Jt 2.1-2). The
positions were as follows:
a. No long range or short range goals should be established
unless the long range goals are to be filled in FY81.
b. Only goals in accordance with Equal Employment Opportunity
Management Directive EEO-MD 702 /5/ dated 11 December 1979 should
be established.
c. A statement should be included in the plan relating to how
any vacancies above the number projected will be filled in
relation to Affirmative Action.
d. There should be adherence to all instructions contained in
Equal Opportunity Management Directive EEO-MD 702 dated 11
December 1979.
The Union requested a time and date for "negotiations," as well as
the name of the negotiator who would represent the Government (Jt 2.2).
6. In a letter dated January 27, Eglin's LRO replied to the Union's
January 19 letter. See Jt 3. Except for one item of requested
information, a response was given to each item. The excepted item was
one where it appeared that the Union was requesting data which included
positions outside the bargaining unit; and the LRO declined to respond
to it without a "demonstrated need" (Jt 3.2c). A reply was given to
each of the "negotiating requests," as follows:
a. As to the matter of long and short range goals, "(w)e have
received permission from HQ AFSC (Headquarters, Air Force Systems
Command) to eliminate the Long Range and Short Range Goals" (Jt
3.3a).
b. "Only goals that are in accordance with EEOC MD 702 have
been established" (Jt 3.3b).
c. A statement was included in the Plan relating to how
vacancies above the projected number would be filled.
d. The Plan was in compliance with all instructions in EEOC MD
702.
The letter concluded with the statement:
Your specific negotiating requests were appreciated. It is
evident from the responses provided in paragraph 3 above that your
requests precipitated meaningful change to the Plan. In that each
of your negotiation requests have been resolved favorably and
incorporated in the Plan, coordination with your organization is
considered to be complete. It is requested that we meet in the
Eglin EEO office on 28 January 1980 /6/ at 1500 to reach final
agreement.
(Jt 3, paragraph 4, emphasis added because of the importance of these
terms to this proceeding.)
7. According to the parties, the meaning of "coordination" is really
what this suit is all about. See TR 7. The Union President was not
"quite sure" what the term meant (TR 37) and was "not familiar with it,"
in labor-management negotiations (TR 38). He assumed that it meant that
"our coordination was all that was needed to finalize our negotiations"
(TR 34), and that his "coordination meant approval of it" (TR 37).
8. The LRO at Eglin explained that the term "coordination" is a
"very common term" throughout the Air Force and means that the document
has been seen by the party signing on the "coordination lines" of
correspondence (TR 106). It can also mean, when a document has been
negotiated back and forth, that the Union certifies that it "concurs
with the document as stated" (TR 105).
9. On January 28, the meeting between management and labor
representatives took place. There were three representatives for each
side. All those who were available, at the time of the hearing,
testified.
a. Quite a bit of discussion about the contents of the FY81 Plan
took place between Ms. Preta, and Mr. Adkinson.
b. The Union was asked to sign a document entitled "FY81 EEO Plan of
Action Coordination." It was signed by Mr. Newberry and by Mr. Erhart,
president of another union representing professional employees at Eglin.
(Mr. Erhart was out of the country, at the time of the hearing.) Its
text stated:
The undersigned certify that we have reviewed the FY81 Eglin
Air Force Base Affirmative Action Plan and hereby coordinate on
the Plan as amended.
c. Just before the signing, Mr. Adkinson said that: "We think that
we have a good plan now, and all we need to conclude our negotiations is
you all's signature on the coordination" (TR 31).
d. In view of fact that the LRO had termed the meeting as one "to
reach final agreement," had authority to commit management, and would
usually interrupt negotiations, if needed, to obtain clearance from
higher authority, the Union officials felt that the negotiations were
"complete," when the Union president affixed his signature to the
document given to him by the LRO (TR 63). The Union officials were not
concerned that the LRO did not sign the document, because the LRO had
told them that the Plan had to go to the Vice Commander of the Armament
Division, "for review" prior to going to the Commander, "for signature"
(TR 62 and see also TR 31). The Union officials assumed that the review
would be the routine one given to any document before being sent into
the Commander for signature.
e. Normally, when final agreement is reached between the parties, a
document entitled "Memorandum of Agreement" is signed, by the Union and
by the LRO, representing management (TR 140).
f. Both the LRO and EEOO testified that they expressly told the
Union officials of the possibility of further changes being made in the
Plan, that would warrant further negotiations, both at the January 13
and January 28 meetings. Neither Union official recalled such a
statement being made. I can find no sound basis for discrediting any of
these four witnesses. All have some interest in the matter and gave
testimony supporting that interest. All seemed honest and forthright in
testifying.
