[ v25 p740 ]
25:0740(63)CA
The decision of the Authority follows:
25 FLRA No. 63
ARMY AND AIR FORCE EXCHANGE
SERVICE
and
ARMY AND AIR FORCE EXCHANGE
SERVICE, OAKLAND, ARMY BASE
OAKLAND, CALIFORNIA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1157, AFL-CIO
Charging Party
Case No. 9-CA-50111
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed jointly by the Respondent Army and Air Force Exchange Service
(AAFES) and the Respondent Army and Air Force Exchange Service, Oakland,
California (AAFES, Oakland) to the attached desision of the
Administrative Law Judge. The General Counsel filed cross exceptions to
the remedy recommended by the Judge and an opposition to the
Respondents' exceptions. The issues are whether AFFES Oakland violated
section 7116(a)(1) and (5) of the Statute by unilaterally changing a
condition of employment of bargaining unit employees by expanding its
policy of verifying the status of the dirvers' licenses of certain
dirvers to include all employees who drive agency vehicles without
providing the Union with notice and an opportunity to bargain concerning
the impact and implementation of the change; and if so, what the remedy
should be.
II. Background
As the pertinent facts in this case are fully set forth in the
Judge's Decision, they will be discussed only as relevant. The American
Federation of Government Employees (AFGE) is the exclusive
representative of a world-wide consolidated unit of employees of AAFES
including, among others, AAFES Oakland's full-time and part-time
employees. At the time of the proceeding before the Judge, there was no
world-wide collective bargaining agreement. AFGE Local 1157 and AAFES
Oakland were parties to a local agreement. By agreement between AAFES
and AFGE, the authority to bargain over local changes in conditions of
employment, which originate and are implemented at the AAFES activity
level, is delegated to the local AFGE officials and local management
officials.
AAFES operates a warehouse complex within the confines of the Oakland
Army Base, including a facility for the dispatch and maintenance of
warehouse vehicles. Activities and employees in that facility are
supervised by a Vehicle Manager and two foremen. The employees include
drivers who operate vehicles used in hauling or "over-the-road"
operations, and maintenance or automative shop employees such as
mechanics and tool and parts attendants who operate vehicles used at the
facility (including material-handling equipment such as forklifts and
tow motors) and other general warehouse-complex vehicles (including cars
and pickup trucks).
The regulations of AAFES require that all employees who drive AAFES
vehicles have a driver's license. The regulations further require an
employee to report arrest or indictment for any offense, except for
minor traffic violations. While the regulations require that
"over-the-road" drivers have the status of their driving privileges
validated once every two years, there is no such requirement for
employees not assigned primarily as drivers, and who operate
administrative vehicles only periodically.
It was the practice at the AAFES Oakland warehouse facility to
collect information necessary to verify the driving license status of
the "over-the-road" drivers annually, but not to do so for the other
drivers of AAFES vehicles. This practice had been in existence for at
least 5 1/2 years when, on October 31, 1984, the Vehicle Manager decided
to verify the licenses of all employees who dirve AAFES vehicles,
including the mechanics and tool and parts attendants. He decided to
expand the license verification policy because of his concern that
employees might be driving vehicles without valid licenses and that the
Agency might be held responsible in the event of an accident involving
an unlicensed driver.
In carrying out the decision, one of the foremen bagan to collect
from employees the information that was necessary to verify the status
of their licenses with the California Department of Motor Vehicles
(DMV). The first employee the foreman questioned on October 31 was a
mechanic who also served as the Chief Steward of Local 1157. The
employee provided the information requested but also questioned the
expanded license verificaion policy. The Chief Steward on the same day
requested to negotiate concerning the impact and implementation of the
expanded policy. That request was subsequently renewed by the Chief
Steward and other Union officers.
The foremen completed the collection of information from the
employees by November 5, 1984, and the information was transmitted to
the California DMV for verification. The DMV reported that the licenses
of a tool and parts attendant and the Chief Steward had been suspended
for various serious violations and that the employees did not have
current valid licenses. Subsequently, the tool and parts attendant was
removed and the Chief Steward was suspended for 60 days, essentially for
failure to report their driving violations and license suspensions as
required by AAFES regulations and for improperly continuing to drive
AAFES vehiches after their licenses had been suspended.
Prior to October 31, 1984, no official of Local 1157 was aware of the
expanded license verification policy. The Respondent had not given any
written or verbal notice of the new policy to the Union officers
designated to receive notice of changes in conditions of employment.
Between October 31, 1984, and November 7, 1985, the parties had numerous
telephone conversations, exchanged letters, met on several occasions,
and had two bargaining sessions concerning the new policy without
reaching any agreement.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent AAFES Oakland violated
section 7116(a)(1) and (5) of the Statute when it unilaterally changed
working conditions by expanding the investigation of driving records to
include all employees who drive AAFES vehicles. /*/ In reaching this
conclusion, the Judge rejected the arguments AAFES Oakland raised in its
defense, finding as follows:
1. The action taken on October 31, 1984, was a change in conditions
of employment for the new group of employees subject to license
verification. Moreover, the change was not a one-time occurrence. The
Respondent had decided to continue to verify the licenses of all drivers
at least on a random basis in the future.
2. The action was not taken "due to an emergency" within the meaning
of section 7106(a)(2)(D) of the Statute.
3. AAFES Oakland did not provide the Union with adequate notice of
the change.
4. The change had more than a de minimis effect on conditions of
employment of bargaining unit employees.
5. An agency cannot delay giving a union a meaningful opportunity to
bargain until employees are actually adversely affected by a change.
Rather, a reasonably foreseeable adverse effect triggers the bargaining
obligation.
6. The delay in negotiations was not attributable entirely to the
Union. AAFES Oakland contributed to the delay. If there had been an
"overriding exigency" requiring the Union to proceed more promptly as
AAFES Oakland claims, the Respondent would have tried harder to expedite
matters.
To remedy the unfair labor practice, the Judge recommended that the
Respondent be ordered to cease and desist from the conduct found
violative of the Statute, to rescind the unilateral change in the
license verification policy and return to the past practice, to bargain
with the Union concerning the impact and implementation of any change in
that practice, and to post an appropriate notice. However, the Judge
found that the status quo ante remedy sought by the General Counsel,
which would include cancellation of the discipline taken against the two
employees and related corrective actions, was not appropriate. The
Judge found that the relief requested was not in the public interest
since the employees were disciplined because of their own misconduct in
violating the Agency's regulations.
IV. Exceptions
In its exceptions, the Respondents essentially reiterate the
arguments presented and addressed by the Judge in her decision and
disagree with the Judge's principal findings and conclusions. The
General Counsel excepts to the remedy recommended by the Judge, arguing
that status quo ante relief is warranted to include the corrective
actions requested for the two employees who were disciplined.
V. Analysis
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. Those rulings are affirmed. We have also considered the
Judge's decision and recommended remedial order, the submissions of the
parties, and the record in the case. We adopt the Judge's findings,
conclusions and recommended order to the extent consistent with our
findings below. We also note that there is no contention that the
Respondents were obligated to negotiate over the substance of the
change. The General Counsel's allegations concern the obligation to
bargain regarding the procedures to be followed in implementing the
change and appropriate arrangements for employees adversely affected by
the change.
In agreement with the Judge, we conclude that the Respondent AAFES
Oakland violated section 7116(a)(1) and (5) of the Statute by changing
its license verification policy without providing the Union with
adequate notice of the change. In reaching this conclusion, we agree
with the Judge that the change constituted a change in conditions of
employment for bargaining unit employees whose drivers' licenses had not
been previously verified and that the change gave rise to a duty to
bargain.
With respect to the Respondent's contention that any change in
conditions of employment was de minimis, we agree with the Judge that
the change in the license verification policy was more than de minimis.
However, we do not adopt the Judge's rationale for that conclusion. The
Authority recently reassessed and modified the de minimis standard
previously used to identify changes in conditions of employment which
require bargaining. Under the revised standard, we place principal
emphasis on such general areas of consideration as the nature and extent
of the effect or reasonably foreseeable effect of the change on
conditions of employment of bargaining unit employees. Department of
Health and Human Services, Social Security Administration, 24 FLRA No.
42 (1986), petition for review filed sub nom. American Federation of
Government Employees, Local 1760 v. FLRA, No. 86-1702 (D.C. Cir. Dec.
17, 1986).
In this case, other than over-the-road drivers, the licenses of
employees who drive agency vehicles were not verified before Respondent
AAFES Oakland's policy change. The change had the potential of directly
affecting the conditions of employment of all of those bargaining unit
employees with driving responsibilities. In fact, the expanded policy
led to the discipline of two employees, including the removal of one and
the suspension of the other for 60 days. Under these circumstances, we
find that the nature and extent of the effect and/or reasonable
foreseeable effect of the change on conditions of employment of
bargaining unit employees gave rise to bargaining obligation. The
Respondent AAFES Oakland was obligated to bargain with the Union
concerning the procedures that would be observed in implementing the
change and appropriate arrangements for employees who might be adversely
affected by the change.
With regard to the remedy, in agreement with the Judge we find that
the corrective action sought by the General Counsel for the two
employees who were disciplined is not appropriate in this case.
Notwithstanding the Respondent's unfair labor practice in implementing
the expanded license verification policy, it is unrefuted that the
employees in question failed to report serious traffic violations and
the suspension of their drivers' licenses which they were required to do
under agency regulations. While their misconduct might not have been
discovered except for the new policy, that fact does not serve to excuse
the midconduct or warrant cancellation of the disciplinary actions.
See, for example, Equal Employment Opportunity Commission 24 FLRA No. 82
(1986) (where, in a mixed motive removal action, the Authority concluded
that even in the absence of protected activity, the employee would have
been removed because of the misconduct described). We conclude that the
remedy sought by the General Counsel would not effectuate the purposes
and policies of the Statute.
