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38 FLRA No. 119

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

SPACE SYSTEMS DIVISION

LOS ANGELES AIR FORCE BASE, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2429, AFL-CIO

(Charging Party/ Union)

8-CA-90241

AND

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE CONTRACT MANAGEMENT DIVISION

LOS ANGELES AIR FORCE BASE, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2429, AFL-CIO

(Charging Party/ Union)

8-CA-90248

DECISION AND ORDER

January 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing its smoking policy before good faith bargaining had been completed.⁽¹⁾ The Judge concluded that the parties had not reached an impasse in negotiation when the smoking policy of Air Force Regulation (AFR) 30-27 was implemented by the Respondent at the Space Systems Division on March 1, 1989, and various Plant Representative offices of the Contract Management Division in May 1989.

The Respondent filed exceptions to the Judge's decision and order. The General Counsel did not file an opposition to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings and conclusions, and recommended Order as modified below.

II. Respondent's Exceptions

The Respondent raises two exceptions to the Judge's decision:

1. The Respondent excepts to the Judge's conclusion that it violated the Statute by implementing the smoking policy "before good faith bargaining had been completed." Respondent's Brief in Support of Exceptions at 1. The Respondent argues that the new smoking policy was not implemented until after the parties reached an impasse in negotiations and the Union failed to submit the matter to the Federal Service Impasses Panel.

2. The Respondent also excepts to the Judge's recommended Order requiring that the Notice "be signed by the Commander of the Air Force Systems Command (AFSC)," rather than by an official at the level of exclusive recognition. Id. at 2. The Respondent argues that the Notice should be signed by the Commander of the Space Systems Division (SSD). The Respondent asserts that the SSD is the major organization located at the Los Angeles Air Force Base and that the Commander of the SSD is the appointing authority for employees of the SSD, as well as employees of the several tenant organizations located at the Los Angeles Air force Base. In addition, the Respondent claims that the Commander of the SSD was responsible for conducting negotiations with the appropriate unions on behalf of the SSD as well as the Contract Management Division (CMD). ⁽²⁾

III. Analysis and Conclusions

We reject the arguments made by the Respondent in its first exception and conclude that the record establishes that the Respondent unilaterally implemented the smoking policy of AFR 30-27 while the parties were engaged in negotiations on the matter. Accordingly, we find, in agreement with the Judge and for the reasons stated by the Judge, that the Respondent's actions violated section 7116(a)(1) and (5) of the Statute.

However, we agree with the Respondent that the Judge's recommended Order requiring that the Notice be signed by the Commander of AFSC should be modified. We conclude that the Notice should be signed by the Commander of the SSD.

First, we note that the Union is not the exclusive representative of a unit of employees at AFSC level, but rather, is the exclusive representative of units of employees at the Division level of the AFSC. The record reflects that the Union is certified as the exclusive representative of three separate units: (1) professional and nonprofessional employees of the SSD assigned to the Los Angeles Air Force Base; (2) nonappropriated fund employees of the SSD stationed at the Base; and (3) professional and nonprofessional employees located at various Air Force Plant Representative Offices at defense installations under the control of the former CMD.

Second, the record reflects that Division-level management made the decision to implement AFR 30-27 at the facilities where bargaining unit employees of the SSD and CMD were located. In this regard, we note that the unfair labor practice complaint was filed against the Respondent SSD in Case No. 8-CA-90241 and the Respondent CMD in Case No. 8-CA-90428.

Finally, we find no contention in the record by the General Counsel or the Union that the Commander of the AFSC should be required to sign the remedial Notice. In this regard, the General Counsel requested that the Respondent be ordered to "[p]ost an appropriate notice to be signed by the Commanding Officers." General Counsel's Brief to the Administrative Law Judge at 13.

In the circumstances of this case, we will modify the Order to require that the Notice be signed by the Commander of the Space Systems Division.

IV. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Space Systems Division, Los Angeles Air Force Base, California, and Air Force Contract Management Division, shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of bargaining unit employees regarding its smoking policy without first completing bargaining with the American Federation of Government Employees, Local 2429, AFL-CIO, the exclusive representative of its employees, concerning such change.

(b) In any like or related manner, interfering with, restraining, or coercing their 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 Federal Service Labor-Management Relations Statute:

(a) Upon request by the American Federation of Government Employees, Local 2429, AFL-CIO, the Exclusive representative of its employees, rescind the new smoking policy, AFR 30-27 (July 19, 1988) implemented at the Space Systems Division, Los Angeles Air Force Base, California and at the Air Force Plant Representative offices, Air Force Contract Management Division, and restore the prior policy which was in existence at such locations.

(b) Notify the American Federation of Government Employees, Local 2429, AFL-CIO, the exclusive representative of its employees, of any intention to change its smoking policy and bargain with it concerning such change.

(c) Post at its facilities at the Space Systems Division, Los Angeles Air Force Base, California and at its Air Force Plant Representative offices, 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 of the Space Systems Division, Air Force Systems Command and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of bargaining unit employees regarding our smoking policy without first completing bargaining with the American Federation of Government Employees, Local 2429, AFL-CIO, the exclusive representative of our employees, concerning such change.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL upon request by the American Federation of Government Employees, Local 2429, AFL-CIO, the Exclusive representative of our employees, rescind the new smoking policy, AFR 30-27 (July 19, 1988) implemented at the Space Systems Division, Los Angeles Air Force Base, California and at the Air Force Plant Representative offices, Air Force Contract Management Division, and restore the prior policy which was in existence at such locations.

WE WILL notify the American Federation of Government Employees, Local 2429, AFL-CIO, the exclusive representative of our employees, of any intention to change our smoking policy and bargain with it concerning such change.

____________________________
(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 IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. We have corrected the Judge's case caption to identify the "Space Systems Division" rather than the "Space Division." In addition, as the two Respondents were referred to in the singular by the Judge, we will do so also.

2. According to the Respondent, effective June 30, 1990, the Contract Management Division "was abolished, and its functions were transferred to the Defense Logistics Agency." Exceptions at 2.

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