10. On February 19, changes were made in the Plan by Major General
Bond. Respondent concedes that they were "not of a de minimis nature"
(TR 17). The "major difference" was a deletion of the provision that,
"(w)here there was severe underrepresentation (i.e., more than 50
percent in the targeted SJC), the goal should be doubled." /7/ Compare
GC 3 with GC 4 and see TR 70. According to the Union, the doubling was
"in accordance with EEOC guidelines" (TR 67).
11. On March 12, the Union was invited by management to another
meeting concerning the Plan. At this meeting, the Union was advised of
the changes made on February 19. The meeting was held in the office of
the Chief of Civilian Personnel and attended by the Chief, as well as by
the LRO and the EEOO. Ms. Preta represented the Union. She told the
LRO that she was "very upset" about the changes, and that if he did not
have the authority to negotiate and bind management, then she wanted to
negotiate with the "appropriate people" (TR 68). She noticed that
everyone at the meeting was "extremely nice" and "appeared like maybe
they were in a corner and they had been given some instructions and they
were trying to work them out by getting us to agree" (TR 69). She
agreed to review the changed Plan. It is the position of Respondent
that "negotiations" over the FY 81 Plan commenced on March 12, and that
the prior labor-management meetings concerning the Plan had been merely
"to assist . . . in preparing the coordinated draft to go to the Command
Section." See TR 116-115 and 135-136. It is the position of the General
Counsel that violations of the Statute occurred at this point, and that
subsequent events are not relevant. See GCBr 6, fn. 14.
12. On March 17, the Union president sent the LRO a written response
to the changed FY81 Plan. He referred to "continuing negotiations" over
it (R 1). He requested a return to what the Union felt had been
negotiated and agreed to at the January 28 meeting-- namely, that the
FY81 Plan adhere to goals and instructions contained to EEO Management
Directive MD 702.
13. On March 25, the LRO sent a written response to the March 17
response of the Union. The LRO stated that the FY81 Plan was in accord
"with the letter and intent of EEOC MD 702", which was "advisory" only,
for fiscal year 1981 (R 1.2 and .3). The LRO stated that: "We
therefore feel that we have met both your requests . . . (and) absen(t)
any other specific requests," that the FY81 Plan would be signed on
March 30 and sent to HQ AFSC (R 2.4).
14. On March 30, the Union president sent the LRO a letter in which
he stated that the revised Plan was not the one which the Union "had
considered negotiated," and that implementation of a plan that "does not
have AFGE coordination" is a violation of the Statute (R 3.1). "One
specific area" mentioned as requiring bargaining was the matter of
doubling goals where underrepresentation was severe, "in compliance with
EEOC MD 702" (R 3.2 and 3). The letter concluded with a request for
"bargaining on this issue" (R 3.4).
15. On April 3, another labor-management meeting was held to discuss
the FY81 Plan.
a. The Union stated that it would to go back to the Plan that it
thought it had "negotiated" (TR 169). Reasons for the changes made by
management were discussed. Management explained that the changes were
made pursuant to verbal instructions from "Headquarters Air Force" (GC
5.1). See also TR 164.
b. Some "(n)ot very kind words (were) said back and forth" (TR 169).
