[ v12 p686 ]
12:0686(133)CA
The decision of the Authority follows:
12 FLRA No. 133
BUREAU OF LAND MANAGEMENT
RICHFIELD DISTRICT OFFICE,
RICHFIELD, UTAH
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3790
Charging Party
Case No. 7-CA-247
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision and a supporting brief, and the General Counsel
filed an opposition.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. /1/ Upon consideration of
the Judge's decision and the entire record, the Authority hereby adopts
the Judge's findings, /2/ conclusions /3/ and recommendations.
Upon finding that the Respondent violated section 7116(a)(1) and (5)
of the Statute by its failure to give the Union prior notice and an
opportunity to request bargaining over the impact and implementation of
its decision to change the method of communication between unit
employees and the Bureau of Land Management's Utah state personnel
office, the Judge ordered a status quo ante remedy, noting that such a
remedy would not work a hardship upon the Respondent or significantly
disrupt its operations. Subsequently, the Authority issued its Decision
and Order in Federal Correctional Institution, 8 FLRA No. 111 (1982),
wherein it set forth certain factors to be considered in determining the
appropriateness of ordering a return to the status quo ante in order to
remedy a violation of the duty to bargain over the impact and
implementation of a decision which itself was not negotiable. Applying
such factors to the instant case, and noting also the absence of
exceptions to the Judge's recommended remedy, the Authority finds, in
agreement with the Judge, that a status quo ante remedy is warranted.
Thus, as found by the Judge, the Respondent failed to give the Union
prior notice of the change herein, as embodied in the memorandum of
April 9, 1979, and as reaffirmed in further violation of the Statute in
memoranda dated August 15, 1979 and June 9, 1980. Further, it does not
appear that such a remedy would seriously disrupt the Respondent's
operations. Rather, as Richfield District Manager Don Pendelton stated
to the Associate State Director by memorandum dated April 10, 1979
concerning the state office's workload statistics, he would be
"surprised" if the time spent by the state personnel office to service
Richfield "exceeded two or three hours per week." See, Department of
Health and Human Services, Social Security Administration, Field
Assessment Office, Atlanta, Georgia, 11 FLRA No. 78 (1983).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Bureau of Land Management, Richfield District
Office, Richfield, Utah, shall:
1. Cease and desist from:
(a) Instituting any change in the method or manner in which unit
employees contact the Bureau of Land Management's Utah state personnel
office without first notifying the American Federation of Government
Employees, AFL-CIO, Local 3790, the unit employees' exclusive
representative, and affording it the opportunity to negotiate concerning
the impact and implementation of such change.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind and withdraw the June 9, 1980 memorandum which limited
the manner in which unit employees may contact the Bureau of Land
Management's Utah state personnel office.
(b) Notify the American Federation of Government Employees, AFL-CIO,
Local 3790, of any intention to limit the manner in which unit employees
contact the Bureau of Land Management's Utah state personnel office,
and, upon request, negotiate with the exclusive representative
concerning the impact and implementation of such action.
(c) Post at its Richfield District Office, Richfield, Utah, and the
field stations of the Richfield District Office, 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
Richfield District Office Manager, or his designee, and they 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
insure that such Notices are not altered, defaced, or covered by any
other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, 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 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in the method or manner in which unit
employees contact the Bureau of Land Management's Utah state personnel
office without first notifying the American Federation of Government
Employees, AFL-CIO, Local 3790, the unit employees' exclusive
representative, and affording it the opportunity to negotiate concerning
the impact and implementation of such change. WE WILL NOT in any like
or related manner interfere with, restrain, or coerce our employees in
the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute. WE WILL rescind and withdraw the
June 9, 1980 memorandum which limits the manner in which unit employees
may contact the Bureau of Land Management's Utah state personnel office.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Local 3790, of any intention to limit the manner in which unit
employees contact the Bureau of Land Management's Utah state personnel
office, and, upon request, negotiate with the exclusive representative
concerning the impact and implementation of such action.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region VII,
Federal Labor Relations Authority, whose address is: Federal Building &
U.S. Customs House, 1531 Stout Street, Suite 301, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-247
Gerald Rachelson, Esquire
Mr. Roland J. Payne
For the Respondent
James J. Gonzales, Esquire
For the General Counsel
Mr. William E. Wade
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code. Section
7101, et seq., and the Rules and Regulations issued thereunder, Fed.
