[ v04 p22 ]
04:0022(5)CA
The decision of the Authority follows:
4 FLRA No. 5
DEPARTMENT OF THE AIR FORCE
35TH COMBAT SUPPORT GROUP (TAC)
GEORGE AIR FORCE BASE, CALIFORNIA
Activity
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 977
Labor Organization
Case No. 8-CA-113
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER, AND THE GENERAL COUNSEL FILED A BRIEF IN RESPONSE THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE RESPONDENT'S EXCEPTIONS AND THE GENERAL COUNSEL'S RESPONSE
THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATION AS SET FORTH BELOW.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT VIOLATED
SECTION 7116(A)(1) OF THE STATUTE BY FAILING AND REFUSING TO PROCESS AN
EMPLOYEE'S GRIEVANCE, FILED UNDER THE PARTIES' NEGOTIATED GRIEVANCE
PROCEDURE AFTER THEIR AGREEMENT HAD EXPIRED BUT BASED UPON EVENTS WHICH
OCCURRED DURING THE TERM OF THAT AGREEMENT, AND BY STATING THAT THE
EMPLOYEE HAD NO RIGHTS OR RECOURSE UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE. RELYING UPON ESTABLISHED PRECEDENT UNDER E.O. 11491, AS
AMENDED, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT'S
CONDUCT CLEARLY DISCOURAGED OR INTERFERED WITH THE EMPLOYEE'S RIGHT
UNDER THE STATUTE TO FILE A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE AND THEREFORE INTERFERED WITH, RESTRAINED OR COERCED THE
EMPLOYEE IN VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS
THAT THE RESPONDENT VIOLATED THE STATUTE IN THE CIRCUMSTANCES OF THE
INSTANT CASE. IN THE AUTHORITY'S VIEW, THE PURPOSES AND POLICIES OF THE
STATUTE ARE BEST EFFECTUATED BY A REQUIREMENT THAT THE EXISTING
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS-- INCLUDING NEGOTIATED GRIEVANCE AND ARBITRATION PROCEDURES--
MUST CONTINUE AS ESTABLISHED UPON THE EXPIRATION OF A NEGOTIATED
AGREEMENT, ABSENT AN EXPRESS AGREEMENT BY THE PARTIES TO THE CONTRARY OR
UNLESS MODIFIED IN A MANNER CONSISTENT WITH THE STATUTE. SUCH
CONCLUSION FOSTERS DESIRABLE STABILITY IN FEDERAL LABOR-MANAGEMENT
RELATIONS; IS CONSISTENT WITH THE ESTABLISHED FRAMEWORK OF THE STATUTE
WHICH PROVIDES FOR THE PEACEFUL RESOLUTION OF BARGAINING DISPUTES; AND
"FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF DISPUTES BETWEEN
EMPLOYEES AND THEIR EMPLOYERS INVOLVING CONDITIONS OF EMPLOYMENT," WHICH
IS AN UNDERLYING PURPOSE OF THE STATUTE.
ACCORDINGLY, INASMUCH AS IT DOES NOT APPEAR FROM THE RECORD HEREIN
THAT THE PARTIES HAD AGREED TO TERMINATE THEIR NEGOTIATED
GRIEVANCE-ARBITRATION PROCEDURES UPON THE EXPIRATION OF THEIR AGREEMENT,
OR HAD OTHERWISE MODIFIED THE EXISTING PERSONNEL POLICIES AND PRACTICES
AND MATTERS AFFECTING WORKING CONDITIONS IN A MANNER CONSISTENT WITH THE
STATUTE, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION
THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE STATUTE IN THE
CIRCUMSTANCES OF THIS CASE.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE AIR FORCE, 35TH
COMBAT SUPPORT GROUP (TAC), GEORGE AIR FORCE BASE, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROCESS A GRIEVANCE UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE
CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT EXECUTED BETWEEN IT
AND THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977, OR ANY OTHER LABOR
ORGANIZATION, FOR THE REASON
THAT SUCH AGREEMENT HAS EXPIRED AND THAT THE EMPLOYEES HAVE NO RIGHT
TO FILE A GRIEVANCE
THEREUNDER.
(B) DISCOURAGING ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, FROM FILING
A GRIEVANCE UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE CONTAINED IN THE COLLECTIVE BARGAINING
AGREEMENT EXECUTED
BETWEEN IT AND THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
977, OR ANY OTHER LABOR
ORGANIZATION, BY INFORMING ANNA M. CROCKER, OR ANY OTHER EMPLOYEE,
THAT SUCH AGREEMENT HAS
EXPIRED AND THEY HAVE NO RIGHT TO FILE A GRIEVANCE THEREUNDER.
