[ v19 p652 ]
19:0652(83)CA
The decision of the Authority follows:
19 FLRA No. 83
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENTS OF THE ARMY AND THE AIR
FORCE, HEADQUARTERS, ARMY AND AIR FORCE
EXCHANGE SERVICE, DALLAS, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 6-CA-20285
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the General Counsel and the Charging Party filed
exceptions to the Judge's Decision.
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 /1/ and recommended Order. /2/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the United States Department of Defense,
Departments of the Army and the Air Force Headquarters, Army and Air
Force Exchange Service, Dallas, Texas, shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the American Federation
of Government Employees, AFL-CIO, the exclusive bargaining
representative of its employees, by implementing reductions in hours
without affording the Union the opportunity to negotiate on national
procedures and appropriate arrangements for employees adversely affected
thereby.
(b) Failing and refusing to provide the American Federation of
Government Employees, AFL-CIO, with requested information relating to
which components of the consolidated bargaining unit were planning
personnel reductions in April 1982.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, the exclusive representative, over
national procedures to be observed in implementing reductions in hours.
(b) Upon request, furnish the American Federation of Government
Employees, AFL-CIO, necessary information in compliance with section
7114(b)(4) of the Federal Service Labor-Management Relations Statute.
(c) Post at its facilities where the employees comprising American
Federation of Government Employees consolidated bargaining unit are
located, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Commander, or a designee, and they shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., August 12, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
Authority AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF
TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, by implementing reductions
in hours without affording the Union an opportunity to negotiate on
national procedures and appropriate arrangements for employees adversely
affected thereby. WE WILL NOT fail or refuse to provide the American
Federation of Government Employees, AFL-CIO, with requested information
relating to which components of the consolidated bargaining unit were
planning personnel reductions in April 1982. WE WILL NOT in any like or
related manner interfere with, restrain, or coerce our employees in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute. WE WILL, upon request, negotiate with the American
Federation of Government Employees, AFL-CIO, over national procedures to
be observed in implementing reductions in hours. WE WILL, upon request,
furnish the American Federation of Government Employees, AFL-CIO,
necessary information in compliance with section 7114(b)(4) of the
Federal Service Labor-Management Relations Statute.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting, and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director, Region VI, Federal
Labor Relations Authority, whose address is: Federal Office Building,
525 Griffin Street, Suite 926, Dallas, TX 75202, and whose telephone
number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-20285
Luther G. Jones, III
Counsel for Respondent
Carolyn M. Rains,
Counsel for Charging Party
Susan E. Jelen,
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, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the "Statute," and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
On June 3, 1982, the Charging Party (also referred to herein as the
("Union" and "AFGE") filed, with the Federal Labor Relations Authority
("Authority"), a charge of an unfair labor practice against the
Respondent ("AAFES"). The General Counsel of the Authority investigated
and, on September 28, 1983, served the complaint initiating this action.
The complaint alleges that unfair labor practices, in violation of
Sections 7116(a)(1), (5) and (8) of the Statute, /3/ have occurred and
are occurring.
The alleged violative acts are two in number. The first is that,
since on or about April 16, 1982, Respondent "has failed and refused,
and continues to fail and refuse, to bargain in good faith with the
Union by implementing reductions in hours and/or reductions in force at
the Hill Air Force Base Exchange without affording the Union the
opportunity to negotiate on national procedures to be observed in
implementing the changes and appropriate arrangements for adversely
affected employees." See GC 1(d). /4/
The second alleged violative act is that, on or about April 14, 15
and 16, 1982, the Union requested from Respondent "necessary and
relevant information relating to which other components of the unit, if
any, were planning personnel reductions" and, continuing to date,
Respondent has refused and failed to furnish it. See GC 1(d).
Respondent denies engaging in any unfair labor practices.
A hearing was held on February 16, 1984, in Dallas, Texas. The
parties appeared, adduced evidence, and examined witnesses. Briefs were
filed by Respondent and the General Counsel on March 20. Based upon the
record made in this proceeding, my observation of the demeanor of the
witnesses, and the briefs, I enter the following findings of fact and
conclusions of law, and recommend the entry of the following order.
Findings of Fact
1. It is admitted that Respondent has been an agency, and the Union
has been a labor organization, within the meaning of Sections 7103(a)(3)
and (4) of the Statute, at all times material herein.