Reg., Vol. 45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411,
et seq.
Pursuant to amended charges first filed on September 18, 1979, by the
American Federation of Government Employees, Local 3790 (AFL-CIO),
(hereinafter called the AFGE or Union), a Complaint and Notice of
Hearing was issued on August 27, 1980, by the Regional Director for
Region VII, Federal Labor Relations Authority, Kansas City, Missouri.
The Complaint alleges in substance that the Bureau of Land Management,
Richfield District Office, (hereinafter called the Respondent), violated
Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by virtue of its
actions in, unilaterally and without prior notice to the Union, issuing
memoranda on April 9, 1979, August 15, 1979, and June 9, 1980, which
restricted or limited unit employees' access to the Personnel Branch
located in the Utah State Office.
A hearing was held in the captioned matter on November 19, 1980, in
Richfield, Utah. All parties were afforded full opportunity to be hard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on February 11, 1981, which
have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Bureau of Land Management operates a "State Office" in Salt Lake
City, Utah which supervises five "District Offices" located in
Richfield, Cedar City, Moab, Salt Lake City and Vernal, Utah. The Union
is the exclusive representative of the non-supervisory employees working
in the Richfield District and the field stations of the Richfield
District which are located in Hanksville, Fillmore and Richfield, Utah.
The personnel department or office which services the Richfield
District, as well as the other District Offices, is located in the State
Office in Salt Lake City, Utah. The personnel department is under the
supervision of the State Director. Mr. Donald Pendleton is the manager
of the Richfield District Office.
By memoranda dated April 9 and 10, 1979, Mr. Pendleton notified the
State Director and the Associate State Director, respectively, that in
order to relieve the overloaded employees in the personnel department of
the State Office from constant telephone interruptions from Richfield
District Office employees he was designating five individuals who would
be the "only Richfield District Office personnel authorized to discuss
personnel matters" with the State Office. The five individuals were Mr.
Pendleton, Mr. Neil Thomas, Chief of Division of Administration, and
their respective administrative assistants.
By memorandum dated August 15, 1979, to the State Director, Mr.
Pendleton noted that his previous memoranda of April 9 and 10, 1979,
were not being followed. "Because of this and the fact that" there was
a new Assistant Director, a new list of people to contact with respect
to inquiries to the State Office personnel department was published.
Mr. Pendleton acknowledges that he had no prior discussion with the
Union prior to issuing the above memoranda. He further acknowledges
that he disseminated the above memoranda to all supervisors and put it
in the "read file", a file containing memoranda concerning District
Office business that all employees should be aware of. According to Mr.
Pendleton, the substance of the memoranda, i.e. limiting employees
contact to the Personnel department to certain designated individuals,
was nothing new and that subject had been discussed many times both in
staff meetings with his supervisors and staff meetings held by the State
Director with all his District Office managers. Further according to
Mr. Pendleton, it had been agreed that the employees in the State Office
personnel department were unable to complete their personnel work
because of the constant telephone calls from individual employees and
that each District Office Manager was to designate certain individuals
who would be the only contact with the employees in the personnel
department. Finally, according to Mr. Pendleton, his memoranda of April
9 and 10, 1979, was really tongue and cheek in that he was really taking
a jab at the State Office for not enforcing its own rules with respect
to limiting the telephone calls to the personnel department employees.
/4/
Mr. Pendleton's testimony with respect to the many discussions
concerning the inordinate amount of telephone calls to the State Office
personnel department and the agreement to limit same by having specified
contact representatives was supported by the testimony of Mr. Larry
Oldroyd, Richfield's Chief of Division of Planning, Mr. Tom Jenson,
Fillmore Area Manager, Mr. S. Douglas Wood, a Richfield Division Chief,
and Mr. Neil Thomas, Chief of the Richfield Administrative Division.
