[ v25 p289 ]
25:0289(20)CA
The decision of the Authority follows:
25 FLRA No. 20
22 COMBAT SUPPORT GROUP (SAC)
MARCH AIR FORCE BASE,
CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL
3854, AFL-CIO
Charging Party
Case No. 8-CA-50132
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent 22 Combat Support
Group (SAC), March Air Force Base, California had engaged in certain
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 Respondent filed exceptions to the Judge's
Decision, and the General Counsel filed an opposition to the 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), we have reviewed the rulings of the Judge made at
the hearing and find that no prejudicial error was committed. The
rulings are affirmed. Upon consideration of the Judge's decision and
the entire record, we adopt 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, it is
hereby ordered that 22 Combat Support Group (SAC), March Air Force Base,
California shall:
1. Cease and desist from:
(a) Instituting National Agency and Local Agency checks on employees
represented exclusively by the American Federation of Government
Employees, Interdepartmental Local 3854, AFL-CIO, without providing the
exclusive representative a reasonable opportunity to complete bargaining
concerning the procedures to be observed in implementing the checks and
appropriate arrangements for any employee adversely affected by
conducting such checks.
(b) 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) Provide the American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO, with a reasonable opportunity to
complete bargaining concerning appropriate arrangements for any employee
adversely affected by the National Agency and Local Agency employee
checks already implemented.
(b) Provide the American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO, with a reasonable opportunity to
complete bargaining concerning the procedures to be observed in
implementing any future National Agency and Local Agency employee checks
and appropriate arrangements for any employee adversely affected by
conducting such checks.
(c) Post at its March Air Force Base facility 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 Base
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.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other materials.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, 350 South Figueroa Street, 10th Floor, Los Angeles,
California 90071, 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., January 20, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Dissenting Opinion of Chairman Calhoun
In disagreement with my colleagues, I conclude in the circumstances
of this case that the Respondent provided the Union with adequate notice
of its intent to implement changes in employment suitability checks.
The Union received two weeks notice of the intent to implement and the
Respondent stated orally and in writing that it was available to
negotiate during that two-week period. Further, the Respondent offered
to negotiate with the Union after implementation and apply an agreement
reached retroactively. Finally, in my view, the subject matter involved
was not so complex as to require more than two weeks' notice. See, for
example, Department of the Army, 12 FLRA 216 (1983) (approximately two
weeks' notice of an intent to implement a paid parking program was
sufficient to provide the union with a reasonable opportunity to
negotiate). Because I conclude that the notice was adequate and I find
no evidence of any bad faith on the part of the Respondent, I would
dismiss the complaint.
Issued, Washington, D.C., January 20, 1987.
/s/ Jerry L. Clahoun, Chairman
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 institute National Agency and Local Agency checks on
employees represented exclusively by the American Federation of
Government Employees, Interdepartmental Local 3854, AFL-CIO, without
providing the exclusive representative reasonable opportunity to
complete bargaining concerning the procedures to be observed in
implementing the checks and appropriate arrangements for any employee
adversely affected by conducting such checks.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL provide the American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO, with a reasonable opportunity to
complete bargaining concerning appropriate arrangements for any employee
adversely affected by the National Agency and Local Agency employee
checks already implemented.
WE WILL provide the American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO, with a reasonable opportunity to
complete bargaining concerning the procedures to be observed in
implementing any future National Agency and Local Agency employee checks
and appropriate arrangements for any employee adversely affected by
conducting such checks.
(Activity)
Dated: . . . By: (Signature)
(Title)
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 VIII, whose address is: 350 South Figueroa Street,
10th Floor, Los Angeles, California, 90071 and whose telephone number is
(213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 8-CA-50132
22 COMBAT SUPPORT GROUP
(SAC), MARCH AIR FORCE
BASE, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL
3854, AFL-CIO
Charging Party
Lt. Col. Wade B. Morrison
For the Respondent
Jonathan S. Levine, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
et seq.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Interdepartmental Local Combat Support Group
(SAC), March Air Force Base, California (herein sometimes referred to as
Respondent), the General Counsel of the Authority, by the Regional
Director for Region VIII, issued a Complaint and Notice of Hearing
alleging Respondent violated section 7116(a)(1) and (5) of the Statute
by unilaterally changing working conditions of bargaining unit employees
by implementing employment suitability checks without completing
bargaining with the Union concerning the implementation of the change
and its impact on unit employees.
A hearing on the Complaint was conducted in Los Angeles, California
at which Respondent and the General Counsel were represented by counsel
and afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses and argue orally. Briefs were filed by counsel
for Respondent, and counsel for the General Counsel and have been
carefully considered.
Upon the entire record in this case, my observation of the witnesses
and their demeanor and from my evaluation of the evidence, I make the
following:
Findings of Fact
At all times material the Union has been the exclusive collective
bargaining representative of all nonappropriated fund (NAF) employees
employed by Respondent, with the exception of various excluded
employees.
