[ v13 p135 ]
13:0135(33)CA
The decision of the Authority follows:
13 FLRA No. 33
DEPARTMENT OF THE AIR FORCE
915th TACTICAL FIGHTER GROUP
HOMESTEAD AIR FORCE BASE, FLORIDA /1/
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1167
Charging Party
Case No. 4-CA-596
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain of the unfair labor practices alleged in the complaint and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge also found that certain
allegations of the complaint should be dismissed in their entirety.
Thereafter, both the Respondent and the General Counsel filed exceptions
to the Judge's Decision.
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. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, /2/ conclusions and Recommended Order. /3/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Department of the Air Force, 915th Tactical Fighter Group, Homestead Air
Force Base, Florida, shall:
1. Cease and desist from:
(a) Designating the representatives of the National Federation of
Federal Employees, Local 1167, who are to attend meetings of the Working
Committee, or any other committee established for the purpose of
discussing terms and conditions of employment of employees in the
bargaining unit represented by the National Federation of Federal
Employees, Local 1167.
(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) Notify the National Federation of Federal Employees, Local 1167,
that the employer recognizes the right of the exclusive representative
to designate its own representatives to the Working Committee or any
other committee established by the employer for the purpose of meeting
with management to discuss terms and conditions of employment of
employees in the bargaining unit represented by the National Federation
of Federal Employees, Local 1167.
(b) Post at the Homestead Air Force Base, Florida facility copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be signed by
an authorized representative of the Respondent 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 insure that
such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, 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., September 28, 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 designate the representatives of the National Federation of
Federal Employees, Local 1167, who are to attend meetings of the Working
Committee, or any other committee established for the purpose of
discussing terms and conditions of employment of employees in the
bargaining unit represented by the National Federation of Federal
Employees, Local 1167. 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 notify the National Federation of Federal Employees,
Local 1167, that we recognize the right of the exclusive representative
to designate its own representatives to the Working Committee or any
other committee established for the purpose of meeting with management
to discuss terms and conditions of employment of employees in the
bargaining unit represented by the National Federation of Federal
Employees, Local 1167.
(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 any of its
provisions, they may communicate directly with the Regional Director for
the Federal Labor Relations Authority, Region IV, whose address is:
1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Ga. 30309
and whose telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE AIR FORCE,
915th TACTICAL FIGHTER GROUP,
HOMESTEAD AIR FORCE BASE, FLORIDA
Respondent /4/
and
Case No. 4-CA-596
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1167
Charging Party
James A. Harper, Esq.
For the Respondent
Bob R. Brown
For the Charging Party
Barbara S. Liggett, Esq. and
Brenda S. Green, Esq.
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. It was instituted by the Acting Regional Director
of the Fourth Region of the Federal Labor Relations Authority by the
issuance of a Complaint and Notice of Hearing dated December 31, 1980.
The Complaint was issued following the investigation of an unfair labor
practice charge filed on September 16, 1980 and an amended charge filed
on December 29, 1980 by National Federation of Federal Employees, Local
1167, herein referred to as the Union, NFFE or Charging Party.
The Complaint alleges that Respondent, through its agent, Colonel
Ralph D. Erwin, Commander of the 915th Tactical Fighter Group, violated
Sections 7116(a)(1), (3) and (5) of the Statute by the following
conduct:
7.
(a) On or about April 14, 1980, Respondent, by Erwin,
established a committee composed of representatives of various
components of Respondent and the Union which committee had as an
object the discussion of terms and conditions of employment at
Respondent.
(b) On or about April 14, 1980, Respondent, by Erwin,
designated and selected representatives of the Union to attend and
participate in meetings and affairs of the committee.
(c) At no time was the Union given the opportunity to designate
and select representatives or participate in the designation and
selection of representatives of its own choosing to attend and
participate in the meetings and affairs of the committee.
(d) At no time did the Union acquiesce in the acts and conduct
of Respondent set forth in paragraph 7(b), above.