2. It is further admitted that, since November 13, 1981, the Union
has been the exclusive representative of all employees of the Respondent
in the worldwide consolidated unit in which the Union was certified in
Army and Air Force Exchange Service, Dallas, Texas, Case No. 6-UC-1, 5
FLRA No. 90, 5 FLRA 657 (1981) (hereinafter referred to as the "AAFES"
case. According to AAFES, 69 units were to be consolidated. See 5 FLRA
at 657. However, there are now apparently 72 in the consolidated unit.
See Tr. 9 and 28.
3. Respondent is a joint command of the U.S. Army and the U.S. Air
Force. It provides services and merchandise for the military, and
manages such operations in order to generate a profit. Profits, or
"surplusage(s)" (Tr. 13), from its operations go into the welfare funds
of the Army and Air Force. It is a nonappropriated fund instrumentality
(i.e. taxpayers do not support it), and a primary national subdivision
of the Department of Defense. /5/ See AAFES, 5 FLRA at 658.
4. AAFES has exchanges located throughout the United States and
overseas, in Europe and the Pacific areas. It is divided into six
regions, each headed by a region chief. The regions are divided into
areas, each headed by a general manager. Areas are divided into
individual exchanges, headed by an exchange manager. Store managers and
supervisors report to the exchange managers. Headquarters of AAFES is
located in Dallas, Texas.
5. Hill Air Force Base is located in Utah, and is part of the
Arizona Area Exchange which is headquartered at Davis Monthan Air Force
Base in Tucson. The Arizona Area Exchange is part of the Golden Gate
Exchange Region, headquartered in San Francisco, California. Employees
at the Hill Air Force Base Exchange are part of the Union's worldwide
consolidated unit.
6. No national agreement had been reached by the parties, at the
time of the hearing. Negotiations for one began on June 7, 1982,
according to Respondent (Tr. 15) and not disputed by the General
Counsel. At the time of the consolidation, the vast majority of the
separate locals had local contracts, including the one at the Hill Air
Force Base Exchange. As of the dates critical herein, there had been no
agreement by the parties to delegate bargaining on local issues to the
local level; and the Union had not unilaterally made such a delegation.
/6/
7. AAFES promulgates service manuals from its headquarters in Dallas
for use by subordinate activities. The manuals set forth current
policies, procedures, and guidelines for forecasting, controlling, and
evaluating manpower needs. See forward to Jt. 4. Within each exchange
region in the Continental United States guidelines are individually
provided for main retail stores. See paragraph 4-5 to Jt. 4.
Each guideline is presented in the form of a mathematical equation,
from which the standard guideline manhours can be computed directly from
each store's projected sales. See paragraphs 4-6 of Jt. 4. /7/ The
manuals give instructions on how to complete the Basic and Supplemental
Branch Staffing Patterns. The Basic Branch Staffing Pattern is prepared
15 calendar days before the beginning of each fiscal year, with
adjustments made during the year according to major changes in operating
conditions, such as permanent increases or decreases in troop strength.
See Jt. 4, para. 6-2. The Supplemental Branch Staffing Pattern makes
needed adjustments during the fiscal year. See Jt. 4, para. 6-7. The
supplemental form (AAFES Form 2100-22) shows "Decreased workload
resulting from lower sales." See Figure 6-5 to Jt. 4. It is the policy
of AAFES that: "Responsible management officials should make sure that
AAFES retail activities are consistently staffed with the fewest
employees required to give the desired level of customer service,
(etc.)." See paragraph 1-3 of Jt. 4. The performance of exchange
managers is judged on how well they implement this policy. Therefore,
when projected sales figures and personnel costs get out of line, so
that surplusages for the welfare funds of the military forces are
unlikely to be generated, personnel costs are quickly reduced, by
reducing the number of personnel, or the numbers of hours they work.
8. During the latter part of 1981, management at the Hill Air Force
Base Exchange received its branch financial projections for fiscal year
1982 from the Arizona Area Exchange. The projections originated at the
Golden Gate Region. According to Vernon Campbell, Exchange Manager at
the Hill Air Force Base Exchange, it was determined that management
would need to reduce personnel costs in order to attain surplusages
necessary to reach financial goals. The decision was therefore made to
reduce the hours of operation at the Hill Air Force Base Exchange in
order to reduce personnel costs. A staffing pattern was submitted,
reviewed by Mr. Campbell, and then forwarded to the Arizona Area
Exchange. It was returned to Mr. Campbell in early February 1982.