On December 4, 1984 Respondent received notification from its
Headquarters of an amendment to Air Force regulations whereby all new
employees holding positions of trust, including personnel whose duties
involved association with youth and/or child care activities, would have
to undergo National Agency and Local Agency suitability checks and
investigations. Respondent's NAF Coordinator Charles Rigsby, who was
Respondent's representative responsible for bargaining with the Union on
matters involving NAF employees, was out of the office between December
4 and December 17. The original instructions from Headquarters did not
indicate an implementation date for the checks and no action was taken
by Respondent on Headquarters' notification during this period. Within
two or three days after Rigsby returned on December 17 he contacted SAC
Headquarters and was informed that the National Agency and Local Agency
checks were also applicable to employees currently holding positions of
trust.
On Friday December 28, 1984 Rigsby delivered a letter from Respondent
to the Union office, with an attached copy of the telegram from
Headquarters it received on December 4 and a proposed memorandum of
understanding concerning the matter. The letter indicated that
implementation of the requirements for employee checks would commence on
January 13, 1985 (a Sunday). /3/ Rigsby delivered the letter to the
Union office at 4:30 p.m. and since the Union office was locked at the
time, he put the letter under the door. /4/ Respondent's letter to the
Union also indicated that the employment checks would be applicable to
both current and future employees and accordingly, current employees in
such positions would be required to completed forms necessary for the
checks. The letter further stated that any comments the Union wished to
make were to be provided to Rigsby by January 11, 1985.
Local 3854 President DelMar Callaway observed Respondent's letter
under the door when he arrived at the Union office at 9:00 a.m. on
Monday December 31, 1984. Sometime late January 2 or early January 3,
1985 /5/ Callaway delivered to Respondent a letter wherein he, inter
alia, stated that the Union wished to negotiate on the checks prior to
implementation. Callaway further stated:
". . . it is suggested that you change your implementation date
of 13 January, 1985 until we have reached an agreement. It is
further requested that we meet on 31 January, 1985, at 0900 hours,
in the Recreation Center and negotiate and come to an agreement."
On Tuesday January 8, 1985 Respondent replied to the Union's prior
correspondence. In its letter to the Union Respondent refused to
postpone the date of implementation "(b)ecause of the sensitivity of the
positions involved (i.e. dealing with children/handling cash) and the
length of time it takes to complete (the checks). . . ." The letter
further stated:
"As we had previously requested, if you have no
counterproposals, please sign the agreement and return it to our
office before 13 January 1985 implementation date. If you do have
counterproposals on the impact and implementation of IMC 84-2 that
you wish to have considered, please submit them to our office as
soon as possible. If you do, Mr. Charles Rigsby of my office will
be available to meet with you or a representative from the Union
at 0900, 11 January 1985, in the Recreation Center, to negotiate
over the impact and implementation of the IMC. Because of the
importance of the issues, your prompt reply is requested so we can
effectively negotiate the implementation of IMC 84-2. We
appreciate your suggestion to delay the implementation date of IMC
84-2, but because of the aforementioned reasons we cannot delay
the implementation date. If you have counterproposals you wish to
have considered after the implementation date, please submit them
to our office prior to 31 January 1985. Mr. Rigsby will then be
available to meet with you or your representative at 0900, 31
January 1985, at the Recreation Center to negotiate on impact and
implementation of IMC 84-2. Any changes agreed to at that meeting
can be retroactively applied."
Union President Callaway replied to Respondent in a January 9, 1985
letter and again took the position that a negotiated agreement on the
matter should be reached before implementation. Callaway submitted
seven negotiation proposals at this time and indicated that the earliest
available date to negotiate was January 31, stating:
". . . inasmuch as . . . some of the employees have been
employed for a considerable length of time and the fact, as you
are aware, that we have ongoing business day to day that requires
our attention and your refusal to grant the Unit Vice President
official time to negotiate on matters concerning Non-Appropriated
Fund, a check of our calendar reveals that 31 January, 1985 was
the closest date available to us to negotiate." /6/
However, in a post script to that letter Callaway related that he
cancelled appointments for January 24 ". . . so that we may meet and
negotiate and come to an agreement, prior to implementation."
The next communication between the parties occured on Friday January
11 when Respondent's NAF Coordinator Rigsby telephone Union President
Callaway around 7:30 a.m. /7/ Rigsby asked Callaway if they could meet
that morning to neogtiate on the National and Local Agency checks since
the date set for implementation was January 13 and Respondent felt it
was necessary to begin implementing the checks by having some meetings
with employees. Callaway replied that he had a prior commitment and if
he would leave a message with his secretary as to the date, time and
place of a meeting and make arrangements for him to get time, he would
meet with Rigsby on the matter. /8/ Rigsby also asked if they could
agree to management's proposal which accompanied the December 28
notification, supra, and Callaway said "No, we need to meet face to face
and discuss it" and told Rigsby he would not negotiate with him on the
phone on the subject.