8.
Commencing on or about April 28, 1980 and continuing until on
or about September 2, 1980, Respondent, By Erwin, conducted
meetings of the committee described above in paragraph 7.
In its Answer, Respondent denies that Colonel Erwin is an agent of
Respondent and denies any violation of the Statute.
A hearing was held in Homestead, Florida at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
filed by Respondent and the General Counsel have been duly considered.
/5/
Upon consideration of the entire record /6/ in this case, including
my evaluation of the testimony and evidence presented at the hearing,
and from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact and Conclusions of Law
A. Identity of the Respondent and its Agents
1. General Counsel's Exhibit No. 2 is a Labor-Management Cooperation
Agreement dated October 31, 1975 between Homestead Air Force Base,
Florida (the Employer) and National Federation of Federal Employees,
Local No. 1167. Article I of the Agreement states as follows:
This agreement is executed pursuant to the exclusive
recognition granted Local 1167, an affiliate of National
Federation of Federal Employees by the Base Commander, Homestead
Air Force Base, Florida.
The Agreement was signed on behalf of the Employer by Colonel T. M.
Hamilton in his capacity as Base Commander, although he also happened to
be Commander of the 31st Combat Support Group (TAC). Throughout the
agreement references are made to the Employer and to the Base Commander.
There are no references to the 31st Combat Support Group. Article 2,
Section 1 states that the effective date of the agreement shall be the
date of approval by Headquarters, TAC. The last page of the agreement
indicates approval by David V. Barry, Director of Civilian Personnel,
Tactical Air Command. From the foregoing I conclude that the Employer
should be United States Air Force Base, Tactical Air Command, Homestead
Air Force Base, Florida. By agreement of the parties at the hearing,
Tactical Air Command and Department of Defense were deleted from the
caption.
2. After the hearing, by motion of the General Counsel (in which
Respondent concurs), it was requested that the 31st Combat Support Group
(herein the 31st) be deleted. The Charging Party opposes the motion.
The evidence does not establish the 31st Combat Support Group as the
employing entity. As noted in Paragraph 6 of the Complaint, the unit
consists of all employees at Homestead Air Force Base regardless of the
military unit to which they are assigned so long as they are "Air Force
civilian employees serviced by the Central Civilian Personnel Office of
Homestead Air Force Base, Florida." Since the 31st Combat Support Group
is not the Employer, the only reason to name them as a Respondent would
be if the evidence warranted their inclusion by reason of activities and
conduct of supervisors, management officials or agents of the 31st.
However, the evidence does not establish (and this is apparently the
basis of the General Counsel's motion) /7/ that any representative of
the 31st were involved in any of the unfair labor practices alleged in
the Complaint. Rather, the sole management official named in the
Complaint was Colonel Ralph Erwin, Commander of the 915th Tactical
Fighter Group (herein the 915th). Since the evidence does not establish
that Colonel Erwin was acting on behalf of the 31st, I find he was not
an agent of the 31st and, further, I grant the motion to delete the 31st
as Respondent.
3. Finally, with respect to the 915th Tactical Fighter Group, it is
not clear to me why it is being named in the Complaint, other than the
fact that all parties are in agreement that it should be so named.
Clearly, the 915th is not the Employer herein. Rather it is merely a
military organization at Homestead whose employees constitute a segment
of the contractual bargaining unit. Since Colonel Ralph Erwin is
commander of the 915th, this appears to be the reason for its being
named. I find, however, with respect to the status of Colonel Erwin,
that in addition to being a supervisor and management official of the
915th, he is also a supervisor, management official, and an agent of
United States Air Force, Homestead Air Force Base, Florida, the
Respondent herein. I make this finding based (1) on my view that all
supervisors and management officials at Homestead Air Force Base
necessarily are - by virtue of their position - agents of Respondent's
and (2) the fact that the Central Civilian Personnel Office made Erwin
its agent when CPO chief Forrest Williams instructed him to meet with
the Union President to discuss the Union's right to be involved with
Erwin's "working committee" (Tr. 114). B. Formation of the Working
Committee
4. During late March or early April of 1980, Colonel Ralph Erwin
asked Union President, Arthur Schaffer, to come to his office for a
meeting. As noted above, this meeting resulted from a call Erwin had
received from Forrest Williams, the Chief of Civilian Personnel.