9. The reduction in hours at the Hill Air Force Base Exchange was
initially implemented before the Union was notified. However, at the
instructions of the Regional Office, the reduction was rescinded and
employees were compensated for any time lost. Following this, Mr.
Campbell approached Elsie Sorenson, union steward, and informed her it
would be necessary to reduce hours at the Hill Air Force Base Exchange.
Ms. Sorenson stated that she would contact John Darlington, an officer
with the AFGE Local 1592.
10. John Darlington, as the local union representative, requested
negotiations, and the parties met for two or three days of negotiations,
in early April 1982. Respondent was represented by Doris Kerr from the
Arizona Area Exchange. Also present for Respondent were Mr. Campbell
and Jerry Peterson, store manager. Mr. Darlington was present for the
Union, with chief steward Susan Von Beuzekom and union members, Dora
Fuller, and Ms. Sorenson. No agreement was reached during these
negotiations.
11. On April 8, 1982, Mr. Darlington wrote Ms. Kerr, stating that as
a result of the consolidation, ". . . the Union does hereby formally
advise you at the local level that there is no obligation for the Union
to bargain on your proposals. These negotiations and any agreement
reached must be done with the AFGE National Office and Headquarters
AAFES." See Jt. 7. At the same time, Mr. Darlington contacted David
Rodriguez, a labor relations specialist with AFGE's national office, and
informed him of the impending reduction in hours at the Hill Air Force
Base Exchange. Mr. Rodriguez also received information from the local
union at Fort Carson, in Colorado that there was to be a
reduction-in-force at the exchange at that location.
12. On April 9, 1982, Robert E. Edwards, Associate General Counsel
for AAFES, located at its Dallas headquarters, wrote John Mulholland,
Director, Labor-Management Services Department, AFGE, and arranged for
negotiations at Hill Air Force Base beginning April 14, 1982. Mr.
Edwards also stated:
. . . We submit to you that handling a matter involving a RIF
from the national level at a field location which affects only
those persons at that particular location, makes no conceptual
sense and certainly militates against efficiency and effectiveness
of governmental operations.
See Jt. 8.
13. On April 14, 1982, the parties met at Hill Air Force Base to
begin negotiations. Representing the Union were Mr. Rodriguez, the
Union's national representative, Mr. Darlington, and three employees
from the Hill Air Force Base Exchange. Representing AAFES were Ellen
Littrell, an operations specialist and personnel and labor relations
representative from the Golden Gate Region, Mr. Campbell, Mr. Peterson,
and Ms. Kerr. Mr. Rodriguez and Ms. Littrell were the chief
negotiators. The Union submitted a proposal on the procedure to be used
in implementing a reduction in hours See Jt. 9. On April 14, 1982, Mr.
Rodriguez also requested from Ms. Littrell "information as to what
locations were going to be affected by these changes" (Tr. 49). Ms.
Littrell responded that "she was only there to negotiate on the changes
at Hill Air Force Base and that she was not authorized to speak as to
changes any place else, and she would not provide the information" (Tr.
49). The record reveals no other reason given for the denial of the
information. Ms. Littrell was designated by Respondent to act for it at
these bargaining sessions, as the bargaining agent "at the headquarters
level" (Tr. 99).
14. The parties proceeded to exchange proposals; and the Union
agreed to one option on how the reduction in hours would be implemented
at the Hill Air Force Base Exchange. The parties, however, were not
able to reach agreement regarding the scope of the negotiations. The
Union argued that "whatever method was used to reduce the hours at Hill
Air Force Base would in the future be the criteria established for any
of our exchanges worldwide" (Tr. 107). The Union proposed that the
parties execute a partial agreement on the manner in which the reduction
in hours would be accomplished, and that the issue of the scope of the
agreement be presented to the Federal Service Impasses Panel.