ORDER
The Army and Air Force Exchange Service, Oakland Army Base, Oakland,
California (AAFES, Oakland) shall:
1. Cease and desist from:
(a) Changing the conditions of bargaining unit employees by expanding
the policy of verifying the drivers' licenses of employees to include
all employees driving any type of agency vehicle without affording the
exclusive representative of the employees, American Federation of
Government Employees, Local 1157, AFL-CIO, a reasonable opportunity to
complete bargaining concerning the procedures to be followed in
implementing the change and appropriate arrangements for employees who
might be adversely affected by the change.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of 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) Rescind the change in the driver's license verification policy
which expanded verification to include the licenses of all bargaining
unit employees driving any type of agency vehicle.
(b) Upon request, meet and bargain with American Federation of
Government Employees, Local 1157, AFL-CIO concerning the procedures to
be followed in implementing any change in the driver's license
verification policy and appropriate arrangements for bargaining unit
employees who might be adversely affected by such change.
(c) Post at all facilities of AAFES Oakland 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 AAFES Oakland and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including bulletin
boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken 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, Region
IX, in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply.
It is further ordered that all allegations against the Army and Air
Force Exchange Service (AAFES) and the allegation that Respondent AAFES
Oakland conditioned bargaining on the withdrawal of an unfair labor
practice charge are dismissed.
Issued, Washington, D.C., February 18, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, 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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change the conditions of employment of bargaining unit
employees by expanding the policy of verifying the drivers' licenses of
employees to include all bargaining unit employees driving any type of
agency vehicle without providing American Federation Of Government
Employees, Local 1157, AFL-CIO notice of any such change and an
opportunity to bargain concerning the impact of the change upon unit
employees and the procedures to be followed in implementing the change.
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 rescind the change in the license verification policy at
AAFES, Oakland Army Base, Oakland, California which expanded verificaion
to include the licenses of all employees driving any type of agency
vehicle.
WE WILL, upon request, meet and bargain with the American Federation
of Government Employees, Local 1157, AFL-CIO concerning the procedures
to be followed in implementing any expansion in the driver's license
verification policy and appropriate arrangements for employees who may
be adversely affected by such change.
(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 IX,
whose address is: 901 Market Street, Suite 220, San Francisco, CA
94103, and whose telephone number is: (415) 995-5000, FTS 8-995-5000.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 9-CA-50111
ARMY AND AIR FORCE EXCHANGE SERVICE,
and
ARMY AND AIR FORCE EXCHANGE SERVICE, OAKLAND ARMY BASE,
OAKLAND,
CALIFORNIA,
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1157,
AFL-CIO,
Charging Party
Luther G. Jones, III, and Catherine M. Vader,
For the Respondents
George H. Taylor,
For the Charging Party
R. Timothy Sheils,
For the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 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.
Pursuant to a change of unfair labor practices filed on January 11,
1985 and amended on September 24 and October 31, the Regional Director
of Region IX of the Federal Labor Relations Authority (hereinafter, the
"Authority") investigated and served the complaints initiating this
proceeding. The original complaint was served on September 25. An
amended complaint was served on October 23. The second amended
complaint was served on November 1.
The second amended complaint alleges that Respondents violated
Sections 7116(a)(1) and (5) of the Statute /1/ on or about January 16,
1985, when, during bargaining, a management agent conditioned bargaining
on the Charging Party's withdrawl of a pending unfair labor practice
charge. The complaint further alleges that Respondents violated the
same statutory provisions, on or about October 30, 1984, when the Safety
and Security Division at the Army and Air Force Exchange Service,
("AAFES"), Oakland Army Base, Oakland, California ("AAFES Oakland")
changed the working conditions of bargaining-unit employees by expanding
the investigation of driving records to include checking with the
California Department of Motor Vehicles ("DMV") on all employees driving
any type of vehicles at work and without furnishing notice to the
charging Party (also referred to herein as the "Union" and "Local 1157")
and/or without giving the Charging Party an opportunity to bargain
concerning the impact of the change upon unit employees and/or the
procedures to be utilitzed in implementing the change. /2/
Respondents deny that they have violated the Statute.
A hearing was held on November 22 and 25, 1985 in San Francisco,
California. The parties appeared, adduced documentary evidence and
examined witnesses. Briefs were filed by the Respondents and the
General Counsel on January 31, 1986, pursuant to a December 13, 1985
order extending the briefing time to that date, at the request of the
parties. 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 /3/
1. At all times material herein, AAFES had been and is an agency
within the meaning of Section 7103(a)(3) of the Statute.
2. At all times material herein, AAFES Oakland has been and is an
activity of AAFES within the meaning of Section 7103(a)(3) of the
Statute. Cecil Keltner is the Distribution Center Manager of the
Oakland base; and he reports directly to the Atlanta Regional Office.
In turn, the head of the Atlanta Regional Office, Rosalie LaFleur,
reports to the manager of AAFES, headquartered in Dallas, Texas.
3. At all times material herein, the American Federation of
Government Employees, AFL-CIO ("AFGE") has been and is a labor
orgainzation within the meaning of Section 7103(a)(4) of the Statute.
4. At all times material herein, AFGE has been and is the exclusive
representative of a world-wide consolidated unit of employees of AAFES
including, among others, AAFES Oakland's full-time and part-time
employees, with exceptions not here relevant. There is no record
evidence of the size of the world-wide unit.
5a. At present there is no world-wide collective bargaining
agreement. Local 1157 of AFGE and AAFES Oakland are currently parties
to a local agreement executed in 1981. By agreement of AAFES and AFGE
dated July 2, 1982, the right to bargain over local changes in
conditions of employment, which originate and are implemented at the
local level exchange activity, is delegated to the local AFGE union
officials and local AAFES management officials.
5b. Section 3 of Article 29 of the parties agreement concerns
"supervisory investigation of alleged acts of misconduct" (Jt. Exh. 1).
6a. At all times material herein, Local 1157 has been and is an
affiliate of AAFES. There is no record evidence of the size of Local
1157. /4/
6b. The President of Local 1157, Jose Tavares, the Executive
Vice-President, Jimmy Fultz, the Unit Vice-President, Robert Williamson,
and the Chief Steward are the officers of Local 1157 who are the
union-designated persons to receive notices of changes affecting
employees at AAFES Oakland. Mr. Tavares was at the Oakland Army Base
during the entire month of October 1984 and never received any notice
from any management official of its intention to investigate the driving
records of employees at Building 99 of AAFES Oakland.
7. AAFES operates a warehouse complex within the confines of the
Oakland Army Base, Oakland, California. Within the base, as part of
this complex, AAFES has a building, known as "Building 99", set aside
for dispatch and maintenance of warehouse vehicles.
8. Activities of Building 99 are supervised by Jack Knight, the
Vehicle Manager, who is assisted by two foremen (Cliff Daniels, the
Motor Vehicle Operator Foreman, and Ernest Thibodeau, the Maintenance
Foreman). The Motor Vehicle Operator Foreman supervises the dispatch of
all vehicles including those used in hauling or "over-the-road"
operations, the "over-the-road" drivers themselves, and operations of
the parts room. The Maintenance Foreman supervises the maintenance
employees and the maintenance of all AAFES vehicles used at the
facility, including not only the tractor trailer "rigs" used for hauling
operations, but material-handling equipment ("MHE") used in the
warehouse, such as forklifts and tow motors, as well as other general
warehouse-complex vehicles such as a yard "hustler", personnel carriers,
cars and pickups.
9a. The regulations of AAFES require that all employees who drive
AAFES vehicles have a driver's license. The regulations further require
an employee to report arrest or indictment of any offense, excepting
monor traffic violations and including driving while intoxicated. While
the regulations require that "over-the-road" drivers are to have the
status of their driving privileges validated once every two years, there
is no such requirement for employees not assigned primarily as drivers,
and who only operate administrative vehicles periodically. For over 5
1/2 years, it was the practice at the Oakland warehouse facility to
verify the driver's license status of "over-the-road" drivers "annually"
(Tr. 320), but not that of other employees in Building 99 who drive
AAFES vehicles. See Tr. 95. In October 1984, this latter group
consisted of between 12 and 15 Automotive Workers, also called Mechanics
(Tr. 304), two Tool and Parts Attendants, and one Car Washer who handled
the Tool and Parts Attendants' duties from time to time. It had been
the practice at AAFES Oakland to collect information necessary to check
on the driving privileges of "over-the-road" drivers, but not on other
drivers of AAFES vehicles.
9b. The same three Mechanics drive on a fairly routine basis between
Building 99 and the warehouse area, which areas are divided by a public
road. The other Mechanics generally stay in Building 99. In "a heavy
work load type of situation" all Mechanics may be called upon to drive
(Tr. 91). All Mechanics are qualified to do the same work. In some
areas of work, Mechanics specialize. The three Mechanics who regularly
drive may be away from Building 99 as often as 30 times a week.
Off-base parts runs to pick up parts needed for repairs are made twice
each day. The Tool and Parts Attendants and the Car Washer generally
share equally in making the parts run, and do so as part of their
required duties.
10. On October 31, 1984, the Vehicle Manager acted on a decision to
request the verification of the driver's license status of all Building
99 employees who drive AAFES vehicles, other than "over-the-road"
drivers. This decision was made by the Vehicle Manager because of two
concerns. The most recent driver's license validations done on
"over-the-road" drivers on October 3, 1984, had disclosed that one
driver, Vincent Starks, had lost his driving privileges in 1983. The
Vehicle Manager discovered this fact on October 30. See Tr. 245-246.
It had earlier been discovered that a maintenance employee, Anthony
Woods, who had been discharged for striking a female supervisor with a
pickup truck, had been driving AAFES vehicles without a valid license.