(C) 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 ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
(A) POST AT ITS FACILITY AT THE GEORGE AIR FORCE BASE, CALIFORNIA
COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL
LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
COMMANDER, 35TH COMBAT
SUPPORT GROUP (TAC), AND THEY SHALL BE POSTED FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY
POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR OF REGION 8, 350 S. FIGUEROA STREET 10TH FLOOR, LOS
ANGELES CALIFORNIA
90012, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN
TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., AUGUST 12, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROCESS GRIEVANCES UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT
EXECUTED WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977,
OR ANY OTHER LABOR ORGANIZATION, FOR THE REASON THAT SUCH AGREEMENT HAS
EXPIRED AND THAT THE EMPLOYEES HAVE NO RIGHT TO FILE A GRIEVANCE
THEREUNDER.
WE WILL NOT DISCOURAGE ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, FROM
FILING A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE CONTAINED IN
THE COLLECTIVE BARGAINING AGREEMENT EXECUTED WITH THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977, OR ANY OTHER LABOR
ORGANIZATION, BY INFORMING THE SAID ANNA M. CROCKER, OR ANY OTHER
EMPLOYEE, THAT SUCH AGREEMENT HAS EXPIRED AND THEY HAVE NO RIGHT TO FILE
A GRIEVANCE THEREUNDER.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
. . . .
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, FEDERAL LABOR RELATIONS AUTHORITY, REGION 8, WHOSE
ADDRESS IS: 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES,
CALIFORNIA 90071, AND WHOSE TELEPHONE NUMBER IS (213) 688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JAMES A. HARPER, ESQ.
USAF CENTRAL LABOR LAW OFFICE
RANDOLPH AIR FORCE BASE, TEXAS 78148
FOR THE RESPONDENT
GERALD M. COLE, ESQ.
FEDERAL LABOR RELATIONS AUTHORITY, REGION 8
350 S. FIGUEROA STREET, 10TH FLOOR
LOS ANGELES, CALIFORNIA 90071
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING ARISING UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S.
CODE, 5 U.S.C. SECTION 7101 ET SEQ. AND THE RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY. PURSUANT TO A COMPLAINT AND
NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR
RELATIONS AUTHORITY, REGION 8, ON OCTOBER 9, 1979, A HEARING WAS HELD
BEFORE THE UNDERSIGNED ON DECEMBER 12, 1979 AT VICTORVILLE, CALIFORNIA.
THE PROCEEDING HEREIN WAS INITIATED BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 977 (HEREIN CALLED THE UNION) WHICH FILED A
CHARGE ON JUNE 22, 1979 AGAINST THE DEPARTMENT OF THE AIR FORCE, 35TH
COMBAT SUPPORT GROUP (TAC), GEORGE AIR FORCE BASE, CALIFORNIA (HEREIN
CALLED THE RESPONDENT OR EMPLOYER). IT WAS ALLEGED IN THE COMPLAINT
THAT (A) ON OR ABOUT MARCH 6, 1979 RESPONDENT INFORMED EMPLOYEES THAT
GRIEVANCES COULD NOT BE FILED UNDER THE COLLECTIVE BARGAINING AGREEMENT
SINCE IT WAS NOT IN EFFECT; (B) ON OR ABOUT MARCH 7, 1979 RESPONDENT,
BY MEMORANDUM, INFORMED EMPLOYEES THERE WAS NO NEGOTIATED GRIEVANCE
PROCEDURE FOR CONSIDERATION OF EMPLOYEE GRIEVANCES-- ALL IN VIOLATION OF
SECTION 7116(A)(1) OF THE FEDERAL SERVICE LABOR-- MANAGEMENT RELATIONS
STATUTE (HEREIN CALLED THE ACT).