Respondent, however, took the position that the negotiations were only
concerned with the change at the Hill Air Force Base Exchange and its
impact and implementation on the Hill Air Force Base Exchange unit
employees. In a letter to Mr. Rodriguez dated April 15, 1982, AAFES's
Associate General Counsel stated:
With reference to my letter to you of April 9, 1982, in which
we delegated to our local bargaining team authority to deal with
this Hill AFB Exchange problem, you should-- which I am sure you
do-- understand that whatever agreement comes out of this purely
local problem is relevant only to the employees at the Hill AFB
Exchange and we do not view the same as binding in the future
impact and implementation bargaining of a reduction in force at
any other location within the consolidated unit.
See G.C. 3.
15. Negotiations ended on April 16, 1982, with no agreement reached
by the parties. The employees at the Hill Air Force Base Exchange were
notified of the reduction in hours on April 16, 1982; and the changes
were made effective June 4, 1982.
16. Forty-five employees at the Hill Air Force Base Exchange had
their hours reduced, as of June 4, 1982. As early as June 18, the Hill
exchange began to rescind the reduction of hours, and had completely
rescinded it by October 13. See Jt. 16 and Tr. 115.
17a. Pursuant to a subpena, AAFES furnished to the General Counsel
the information basically requested by the Union during the April 1982
negotiations. Compare Jt. 17 and finding 13, above. It was compiled by
a labor relations specialist at the Dallas headquarters, after telephone
conversations with personnel staff in various facilities outside
headquarters. The project took 4 1/2 workdays. It was compiled from
"available records" and 12 pages of personal notes taken by the labor
relations specialist. See page 2 of Jt. 17. It was furnished on
February 9, 1984, in response to subpenas dated November 10, 1983, and
February 3, 1984.
17b. From the information compiled, it was established that, from
March 1982 through April 1982, there were curtailments of hours, or
reductions-in-force ("RIF") actions, at the Hill Air Force Base Exchange
(45 employees reduced from 2 to 6 hours a week); at the Fort Carson
Exchange in Colorado (62 employees were affected by a RIF); at the Fort
Sam Houston Exchange in Texas (one employee was downgraded as a result
of a RIF); at the Fort Jackson Exchange in South Carolina (one employee
was reduced from 26 to 20 hours); and at the Northwest Area Exchange,
Fort Lewis, Washington (3 employees were reduced from 25 to 20 hours).
See Jt. 17 and Jt. 16. In connection with each action, the exchange
officials gave prior notice to local union officials.
Discussion and Conclusions.
I. The General Counsel has established, by a preponderance of the
evidence, /8/ that Respondent violated Sections 7116(a)(1) and (5) of
the Statute when it refused, in April 1982, to negotiate national
procedures to be observed in implementing reductions in hours, and
appropriate arrangements for adversely affected employees, with the
Union, certified as the exclusive representative of a consolidated unit
of Respondent's employees.
Just six months prior to the grant of the Union's petition for
certification of a worldwide unit at AAFES, this Authority ruled that
"the mutual obligation to bargain as articulated in the Statute exists
only at that level of exclusive recognition (i.e., the national level)
with respect to conditions which affect any employees within the unit"
(and that) a contrary result would render consolidation meaningless."
See Department of Health and Human Services, Social Security
Administration and Local 1346, American Federation of Government
Employees, AFL-CIO, 6 FLRA No. 33, 6 FLRA 202, at 204 (June 25, 1981,
hereinafter, "HHS"). In HHS, it was the agency which refused to enter
into negotiations at the local level, under the terms of a reopener
clause in an agreement between AFGE Local 1346 and the agency there
involved.
Here, it is the agency which is initiating changes. The changes came
to the attention of national officers of AFGE in April 1982, just a few
months before bargaining began on a national contract. See findings 6
and 11, above. AFGE's national officers, having learned the lesson
taught to them in HHS, made a request to bargain national procedures, so
that consolidation would not be rendered "meaningless." Thus, during
negotiations at Hill, AFGE proposed that "whatever method was used to
reduce the hours at the Hill Air Force Base Exchange would in the future
be the criteria established for any of (AAFES's) exchanges worldwide."
See finding 14, above. It must be emphasized that AFGE wanted to
bargain only the "method" and "criteria" for its worldwide unit, not
specifics, which would vary from exchange to exchange, of course.