By letter to Callaway that same day Respondent, inter alia,
announced: it would implement on January 13; meetings with employees
on the matter were scheduled for January 16 and 17; and it would meet
with the Union on January 24 ". . . to continue to negotiate on the
impact and implementation . . .," indicating that any changes agreed to
at that time could be applied retroactively.
By letter dated January 14, 1985 Respondent notified the Union that
the National and Local Agency checks had been implemented. Although
meetings on January 24 and January 31 were scheduled, none were held.
However, the parties did meet to negotiate on the matter on February 21
but in mid-April Respondent discovered it was using incorrect forms to
process employee checks and withdrew the old forms. New forms were
subsequently obtained and although some negotiations have occurred, it
does not appear that the parties have ever concluded negotiations on the
matter. In any event, National and Local Agency checks were
re-implemented on June 10, 1985.
Discussion and Conclusions
Counsel for the General Counsel contends that Respondent's
implementation of the National and Local Agency checks on January 13,
1985 without first completing bargaining with the Union on this change
in working conditions violated section 7116(a)(1) and (5) of the
Statute. Respondent denies violating the Statute and contends it gave
the Union reasonable notice of implementation; the Union did nothing
more than "suggest" delay in implementation; and, in any event the
Union did not give management sufficient justification to delay
implementation.
In my view, Respondent did not provide the Union with sufficient
notice to enable it to bargain effectively on the change. The Union,
because of management's action of delivering notice to the Union office
after normal close of business on Friday December 28, 1984, did not
receive notice of the change until Monday December 31. This notice
indicated, in effect, that the last day for negotiation on the matter
would be January 11, January 12 being a Saturday. January 1 was a
holiday and on the very next day the Union clearly requested
implementation be postponed until the culmination of negotiations
although it attached negotiating proposals to the correspondence.
Respondent then, with no explanation to the Union and no explanation in
the record herein, took five days (three working days) to fashion a
response before notifying the Union or the sixth day (January 8) that it
would not postpone implementation. Respondent's stated reasons for
refusing to postpone the implementation date was "because of the
sensitivity of the positions involved . . . and the length of time it
takes to complete (the checks) . . ."
While the matter was obviously important, I do not conclude it was so
critical as to create an overriding exigency or other compelling reason
which would justify adhering to the January 13 implementation date in
the circumstances herein. Respondent received notification from its
Headquarters almost one month before it notified the Union of the need
for new employee checks. Further, after Respondent discovered it had
issued incorrect forms to employees in mid-April 1984 and withdrew them,
no checks were made until new forms were issued on June 10. Cf. Bureau
of Government Financial Headquarters, II FLRA 334 (1983) at 343-344 and
Long Beach Naval Shipyard, Long Beach, California, 17 FLRA 511 (1985) at
526. Moreover, when on January 8 Respondent notified the Union of its
refusal to postpone implementation it stated that if the Union wished to
negotiate on the subject, management would meet with the Union on
January 11, thereby giving the Union only one day to partake in actual
face-to-face negotiations after Respondent rejected a postponement of
implementation. /9/ Thus, the facts disclose Respondent provided the
Union with minimal time between notification and implementation of the
change with no acceptable justification for its conduct.
In its brief Respondent strongly urges that the Union failed to
provide management with sufficient justification to delay implementation
of the employment change. However, Respondent initially had the
responsibility to provide the Union with adequate opportunity to
negotiate. Here, due to the relatively short period available to
complete negotiations before implementation and the lack of an
overriding exigency, it was reasonable for the Union to request a delay
in order to prepare and make available a knowledgeable representative.
Thus, it was RespondentS justified conduct which placed the Union in the
position of requiring a delay in implementation so it could proceed to
negotiations in an effective manner. /10/
Accordingly, in all the circumstances herein, I conclude that
Respondent implemented National and Local Agency checks without
affording the Union a reasonable opportunity to complete bargaining over
the change in conditions of employment thereby violating section
7116(a)(1) and (5) of the Statute. Id.
In view of the entire foregoing I recommend, as requested by counsel
for the General Counsel, that Respondent be required to afford the Union
an opportunity to engage in post-implementation bargaining and the
Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that 22 Combat Support Group (SAC), March Air Force Base,
California shall:
1. Cease and desist from:
(a) Instituting National Agency and Local Agency checks on
employees represented exclusively by the American Federation of
Government Employees Interdepartmental Local 3854, AFL-CIO,
without providing the exclusive representative a reasonable
opportunity to complete bargaining concerning on the procedures to
be observed in implementing the checks and appropriate
arrangements for any employee adversely affected by conducting
such checks
(b) 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) Provide the American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO, with a reasonable
opportunity to complete bargaining concerning appropriate
arrangements for any employee adversely affected by the National
Agency and Local Agency employee checks already implemented.