RESPONDENT'S ANSWER, DATED OCTOBER 19, 1979 AND ITS AMENDED ANSWER
DATED NOVEMBER 26, 1979, DENIED THE COMMISSION OF ANY UNFAIR LABOR
PRACTICES. IT WAS ALSO ALLEGED BY RESPONDENT THAT IT WAS MERELY
ATTEMPTING TO ASSIST EMPLOYEE ANNE M. CROCKER, A GRIEVANT, IN FOLLOWING
THE CORRECT PROCEDURE IN RESPECT TO HER GRIEVANCE; THAT CROCKER WAS
ADVISED TO PURSUE HER GRIEVANCE UNDER THE AGENCY GRIEVANCE SYSTEM, SINCE
HER GRIEVANCE DID NOT FALL WITHIN THE AMBIT OF THE EXPIRED CONTRACT'S
NEGOTIATED GRIEVANCE PROCEDURE.
ALL PARTIES WERE REPRESENTED AT THE HEARING. THEY WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
CROSS EXAMINE WITNESSES. THEREAFTER THE PARTIES FILED BRIEFS WHICH HAVE
BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 977, HAS BEEN, AND STILL IS, THE COLLECTIVE BARGAINING
REPRESENTATIVE OF ALL AIR FORCE EMPLOYEES SERVICED BY THE CENTRAL
CIVILIAN PERSONNEL OFFICE, GEORGE AIR FORCE BASE, CALIFORNIA.
2. FOR SEVERAL YEARS PRIOR TO 1978 THE UNION AND RESPONDENT HAVE
BEEN PARTIES TO A WRITTEN COLLECTIVE BARGAINING AGREEMENT COVERING THE
AFORESAID UNIT. THE AGREEMENT WAS EXTENDED BY THE PARTIES TO RUN FROM
DECEMBER 17, 1978 UNTIL FEBRUARY 14, 1979. A NEW COLLECTIVE BARGAINING
AGREEMENT WAS EXECUTED BY THE PARTIES IN JUNE 1979. BETWEEN FEBRUARY 14
AND JUNE 1979, NO CONTRACT BETWEEN THE UNION AND RESPONDENT WAS IN
EFFECT.
3. SINCE ABOUT 1977 ANNA M. CROCKER HAS BEEN EMPLOYED BY RESPONDENT
AS A MEMBER OF THE COLLECTIVE BARGAINING UNIT. IN THE FALL OF 1978
CROCKER APPLIED FOR THE POSITION OF GARDENER TRACTOR OPERATOR.
THEREAFTER ON JANUARY 5, 1979, CROCKER WAS INFORMED BY HER SUPERVISOR
THAT SHE WOULD START THE NEW JOB ON JANUARY 29, 1979.
4. ON ABOUT JANUARY 23, 1979 THE CIVILIAN PERSONNEL OFFICE ADVISED
CROCKER SHE MUST OBTAIN A PHYSICAL EXAMINATION. AS A RESULT OF THE
DELAY IN COMPLETING SUCH EXAMINATION, CROCKER DID NOT COMMENCE WORK AT
THE NEW JOB UNTIL FEBRUARY 12, 1979.
5. SINCE CROCKER FELT THE DELAY WAS UNWARRANTED, SHE DECIDED TO FILE
A GRIEVANCE CONCERNING HER LOSS OF PAY AND TIME OCCASIONED THEREBY. ON
MARCH 2, 1979 CROCKER SUBMITTED TO THE CIVILIAN PERSONNEL OFFICE HER
GRIEVANCE SEEKING REIMBURSEMENT AS A RESULT OF THE DELAY IN HER
COMMENCING THE NEW JOB.
6. THEREAFTER ON MARCH 6, 1979 CROCKER APPROACHED JEAN REID,
RESPONDENT'S LABOR RELATIONS SPECIALIST, TO DISCUSS THE GRIEVANCE AND
ASCERTAIN WHETHER SHE SHOULD TAKE ANY FURTHER STEPS IN REGARD THERETO.
REID TOLD THE EMPLOYEE THE UNION WAS NOT UNDER A NEGOTIATED GRIEVANCE
PROCEDURE, AND THERE WAS NO REMEDY FOR HER SITUATION. SHE FURTHER
INFORMED CROCKER THEY WERE BOUND TO THE AIR FORCE REGULATIONS WHICH THE
EMPLOYER MUST FOLLOW, AND REID GAVE A COPY OF AFR 771 TO CROCKER AT THE
TIME. /1/
7. A MEMO DATED MARCH 7, 1979, WHICH WAS PREPARED BY REID, WAS SENT
TO CROCKER. THE GRIEVANCE FILED BY THE EMPLOYEE WAS RETURNED ALONG
THEREWITH. THE MEMO OUTLINED THE STEPS TO FOLLOW IN FILING A GRIEVANCE
UNDER THE AGENCY GRIEVANCE PROCEDURE. IT ALSO STATED THAT "AS OUTLINED
BY MS. REID, OF THIS OFFICE, ON 6 MAR 79 AT PRESENT THERE IS NO
NEGOTIATED GRIEVANCE PROCEDURE FOR CONSIDERATION OF EMPLOYEES
GRIEVANCES. THEREFORE THE PROCEDURES OUTLINED ABOVE APPLY".