This Authority held, in AAFES, in directing an election for a
consolidated unit, that employees in the consolidated unit here involved
share a "clear and identifiable community of interest" (5 FLRA at 660),
and that the consolidated unit will enhance "effective dealings and the
efficiency of Agency's operations" (5 FLRA at 661). The facts of this
case illustrate the soundness of that decision. Here, all exchange
employees in the consolidated unit are subject to staff reductions
whenever a significant drop in sales volume is projected for the
particular exchange in which they work. Negotiating a method and
criteria for accomplishing these staff reductions, each time a need
occurs, would be wasteful of Respondent's resources, as well as those of
the Union, and could result in a mishmash of methods and criteria that
would be difficult to administer. Yet, under Respondent's view of its
bargaining responsibilities to a consolidated unit, it would have
negotiated methods and criteria for a reduction in hours three times,
from March through April 1982,-- once at the Hill Air Force Base
Exchange; again at the Fort Jackson Exchange; and again at the
exchange at Fort Lewis. At none of these exchanges was it shown that
there was an existing agreement covering procedures for reducing hours
of personnel. This piecemeal approach to bargaining would surely render
consolidation "meaningless," within the intent of HHS. See 6 FLRA at
204.
Respondent argues that some issues are "not national in scope," and
that pending negotiations on a national agreement, it has no duty to
bargain over national procedures as to the "impact and implementation"
of a staff reduction at one facility. /9/ See Tr. 21. This argument
ignores the fact that Respondent policy is for staff reductions to take
place quickly at every exchange affected by a reduced sales volume.
This record demonstrates that such cuts are not uncommon. The argument
also ignores the lesson of HHS, that bargaining be at the national level
whenever any employee in a consolidated unit is affected. See 6 FLRA at
204. While the specifics, at each exchange, may not be "national in
scope," the methods and criteria for implementing the changes certainly
are; and this is all that the Union proposed in the way of bargaining
over national procedures. See finding 14, above.
Respondent finally argues that the allegations of the General Counsel
seem to be in conflict with 5 CFR 2422.2(h)(8), wherein the Authority
has provided that:
Upon the issuance of a certification of consolidation of units,
the terms and conditions of existing agreements covering those
units embodied in the consolidation shall remain in effect except
as mutually agreed to by the parties until a new agreement
covering the consolidated unit becomes effective.
Respondent notes that Article XVI of the collective bargaining
agreement with Local 1592, at Hill Air Force Base, deals with procedures
for reduction in force. Tr. 27-28. However, the agreement at Hill does
not deal with procedures for reductions in hours, which was the subject
of the Union's proposals here. See Joint Exhibit 15. Nor was it shown
that such procedures were the subject of any other local agreement.
Thus, 5 C.F.R. 2422.2(h)(8) does not even come into play, in this case.
II. The General Counsel has established, by a preponderance of the
evidence, that Respondent violated Sections 7116(a)(1) and (8) of the
Statute when it refused to furnish information to the Union during
negotiations over reductions in hours, in April 1982, at the Hill Air
Force Base Exchange.
Section 7114 of the Statute sets forth an agency's obligation to
furnish information to a union. This section is quoted fully in
footnote 3, above. In summary, the "data" sought must be "normally
maintained by the agency in the regular course of business," and must be
"reasonably available and necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining." /10/
What the Union requested here was "information" as to what other
exchanges in the consolidated unit were going to be affected by such
changes. See finding 13, above. "Information" is one definition of
"data." See page 339 of The Random House College Dictionary.
It is clear from this record that Respondent keeps, "in the regular
course of business," records which reveal this information. One such
record is the Supplemental Branch Staffing Pattern (AAFES Form 2100-22).
See finding 7, above. Also, when Respondent responded to the subpena
of the General Counsel, and prepared detailed information about
reductions in hours and/or force at exchanges, its agents advised that
they had "documents" and "records" to support their findings. See Jt.
16 and 17.
Respondent made no effort to prove that the documents and records,
themselves, were not "reasonably available." Instead, if proved that one
of its agents spent four and a half workdays compiling information from
the records and documents of the exchanges. But the Union did not ask
that information be compiled. And Respondent never complained to the
Union of the burdensomeness of the request, in which case the Union
could have offered to work something out with Respondent that would
minimize the burden. Instead, Respondent flatly refused to give out any
information as to exchanges other than the one at Hill Air Force Base.