Williams told Erwin that the Union was upset by reports that Erwin was
forming a committee and that it was necessary that the Union be
involved. Erwin testified that he had told his managers about the
concept a couple of days earlier and that somehow the information about
the committee had gotten to the Union "before we were ready to talk to
them about it." Nonetheless, Erwin asked Williams to send Schaffer to
his office that same day so that Erwin could "brief him, and bring him
up to status on it."
5. At this meeting, Erwin explained to Schaffer that the purpose of
the working committee was to identify problems within the 915th, and to
boost morale and productivity within the organization. Schaffer
endorsed the concept of having working committees and naming union
stewards to the committee. Schaffer opposed a few of the names proposed
by Erwin, including James Bruno and Kim Firmani. There is a dispute
concerning precisely what was decided at the meeting. Schaffer's
version, which I credit, is that Erwin told him the working committee
was just a proposal, and that if he did in fact decide to establish the
committee, Erwin would coordinate the meetings with Schaffer so that the
members of the committee could be selected. /5/ Erwin denies telling
Schaffer that he would get back in touch with Schaffer concerning the
meetings, but admits telling Schaffer that he would "keep him posted."
The significance of the foregoing is that Schaffer left the meeting with
the expectation of being consulted further before Col. Erwin implemented
his proposal. But even if Schaffer knew, as contended by Respondent,
that the working committees definitely were going to be established, he
clearly expected to be at least notified of the meetings as well as to
be consulted as to the Union representatives on the committee.
6. Despite Erwin's promise to coordinate the meetings with Schaffer,
he instead met with other representatives of the Union in April when
Erwin informed Union Steward John Breslin and Chief Steward George
Vitetta, that he was establishing a working committee and the stewards
in the 915th would attend. Breslin testified that he did not object to
Erwin's proposal because he assumed that it had all been taken care of
with the Union's Executive Board. Presumably, Vitetta did not object
because it was his "impression" that Erwin and Schaffer had reached
agreement on the committee meetings (see footnote 8 supra). C. The
First Meeting (April 28)
7. Thereafter, Breslin received a memorandum from Erwin, dated April
14, 1980, addressed to the "915 TGF Union Stewards" which announced a
meeting for April 28, 1980, in Erwin's office and explained that Erwin
was "attempting to establish a working committee to discuss the 'grass
roots' problems within the 915th." Copies of the memorandum, as shown by
the distribution list on the memorandum, went to three Union stewards--
Breslin, Philip Paynter, and Warren Van Amringe; as well as to Sergeant
Kim Firmani who had been selected by Erwin to represent active duty
military personnel. Schaffer was not sent a copy of the memorandum.
/9/
8. Breslin attended the meeting on April 28, 1980 and recalled that
initially the discussion at the meeting concerned the purpose of the
committee. Erwin said that morale was down and that the participants
should bring information about problem areas within the 915th so that
the problems could be resolved. One of the participants noted that not
all of the stewards in the 915th had been included in the meeting.
Erwin said that he would make sure that all the stewards were included
in the next meeting. D. The Union's First Protest
9. A day or two after this first committee meeting, Breslin told
Schaffer about the meeting and showed him the April 14 memorandum.
Schaffer told Breslin that the meeting had not been coordinated with the
Union and that Firmani really had no business being in a meeting to
discuss civilian affairs.