Mr. Knight testified: "After I had dterrmined that I had now two people
under my supervision driving without licenses, I felt it necessary to
find out if there were more" (Tr. 255). The other concern arose from a
recent article in Heavy Trucking magazine which the Vehicle Manager had
read. The magazine contained an article about an accident in which a
tractor-trailer destroyed a toll-booth and killed a toll both operator.
The employer of the driver was being sued for 100 million dollars. The
driver was driving without a license, a fact of which the employer was
unaware. The Vehicle Manager feared that AAFES was also exposing itself
to potential liability.
11a. On Wednesday, October 31, 1984, a meeting occurred in the
office of Mr. Knight, in Building 99. Although work normally starts at
0700 hours, Mr. Knight came in early to prevent the "over-the-road"
driver, Vincent Starks from going out with a vehicle. The meeting
occurred between 0630 and 0700 hours. In attendance were Cliff Daniels
and Ernest Thibodeau. It was decided that Mr. Daniels would gather the
information necessary to deliver to the Safety and Security Division in
order to make the request for verification of the driving privileges of
employees who drive AAFES vehicles, other than "over-the-road" drivers.
Mr. Daniels had previously done the requests for verification of the
"over-the-road" drivers. At some time after 0630 hours but before 0700
hours, Mr. Knight telephoned Gilbert Pansza, Personnel Management
Specialist, to inquire as to the appropriateness of the verification
requests. The conversation lasted only about five minutes. Mr. Pansza
informed Mr. Knight that he saw nothing "wrong" (Tr. 145), or "no harm"
(Tr. 255), in collecting the information necessary to do the checks.
(Mr. Pansza appears to have been under a misapprehension that Local 1157
had already been notified that DMV checks were to be done on the
Mechanics, Tool and Parts Attendants and Car Washer. See findings 17,
20a and 23 below).
11b. At the beginning of the work day, at 0700 hours, Mr. Daniels
began to collect information needed in order to make the requests for
verification from the Safety and Security Division. It was necessary to
have certain information about the employees in order to make these
requests, such as license number, address and date of birth. He only
had such information on employees who were "over-the-road" drivers. The
requests for verification had to be made by the Safety and Security
Division because it was the only place that had the needed access code.
11c. Around 0700, Mr. Daniels first approached Richard Moore and
asked him to show his driver's license. Mr. Moore was Chief Steward of
Local 1157 form march 1984 to March 1985 (see Tr. 91) and a Mechanic in
Building 99. Mr. Daniels did not first Mr. Moore for the information
because he was a union official. See Tr. 134 and 305. Mr. Moore
responded that his license was in his wife's purse and asked what Mr.
Daniels wanted with it. Mr. Daniels told Mr. Moore, that he wanted to
have his driver's license checked. Mr. Moore, who had committed his
license to memory, gave Mr. Daniels his license number, his address and
his date of birth. After speaking to Mr. Moore, Mr. Daniels spoke to
all other employees in the automotive section. /5/
11d. Mr. Moore testified that Mr. Daniels told him, in response to
his question about the purpose of the check, that he was going to check
the driver's records of all employees; that Mr. Moore asked under what
authority; and that Mr. Daniels told him it was under Mr. Pansza's
authority. See Tr. 99. Mr. Daniels did not deny saying this; and I
find that he did. Mr. Moore immediately requested bargaining.
11e. Prior to October 31, 1984, no official of Local 1157 was aware
of the expanded DMV policy; and no written or verbal notice of it had
been given to the union officers designated to receive notice of
changes. Article Eight of the parties' negotiated agreement grants 14
days to Local 1157 to respond to any proposed changes in personnel
policies, practices, or working conditions. See Jt. Exh. 1.
12a. Mr. Moore was Local 1157's Chief Steward and Senior Steward on
October 31, 1984. See Tr. 91 and 134. In that capacity, he telephoned
Mr. Pansza around 0714 on October 31. The conversation lasted 15 or 20
minutes. Mr. Moore expressed his concern regarding the DMV checks and
stated that he wanted to negotiate the impact and implementation of this
"new practice" (Tr. 146). Mr. Pansza testified that he asked for "some
specifics in writing that day;" that Mr. Moore concurred; and that he,
Mr. Pansza, replied that he would look at what the union "proposed in
writing" but that, in the meanwhile, management "would proceed with the
checks" (Tr. 146).
12b. Mr. Moore testified that bargaining between the parties was
"verbal" (Tr. 138). When management later submitted proposals on the
matter of the expanded DMV checks, they were verbal. The agreement of
the parties provides that Local 1157 has 14 days in which to respond to
a change proposed by management and is silent as to whether the
responses be verbal or in writing. See Section 2 of Article 8 of Jt. 1.
Mr. Pansza may have been confused by Mr. Moore's admitted promise to
provide him with a "written request to bargain." See G.C. Exh. 5.
12c. I do not find that Mr. Moore promised to provide written
proposals to Mr. Pansza on October 31.
13. Later in the afternoon on October 31, 1984, Mr. Moore, Larry
Gantt and Leslie Lewis entered the office of Mr. Daniels and began
discussing management's proposed verifications of their driving
privileges with the State of California. Mr. Gantt was one of the Tool
and Parts Attendants. They protested that the DMV checks violated their
constitutional rights and they did not want the checks made. Mr.
Daniels responded by telling them: "(N)o way, that (he) was having the
driver's licenses checked" (Tr. 308).
14. On November 2, 1984, Mr. Moore wrote a letter to Mr. Pansza and
requested bargaining on the "new policy" (G.C. Exh. 5). Mr. Moore asked
mr. Pansza to provide "for our review, your written policy containing
the appropriate authority (for checks on all employees), which may
assist in promptly resolving this issue" and not to make the checks
"prior to the completion of contractual terms" requiring bargaining
(G.C. Exh. 5). Mr. Moore pointed out that "the parties currently have
in place negotiated language which prevents back ground agency checks
with the exception of new hires/probationary employees" and offered to
provide a copy to Mr. Pansza (G.C. Exh. 5).
15. On November 5, 1984, Mr. Daniels delivered to AAFES Oakland's
Safety and Security Division the information he had been collecting from
the employees in the Automotive Section. He collected the information
over a period of three or four working days.
16. The California Department of Motor Vehicles completed "Driver
Record Information" sheets and dated them November 7, 1984.
17a. On November 7, 1984, Mr. Pansza received Mr. Moore's letter of
November 2. See finding 14 above. He was confused by the letter
because he was under the belief that Local 1157 had been notified that
the checks were going to be done and that Mr. Moore had "concurred on
behalf of AFGE on the DMV checks" (Tr. 149 and see also Tr. 150).
17b. No management official testified to giving advance notice to
any union official or to Mr. Moore, or that Mr. Moore had concurred in
the DMV checks. In a letter to Mr. Pansza (G.C. Exh. 7), Mr. Moore
denied receiving notice of the DMV checks until October 31, 1984. Mr.
Moore's denial is unrefuted and credited.
18. On November 9, 1984, Larry Gantt, a Tool and Parts Attendant in
Building 99, received a letter from Mr. Keltner, Distribution Center
Manager, placing him on administrative leave "pending the completion of
an investigation surrounding the suspension of (his) driving privileges.
(R. Exh. 48).
19. On Wednesday, November 14, 1984, Mr. Daniels received from the
Safety and Security Division the California DMV checks. The California
records show that Mr. Gantt and Mr. Moore did not have valid driver's
licenses. Mr. Gantt's was suspended on September 3, 1982 and September
30, 1984. See R. Exh. 42 f. Mr. Moore's was revoked on March 1, 1983
for "hit and run" and suspended on September 20, 1983. See R. Exh.
42(k).
20a. On November 19, 1984, Mr. Pansza replied to the November 2
letter of Mr. Moore and expressed "puzzle(ment)" over Mr. Moore's desire
to negotiate (G.C. Exh. 6). In the letter, Mr. Pansza mentioned that
Mr. Moore had been "advised" that the DMV checks would occur and had
"concurred" (G.C. Exh. 6); that on October 31, 1984, Mr. Moore had
called him to provide him "some 'after thoughts' about your (Mr.
Moore's) consent (to the DMV checks) and I (Mr. Pansza) asked you (Mr.
Moore) to provide me (Mr. Pansza) with 'specific' concerns you (Mr.
Moore) might have regarding the agreed to DMV checks"; and that Mr.
Moore's letter of November 2, lacked those "specifics" (G.C. Exh. 6).
Mr. Pansza concluded his letter with the advice that he remained
available to discuss the matter further with AFGE.
20b. On that same day, Mr. Pansza called Mr. Moore about union
matters other than the DMV checks; and Mr. Moore asked about Mr.
Pansza's response to his November 2 letter. Mr. Pansza responded that
he had just sent his "response to (Mr. Moore's) proposals in writing
that day" (Tr. 150). Apparently neither party made suggestions for
dates for negotiations. See Tr. 151.
21. On November 19, 1984, Robert Williamson, Vice-President of Local
1157 made a telephone call to Mr. Pansza and suggested that the parties
try "bargaining by objectives" as to "outstanding issues" (Tr. 156).
Mr. Pansza agreed.
22. On November 20, 1984, Mr. Moore telephoned Mr. Pansza about Mr.
Pansza's November 19 letter (see finding 20a, above). Their
conversation lasted 25 minutes. They agreed that no negotiation of
ground rules for bargaining over the DMV checks was necessary, and that
negotiations would be verbal. Mr. Pansza also presented a hypothetical
question to Mr. Moore and asked what Local 1157 would propose in regard
to it. Mr. Moore indicated that he did not want to discuss the
hypothetical "at that time". See Tr. 155, 180 and 181. Mr. Pansza told
Mr. Moore that he assumed that the proposal of Local 1157, as of that
time, was "not to do DMV checks" (Tr. 181).