(b) Provide the American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO, with a reasonable
opportunity to complete bargaining concerning the procedures to be
observed in implementing any future National Agency and Local
Agency employees checks and appropriate arrangement for any
employee adversely affected by conducting such checks.
(c) Post at its March Air Force Base facility 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 Base Commander, or a designee, 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. 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 VII, Federal
Labor Relations Authority, 350 South Figueroa Street, 10th Floor,
Los Angeles, California 90071, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
/s/ SALVATORE J. ARRIGO
Administrative Law Judge
Dated: May 8, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) We conclude, contrary to the Respondent's exceptions, that the
complaint was of sufficient breadth and clarity to constitute the basis
for the Judge's findings and conclusions in this case.
(2) In adopting the Judge's recommended Order, we reject the Agency's
exception that the Union waived its right to bargain further concerning
this matter by its conduct after January 13. The Authority has held
that a waiver will be found only if it can be shown that the exclusive
representative clearly and unmistakably waived its right to negotiate.
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9
(1981). The record in this case does not establish that the Union
clearly and unmistakably waived its right to bargain as asserted by the
Agency.
(3) When asked on direct examination why it took until December 28 to
get this notice to the Union, Rigsby testified there were no specific
reasons other than he had been away from the office for two weeks and he
was faced with a backlog of work to accomplish when he returned. Rigsby
also testified it took "at least a couple of days" to get such notices
through intra-management channels.
(4) Normal work hours at the facility are from 7:30 a.m. to 4:30 p.m.
(5) January 1 was a holiday.
(6) Callaway and Union Vice President Tancrator are both appropriated
fund employees and Respondent had followed a policy of not granting
either of them official time to represent employees in the NAF unit
since neither Callaway nor Tancrator belong to that unit although they
were employees of Respondent at the time and were officers of Local 3854
which represents those employees. Indeed, Local 3854 also represents
employees at Norton AFB, Edwards AFB, China Lake Navy Weapons Center, VA
Cemetery, Riverdale, California, and Joshua Tree National Monument.
Callaway testified he asked Tancrator to represent the Union in
negotiations with Respondent in this matter but Tancrator refused to do
so on a leave without pay or annual leave basis. Callaway further
testified that various Union stewards could have handled the
negotiations if given official time but it was not Union's policy to
permit stewards to represent the Union in such negotiations.
(7) The following account is a composite of the credited testimony of
Rigsby and Callaway.
(8) Sometime in late December 1984 Callaway had obtained permission
from Mr. Lyon, his immediate supervisor at March AFB, to take leave
without pay on January 11 to negotiate on various issues at the VA
Cemetery. All leave taken by Callaway had to be approved beforehand by
Lyon who frequently contacted Respondent's Labor Relations Office for
instructions on the request.
(9) Indeed if after receiving the Union's January 2 letter requesting
January 31 as a date for negotiations Respondent timely informed the
Union it would not delay negotiations, it is possible the Union would
have made some arrangement to meet Respondent's time target.
(10) In my view a union's difficulty in providing a representative
for negotiations would not, standing alone, justify an inordinate delay
in negotiations and a union must ordinarily be held responsible to have
a negotiator available to participate in negotiations in a timely
fashion. Similarly, management is also responsible to have sufficient
resources to meets its obligations. Thus I find the fact that NAF
Coordinator Rigsby was out of the office when the notice of the
requirement for new National and Local Agency checks was received by
Respondent from its Headquarters to be of little significance in
explaining why, if the matter was so important, it took Respondent
approximately one month to notify the Union of the change.
APPENDIX 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 STATUTE WE HEREBY NOTIFY
OUR
EMPLOYEES THAT:
WE WILL NOT institute National Agency and Local Agency checks on
employees represented exclusively by the American Federation of
Government Employees, Interdepartmental Local 3854, AFL-CIO, without
providing the exclusive representative reasonable opportunity to
complete bargaining concerning the procedures to be observed in
implementing the checks and appropriate arrangements for any employee
adversely affected by conducting such checks.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL provide the American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO, with a reasonable opportunity to
complete bargaining concerning appropriate arrangements for any employee
adversely affected by the National Agency and Local Agency employee
checks already implemented.
WE WILL provide the American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO, with a reasonable opportunity to
complete bargaining concerning the procedures to be observed in
implementing any future National Agency and Local Agency employee checks
and appropriate arrangements for any employee adversely affected by
conducting such checks.
(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 of compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VIII,
whose address is: 350 S. Figueroa Street, 10th Floor, Los Angeles, CA
90071 and whose telephone number is: (213) 688-3805.