10. After Breslin learned that Schaffer had not been contacted about
the April 28 committee meeting, Breslin and Vitetta met with Erwin and
requested that he coordinate the meetings with the Union. Erwin agreed
to see that this was done. Vitetta testified that they explained that a
copy of the meeting announcements should be sent to Schaffer, and he
thought that Erwin agreed. E. The Second Meeting (May 19)
11. On May 12, 1980, Erwin sent out a memorandum announcing a second
meeting of the working committee, and again did not send a copy of the
memorandum to Schaffer. This second memorandum announced a meeting for
May 19, 1980, and was sent to the participants of the April 28 meeting,
plus two additional Union stewards, Antonio Diaz and Edward Thompson;
and also to Vitetta.
12. Breslin testified that he attended the meeting on May 19, 1980.
He recalled that the discussion at this meeting included a problem with
the repair or the parking lot at Building 714, a proposal from Erwin for
a fishing trip for the whole squad, and a suggestion from one of the
stewards that the civilian employees perform their military reserve
duties during the week, rather than on weekends. The last subject
caught Breslin's attention because he knew that the Union was opposed to
such a proposal. Breslin also noted that the group discussed the
problem that stewards on the night shift had in attending meetings of
the working committee, since it was held in the morning. Erwin agreed
to change the time of the committee meetings to the afternoon so that
stewards from both the day and night shifts could attend. /10/ F. The
Union's Second Protest
13. On June 3, 1980, the Union Executive Board had its regular
monthly meeting. As a result of lengthy discussion on the working
committee the Executive Board decided to send a letter (G.C. Exh. No. 6)
to Erwin. That letter, dated and delivered June 23, 1980, pointed out
to Erwin that he had not properly notified the Union with respect to the
working committee. The letter emphasized that it was the right of the
Union to appoint its own representatives to the working committee, and
requested that if Erwin intended to continue the meetings, to advise the
Union and it would appoint representatives to the committee. The letter
also referred to Sections 7116(a)(1) and (8) of the Statute but asserted
that, in the interest of fostering better labor-management relations, no
unfair labor practice charge would be filed. G. The Third Meeting
(June 23)
14. On the afternoon of June 23, the same day Schaffer delivered the
Union's protest, he received a memorandum announcing a meeting of the
working committee on June 23 at 2:30 p.m. The memo was dated June 18
and presumably prepared prior to the Union's protest. The memo showed
distribution of a copy to NFFE Local 1167.
15. Schaffer was not the only one to receive a late notice of that
meeting. Steward Edward Thompson testified that he learned of the
meeting when he arrived at work on the afternoon of June 23, 1980, to
begin his regular night shift. Thompson's supervisor told him that he
had received a telephone call from the Deputy Commander of Maintenance,
and that Thompson was supposed to be at a meeting. When Thompson
arrived for the meeting, it was already in progress. The memorandum
announcing this meeting was received by Thompson after the meeting.
16. Thompson recalled when testifying that the civil service awards
program was discussed as a possible way of improving morale. There was
a suggestion that supervisors initiate awards to some of the workers who
had been doing a good job. Changes in the work shifts were also
discussed at the meeting. Thompson testified that changes to the lunch
period were discussed, so that the heavy workload on the flight line
during that part of the day could be better covered. H. Colonel
Erwin's Reaction to the Union's Protest
17. Sometime after the June 23 letter from Schaffer was received by
Erwin, Erwin had a conversation with Breslin concerning the letter.
Erwin testified that he asked Breslin what was the intent of the June
23, 1980 letter from the Union. Breslin, who had not been present at
the Executive Board meeting where the letter was discussed, told Erwin
that he did not know. I note that Erwin did not attempt to contact and
deal with Union President Schaffer.
18. Rather than respond to the request, stated in the letter, that
Erwin contact the Union office if he wished to continue with the
committee meetings so that the Union could appoint representatives,
Erwin testified that he did not feel that he had to respond because he
"didn't feel like it reflected the Union." (Tr. 132) Erwin testified
that he felt "that it was probably a personal thing." (Tr. 132) Although
Erwin admitted knowing that Schaffer was the President of the Union,
Erwin testified that he was of the opinion that "the Union is not
necessarily reflected by the Union personnel and I think that quite
often it becomes a matter of a personality which stipulates Union policy
rather than the Union itself."