Additionally, the above employees along with Mr. Roy Turner, Chief of
the Administrative Services at the State Office, Ms. Erma Jensen, an
Administrative Assistant in Richfield and Mr. Mark Bailey, Fillmore Area
Manager, all testified that it was not only their understanding but
their accepted practice for many years to contact the State Office
Personnel Department only through designated employees. However, none
of the aforementioned individuals could point to any particular oral
directive or written memorandum limiting individual Richfield employee
contact with the personnel department in the State Office in Salt Lake
City, Utah.
In contrast to the above testimony, Mr. Elbert Lowry, a Richfield
employee since 1972 and President of the Union, Mr. Charles Horsburgh,
Program Leader for Minerals, Mr. Michael Whalen, a supervisor who
transferred to Richfield in February 1979, Mr. Dwane Bayles, a
supervisor in Richfield since 1976, Mr. Larry Maxfield, Chief of
Division of Resources in Richfield since 1975, all testified that prior
to April 9, 1979, they were aware of no policy and/or restriction in
effect which prohibited individual employee contact with the State
Office personnel department. Mr. Maxfield acknowledged attending staff
meetings wherein Mr. Pendleton informed him and the other supervisors in
attendance that there were too many telephone contacts being made from
"district people to personnel and training in the State Office."
According to Mr. Maxfield, Mr. Pendleton "used to encourage all the
managers to cut down on their calls, and he relayed Mr. Pendleton's
wishes to his employees." All the foregoing witnesses testified to
various telephone calls they had individually and personally made to the
State Office personnel department.
As noted above in the "Statement of the Case", the Union's National
Representative William Wade filed the original charge on September 18,
1979 and an amended charge on March 4, 1980. Both the original and
amended charge alleged that the issuance of the April 9, 1979,
memorandum from Mr. Pendleton was violative of Sections 7116(a)(1) and
(5) of the Statute. Thereafter the Regional Director issued a complaint
on March 13, 1980 alleging that since April 9, 1979, and continuing
thereafter, the Respondent effected a change in working conditions, i.e.
change in the manner employees could contact the State Office personnel
department, without due notice to, and bargaining with, the Union.
Prior to the hearing on the matter which was scheduled for June 3, 1980,
the parties agreed to a settlement which provided that the Respondent
would revoke the April 9, 1979 and August 15, 1979, Richfield District
Office memoranda and upon request bargain with the Union prior to making
any changes in the manner in which unit employees contact the State
Office personnel department.
On or about May 30, 1980, a number of Respondent's representatives
met with Union President Lowry for purposes of attempting to reach
agreement on Respondent's policy concerning unit employee contacts with
the State Office personnel department. The meeting was marked by the
submission and discussion of a proposed memorandum dated May 30, 1980
from Respondent to the unit employees. Various suggestions were
submitted by both parties concerning possible improvements in the
language of the memorandum. The meeting subsequently came to an end
sometime in the afternoon when Mr. Lowry made it clear that he wanted to
take the proposals home and study them over the weekend. Although
Respondent initially acquiesced and allowed Mr. Lowry to take the
proposals and other materials discussed at the meeting, it subsequently
sent a representative to retrieve same. /5/
On Tuesday June 3, 1980, Mr. Lowry, along with Mr. Wade, the Union's
National Representative who had filed the original charges against the
Respondent, again met with representatives of the Respondent. Both Mr.
Wade and Mr. Pendleton affixed their signatures to a settlement
agreement which provided, among other things, that the Respondent would
"meet and confer in good faith, and consonant with law, with the Union
regarding proposed policies involving unit employees contacting the
State Office about personnel matters". Following the execution of the
settlement agreement, the parties began a discussion of the memorandum
dated May 30, 1980, which had been shown to Mr. Lowry the Friday before.