They consisted of the following exchange, as testified to by Ms. Preta:
Well, Mr. Johnson told Mr. Newberry-- Well, asked Mr. Newberry
. . . . How the people in his bargaining unit, down in CE, would
like it when they found out that all of the promotions were going
to go to minorities or women because of our number of goals, and
Mr. Newberry began to get a little flustered about it because he
didn't know how to . . . handle this. And, so, I piped up and I
said, "Well, now that is intimidation, you know, I don't think we
ought to be doing that." Then, Mr. Adkinson, he said that so many
people had been asking him about the status of the plan because it
was getting so late in the year, and he said that he was going to
have to . . . go around and brief all these interest groups, and I
know the Minority Committee was interested, and he said he was
going to have to go and brief all these groups, and that the Union
was holding it up because we refused to negotiate (TR 169-170).
c. The Union did make an offer in terms of negotiation. As
explained by Ms. Preta:
The big hang ups from management was this doubling of goals,
because what they did was, in some areas . . . they had goals that
were in excess of the projected vacancies; they were better than
a hundred percent (100%), and they didn't like that . . . . So I
said, "okay, if that's what is your big hang up about the plan,
then why don't we, in those instances where it exceeds a hundred
percent (100%), because I know you can't fill in excess of a
hundred percent (100%) - they why don't we just drop those and
make it just a hundred percent (100%) and not worry about the
excess." They said that they could not do that people had been
asking him about the status of the because-- they couldn't
deviate, it either had to be not doubling or it had to be doubling
them. . . . (TR 170)
d. The meeting ended with each party making a statement that each
"was going to their next level . . . to get a reading" (TR 170-171).
e. Management suggested that the parties "get back together April
10th to continue" (TR 166). The LRO also asked the Union for a written
position on how it interpreted EEOC MD 702.
16. On April 10, a telephone conversation took place between the LRO
and the Union president.
a. The LRO called the Union president and asked for the Union's
written position before a meeting scheduled for that day, so that the
LRO could be prepared with a response.
b. The Union president responded that he had been advised by the
Union's national office to file an unfair labor practice charge for
bad-faith bargaining.
c. The LRO responded that this left both of them "between a rock and
a hard place" (TR 145 and GC 5). The LRO mentioned the fact that the
consent judgment had just been signed, and that the "communities
downtown were eyeing us daily, and here we were into April without an
Affirmative Action plan" (TR 145). The LRO warned the Union president
as to the filing of the charge, that a resolution would be "a long time
down the road," and in the meantime "we have no plan, and we're both
going to have to withstand the pressure that he (the Union president)
had more to lose, as he was in a "political position" (TR 166).
d. The negotiating session for April 10 was cancelled, by mutual
agreement, with a future date for reconvening dependent upon submission
by the Union of its written position on how it interpreted EEOC MD 702.
17. On April 24, the LRO wrote to the Union president that the only
communication received from him since April 10 was an unfair labor
practice charge. The LRO attached certain EEOC documents and
represented that they would serve "to clarify the point we have been
making regarding the computation of goals for underrepresented groups"
(R 5.2).
a. The EEOC documents cover 1982 Plans, but they also contain
clarifying materials, including one on a "misconception" which had
arisen under the prior EEOC MD 702 (the one here at issue) as to the
"annual goal setting formula" for underrepresented groups. See R 5 and
paragraph C, on page 2, of the attachment dated March 19, 1981. Where
there is severe underrepresentation "and the total number of vacancies
necessary to set annual goals might equal or exceed 100 percent of
available vacancies," EEOC explained that it would then "be necessary
not only to prorate vacancies among the underrepresented groups, but
also to adjust the vacancies used in the annual goal formula by dividing
available vacancies in half." See paragraph 2, on page 3, of the same
attachment, emphasis by EEOC. This adjustment was apparently not made
when the parties met on January 28 and the Union president signed off on
the plan.
b. The LRO letter concluded with the statement:
The Commander's objective of obtaining a workable and
acceptable Affirmative Action Plan remains the same. We continue
to solicit your cooperation in this effort which has such a high
level of visibility for both parties. Accordingly, it is
requested that we meet in my office on 29 April 81 at 0800 to
complete these important negotiations in order to meet our joint
official responsibilities and the expectations of the workforce in
general (R 5.2).
18. On April 29, the Union president replied in writing to the LRO
letter of April 24. He informed the LRO that "no further negotiations
are considered appropriate," pending resolution of the charge (GC 5).