19. In addition to the foregoing, Erwin testified as follows in
response to questioning by Counsel for the General Counsel:
Q. I see. So, did you think that by choosing a particular
Union officer to deal with you could find someone who more nearly
reflected the views of the Union?
A. No, ma'am, that is not true at all. I am saying that it is
my intention to find the reflection of the Union and try to
establish. And then, if that was the case, then go from there.
Q. You are aware that Mr. Schaffer is the president?
A. Oh, yes, ma'am.
Q. All right.
A. But I am also aware of the fact that there is a Union
involved, membership. And as Mr. Vitetta pointed out, he was not
in concert with the idea and he was the chief steward.
20. The testimony of Colonel Erwin (Tr. 132-133) is most revealing
with respect to his attitude towards the Union as an institution and the
Union members themselves. He quite clearly seemed to be of the opinion
that the views of the Union as expressed by its leadership (in this case
Schaffer), did not necessarily coincide with the views of other Union
officers (like Vitetta) or the membership as a whole. His objective, by
his own testimony, was "to find the reflection of the Union." Based upon
my review of the record, particularly the testimony of Erwin, I can only
conclude that Erwin deliberately chose to deal with those sources whom
he felt would best "reflect" the Union. Thus, he met with and dealt
with Union officials other than President Schaffer, and with Union
stewards at the working committee meetings. In so doing, he
deliberately bypassed the Union. I. The Third and Fourth Meetings
(July 31 and September 2)
21. Even after receipt of the Union's protest, Erwin continued to
schedule meetings. One memorandum, dated July 31, 1980, announced a
meeting for August 6, 1980. Thompson testified that he attended this
meeting and recalled some of the topics discussed. He recalled a
discussion of work shift changes, brought up by Erwin. There was a
proposal that one group begin work an hour earlier so that they could be
ready upon the arrival of the rest of the employees. There was also a
discussion concerning the length of overlap between the day and night
shifts and the consequent loss of productivity. Other topics of
discussion included employee complaints about unequal distribution of
work on the night shift, and safety hazards in the parking lot due to
poor lighting, a large hole, and no painted parking spaces. Thompson
also recalled a brief discussion about allowing the reservists to use
the PX on weekends when they were on the base.
22. Thompson testified that although he knew of the Union's
unhappiness with the fact that it had not been allowed to appoint its
own representatives to the meetings, he attended the meetings anyway,
because he received a letter from Erwin asking him to attend and because
his supervisor told him to attend.
23. The final memorandum announcing a meeting of the working
committee was dated August 29, 1980, and set the meeting date as
September 2, 1980. Erwin testified that no business was discussed at
that meeting because only one steward showed up, and after a period of
waiting, the meeting broke up. J. The Union's Decision to File a
Charge
24. Breslin testified that he attended his first Executive Board
meeting in July of 1980. At that meeting there was a discussion of the
letter which had been sent to Erwin, and that there had been no response
to the letter. It was noted that the meetings were still going on. At
the August meeting of the Union Executive Board, the Board unanimously
voted to file an unfair labor practice charge because Erwin had not
responded to the Union's letter and Erwin was continuing to hold
meetings of the committee with representatives not chosen by the Union.
Schaffer testified that the Board voted to file a charge because it had
been unsuccessful in resolving the problem.