23. After the November 20, 1984 conversation and on the same day,
Mr. Moore sent a letter to Mr. Pansza. He wrote this letter of "clearly
state AFGE's position" that "as an employee of the agency or as a
representative of AFGE (he) received no prior notification that either
DMV or criminal checks would be conducted by the agency" and that he
"initially became aware of this 'new policy' some 5 to 10 minutes prior
to (his) telephone request to bargain of October 31, 1984 (when he) was
approached by the Motor Vehicle Operator foreman for (his) driver's
license number" (G.C. Exh. 7). He further stated that it was Local
1157's "position that specific concerns should be presented during
bargaining" and again requested bargaining over the issue of the DMV
checks (G.C. Exh. 7). Mr. Pansza received this letter on November 27.
24. On November 21, 1984, both Mr. Moore and Mr. Gantt received from
Mr. Keltner correspondence entitled "Advance Notice of Separation for
Disqualifcation." The basis for the proposed actions was their driving
AAFES vehicles after the suspensions of their licenses and without
making any attempt to bring the suspensions to the attention of AAFES.
Both were placed on administrative leave for the stated reason that
their positions required them to operate AFFES vehicles. About the same
time Mr. Moore had gone to the California DMV and straightened out his
license situation. He showed his license to management. Whereupon he
was brought back to work and his Advance Notice extended.
25. On November 29, 1984, Mr. Pansza wrote to Jose R. Tavares,
President of Local 1157, and offered to negotiate the impact of DMV
checks on employees who operate AAFES vehicles as a part of their
assigned duties. He stated that management would be prepared to
negotiate on December 3, 1984, at 1400 hours, in the Office of the
Distribution Facility Manager. Local 1157 did not receive this letter
until about 1500 hours on December 3, too late to attend the suggested
meeting.
26. Also on November 29, 1984, Mr. Pansza telephoned Mr. Moore for
help with certain employees, and they began discussing the DMV checks.
At this time Mr. Moore had received his Advance Notice of Separation and
Mr. Pansza proposed to Mr. Moore that management "hold off" making a
"final decision on the separation until Management could receive all
information that was relevant to that case and any items that might
adversely impact in the final decision to separate" (Tr. 160). Mr.
Moore agreed. Then Mr. Pansza offered some dates, in response to Mr.
Williamson's request for "bargaining by objective," that were acceptable
to Mr. Keltner so that Mr. Moore could check to see if Mr. Tavares would
be available. Mr. Moore agreed to check with Mr. Tavares on the dates.
The conversation then ended.
27. On December 3, 1984, Mr. Pansza received a telephone call from
Mr. Williamson regarding "outstanding issues." Mr. Pansza reminded him
that management wanted to meet on his proposals to bargain by objectives
sometime during the week of 10 December. Mr. Pansza and Mr. Williamson
agreed to a meeting on December 12, 1984.
28. On December 4, 1984, Mr. Pansza wrote a letter to Mr. Moore
confirming an agreement to meet on "DMV checks" on December 12, 1984, at
1300 hours in Mr. Keltner's office.
29. On December 11 or 12, 1984, a meeting occurred in the office of
Mr. Keltner attended by Mr. Keltner and Mr. Pansza representing
management, and Mr. Tavares, Mr. Williamson, and Mr. Moore representing
Local 1157. The parties discussed general matters. Time ran out before
the matter of the DMV checks was reached. Apparently neither party made
an effort to advance the matter of the DMV checks on the agenda.
30a. On December 12, 1984, Mr. Gantt received his "Final Notice of
Separation for Disqualification" (G.C. Exh. 28). /6/ It was dated
December 10 and was effective on that date. The basis for the action
was that on September 30, 1984, his driver's license was suspended by
the State of California; he made no attempt to bring this to the
attention of AAFES and had been unlawfully driving AAFES vehicles after
the date of his license suspension; and that driving AAFES vehicles is
a requirement of his position.
30b. Mr. Gantt had been employed with AAFES Oakland since August,
1977, and for the last 16 or so months of his employment was a Tool and
Parts Attendant in Building 99. When he first started out as a Tool and
Parts Attendant, Mr. Gantt shared driving duties to pick up parts.
"About maybe seven months" (Tr. 187-188) after he started, Mr. Daniels
and he had a conversation about his staying in the Tool and Parts Shop.
Mr. Gantt understood Mr. Daniels to mean that he was not to make pickups
and so, thereafter, a "Eugene Pouquez and sometimes a mechanic" drove to
make the pickups (Tr. 188). Mr. Daniels apparently meant that Mr. Gantt
was not to leave the Tool and Parts Shop to seek out Mechanics and find
out what parts they needed, but rather was to wait for them to come to
the shop and give him this information, as there was only one Tool and
Parts Attendant "at that particular time" (Tr. 313). Mr. Gantt admitted
that Mr. Daniels did not tell him not to drive vehicles to pick up
parts. See Tr. 193.
30c. Mr. Gantt admitted that he had a suspended driver's license as
charged in the "Final Notice". He had it reinstated on the same day he
received the notice. About a week after Mr. Daniels asked to see his
driver's license and learning that his job was in jeopardy because it
was suspended, Mr. Gantt went to Mr. Keltner and told him that all he
had to do to regain his license was to "pay (his) tickets off" to the
State of California (Tr. 192). He asked Mr. Keltner for a salary
advance of $200 to pay off the tickets. This request was denied. Mr.
Gantt paid off the tickets, regained his license, and showed it to Mr.
Keltner on December 12, the same day he received the "Final Notice"
firing him.
31. On December 14, 1984, Mr. Pansza called Mr. Moore, at Mr.
Moore's request. The conversation lasted for 20 to 25 minutes. The
conversation involved the DMV checks and a request for data by Local
1157. Mr. Moore requested a copy of the Record of Supervisor's
Investigation on Mr. Gantt. Mr. Pansza agreed to provide it; and it
was picked up later that day. Mr. Pansza asked Mr. Moore if he had any
proposals for management on the DMV checks or if Mr. Moore wanted to
talk about it so that they could "do something about it and get going"
(Tr. 168). Mr. Moore responded: "I just don't want to talk about it
today" (Tr. 168).
32. By letter dated December 18, 1984, Mr. Moore communicated with
Mr. Keltner. Mr. Moore states in his letter that "the parties have not
bargained on the impact and implementation" of the DMV checks; reminds
Mr. Keltner that the agency had acknowledged its obligation to bargain;
proposes a bargaining date of December 27; requests that Mr. Gantt be
returned to duty and that no further DMV Checks be conducted prior to
bargaining; and seeks from management a "written policy containing the
authorization (for DMV checks) for review prior to our meeting" (G.C.
Exh. 10).
33. By letter, dated January 3, 1985, Mr. Keltner responded to the
letter of Mr. Moore on December 18, 1984. Mr. Keltner stated that: "On
at least three occasions, management has offered to discuss AFGE
concerns about the subject matter and AFGE has either failed to meet or
refused to discuss the matter" (G.C. Exh 11). Mr. Keltner denied the
request by Local 1157 for no further DMV checks prior to bargaining and
the return to duty of Mr. Gantt.
34. On January 11, 1985, the Union, through Mr. Tavares, filed its
initial unfair labor practice ("ULP") charge in the instant case. The
charge was apparently drafted on January 2, 1985, and was delivered to
Mr. Pansza on January 8, 1985.
35. On January 15, 1985, Mr. Keltner sent to Mr. Moore a memorandum
entitled "Advance Notice of Suspension" (G.C. Exh. 17). The memorandum
refers to a Record of Supervisor's Investigation ("RPI") prepared on
December 18, 1984. It proposes to suspend Mr. Moore for 60 calendar
days on the basis of four specifications: (a) being charged on December
29, 1982 with speeding, failing to report same to the agency personnel
manager as required by agency regulations, and failing to appear in
court to answer the charge; (b) being convicted on charges of driving
while drunk and hit and run and having his license revoked, none of
which he reported to the agency personnel manager, as required by agency
regulations, and knowingly continuing to drive AAFES vehicles with a
revoked license; (c) geing charged with making a U turn, failing to
appear in court to answer these charges, and failing to report these
offenses to the agency personnel manager as required by agency
regulations; and (d) being convicted on September 20, 1983, with drunk
driving, having his license again revoked, failing to report the
suspension to the agency personnel manager as required by agency
regulations, and continuing to drive AAFES vehicles with a suspended
license.
36a. On January 16, 1985, a bargaining session took place in the
office of Mr. Keltner over the matter of the DMV checks. It lasted
approximately two hours. Mr. Keltner and Mr. Pansza represented
management. George Taylor and Mr. Moore represented Local 1157. All
four participants testified at the hearing. Mr. Taylor was the most
credible witness and where there is a conflict in the testimony as to
events at the January 16 session, I credit the version of Mr. Taylor.
He seemed to have better recall of specifics than did the management
witnesses, perhaps because he took notes at the session. His version of
events is more credible than that of Mr. Moore for the same reason, and
for the additional reason that Mr. Taylor had no self interest in the
outcome of this litigation, whereas Mr. Moore did, as found in footnote
4, above.
36b. The conversation at the January 16 meeting began with some
generalities being passed back and forth. Mr. Moore "opened the meeting
with several inquiries to the intent of the policy, the personnel
policy, who the policy covered, and what authority did the Agency have
for the policy" (Tr. 108). Mr. Moore then stated what he felt should be
negotiable, such as:
when the DMV checks should take place, you know, whether
quarterly or semiannually; and he wanted the Union to be aware of
that. He was also stating that he felt that it wasn't necessary
to run checks on everyone, such as the MHE operators. He felt
that was just necessary for the over-the-road operators, the
people driving the big rigs.
See Tr. 62. Mr. Moore possibly also stated that the DMV checks
should be limited to what the State allows.
36c. Mr. Keltner responded with "five proposals" (Tr. 63), all made
at the same time. The first was that the checks be random. The second
was that it was an automatic termination for those caught driving with a
suspended license. The third was that if an operator's license was
suspended and an admission made of this fact to management, management
would treat the matter on a case-by-case basis. The fourth was that the
check apply to all vehicle operators.