He also informed the LRO that the Union had given management its
position in writing, several times, and it was also in the unfair labor
practice charge.
19. On May 7, the LRO wrote to the Union president that the Plan
would be implemented on May 14.
20. On May 8, the Union president advised the LRO that an unfair
labor practice was pending, and that the LRO acted "at (his) peril" in
implementing the FY81 Plan (GC 6).
21. On May 14, Respondent implemented the FY81 Plan which was
presented to the Union on March 12.
22. The FY81 Plan has now been superceded by one for fiscal year
1982.
Discussion and Conclusions
Resolution of the issues presented in this case rests upon the
definition of "collective bargaining" found in Section 7103(a)(12) of
the Statute. It provides that:
"(C)ollective bargaining" means the performance of the mutual
obligation of the representative of an agency and the exclusive
representative of employees in an appropriate unit in the agency
to meet at reasonable times and to consult and bargain in a
good-faith effort to reach agreement with respect to the
conditions of employment affecting such employees and to execute,
if requested by either party, a written document incorporating any
collective bargaining agreement reached, but the obligation
referred to in this paragraph does not compel either party to
agree to a proposal or to make a concession; . . . .
Section 7114 further defines the obligation, as follows:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation -
(1) to approach the negotiations with a sincere resolve to
reach a collective bargaining agreement;
(2) to be represented at the negotiations by duly authorized
representatives prepared to discuss and negotiate on any condition
of employment;
(3) to meet at reasonable times and convenient places as
frequently as may be necessary, and to avoid unnecessary delays;
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data -
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining; and
(5) if agreement is reached, to execute on the request of any
party to the negotiation a written document embodying the agreed
terms, and to take such steps as are necessary to implement such
agreement.
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
This Authority has recently had occasion to apply these statutory
provisions to a situation where the issue of good faith bargaining arose
in the context of tentative agreements being withdrawn by management.
In Division of Military and Naval Affairs, State of New York, Albany,
New York, 7 FLRA No. 51, at 321 (1981), the Authority adopted the
decision of Administrative Law Judge Louis Scalzo, who held that
evidence of bad faith bargaining is to be found in the withdrawal of
tentative or previous agreements, but that such withdrawal "does not
establish per se the absence of good faith." 7 FLRA at 338. Judge
Scalzo adopted the reasoning used under Executive Order 11491, which
also mandated good faith bargaining, that: "(T)he totality of the
evidence in a case must be considered in order to determine whether a
party has attempted to evade or frustrate the bargaining
responsibility."
Having followed this precept, I have reached the same conclusion
reached in Division of Military and Naval Affairs, that the totality of
the evidence does not indicate that bad faith bargaining occurred.
The General Counsel recognizes that his case rests upon first
establishing that there was an agreement reached on January 28. See
GCBr 9. While statements made and actions taken by the LRO and EEOO
could be so construed, and for this reason, may be judged as inept, I am
convinced that they were not intended to indicate that a final agreement
had been reached. At best, the evidence supports a conclusion that a
tentative agreement was reached and was contingent upon approval by the
top commander at Eglin. This conclusion is supported by the fact that
the usual "Memorandum of Agreement" was not offered to the Union, on
January 28, and by the fact that Respondent's LRO did not sign for
management, as he would have done, had final agreement been reached.
While the procedure followed here were unusual, in that any proposal
offered to the Union would normally have been first approved by the top
commander, it was adopted under unusual circumstances. The FY81 Plan
should have been in place on October 1, 1980, and had a short suspense
(due) date imposed by higher authority. Also, Eglin was operating under
a charged atmosphere concerning its whole EEO program. It had just
signed a consent judgment in a civil suit concerning its program and
would have understandably been anxious to receive early input from
employee representatives on its next affirmative action plan. Another
catalyst for the unusual procedure may have been the unfair labor
practice charge filed by the Union over Eglin's plan then in effect.
That charge was based on a failure of Respondent to obtain early input
from the Union. See the decision issued in Case No. 4-CA-351 on July
20, 1982. In any event, the Union knew the procedure was unusual, and
raised no objections to it.