See finding 13, above. Had Respondent been willing to make any effort
at all, it could have sent, to each of its exchanges, a simple
memorandum asking whether a staff reduction was being planned and, if
so, to send a copy of any documents concerning the plans to the Union.
Finally, as already discussed above, the information sought
concerning other exchanges in the consolidated unit which were to be
affected by staff reductions, was necessary in order for the Union to
fulfill its obligation to bargain for the consolidated unit.
Impact-and-implementation bargaining over staff reductions is clearly a
subject within the scope of collective bargaining; and Respondent does
not argue otherwise.
What Respondent does argue, perhaps facetiously, is that it furnished
the requested data as to "these changes," namely the ones at the Hill
Air Force Base Exchange. See R Br 1 and 2. The testimony of Ms.
Littrell, its chief bargaining agent and the agent to whom the request
was made at Hill Air Force Base, clearly understood that the request
concerned changes at other exchanges than that at Hill Air Force Base.
See finding 13, above.
Respondent also argues that the data requested was equally available
to the Union, by telephoning all of its locals. See R Br 2. The record
indicates otherwise. The request was for information as to "what
locations were going to be affected" (finding 13, above). As was
initially done at Hill Air Force Base, (see finding 9, above) other
exchanges may have had plans in the works, but had not given any notice
of them to the local union officials.
Remedy
The General Counsel requests "an appropriate posting throughout the
consolidated unit," and "a make whole remedy for all employees in the
consolidated unit affected by Respondent's conduct" (GC Br 13). The
General Counsel also proposes a cease-and-desist order and a bargaining
order. See Appendix A to the General Counsel's brief.
In view of the basic nature of the problem in this case, Respondent's
refusal to recognize that, upon consolidation, the Union gained the
right to bargain on behalf of the entire unit, a unit-wide posting, as
proposed, is appropriate. See United States Forces Korea, Eighth United
States Army, 11 FLRA No. 79, 11 FLRA 434, 437, 441, and 453 (1983).
A cease-and-desist and bargaining order is also appropriate.
The issue of the "make whole remedy" requested is more difficult to
decide. By this proposal I presume that the General Counsel seeks a
status-quo-ante type of relief, as to the failure to bargain. The
Authority measures the appropriateness of such relief by considering
five points: (1) whether and when the union was notified of the changes
at issue; (2) whether and when the union demanded negotiations; (3)
the willfulness of the agency's refusal to bargain; (4) the nature and
extent of the impact of the changes upon employees, and (5) the degree
of disruption or impairment upon the efficiency and effectiveness of the
agency's operations, should the remedy be imposed. See Federal
Correctional Institution, 8 FLRA No. 111, 8 FLRA 604, 606 (1982). Here,
Respondent gave prior notice of the changes, but to the wrong union
officials. In the one instance where no notice was given, Respondent
immediately ordered the change rescinded, and the employees made whole.
The Union did make a timely demand to bargain upon behalf of the
consolidated unit, and, in rejecting the demand, Respondent acted
willfully. The reductions in hours about which the Union made proposals
for unit-wide adoption affected 3 out of the 65 or over facilities
represented in the consolidated unit, with a total of 49 unit employees
suffering reductions in hours of from 2 to 6 hours a week. At Hill Air
Force Base, the cut in hours was of only a few weeks duration, for some;
and all hours were restored after four months. To the extent that any
back pay, or restoration of hours were to be ordered, the ability of the
AAFES to generate welfare funds for soldiers and airmen of the United
States Army and Air Force would be diminished. All of the above having
been considered, and balanced, it does not appear that the requested
"make whole" remedy would be in the best public interest, in this case.
Ultimate Findings and Recommended Order
Respondent has violated Sections 7116(a)(1), (5) and (8), as alleged.
Pursuant to 5 CRF 2423.29 and Section 7118 of the Statute, the
Authority hereby orders that the United States Department of Defense,
Departments of the Army and the Air Force, Headquarters, Army and Air
Force Exchange Service, Dallas, Texas, shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
bargaining representative of its employees, by implementing
reduction in hours without affording the Union the opportunity to
negotiate on national procedures to be observed in implementing
the changes and appropriate arrangements for adversely affected
employees.