8. IN ACCORDANCE WITH MANAGEMENT'S INSTRUCTIONS, CROCKER FILED A
FORMAL GRIEVANCE ON MARCH 9, 1979 UNDER THE PROCEDURES OUTLINED IN AFR
771 SEEKING TIME IN GRADE AND BACK PAY TO THE ORIGINAL DATE OF TRANSFER
TO HER NEW POSITION.
CONCLUSIONS
THE SOLE SUBSTANTIVE ISSUE POSED FOR DETERMINATION HEREIN IS WHETHER
THE STATEMENTS MADE BY MANAGEMENT TO EMPLOYEE CROCKER, IN RESPECT TO THE
FILING OF HER GRIEVANCE, VIOLATED SECTION 7116(A)(1) OF THE ACT. APART
FROM SEVERAL PROCEDURAL DEFENSES RAISED BY IT, THE RESPONDENT CONTENDS
THAT A GRIEVANCE-ARBITRATION CLAUSE EXPIRES WITH THE COLLECTIVE
BARGAINING AGREEMENT. THUS, IT IS ARGUED, THE EMPLOYER WOULD NOT BE
OBLIGED, IN ANY EVENT, TO CONSIDER CROCKER'S GRIEVANCE UNDER ARTICLE
XVIII OF THE AGREEMENT WHICH TERMINATED ON FEBRUARY 14, 1979.
SEVERAL DECISIONS IN THE PUBLIC SECTOR HAVE DEALT WITH THE
SURVIVABILITY OF CLAUSES UPON THE EXPIRATION OF A COLLECTIVE BARGAINING
AGREEMENT. IN INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, ET. AL,
A/SLMR NO. 806 IT WAS HELD THAT RIGHTS AND PRIVILEGES ACCORDED THE
EXCLUSIVE REPRESENTATIVE CONTINUE UNTIL A NEW AGREEMENT IS REACHED OR
IMPASSE RESULTS FROM NEGOTIATIONS. RIGHTS AND PRIVILEGES DEPENDENT
SOLELY ON THE WRITTEN AGREEMENT, AS CHECK OFF PRIVILEGES, DO TERMINATE
WITH THE AGREEMENT. IT WAS LATER HELD THAT AN ARBITRATION CLAUSE UNDER
A NEGOTIATED AGREEMENT CONTINUES AS A TERM AND CONDITION OF EMPLOYMENT
EVEN THOUGH THE AGREEMENT ITSELF HAS EXPIRED. DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER, A/SLMR
NO. 859. THE FEDERAL LABOR RELATIONS COUNCIL EXPRESSED ITS SUSTAINING
VIEWS IN RESPECT TO THE AFORESAID CASES IN FLRC NOS. 77A-40 AND 77A-92
RESPECTIVELY. SUBSEQUENT TO THE FOREGOING DETERMINATIONS IT WAS FURTHER
HELD THAT AN AGENCY COULD NOT, WITH IMPUNITY, UNILATERALLY DISCONTINUE
CONTRACTUAL GRIEVANCE PROCEDURES EVEN THOUGH THE AGREEMENT HAD
TERMINATED. SINCE THESE PROCEDURES WERE A MANDATORY SUBJECT OF
BARGAINING, THE AGENCY MUST AFFORD THE UNION AN OPPORTUNITY TO INVOKE
THE IMPASSE PANEL PRIOR TO IMPLEMENTING A CHANGE THEREOF. FAILURE TO DO
SO WAS VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER
11491, AS AMENDED. INTERNAL REVENUE SERVICE, A/SLMR NO. 1091.