Discussion
The factual allegations contained in paragraphs 7 and 8 of the
Complaint have been proven by the General Counsel. Thus, I find that
Respondent, through its agent Col. Erwin, established a committee on
April 14, 1980 composed of representatives of various components of
Respondent; that these representatives, including Union stewards, were
designated and selected to attend and participate by Respondent; that
the Union was not given the opportunity to select and designate its own
representatives and did not acquiesce in Respondent's acts and conduct;
and that Respondent scheduled and participated in meetings at which
conditions of employment, within the meaning of Section 7103(a)(14) of
the Statute, were discussed with employees. Of the foregoing findings
and conclusions, the only issue is whether the Union acquiesced in the
selection of stewards as its representatives on the committee. While it
is true that the Union did not oppose the concept of establishing the
committee, I have concluded that the original meeting between Erwin and
Schaffer did not result in an agreement between them with respect to the
composition of the committee and that Schaffer expected to be consulted
further so that the Union could select and designate its
representatives. But, even if there were a misunderstanding between
Erwin and Schaffer as of early April, this does not excuse Erwin's
failure to notify the Union of the first two meetings so that Schaffer
could attend the meetings or give instructions to his designee. As it
was, the stewards attended because they were directed to by the
memoranda scheduling the meetings. Certainly, I cannot accept the
suggestion that the stewards were merely invitees and that their
acceptance was voluntary. The tone of the memoranda and the testimony
of Thompson makes this clear to me. Nor does the evidence establish
that the stewards were ever instructed by the Union to attend the
meetings.
In any event, when Schaffer did learn about the meetings, he promptly
notified Erwin and protested. By so doing, he gave Erwin an opportunity
to clarify any misunderstanding which may have existed up until this
point in time. But Erwin chose not to contact the President of the
Union and continued to schedule meetings, except that now a copy of the
announcements were sent to the Union. There seems to be no question
that Erwin preferred to deal with Union representatives other than
Schaffer. While this may have been due to a personality conflict
between them, I am unable to overlook Erwin's own testimony where he
stated that Schaffer's views did not accurately reflect the views of the
Union membership. Simply stated, it is not the business of Erwin to
make these kind of judgments. Rather, the role of management is to deal
with the employees' elected representative, the Union President. Thus,
from Erwin's testimony, I have no choice but to conclude that he
deliberately bypassed Union President Schaffer.
In contrast to his treatment of the Union President, Erwin's conduct
toward the Union officials of whom he approved was quite cordial.
Vitetta, who admitted to a good rapport with Erwin, discussed the
committee with Erwin on at least two occasions, and received copies of
meeting announcements. And Breslin, who informed Erwin that he was no
longer a Union steward in the 915th, continued to receive meeting
announcements and Erwin's assurance that he was welcome to attend the
committee meetings. Significantly, however, Schaffer, the Union's
principal officer and an employee of the 915th, received no personal
invitations from Erwin to attend meetings of the committee. Indeed,
Erwin had no contact with Schaffer after their meeting in early April
arranged by the Civilian Personnel Office.
Respondent asserts in its brief that it had no obligation to consult
with the Union President before "talking to" the stewards. But, this
case does not involve talking to union stewards about the application of
the contract (Article III, Section 3.4(c)), or about setting grievances
expeditiously at the lowest level (Article VII) - as argued in
Respondent's brief. Rather, this case involves the establishment by
Erwin of a new committee, unlike any existing entity within the 915th.
Accordingly, the steward's attendance at such meetings would not, in my
opinion, be considered part of his ordinary duties as a steward.
Therefore, as contended by counsel for the General Counsel in her brief,
"it is axiomatic that Union stewards have only the duties and
responsibilities which a union assigns them." Here, Article III, Section
3.4(a) of the parties' collective bargaining agreement provides, in
part, that "(t)he duties and responsibilities assigned by NFFE, Local
1167 to its Stewards shall be consistent with applicable Federal laws,
Executive Orders, rules and regulations, and the provisions of this
Agreement." Respondent's reliance on the contract to argue that it was
required to deal with stewards and was under no obligation to consult
the Union President is misplaced. Clearly, the Union had a right to
designate its own representatives to serve on the working committee.