Mr. Wade expressed concern that the list of employee contacts on the
May 30, 1980, memorandum did not include a person from the bargaining
unit. /6/ Respondent's representatives, particularly, Mr. Pendleton,
then made it clear that they did not intend to bargain over the
substance of the memorandum and were only interested in negotiating
impact. The meeting ended without any agreement being reached.
Thereafter, on June 4, 1980, Mr. Wade gave Mr. Pendleton a letter
wherein he informed Mr. Pendleton that the Union would only bargain with
the Respondent after the Regional Director had approved the settlement
agreement and Respondent had complied therewith. On June 5, 1980, Mr.
Pendleton addressed a letter to Mr. Lowry wherein he made it clear that
it was management's position that it was not under any obligation to
bargain concerning its decision to limit employee contacts with the
Personnel Department in the State Office. Mr. Pendleton went on to
state in the letter that management would, however, entertain the
Union's request for impact and implementation bargaining, and felt that
it had done so on May 30. Mr. Pendleton further noted that the May 30th
memorandum presented to the Union as a basis for bargaining was separate
and apart from the settlement agreement.
On June 9, 1980, Respondent issued two different memorandums. One
memorandum informed the employees that the prior memorandums of April 9
and August 15, 1979, were no longer in effect. The second memorandum
was an amended version of the May 30th memorandum used as a basis for
the earlier discussions between Respondent's representatives and Mr.
Lowry. This memorandum, by its terms, reinstated or reinstituted the
restrictions contained in the revoked April 9, and August 15, 1979,
memorandums. /7/
Subsequently, pursuant to a complaint from the Union, the Regional
Director revoked his approval of the settlement agreement and issued a
new complaint which, as noted above, alleged that Respondent by virtue
of its actions on April 9, and August 15, 1979, and June 9, 1980,
violated Sections 7116(a)(1) and (5) of the Statute.
Discussion and Conclusions
Respondent takes the position that the complaint should be dismissed
since the memorandums of April 9 and August 15, 1979, are nothing more
than a reiteration of existing policy and hence not changes in
conditions of employment necessitating bargaining. Alternatively,
Respondent urges dismissal on the ground that the posting of the
"Notice" pursuant to the settlement agreement mooted the alleged
violations. Additionally, Respondent takes the position, that in any
event, the violations were cured by the discussions occurring on May
30th and June 3rd wherein the Union was invited to submit its impact
proposals. Lastly, Respondent takes the position that the allegations
of the complaint predicated on Respondent's actions of August 15, 1979
and June 9, 1980, should be dismissed since they were not included in
either the original or amended charges filed by the Union.
With respect to the latter contention, i.e. the inclusion of
allegations in a complaint which were not set forth in the charges, it
is well established that a complaint need not be confined to only the
specific matters set forth in a charge. Additional allegations may be
included in a complaint as long as such allegations bear a relationship
to the charge and are closely related to the events complained of in the
charge. NLRB v. Kohler Company, 220 Fed.2nd 3 (7th Cir. 1955); Texas
Industries Inc. v. NLRB, 336 Fed.2nd 128 (5th Cir. 1964). Accordingly,
inasmuch as the events of August 15, 1979 and June 9, 1980, are clearly
closely related to the allegations of the charge, I find that they were
properly included in the complaint.