While recognizing a measure of ineptness on the part of Respondent, I
also find an undue degree of naivety on the part of the Union in this
matter. Its president was not inexperienced in the field of
labor-management relations. He recognized that the document he was
asked to sign, on January 28, bore a strange title, "FY81 Plan of Action
Coordination," rather than "Memorandum of Agreement," which usually
memorializes final agreements of the parties. He also was too ready to
make assumptions as to why no one from management signed the document.
Where there is no convincing evidence that an agency intentionally
misled a union, mistaken impressions and understandings of a union do
not an agency unfair labor practice make. Compare Department of Health,
Education and Welfare, Social Security Administration, Western Program
Center, San Francisco, California, A/SLMR No. 501, 5 A/SLMR 225, at 230
(1975), a decision of the Assistant Secretary of Labor for
Labor-Management Relations under Executive Order 11491, the precursor of
the Statute.
Withdrawal of even tentative agreements, without good cause, can be
evidence of bad-faith bargaining, however. See Decision of Military and
Naval Affairs, 7 FLRA at 338. Good cause can be found, on this record,
in the general lack of understanding of how to proceed under EEOC
directives then in effect as to affirmative action plans. Top
management at Eglin felt impelled to reverse its EEOO and refuse to
adopt goals for Eglin which even the Union conceded were impossible of
achievement, in some areas. About a month after top management at Eglin
made this change, EEOC itself issued a clarification of the
misconception that had arisen over the goal-setting process.
The totality of the evidence in this case convinces me that
Respondent did bargain in good faith with the Union. It repeatedly
called the Union to the bargaining table to negotiate the changes made
in the Plan, on February 19. Explanations for the changes were given.
Spirited negotiating sessions ensued, at which Respondent was
represented by an officer authorized to commit it. While this officer
made some remarks which the Union may regard as intimidating, they were
not out of line with the robust give-and-take discussions that can be
expected around the bargaining table. See findings 15b and 16c, supra.
Respondent was cooperative in furnishing information in response to all
reasonable requests. At the last meeting, Respondent's negotiator
offered to take the disputed issue to the "next level . . . to get a
reading." See finding 15d, supra. This offer demonstrates a bargaining
stance of some flexibility, on the part of Respondent, and not one of an
"unyielding nature," as the General Counsel argues (GCBr 17). Even
after being informed of the unfair labor practice charge, management
continued to pursue negotiations, by furnishing documents which it felt
supported its positions, and by setting a date and time for another
meeting. At this point, the Union expressly declined further
negotiations, and called them inappropriate, pending resolution of its
charge. Management then gave the Union a 7-day notice of its intent to
implement the FY81 Plan. The Union's only response was a warning that
management acted at its peril in implementing the Plan.
In view of the conclusions discussed above, it is unnecessary to
reach other issues raised by the parties.
Ultimate Findings and Order
The General Counsel has not shown, by a preponderance of the
evidence, that Respondent has violated Sections 7116(a)(1) and (5), as
alleged.
According, it is ORDERED that the complaint in Case No. 4-CA-874
should be, and it hereby is, dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: July 26, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The pertinent provisions of Section 7116 are:
(a) For the purpose 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 . . . .
/2/ "TR" refers to the transcript. Corrections to the transcript are
to be found in Appendix A to this decision. Other abbreviations to be
used are as follows. "Jt" refers to the joint exhibits of the parties.
"GC" refers to exhibits of the General Counsel, and "GCBr" to his brief;
"R" refers to the exhibits of Respondent, and "RBr" to its brief.
Multipage exhibits will be referenced by an exhibit number followed by a
page or paragraph number.
/3/ All dates referenced herein refer to 1981, unless otherwise
indicated.
/4/ A complaint issued on this charge on February 16, 1982 and is
denominated Case No. 4-CA-351. It was heard the day preceding the
hearing in this case. The decision by the undersigned issued on July
20, 1982, and recommends dismissal of the charge for failure to prove
the allegations of Sections 7116(a)(1) and (5) violations.
/5/ This is a reference to a directive put out by the Equal
Employment Opportunity Commission ("EEOC").
/6/ The date should be 1981. See TR 90.
/7/ "SJC" means "specific job categories" (TR 140).