36d. The final "proposal", and the one supporting count 5 of the
complaint, was "to drop (or withdraw) the ULP" (Tr. 64, 73, and 77).
Mr. Keltner never said: "I refuse to bargain with you because you have
filed the ULP" (Tr. 73).
36e. Mr. Taylor at first testified that the "proposals" were Mr.
Keltner's "proposals to settlement of the problem" (Tr. 78) and that he
"assumed that it (the proposal to drop the ULP) was a bargaining
proposal" (Tr. 79). Later he testified that he interpreted this
proposal to mean that Local 1157 had to withdraw the ULP before
management would do any bargaining. See Tr. 85. mr. Taylor is
currently Chief Steward for Local 1157. At the time of the Januray 16
meeting he was "relatively new in the Union" and "did not fully
understand bargaining" (Tr. 85). Reflecting back, at the hearing, Mr.
Taylor still believes that the ULP proposal was "intended . . . to be a
stipulation prior to bargaining" (Tr. 85-86).
36f. After Mr. Keltner presented the five proposals of management,
the union team was asked what their counterproposal would be. The union
team argued that management "not do any DMV checks whatsoever" (Tr.
171). The management team felt that the parties were at impasse and was
going to terminate the meeting. At this point the union team asked for
24 hours to caucus and submit counterproposals. The management team
apparently agreed. See Tr. 171 and 66.
37. On January 17, 1985, Local 1157 submitted written
counterproposals to management.
38. On Wednesday, January 30, 1985, Mr. Moore called Mr. Keltner and
they discussed when the parties "would be able to negotiate on the DMV
checks" (Tr. 326). Mr. Keltner told him that management "would try for
Friday" (Tr. 326).
39. On February 2, 1985, a labor-management meeting took place.
Representing management were Mr. Keltner and Christine Vader, a
Personnel Management Specialist who had replaced Mr. Pansza upon his
transfer elsewhere. Mr. Moore represented Local 1157. A discussion was
held on the counterproposals on the DMV checks which were proposed by
Local 1157 on January 17. The meeting was then "stopped" (Tr. 111)
after it was pointed out that an agency regulation (ESM-15-12) possibly
had been changed and it needed clarification from headquarters. It was
also pointed out that the unfair labor practice charge had been filed
(on January 11); that it was being handled by Luther Jones, the
Assistant General Counsel for AAFES, located in Dallas; and that
further negotiations would be with him.
40. On February 4, 1985, Mr. Moore received from Mr. Keltner a
"Final Decision of Suspension" (G.C. Exh. 18). This decision noted that
no reply had been received to the advance notice (see finding 35, above)
and that the suspension, without pay, would be effective from March 18
to the close of business on May 16. Mr. Moore testified that the 60
calendar day suspension was actually served "(b)etween March and July of
1985" (Tr. 118). As of the date of the hearing, Mr. Moore's driving
privileges were again suspended. He is still working for AAFES Oakland,
but is not driving its vehicles.
41. On February 19, 1985, Mr. Moore called Mr. Keltner and wrote to
Mr. Jones, requesting the Exchange Service Manual regarding DMV checks.
42. On February 27, 1985, Mr. Moore asked Mr. Keltner to negotiate
the DMV checks. Mr. Keltner told him that he would have to talk to Mr.
Jones or Ms. Vader and that "because there had been a ULP filed" the
negotiations on the DMV checks have been turned over to Mr. Jones (Tr.
328-329).
43. On March 5, 1985, Mr. Moore, as Chief Steward for Local 1157,
wrote to Mr. Jones about the negotiations on the DMV checks. See G.C.
Exh. 13. The purpose of the letter was to outline the parties' current
position on the subject.
44. On March 21, 1985, Mr. Taylor called Mr. Keltner to ask who
would be at the meeting on the DMV checks. Mr. Keltner was unaware of
the meeting which had been set up by Mr. Jones.
45. On March 22, 1985, Mr. Jones wrote to Mr. Moore to inform him
that he was management's designated representative in the matter of
driving records of certain employees in Building 99; acknowledged Mr.
Moore's March 5 letter and the conclusions and assertions therein; and
declined to "necessarily accede to same" (G.C. Exh. 14).
46a. On March 21 or 22, 1985, a negotiation session was held on the
DMV checks. Mr. Jones appeared for management. Mr. Taylor and Mr.
Moore appeared for Local 1157. The "ground rules for that particular
meeting had been set up so that it would be he (Mr. Jones) and I (Mr.
Taylor), one-on-one basis" (Tr. 67). Mr. Jones objected to Mr. Moore's
presence. Mr. Taylor offered to have Mr. Moore remain outside the room
so that Mr. Taylor could "caucus" as necessary with him (Tr. 68). Mr.
Moore "knew the history of the case" (Tr. 68). Mr. Taylor was "a
beginner on the particular situation" (Tr. 68). Mr. Jones laid a
proposal on the table; stated that it was "management's proposal number
1, their only proposal"; and then Mr. Jones "got up and left" (Tr. 69).
The proposal stated:
Any employee who operates a vehicle or MHE while on duty,
whether or not included in the job description, if discovered, by
whatever means to be without driving privilieges by suspension,
revocation, or any other other status, shall be immediately placed
on a LWOP status for 3 working days. Such employee shall have 3
working days to recover driving privileges. Failure to remove
driving privileges within such a time period subjects the employee
to further administrative discipline, up to and including
discharge or disqualification as provided in the regulations.
Such 3 working days LWOP period does not bar management from
taking appropriate disciplinary action for violations of
regulations requiring such driving privileges even though such
privileges are reinstated within the 3 working day period.
See G.C. Exh. 19.
46b. On March 22, 1985, Mr. Moore wrote to Mr. Jones to explain his
advisor status; to protest that (though suspended) he was still on the
negotiation team; and to object to Mr. Jones walking out of the last
bargaining session. He requested that bargaining resume on March 23.
He wrote that he would continue to serve as an advisor, in the
descretion of Local 1157.
47. On March 28, 1985, Mr. Jones wrote to Mr. Taylor and Mr. Moore
to object to Local 1157's failure to imform his as to just who was to
represent Local 1157 in negotiating the DMV checks. He wrote that he
was management's representative and that "(m)anagement continues to
remain available for negotiations" (G.C. Exh. 15). He wrote that he
felt ground rules were necessary and suggested that a meeting place off
base be used for negotiations because of a dispute as to whether a union
steward, such as Mr. Moore who was on suspension, nevertheless had the
right to come onto the base because of union representation status.
48. In a letter dated "April 4, 1984," but apparently written in
1985, Robert Williamson, Vice President of Local 1157, replied to Mr.
Jones' letter of March 28, 1985, to Mr. Taylor and Mr. Jones. See R.
Exh. 19(a) and (b) and 20. Among other things, he wrote that the
"management #1" proposal on the DMV checks concerns an issue "which
raises significant questions that appear to have national impact;"
"rises to the level of recognition;" and "should be presented as a
proposal to the national bargaining table" (R. Exh. 19(a)).
49. On April 18, 1985, Mr. Jones replied to Mr. Williamson's letter
of April 4. Mr. Jones complained, among other things, that he was still
unclear as to who, from Local 1157, had the authority to negotiate
regarding the DMV checks and as to whether Local 1157 wished "to
discontinue bargaining at the local level" (R. Exh. 20(d)). Mr. Jones
requested, among other things, clarification as to who would represent
Local 1157 at the DMV negotiations and as to the union's position that
the matter was not negotiable at the local level. Mr. Jones wrote that
"management remains available to negotiate, as required by law" (R. Exh.
20(f)).
50. On April 22, 1985, Mr. Jones wrote to Mr. Tavares to confirm
ground rule understandings reached on April 18 and, among other things,
asked for clarification as to who would represent Local 1157 during the
negotiations on the DMV checks and as to whether Local 1157 intended to
terminate such bargaining pending discussions with its National Office.
Mr. Jones wrote that he "would appreciate a response from (Mr. Tavares')
office on these matters and, assuming these matters to be resolved, we
can proceed with negotiations on the matter of the diring record checks
with less difficulty" (R. Exh. 21(b)).
51. On June 20, 1985, Mr. Moore wrote to Mr. Jones that he
understood from Mr. Taylor that Mr. Jones would be returning to Oakland
during the month of June with regard to negotiations on the DMV checks,
and asked for confirmation of "the earliest possible date to continue
and hopefully conclude this issue" (R. Exh. 22). This letter was mailed
to Mr. Jones on June 24.
52. On October 17, 1985, Tony Harris, Senior Steward for Local 1157,
wrote to Mr. Jones to advise him of the union's willingness to bargain
and attempt resolution of the matters pending in this case.
53. On October 25, 1985, Mr. Jones replied to the Harris letter of
October 17. He agreed to meet and proposed meeting for one hour on
November 7.
54. A meeting was held on November 7, 1985, to settle the pending
case. Management declined to settle on the terms discussed, but sought
"further discussions" in a letter from Mr. Jones to Mr. Taylor dated
November 14. See R. Exh. 32 and Tr. 70-71.
55. At the hearing on November 22, 1985, Mr. Moore conceded that
management was "still in bargaining" with Local 1157 over the DMV checks
and had never said: "No, we will not bargain with you" (Tr. 139). Mr.
Moore expressed the view that the negotiations had taken "a long time"
(Tr. 139).
56. Management had repeatedly stated its availability to negotiate,
with the caveat "as required by law" (R. Exh. 20(f)).