IT THUS APPEARS SETTLED IN THE PUBLIC SECTOR THAT THE GRIEVANCE
MACHINERY UNDER THE NEGOTIATED CONTRACT SURVIVES THE EXPIRATION OF THE
CONTRACT ITSELF. RESPONDENT INSISTS THE CITED CASES HEREIN ARE
INAPPLICABLE SINCE CROCKER'S GRIEVANCE AROSE DURING THE EXTENDED PERIOD
OF THE CONTRACT TERM. HENCE, IT IS ARGUED THAT THE GRIEVANCE DID NOT
INVOLVE AN INTERPRETATION AS APPLICATION OF THE CONTRACT, AND THEREFORE
WOULD HAVE NO VALIDITY THEREUNDER. HOWEVER, SUCH AN ARGUMENT GOES TO
THE MERIT OF THE GRIEVANCE WHICH IS NOT THE CONCERN OF THE UNFAIR LABOR
PRACTICE ALLEGED HEREIN. MOREOVER, THE STATEMENTS MADE TO CROCKER WERE
MADE SUBSEQUENT TO THE CONTRACT TERMINATION, AND THE GRIEVANCE WAS FILED
AFTER ITS EXPIRATION.
RESPONDENT MAKES SEVERAL ADDITIONAL CONTENTIONS /2/ WHILE URGING THAT
NO VIOLATION OCCURRED IN THE CASE AT BAR. IT MAINTAINS THAT THERE MUST
BE A FINDING OF ANTI-UNION ANIMUS IN ORDER TO CONCLUDE THAT A VIOLATION
OF THE ACT OCCURRED. IN SUPPORT OF THIS POSITION IT CITES VETERANS
ADMINISTRATION, REGIONAL OFFICE, HONOLULU, HAWAII, A/SLMR NO. 976.
HOWEVER, ITS RELIANCE UPON THE CITED CASE IS MISPLACED. WHERE, AS IN
THE VA CASE, AN EMPLOYER REASSIGNS AN EMPLOYEE TO DIFFERENT DUTIES,
MOTIVATION BECOMES A SIGNIFICANT FACTOR IN THE ACTION TAKEN BY
MANAGEMENT. THUS, UNLESS UNION ANIMUS IS SHOWN, ACTION TAKEN TOWARD AN
EMPLOYEE MAY WELL BE LEGITIMATE AND BEYOND THE PALE OF DISCRIMINATION.
ON THE OTHER HAND, ANY ACTION BY AN EMPLOYER WHICH DISCOURAGES OR
INTERFERES WITH AN EMPLOYEE'S FILING OF A GRIEVANCE PURSUANT TO A
NEGOTIATED AGREEMENT INHERENTLY INTERFERES WITH THE RIGHTS ASSURED
EMPLOYEES UNDER SECTION 7102 OF THE ACT. THUS, SUCH CONDUCT BY THE
AGENCY WILL ALSO CONSTITUTE A VIOLATION OF SECTION 7116(A)(1) OF THE
ACT. SEE NATIONAL LABOR RELATIONS BOARD, ET. AL, A/SLMR NO. 295;
DEPARTMENT OF DEFENSE, ARKANSAS NATIONAL GUARD, A/SLMR NO. 53.
APPLYING THE DECISIONAL LAW IN THE PUBLIC SECTOR TO THE CASE AT HAND,
I AM CONSTRAINED TO CONCLUDE THAT THE CONDUCT OF MANAGEMENT HEREIN RAN
AFOUL OF THE ACT. ALTHOUGH RESPONDENT MAINTAINS IT WAS MERELY INFORMING
CROCKER THAT THE BARGAINING AGREEMENT HAD EXPIRED AND SHE COULD OBTAIN
NO REDRESS THEREUNDER, THE NET RESULT OF MANAGEMENT'S CONDUCT WAS A
REFUSAL TO PROCESS OR CONSIDER THE GRIEVANCE WHICH THIS EMPLOYEE FILED
UNDER THE AGREEMENT. MOREOVER, LACK OF ILLEGAL MOTIVATION UNDER THESE
CIRCUMSTANCES DOES NOT MILITATE AGAINST FINDING THAT RESPONDENT ENGAGED
IN ACTS OF INTERFERENCE. THUS, IN GSA, REGION 5, CHICAGO, ILLINOIS,
A/SLMR NO. 1139 THE AGENCY'S REFUSAL TO PROCESS A GRIEVANCE UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE WAS DEEMED VIOLATIVE OF SECTIONS 19(A)(1)
AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED.