Turning now to the alleged unilateral change underlying the
complaint, i.e. institution of a restrictive policy concerning
individual employee telephone contacts with the State Office personnel
department, I find, based on the record as a whole and contrary to the
contention of the Respondent, that the policy announced on April 9,
1979, was not merely a reiteration of an existing policy and/or
practice, but rather the establishment of a new policy at least with
respect to the Richfield District employees. Thus, it is noted that
while there was general agreement among the witnesses for both the
Respondent and General Counsel that State Office management had been
concerned for some time about the many telephone calls to the State
Office personnel department, that the matter had been raised on many
occasions in meetings between State Office and District Office
management and in supervisory meetings at the Richfield District Office,
and that while there was at least tacit agreement between the parties
attending the aforementioned meetings to attempt to limit the constant
telephone interruptions at the State Office personnel department, no
specific orders or regulations concerning the restrictions on telephone
contacts were issued to the bargaining unit employees or, for that
matter to the Richfield District supervisory staff. Further support for
this conclusion appears in the testimony of Mr. Pendleton, the Richfield
District Director, who testified that his April 9th memorandum was in
fact a tongue in check attempt to prod the State Office management
officials to limit telephone contact to only certain designated
individuals. The foregoing, coupled with the denials by a number of
Richfield District supervisors of the existence of the restrictive
telephone policy prior to April 9, 1979, indicates that if there was in
fact a policy, such policy had never been announced or applied to the
Richfield District unit personnel. Moreover, to the extent that there
had been tacit agreement between District and State management
representatives regarding such a policy, it appears that such agreement
or understanding had been equally honored in both the breach and
enforcement thereof. Accordingly, I find that the April 9, 1979,
memorandum issued by Mr. Pendleton amounted to a unilateral change in
conditions of employment. Cf. Pennsylvania Army and Air National Guard,
A/SLMR No. 969; New Mexico Air National Guard, A/SLMR No. 362.
Inasmuch as the April 9, 1979, memorandum changed conditions of
employment, Respondent was obligated to give the Union prior notice of
its decision to institute the change in working conditions and an
opportunity to request bargaining over the impact of the change and the
manner of its implementation. Having failed to do so, Respondent
violated Sections 7116(a)(1) and (5) of the Statute.
Contrary to the contention of the General Counsel, I further find
that since the change in the manner of communication with the personnel
department falls within the definition of "methods" in Section
7106(a)(1) of the Statute, Respondent was under no obligation to bargain
with the Union over the substance of its decision. Cf. Norfolk Naval
Shipyard, 3 FLRA No. 15; see U.S. Department of Treasury U.S. Customs
Service, Region IV, Houston, Texas, A/SLMR No. 1048, wherein a similar
conclusion of the Administrative Law Judge was reversed on other
grounds.
Inasmuch as the memorandums issued on August 15, 1979, and June 9,
1980, reaffirmed Respondent's original action taken on April 9, 1979, I
find that the issuance of such memoranda constituted a further violation
of Sections 7116(a)(1) and (5) of the Statute in that such memoranda was
again issued without allowing the Union and opportunity to negotiate the
impact and implementation thereof. Contrary to the contention of the
Respondent, I do not find that the meeting, discussions and/or
deliberations conducted between Respondent's representatives and the
Union on May 30 and June 3, 1980, qualify as the "good faith"
negotiations contemplated by the Statute. In reaching this conclusion,
I note that the original violation had not been remedied at the time and
that Respondent had not entered the discussions with an open mind. In
fact Respondent's representatives made it clear that they had no
intention of entering into the settlement until agreement had been
reached on the change in conditions of employment. Until the original
violation had been cured, the Union was under no obligation to enter
negotiations. To hold otherwise, puts the Union at a distinct
disadvantage since it would be bargaining on a change which had already
become a fait accompli. Finally, and again contrary to the contention
of Respondent, I find that the posting of the notice did not moot the
matter since the change underlying the charges had been reinstituted on
June 9, 1980, prior to completion of negotiations with respect to impact
and implementation.
Having found and concluded that the Respondent violated Sections
7116(a)(1)(5) of the Statute, I recommend that the Authority issue the
following order. /8/
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section
2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the Bureau of Land
Management, Richfield District Office, Richfield, Utah, shall:
1. Cease and desist from:
(a) Instituting any change in the method or manner in which
unit employees contact the State Office personnel department
without first notifying American Federation of Government
Employees, Local 3790, AFL-CIO, the unit employees' exclusive
representative, and affording it the opportunity to consult and
negotiate, to the extent consonant with law and regulations,
concerning the impact and implementation of such change.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the 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) Rescind and withdraw the June 9, 1980, memorandum which
limited the manner in which unit employees may contact the State
Office personnel department.