Discussion and Conclusions
A. The General Counsel has not established by a preponderance of the
evidence /7/ that Respondents, on January 16, 1985, conditioned
bargaining on Local 1157's withdrawing an unfair labor practice charge,
as alleged in count 5 of the second amended complaint. The most
credible evidence adduced in this case demonstrates that the reference
made by a management agent to the withdrawing of Local 1157's unfair
labor practice charge was couched in terms of its being a management
"proposal," the last of five, all presented at the same time. See
findings 36c and d, above. As Respondents argue, "a proposal creates
options and does not foreclose bargaining" (R.Br. 46). It invites
counterproposals which the parties apparently agreed, prior to the close
of the January 16 bargaining session, would be made by Local 1157. See
finding 36f, above. Such counterproposals were made, on the very next
day. Bargaining over them was continuing even up until the time of the
hearing. /8/
B. The General Counsel had established, by the preponderance of the
evidence, that AAFES Oakland violated Sections 7116(a)(1) and (5) of the
Statute, as alleged in counts 6 and 7 of the second amended complaint,
when it unilaterally changed the working conditions of AAFES Oakland by
expanding the investigation of driving records to include checking with
the California Department of Motor Vehicles on all employees driving
AAFES vehicles.
As the General Counsel points out at page 13 of his brief, it is
"black-letter law that an employer may not unilaterally change an
established pracitce that has ripened into a condition of employment
without first affording the exclusive represtative notice and an
opportunity to bargain over the change," citing Army and Air Force
Exchange Service, (AAFES), Fort Carson, Colorado, 10 FLRA 235, 241
(1982) (change in three-year practice regarding approval of sick leave
required notice and an opportunity to bargain); Department of Defense
Dependants Schools, Mediterranean Region (Madrid, Spain); and Zaragonza
High School, Zaragonza, Spain), 19 FLRA 395, 396 (1985) (change in one
and a half years practice regarding issuance of travel orders required
notice and an opportunity to bargain); Department of Defense, Army and
Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia,
20 FLRA 248, 267-268 (1985), (change in practice regarding union
representatives' access to worksites required notice and an opportunity
to bargain).
It is undisputed that up until Octover 31, 1984, AAFES Oakland had
followed a practice of investigating the driving license status of only
its "over-the-road drivers. See Tr. 300-301 and 320 and finding 9a,
above. This practice had been in existence for at least 5 1/2 years
when, an October 31, management agents of AAFES Oakland acted on a
decision, made that day, to expand the investigation to include all
employees who dirve AAFES vehicles, including Mechanics and Tool and
Parts Attendants. Not until steps were taken to implement the expanded
investigation, by collecting the information necessary to conduct it,
did an official of Local 1157 become aware of the change in the past
practice. It so happened that Mechanic Richard Moore was the first such
employee approached for the information. And it so happened that Mr.
Moore was the Chief Steward of Local 1157 at that time and an official
authorized to receive notice of changes in working conditions. No other
official of Local 1157 had recieved notice of this change. And Mr.
Moore was not approached first in order to give notice to Local 1157.
He was approached as merely one of the Mechanics being subjected to the
investigation. He was simply asked by a supervisor for his driver's
license and other information necessary to the investigation. Mr. Moore
immediately inquired as to the purpose of the request and was merely
told that the supervisor was "doing a driver's license check." See
footnote 5 to finding 11c, above. Mr. Moore immediately requested
bargaining as to the implementation and impact of the change upon unit
employees. Several days later, on November 2, Local 1157 requested from
management the written authorization under which this investigation was
being made. Local 1157 had reason to believe that it might be covered
by an agreement of the parties as to background checks on new hires and
probationary employees. See finding 14, above.
On December 18, 1984, Local 1157 again sought this basic information
from management. See finding 32. Even at the first bargaining session
at which this matter was discussed, on January 16, 1985, Local 1157 had
not been given this information. See finding 36b, above. It was not
until this January 16 session that AAFES Oakland finally gave to Local
1157 any proposals on how the change was to operate. By that time,
management had already completed its first investigation and, as a
direct result thereof, discharged a Tool and Parts Attendant. See
finding 30a, above.
Respondents admit that, "without much question," this Authority has
held that bargaining is required "at a point in time preceding the
exercise of . . . management rights" (R.Br. 52). In order for the
opportunity to bargain to be "meaningful" this Authority has also ruled
that "adequate" notice to a union is required; and this notice must be
"specific" and "clear enough" to provide this "meaningful opportunity."
See, for example, Department of the Army, Harry Diamond Laboratories,
Adelphia, Maryland, 9 FLRA 575, 576 (1982), holding that notice of a
decision to collect parking fees was inadequate because it failed to
provide notice as to who would be collecting the fees, a matter of
"great concern" to the union.
The General Counsel is here conceding that there "may have been
actual notice" and argues, correctly, that the adequacy of that notice
is the issue. See Tr. 362. While Local 1157 did receive actual notice,
on the day steps were taken to implement the change in past practice, it
was not informed of any details. For example, Local 1157 did not know:
the intent of the new policy; or under what authority the expanded
investigations was being made; or the consequences -- matters of
obvious concern to Local 1157. Thus, it is concluded that the actual
notice given fell short of the adequate notice required for a union to
formulate meaningful proposals, and a violation of Section 7716(a)(1)
and (5) of the Statute was established. /9/
1. Respondents raise a number of defenses in their brief, none of
which are persuasive. The first is that the action taken on October 31,
1984, was "to initiate an investigation" and that this act "does not
equate automatically to a change in working conditions." (R.Br. 49).
The brief points out that "the request for license verification occurred
only once" and that there was "no act to implement a rule permitting
continuous license verifications." See R.Br. 49. A reading of the
entire record does not support this argument. It is obvious from the
record that AAFES Oakland made a decision, on October 31, 1984, to
verify the licenses of all drivers of AAFES Oakland vehicles not once,
but on at least a random basis, in the future. As late as January 16,
1985 AAFES Oakland was denying the proposal of Local 1157 not to change
its past practice. At the bargaining sessions immediately prior to the
hearing, AAFES Oakland was clearly not acquiescing in a return to the
past practice from which it departed by its action on October 31, 1984.
The October 31 action expanding the investigation of license
verifications to a new group of employees and leading to the termination
of one employee and the suspension of another, was an action "directing
affecting 'the work situation and employment relationships' of
bargaining unit employees," the Authority definition for "working
conditions." See National Association of Government Employees, Local
R-5-168, 19 FLRA 552, 553 (1985) and American Federation of Government
Employees, AFL-CIO, National Immigration and Naturalization Service
Council, 8 FLRA 347, 354-355, 357-360, 363, and 365 (1982). In the
latter case, the Authority held to be negotiable union proposals
relating to investigations because they might lead to disciplinary
actions and, thus, were directly concerned with conditions of
employment. It has been demonstrated, here, that the first
investigation led directly to disciplinary actions and thus, the change
relating to investigations equates to a change in working conditions for
the new group of unit employees subjected to the investigations.
2. Next, Respondents argue that the action taken by management here
was "taken due to an emergency" and quotes Section 7106(a)(2)(D) of the
Statute that "nothing . . . shall effect that authority of any
management official . . . in accordance with applicable laws . . . to
take whatever actions may be necessary to carry out the agency mission
during emergencies" (R.Br. 50). The nature of the so-called "emergency"
is claimed to be that "employees had, and possibly were, continuing to
drive vehicles without licenses with the result of grave danger to the
public and heavy liability to the Army and Air Force Exchange Service
for the acts of those employees" (R.Br. 50). The "agency mission,"
however, is not to enforce its regulations, or State laws concerning
driving without a license. Nor does avoiding possible agency liability
of a monetary nature from acts of its employees rise to the level of its
"mission." The fact that AAFES Oakland had not checked the licenses of
its employees for a period of a year, as of the date of the hearing,
suggests that AAFES Oakland is not all that concerned about the matter,
or at least not so concerned that it can be found that the last check
was done during an "emergency." By now an additional number of employees
may be driving AAFES Oakland vehicles without licenses. Yet AAFES
Oakland is doing nothing about it, and continues to negotiate with Local
1157 over the matter with no indication that haste is of great
importance, as will be discussed below.
3. Next, Respondents argue that the point at which a union must be
given an opportunity to bargain, under Section 7106(b)(2), is not
defined, but must be an "act" (R.Br. 52), and that there is "no evidence
that any act was committed in the exercise of a management right prior
to notification" (R.Br. 53). What the record evidence here shows is
that an "act" and "notification" occurred almost simultaneously. The
"act" was the action taken on October 31, 1984, by a management official
to collect information from Mechanics, Tool and Parts Attendants and a
Car Washer, which information was necessary to verify the status of
their California driving privileges. This was a change in an
established past practice. Such information had not been collected, in
the past, from such employees for such a purpose. See finding 9a,
above. The "notification" was to the Chief Steward of Local 1157 and
was given to him, coincidentally on October 31, because he was the first
Mechanic approached for the needed information. As already discussed,
such happenstance notification, with no details or specifics as to how
the changed practice was to work, is inadequate to provide a union with
a meaningful opportunity to bargain procedures management will observe
in exercising its authority under the Statute.
4. Next, Respondents argue that "the act of collecting information
from the employees, even if prior to notification, had de minimis effect
on the bargaining unit." See R.Br. 54, emphasis by Respondents.
In a number of recent decisions the Authority has articulated the
cirteria for judging whether a change is of a de minimis nature. See
for example, Department of Health and Human Services, Social Security
Administration Region V, Chicago, Illinois, 19 FLRA 827 (1985). The
first criterion used by the Authority is the nature of the change (i.e.,
the extent of the change in work duties, location, office space, hours,
employment, loss of benefits and/or wages, etc.). Here the change was
the investigation of the driving licenses of a group of employees never
before subjected to such investigations, or the collection of
information necessary to make the investigations. As a direct result of
the change, two employees were found to have violated agency regulations
by failing to report to the agency that their licenses were suspended --
one lost his employment; and the other lost wages for 60 days.