UNDER SETTLED LAW IN THE PUBLIC SECTOR THE GRIEVANCE-ARBITRATION
PROCEDURE, SET FORTH IN THE EXPIRED CONTRACT BETWEEN RESPONDENT AND THE
UNION, CONTINUED IN EFFECT. THEREFORE, CROCKER HAD THE RIGHT TO FILE
HER GRIEVANCE PURSUANT THERETO, AND MANAGEMENT HEREIN WAS OBLIGED TO
PROCESS IT UNDER SUCH PROCEDURES. ITS FAILURE AND REFUSAL TO DO SO,
COUPLED WITH ITS STATEMENTS TO THE EMPLOYEE THAT SHE HAD NO RIGHTS OR
RECOURSE UNDER THE NEGOTIATED GRIEVANCE CLAUSE, CLEARLY DISCOURAGED OR
INTERFERED WITH CROCKER'S FILING OF HER GRIEVANCE THEREUNDER. SUCH
CONDUCT TRANSGRESSES THE ACT, AND I CONCLUDE IT CONSTITUTES
INTERFERENCE, RESTRAINT OR COERCION IN VIOLATION OF SECTION 7116(A)(1)
THEREOF.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
SECTION 7116(A)(1) OF THE ACT, I HEREBY ISSUE THE FOLLOWING ORDER
DESIGNED TO EFFECTUATE THE PURPOSE OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
ORDER
PURSUANT TO SECTION 7105(G)(3) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, AND SECTION 2400.2 OF ITS
REGULATIONS, IT IS HEREBY ORDERED THAT THE DEPARTMENT OF THE AIR FORCE,
35TH COMBAT SUPPORT GROUP (TAC), GEORGE AIR FORCE BASE, CALIFORNIA
SHALL:
1. CEASE AND DESIST FROM:
(A) DISCOURAGING ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, FROM FILING
A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, CONTAINED IN THE
COLLECTIVE BARGAINING AGREEMENT EXECUTED BETWEEN IT AND NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977, OR ANY OTHER LABOR
ORGANIZATION, BY INFORMING ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, THAT
SUCH AGREEMENT HAS EXPIRED AND THEY HAVE NO RIGHT TO FILE A GRIEVANCE
THEREUNDER.
(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 ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT STATUTE:
(A) POST AT ITS FACILITY AT THE GEORGE AIR FORCE BASE, CALIFORNIA
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX", ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE SIGNED BY THE COMMANDER 35TH COMBAT SUPPORT
GROUP (TAC), AND THEY SHALL BE POSTED FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY
THEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: 14 MAR 1980
WASHINGTON, D.C.
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 THE FEDERAL SERVICE LABOR-MANAGEMENT STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DISCOURAGE ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, FROM
FILING A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, CONTAINED
IN THE COLLECTIVE BARGAINING AGREEMENT EXECUTED BETWEEN IT AND NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977, OR ANY OTHER LABOR
ORGANIZATION, BY INFORMING THE SAID ANNA M. CROCKER, OR ANY OTHER
EMPLOYEE, THAT SUCH AGREEMENT HAS EXPIRED AND THEY HAVE NO RIGHT TO FILE
A GRIEVANCE THEREUNDER.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
. . . .
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, FEDERAL LABOR RELATIONS AUTHORITY, REGION 3, 350
SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90071.
--------------- FOOTNOTES$ ---------------
/1/ REID, WHO LEFT RESPONDENT'S FACILITY ON MARCH 14, 1979, GAVE A
DIFFERENT VERSION OF THIS CONVERSATION. SHE DENIED INFORMING CROCKER
THAT GRIEVANCE COULD NOT BE FILED SINCE THE CONTRACT EXPIRED. MOREOVER,
REID TESTIFIED SHE STATED TO CROCKER THAT HER GRIEVANCE WAS A PERSONAL
MATTER, AND THE CURRENT AGREEMENT'S GRIEVANCE PROCEDURE APPLIED ONLY TO
MATTERS INVOLVING INTERPRETATION OR APPLICATION OF THE CONTRACT. THIS
VERSION IS NEGATED SIGNIFICANTLY BY THE MEMO SUBSEQUENTLY WRITTEN BY
REID, WHICH WAS SENT TO CROCKER ON MARCH 7, 1979. MOREOVER I FIND
REID'S TESTIMONY IMPLAUSIBLE. I CREDIT CROCKER IN RESPECT TO THE MARCH
6 CONVERSATION WITH REID.
/2/ I FIND NO MERIT TO THE DEFENSE OF LACHES RAISED BY THE EMPLOYER
HEREIN. THE COMPLAINT WAS DULY ISSUED AND COMPLIES WITH THE STATUTORY
TIME LIMITATIONS SET FORTH UNDER SECTION 7118(A)(4) OF THE ACT.