(b) Failing and refusing to provide the American Federation of
Government Employees, AFL-CIO, with requested information relating
to which other components of the consolidated bargaining unit,
were planning personnel reductions in April 1982.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service-Labor Management Relations Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, the exclusive representative, over
national procedures to be observed in implementing reductions in
hours and appropriate arrangements for adversely affected
employees.
(b) Upon request, furnish the American Federation of Government
Employees, necessary information in compliance with Section
7114(b)(4) of the Federal Service Labor-Management Relations
Statute.
(c) Post, at all facilities of AFGE's consolidated bargaining
unit, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Commander and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. The Commander shall
take reasonable steps to ensure that such notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to 5 CFR 2423.30, notify the Regional Director of
Region VI, Federal Labor Relations Authority in writing, within 30
days from the date of this Order as to what steps have been taken
to comply herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: June 7, 1984
Washington, D.C.
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, by implementing reductions
in hours without affording the Union an opportunity to negotiate on
national procedures to be observed in implementing the changes and
appropriate arrangements for adversely affected employees. WE WILL NOT
fail or refuse to provide the American Federation of Government
Employees, AFL-CIO, with necessary and relevant information relating to
which components of the consolidated bargaining unit were planning
personnel reductions in April 1982. WE WILL NOT in any like or related
manner interfere with, restrain, or coerce our employees in the exercise
of their rights assured by the Federal Service Labor-Management
Relations Statute. WE WILL notify the American Federation of Government
Employees, AFL-CIO, of any planned reductions in hours and, upon
request, meet and negotiate over national procedures to be observed in
implementing such changes and appropriate arrangements for adversely
affected employees. WE WILL, upon request, furnish the American
Federation of Government Employees, AFL-CIO, relevant and necessary
information in compliance with Section 7114(b)(4) of the Federal Service
Labor-Management relations Statute.
(Activity)
Dated: . . . By: (Signature) This Notice must remain posted for sixty
(60) consecutive days from the date of posting, and must not be altered,
defaced, or covered by any other material. If employees have any
question concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director, Region VI, Federal
Labor Relations Authority, whose address is: Bryan & Ervay Streets,
Room 450, P.O. Box 2640, Dallas, Texas 75221, and whose telephone number
is: (214) 767-4996; FTS 729-4996.
--------------- FOOTNOTES$ ---------------
/1/ The Judge concluded that the Respondent refused, when requested,
to negotiate over national procedures to be observed in implementing
reductions in hours. Noting particularly the lack of exceptions to the
substance of the Judge's Decision, the Authority adopts the Judge's
conclusions.
/2/ The General Counsel and the Charging Party except to the Judge's
refusal to grant a status quo ante remedy. The Authority concludes, in
agreement with the Judge and based on her rationale, that a status quo
ante remedy is not warranted. Thus, balancing the nature and
circumstances of the violation against the degree of disruption in
government operations that would be caused by such a remedy, and taking
into consideration, as did the Judge, the various factors set forth in
Federal Correctional Institution, 8 FLRA 604 (1982), the Authority
concludes that such a remedy would not effectuate the purposes and
policies of the Statute.
/3/ The pertinent provisions of the Statute are as follows:
Section 7116 provides, in pertinent part, that:
(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 . . . . or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
A provision here applicable is Section 7114, which provides that:
(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-- . . .
(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 . . . .
/4/ "GC" refers to the exhibits of the General Counsel. Other
abbreviations to be used herein are as follows: "Jt" refers to the
joint exhibits; "R" refers to Respondent's exhibits; "Tr" refers to
the transcript; "GC Br" refers to the post-hearing memorandum of the
General Counsel; and "R Br" refers to the post-hearing letter of
Respondent which constitutes its brief.
/5/ Sections 7103(a)(3) of the Statute defines "agency" to include
nonappropriated fund instrumentalities.
/6/ Such an agreed-upon delegation was made in July 1982, however.
See Tr. 116-118 and R. 1.
/7/ This may be the "formula" to which the Union's national
representative referred, in his testimony. See Tr. 53 and compare Tr.
112 and 91.
/8/ This is the statutory burden of proof. See Section 7118(a)(7) of
the Statute.
/9/ So-called "impact and implementation" bargaining is mandated by
Section 7106 of the Statute, which provides:
(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.
/10/ Another criteria, in subpart (C), is obviously not involved
here. See footnote 3, above.