The second criterion is the temporary, recurring or permanent nature
of the change, that is, the duration and the frequency with which it
affects unit employees. It is not clear how the change here in issue
can be characterized. As to the "over-the-road" drivers, AAFES Oakland
investigates annually. As to the drivers here at issue, management has
proposed only that the investigations be "random" in nature. See
finding 36c, above.
The third criterion is the number of unit employees affected or
foreseeably affected by the change. Two were affected by the first
investigation. Potentially, about 18 could be affected (see finding 9a,
above), as that is the total number of Mechanics, Tool and Parts
Attendants, and Car Washers who came under the first investigation as a
result of the change.
The fourth criterion is the size of the bargaining unit. The
appropriate size here is that of Local 1157 because the parties have
agreed to bargaining at the local level over local changes -- the type
of change here involved. Since the record here is devoid of any
reliable evidence of the size of Local 1157's bargaining unit, I take
judicial notice of the fact that the January, 1985 edition of Union
Recognition in the Federal Government, shows the number to be 67. See
footnote 4 to finding 6a, above.
The fifth criterion is the extent to which the parties have
established, through negotiations or past practice, procedures and
appropriate arrangements concerning analogous changes in the past. The
parties have negotiated, in Article 29 of their collective bargaining
agreement, concerning "supervisory investigation of alleged acts of
misconduct." See finding 5b, above. The case here at issue also
involves supervisory investigations. And driving AAFES vehicles without
a license and without imforming management, as required by agency
regulations, is analogous to an act of misconduct."
Former Authority Member William J. McGinnis, Jr. has expressed the
view that there should be a sixth ctiterion:
When would the implementation of the change involve or
adversely affect unit employees. That is, if the change is to be
implemented in stages or if there is no initial adverse effect on
unit employees from the implementation of the change, would post
implementation bargaining permit the parties to satisfactorily
negotiate appropriate arrangements for employees adversely
affected by the change prior to such effect.
See 19 FLRA at 835. Here, an adverse impact was felt by one employee
within 9 days of the decision to make the change. See findings 10 and
18, above.
I know of no decision, and none has been cited to me, where a change
resulting in the discharge of one employee and a suspension of another
was held by the Authority to be of a de minimis nature. Indeed, in
Department of Transportation, Federal Aviation Administration,
Washington, D.C. (DOT), 20 FLRA 474 (1985), the Authority held that the
mere transfer of two employees to other duty stations, requiring long
commutes, was more than de minimis. Se 20 FLRA at 476-477. /10/ All
criteria considered, I conclude that the change here at issue was more
than de minimis.
5. Next, Respondents argue that the point at which a union must be
given an opportunity to bargain, under Section 7106(b)(3), is "that
point at which it can be said that employees were 'adversely affected.'"
See R.Br. 53 and 55-56. Respondents argue that this effect "occurred on
November 14, 1984." See R.Br. 55. November 14 was the day on which
AAFES Oakland's supervisory foreman received back from the California
DMV the information as to which employees had suspended licenses. See
finding 19, above. Even accepting, arquendo, that November 14 was the
critical date, I still cannot conclude that Local 1157 was given a
meaningful opportunity to formulate proposals, by that date, and as that
statutory opportunity has been interpreted by the Authority.
As Respondents acknowledge, the Statute requires that a union be
allowed "a reasonable amount of time to allow it to investigate and
formulate proposals and engage in meaningful bargaining." See R.Br. 55,
citing Bureau of Governmental Financial Operations Headquarters, (BGFO),
11 FLRA 334, 345 and see also 346. In BGFO, management gave the union
written notice which explained the change to be made, the purpose, and
the effect on employees (see 11 FLRA at 341, finding 7), and five
working days to reply (11 FLRA 345). During this period, management
denied the union certain information which the union requested. Under
these circumstances, the Authority adopted the conslusion of
Administrative Law Judge Eli Nash, Jr. that the union lacked an
opportunity "to develop meaningful bargaining proposals" (11 FLRA at
345). Here, Local 1157 was given no written explanation of the change
and learned of it only by happenstance. Local 1157 immediately
requested bargaining, and also management's "written policy containing
the appropriate authority" for the change. See finding 14, above. As
late as December 18, Local 1157 was still requesting such basic
information. See finding 32, above. As late as November 20, the Chief
Steward of Local 1157 was unclear as to whether the checks being made
were "DMV or criminal" ones. See finding 23, above. If criminal, Local
1157 apparently had an agreement with AAFES Oakland that prevented
background checks of already-hired employees. See finding 14, above.
Although Respondents agrue that Local 1157 had "10 working days"
notice, which was "sufficient" (R.Br. 55), in fact one of the so-called
10 working days would have been a Federal Holiday, (November 11,
Veterans Day). Furthermore, one employee felt an adverse impact from
the change before November 14. He felt it on November 9, when he was
placed on administrative leave, "pending the completion of an
investigation surrounding the suspension of (his) driving privileges."
See finding 18, above. Using November 9 as the date, this further
reduces the notice time.
In any event, I am not persuaded by Respondents' argument that an
agency can delay giving a union an opportunity to bargain until
employees are actually adversely affected. This argument ignores the
holding of this Authority that a "reasonable foreseeable" adverse effect
triggers the bargaining obligation. See, most recently, United States
Department of the Treasury, Internal Revenue Service, Chicago, Illinois,
20 FLRA 46, 48 (1985), citing U.S. Government Printing Office, 13 FLRA
203, 204-205 (1983). Here, it was "reasonably foreseeable" by
management, on October 31, 1984, that it would find additional employees
who were driving AAFES vehicles without valid licenses. See finding 10,
above. It was management's concern over having already found two such
employees which led to the October 31 change expanding the investigation
of this matter to include all drivers of AAFES vehicles.
6. Finally, Respondents argue that Local 1157 "declined to proceed
promptly" in a situation where AAFES Oakland had "a good faith belief"
that employees driving AAFES vehicles were not reporting loss of their
driver's permits, and there was an "imperative demand for promptness"
(R.Br. 56 and 58). Respondents charge that Local 1157 "delayed
negotiations for a period of 78 claendar days, or 56 working days" --
from October 31, 1984 to January 17, 1985. See R.Br. 57-58. After an
examination of the record, I cannot attribute such a delay entirely to
Local 1157. See findings 11c, 11d, 11e, 12, 14, 20, 21, 22, 23, 25, 26,
27, 28, 29, 31, 32, 33, 36, and 37. What appears to have happened here
is that management was trying to make the Chief Steward of Local 1157
commit the Union to proposals, over the telephone and by letter, before
Local 1157 had obtained sufficient information to make intelligent ones.
Local 1157, on the other hand, was trying to avoid this; to obtain
information necessary to bargaining; and to get a date for a
face-to-face bargaining session of the parties' negotiation teams. Up
until January 16, Local 1157 had nothing in writing from management as
to the new policy; no management official had given Local 1157 any
specifics or details about the new policy; and management still had not
given Local 1157 the twice-requested written authority under which the
new policy had been implemented.
Respondents point to be fact that at a bargaining session held on
December 12, 1984 on a number of issues, Local 1157 "failed to raise the
matter (of the DMV checks)" (R.Br. 58). The fact is that the issue of
the DMV checks was on the agenda; but time ran out before this issue
was reached. There is no evidence that either Local 1157 or AAFES
Oakland tried to advance the issue even though, now, AAFES Oakland
argues that the matter was one of "overriding exigency" (R.Br. 58).
Perusing the record further, it is evident that the charge of failure
"to proceed promptly" cannot be levied solely to Local 1157. It took 12
days for management to reply to a union letter of November 2, 1984,
requesting bargaining. See findings 14, 17, 20a. Then management, by
letter, set a bargaining date for December 3 which Local 1157 did not
receive until it was too late to attend the meeting. It then took
management 16 days to respond to a December 18, 1984 letter from Local
1157 again requesting a bargaining session; and even that letter set no
date for a bargaining session. See findings 32 and 33. On January 16,
1985, the first bargaining session was set and, for the first time,
management gave Local 1157 some proposals on how the change would
operate. On the next day, January 17, Local 1157 gave counterproposals
to management. Thirteen days passed, whereupon a union official called
a management one to check on when the bargaining would resume. See
findings 37 and 38. A bargaining session took place on February 2 and
was suspended, in part because clarification was needed from agency
headquarters on a regulation. See finding 39. Twenty-five days after
the February 2 bargaining session, on February 27, a union official
tried to get negotiations going again. See finding 42. On March 5,
Local 1157 wrote to the Dallas management official to whom bargaining
authority had been passed; and he did not reply to the letter for 17
days. See findings 43 and 45.
On March 21 or 22, 1985, a negotiation session was held. The
management representative walked out because of what he considered a
violation of a ground rule -- namely, that the union showed up with an
extra person on the team, and one who was on suspension from his job.
Local 1157 tried to explain the matter in a letter dated March 22 and
sought resumption of negotiations on March 23. Negotiations were then
delayed while the union and management exchanged correspondence raising
various issues, none of which appear to have been spurious or for the
purpose of delay. See findings 46b and 47-50. On June 20, 1985, a
union official mailed a letter to management in which an early
resumption of negotiations was sought. See finding 51. The record is
silent as to whether management responded to the June 20 letter. On
October 25, the management negotiator did respond to an October 17
letter from a union official, expressing the union's willingness to
bargain. See findings 52 and 53. A bargaining session was held on
November 7, 1985 -- 15 days before the hearing.
This recitation of dates and union attempts to bargain illustrates
the irony of Respondents' argument attempting to fix the delay on
bargaining in this case solely on Local 1157. There is blame to share.
Had there been an "overriding exigency," as is now claimed (R.Br. 56),
surely Respondents would have tried harder to expedite matters.
C. The remedy requested by the General Counsel, as to the unilateral
change, will be recommended, in part, and denied, in part.