(b) Notify the American Federation of Government Employees,
Local 3790, AFL-CIO, of any intention to limit the manner in which
unit employees contact the State Office personnel department, and
upon request, consult and negotiate with such representative, to
the extent consonant with law and regulations, concerning the
impact and implementation of such action.
(c) Post at its Richfield District Office, Richfield, Utah, and
the field stations of the Richfield District Office 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 Richfield District Office manager and
they shall be posted for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. The District Office manager
shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
(d) 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.
BURTON S. STERNBURG
Administrative Law Judge
Dated: April 10, 1981
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 CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in the method or manner in which unit
employees contact the State Office personnel department without first
notifying American Federation of Government Employees, Local 3790,
AFL-CIO, the unit employees' exclusive representative, and affording it
the opportunity to consult and negotiate, to the extent consonant with
law and regulations, concerning the impact and implementation of such
change. WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the rights assured by the Federal
Service Labor-Management Relations Statute. WE WILL rescind and
withdraw the June 9, 1980, memorandum which limits the manner in which
unit employees may contact the State Office personnel department. WE
WILL notify the American Federation of Government Employees, Local 3790,
AFL-CIO, of any intention to limit the manner in which unit employees
contact the State Office personnel department, and upon request, consult
and negotiate with such representative, to the extent consonant with law
and regulations, concerning the impact and implementation of such
action.
(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
question concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director for the Federal
Labor Relations Authority whose address is: Suite 680, City Center
Square, 1100 Main Street, Kansas City, Missouri 64105. Telephone (816)
374-2199.
--------------- FOOTNOTES$ ---------------
/1/ The Authority adopts the Judge's finding that the addition of two
allegations to the complaint was proper under the circumstances. See
section 2423.12(d) of the Authority's Rules and Regulations. See also
Department of the Interior, U.S. Geological Survey, Conservation
Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA No. 65
(1982).
/2/ The Respondent excepted to certain credibility findings made by
the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates such resolution
was incorrect. The Authority has examined the record carefully, and
finds no basis for reversing the Judge's credibility findings.
/3/ The Judge's inadvertent reference to section 7106(a)(1) of the
Statute rather than section 7106(b)(1) at page 8 of his Decision is
hereby corrected. The Authority also finds it unnecessary to pass upon
and does not adopt the Judge's statement to the effect that a union is
under no obligation to enter negotiations with a respondent until the
original violation has been cured.
/4/ The record reveals that the April 9 and 10 memoranda were in
response to a memorandum dated February 2, 1979 concerning problems in
the State Personnel Department and soliciting suggestions to alleviate
same.
/5/ According to Mr. Lowry, whom I credit, he indicated to
Respondent's representatives that he was a novice at negotiations and
that he was not the party initiating the charge underlying the
complaint. Further, according to Mr. Lowry, Respondent indicated
throughout the May 30th meeting that it did not have to bargain over
substance but only impact. In this latter context, Mr. Oldroyd,
Assistant District Manager, who was a management representative at the
May 30th meeting, testified that in the absence of an agreement on a
memorandum concerning the policy of limiting unit employee contact with
the State Office Personnel Department there could be no settlement of
the pending Unfair Labor Practice Complaint. According to Mr. Oldroyd,
this position was conveyed to Mr. Lowry.
/6/ To the extent that a dispute exists with respect to the Union's
demands, I credit Mr. Lowry and Mr. Wade's testimony that they were not
insisting that a union member be listed as one of the people authorized
to contact the State Personnel Department.
/7/ The record reveals that Respondent posted the "Notice" required
by the settlement agreement at all locations on June 18, 1980, and
maintained them for approximately 70 days.
/8/ Inasmuch as a status quo ante remedy would not work a hardship
upon Respondent or significantly disrupt its operations, I shall order
that the memorandum of June 9, 1980, be rescinded. Cf, San Antonio Air
Logistics Center (AFLC), Kelly Air Force Base, Texas, 5 FLRA 22.