The General Counsel seeks a cease-and-desist and bargaining order, as
to both Respondents, and a posting Order, limited to posting at the
Oakland Army Base. These are appropriate remedies, on this record,
except that the order will be limited to AAFES Oakland. No involvement
by Respondent AAFES was shown. What occurred here was a
locally-ordered, locally-implemented change. It will be recommended
that the complaint be dismissed as to AAFES.
The General Counsel also seeks a recision of the change, which was
unilaterally made. This will also be recommended, as there is no proof
that this would disrupt the operations of AAFES. Since the first
investigation on October 31, 1984. AAFES Oakland has not found it
expedient to order another investigation although it obviously intends
to continue the investigations. For five and a half years, it followed
the past practice, with no serious disruption of the agency mission. In
that time only four drivers were found to have been driving AAFES
vehicles without a valid license.
The General Counsel also seeks "status quo ante" relief by a
cleansing of the records of Mr. Gantt and Mr. Moore, and the
reinstatement of Mr. Gantt with the accumlated leave and seniority he
has lost since being terminated. See Tr. 28-29. This I do not find to
be appropriate because both employees apparently suffered their
suspension or termination because of their actions in violating agency
regulations.
In making these recommendations as to what is referred to as a
"status quo ante" remedy, I have applied the five-prong test set out by
in Federal Correctional Institution, 8 FLRA 604, 606, (1982), and which
is as follows:
(1) whether, and when, notice was given to the union by the
agency concerning the action or change decided upon; (2) whether,
and when, the union requested bargaining on the procedures to be
observed by the agency in implementing such action or change
and/or concerning appropriate arrangements for employees
adveresely affected by such action or change; (3) the willfulness
of the agency's conduct in failing to discharge its bargaining
obligations under the Statute; (4) the nature and extent of the
impact experienced by adversely affected employees; and (5)
whether, and to what degree, a status quo ante remedy would
disrupt or impair the efficiency and effectiveness of the agency's
operations.
The General Counsel argues that all of the above factors "weigh in
favor of ordering a status quo ante remedy" (G.C. Br. 21). I agree as
to factors (1), (2), (3) and (5). As has already been discussed,
adequate notice was not given to Local 1157; Local 1157 immediately
requested bargaining after learning of the change; the acts of AAFES
Oakland were willful; and a return of the status quo ante would not be
disruptive of the agency's operations.
As to factor (4), however, the "nature" of the impact was felt only
by employees who had apparently violated agency regulations. I do see
how it would be in the public interest to award them relief from such
self-inflicted wounds. The Union is sufficiently vindicated by a return
to the past practice.
Ultimate Findings and Recommended Order
Respondent AAFES Oakland has violated Section 7116(a)(1) and (5) of
the Statute by unilaterally changing a past practice of investigating
the driving privileges of only "over-the-road" drivers and expanding it
to include all employees who drive agency vehicles.
Respondent AAFES Oakland did not condition bargaining on the
withdrawal of an unfair labor practice charge.
Respondent AAFES took no part in the actions alleged in the
complaint.
Pursuant to 5 CFR 2423.29 and Section 7118 of the Statute, it is
hereby ordered that:
1. AAFES should be, and hereby is dismissed as a Respondent.
2. AAFES Oakland shall cease and desist from:
(a) Changing working conditions of unit employees by expanding
the enforcement of regulations requiring employees to maintain a
valid driver's license and to report the loss of said license to
include employees other than the motor vehicle operators at the
Army and Air Force Exchange Service (AAFES), Oakland Army Base,
without providing prior notice and an opportunity to bargain over
the impact and implementation of this change to Local 1157.
(b) In any like to related manner interfering with,
restraining, or coercing their employees in the exercise of rights
assured by the Federal Service Labor-Management Relations statute.
3. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind the change in the practice at the AAFES Oakland
Army Base in Oakland, California, which expanded the enforcement
of regulations requiring employees to maintain a valid driver's
license and to report the loss of said license, and restore the
pre-existing policy at that facility.
(b) Upon request, meet and bargain with Local 1157 over the
impact and implementation of any intended changes in the practices
of enforcement of regulations requiring employees to have a valid
driver's license and to report the loss of said license.
(c) Post at all facilities of AAFES Oakland 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 head of AAFES Oakland and shall be posted and
maintained for 60 consecutive days thereafter, in conspicious
places, including bulletin boards and other places where notices
to employees are customarily posted. The head of AAFES Oakland
shall take reasonable steps to insure that such Notices are not
altered, defaced, or covered by any other material.
(d) Pursuant to 5 CFR 2423.30, notify the Regional Director,
Region IX, 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: April 10, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) The Judge also concluded, contrary to the allegations of the
General Counsel in the amended complaint in this case, that Respondent
AAFES Oakland did not condition bargaining on the Union's withdrawal of
its unfair labor practice charge and that Respondent AAFES took no part
in the actions alleged in the complaint. Noting the absence of any
exceptions to these determinations of the Judge, we will dismiss the
complaint as to those allegations and will not discuss them further in
this decision.
(1) 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 . . .
(2) The statutory provision requiring parties to bargain concerning
the impact and implementation of changes is found at Section 7106(b),
and reads as follows:
(b) Nothing in this section (defining management rights) 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.
(3) The following abbreviations will be used in this decision. "Tr."
refers to the transcript. "Jt." refers to the joint exhibits; "G.C.
Exh." refers to the exhibits of the General Counsel; and "R. Exh."
refers to those of Respondent. "G.C. Br." refers to the brief of the
General Counsel and "R. Br." reders to that of Respondent.
Both parties seek corrections to the transcript in appendices to
their briefs and have filed no objections to each other's corrections.
The corrections are accordingly made, pursuant to 29 CFR 2423.19(r),
with two exceptions. The General Counsel seeks to amend line 2 of page
175 by substituting a "3" for a "2")' but no "2" there appears.
Respondent seeks to amend line 10 of page 49 by substituting "DMC" for
"DMV"; but no "DMC" there appears.
Respondent's Exhibit 35 is incorrectly marked as Respondent's 36 in
the original exhibits. This has been corrected.
(4) Counsel for the General Counsel estimated that there were
"(a)bout 600 at Oakland", in response to a question by the Judge, during
his opening statement (Tr. 28). This statement was unrebutted.
However, the unfair labor practice charges filed in this action by Local
1157 aver that the number of employees employed at AAFES Oakland was
only "500" (G.C. Exh. 1(a) and (b)) and "500 plus" (G.C. Exh. 1 (c)).
The January 1985 edition of Union Recognition in the Federal Government,
published by the Office of Personnel Management at page 163 lists
AFGE/Local 1157, at the Oakland Army Base as having "67" members in the
bargaining unit.
(5) This finding is based on the testimony of Mr. Daniels. See Tr.
305-306. The testimony of Mr. Moore conflicted with that of Mr. Daniels
as to some aspects, such as where the conversation took place, at what
hour, and as to whether Mr. Daniels first sought the driver's license
information from an employee other than Mr. Moore. See Tr. 99. The
testimony of Mr. Daniels as to the hour was confirmed by another witness
(see Tr. 146); and I find that Mr. Daniels was a less self-interested
and more credible witness than Mr. Moore. Mr. Moore's self interest is
predicated on the fact that the relief sought in this case includes an
order that his "personnel file be cleaned up" (Tr. 29), to delete
references to his 60-day suspension for violating agency regulations.
Respondents argue that this conversation between Mr. Moore and Mr.
Daniels constituted notice to Local 1157. See R.Br. 53-54. This
conversation, as described by Mr. Daniels at Tr. 306, went like this:
Q. Now, was there any -- are you able ro recall in more
exactitude the actual conversation that occurred at that time
between you and Mr. Moore?
A. That was it; I just gave it. I asked him -- I said, "Can
I have your driver's license?"
And he said, "What do you want with it?"
And I said, "I'm doing a driver's license check."
He said, "I don't have it. It is in my wife's purse." So he
said, "I know the number." So he gave me the number. I wrote it
on a piece of paper, and he gave me his address his date of birth
and that was it.
(6) Mr. Gantt at first testified that he received it on December 14.
See Tr. 190. His later testimony indicates that he received it on
December 12. See Tr. 192.
(7) This is the statutory burden of proof. See 5 U.S.C. Sections
7118(7) and (8).
(8) In view of the conclusion reached on this point, it is
unnecessary to resolve other issues formulated by Respondents as to
counts 5 and 7 of the complaint.
(9) The General Counsel appears to draw an adverse inference from
Respondents' willingness to bargain even though they deny an obligation
to do so. See G.C.Br. 9, I decline to draw such an inference and, to
the contrary, believe this demonstrates a commitment to the bargaining
process that should be encouraged.
(10) It should be noted that the Authority, in the DOT case, "not(ed)
particularly," that the agency did not dispute the allegation that the
unilateral change was more than de minimis. See DOT, 20 FLRA 477.
Here, respondents are raising the issue but with little apparent
enthusiam for it. See Tr. 350 and R.Br. 54.
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 change working conditions of employees by expanding the
enforcement of regulations requiring employees to maintain a valid
driver's license and to report the loss of said license to include
employees other than the motor vehicle operators at the Army and Air
Force Exchange Services (AAFES), Oakland Army Base, without providing
prior notice and an opportunity to bargain over the impact and
implementation of this change to American Federation of Government
Employees, Local 1157 (AFGE).
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 rescind the change in the practice at the AAFES Oakland Army
Base in Oakland, California, which expanded the enforcement of
regulations requiring employees to maintain a valid driver's license and
to report the loss of said license, and restore the pre-existing policy
at that facility.
WE WILL, upon request, meet and bargain with AFGE, Local 1157, over
the impact and implementation of any intended changes in the parctice of
enforcement of regulations requiring employees to have a valid driver's
license and to report the loss of said license.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IX,
whose address is: 530 Bush Street, Suite 542, San Francisco, CA 94108
and whose telephone number is: (415) 556-8106, FTS 8-556-8105.