What Respondent did here was to usurp the functions of the Union
President and determine which Union stewards and officers would be
informed of the meetings and invited to attend the meetings. In effect,
then, Erwin designated the Union's representatives just as he designated
Sgt. Kim Firmani to represent another group of employees - active duty
military personnel.
An additional defense offered by Respondent is that the Union had
actual notice because the stewards and Union Vice President had notice
of the meetings. This defense is rejected. In the first place, the
gravamen of the complaint is not lack of notice of Respondent's decision
to conduct meetings without notifying the Union; rather, it is
Respondent's failure to permit the Union to select its own
representatives to attend the committee meetings as official Union
representatives. To the extent Respondent is attempting to argue that
the Union had actual notice and may be deemed to have acquiesced, this
defense also is rejected. The stewards attending the first few meetings
were unaware that Schaffer had not designated them and was not being
informed of the meetings. In the circumstances of this case, it was
Schaffer to whom notice should have been given. When Schaffer did learn
of the meetings, he promptly protested. When his protest was ignored,
he protested again. Thus there was no acquiescence by the Union.
As I view the facts of this case, Respondent acted unlawfully when
Erwin designated the stewards who would receive notice and attend the
meetings. If Erwin regarded the stewards as representatives of the
Union, it was unlawful not to permit the Union to designate its own
representatives. On the other hand, if Erwin regarded the stewards as
representing groups of employees in their respective shops and
departments, this was also unlawful because it means he was bypassing
the exclusive representative and dealing directly with "employees"
concerning their conditions of employment.
Section 7116(a)(5) of the Statute makes it an unfair labor practice
for an agency "to refuse to consult or negotiate in good faith with a
labor organization," including a refusal to deal with the particular
individuals selected by the labor organization for such consultation or
negotiation. Counsel for the General Counsel submits, and I agree, that
an agency commits a violation of Section 7116(a)(5) when it designates
the representatives of a labor organization with whom it will deal,
rather than allowing the labor organization the right to designate its
own representatives. /11/ In addition, an agency violates Section
7116(a)(1) of the Statute, in that the agency's action interferes with
the right of employees to form, join, or assist a labor organization,
and "to engage in collective bargaining with respect to conditions of
employment through representatives chosen by employees" as set forth in
Section 7102 of the Statute.
The Authority, in a landmark decision, /12/ has stated as follows:
Section 7103(12) of the Statute defines collective bargaining
in terms of the "mutual obligation" of the parties to consult and
bargain in good faith. The goal of balanced, mutual
responsibility on the part of the parties is also stressed in the
legislative history of the Statute. Thus, the collective
bargaining relationship envisaged by the Statute requires that
each party have the ability to function as an equal partner within
the relationship. It follows that each party should therefore
deal with the other with the directness and dignity appropriate to
partners on an equal footing. (Footnotes omitted).
Respondent herein did not deal with the Union on an equal footing. What
Col. Erwin did here was to ignore the Union President and deliberately
avoid dealing with him. By so doing, Respondent must be held to have
bypassed the Union itself. In my view, this bypassing of the Union was
in derogation of the Union's rights as the exclusive representative and
such conduct tended to undermine its status as the employees' exclusive
representative. Accordingly, I conclude that Respondent, by the acts
and conduct of its agent Colonel Ralph Erwin, violated Section
7116(a)(1) and (5) of the Statute. /13/
The General Counsel alleges that the same conduct described above
also constitutes a violation of Section 7116(a)(3). That section of the
Statute makes it an unfair labor practice for an agency "to sponsor,
control, or otherwise assist any labor organization, other than to
furnish, upon request, customary and routine services and facilities . .
. ." To prove a violation of Section 7116(a)(3), it would first be
necessary to demonstrate that the committee was a labor organization
within the meaning of Section 7103(a). That would require deciding
whether the committee was an "entity" as discussed previously, or merely
a "concept" used to describe a series of meetings. It would also
require deciding whether the Respondent was dealing with "employees" or
with Union representatives (albeit designated by Erwin). The theory of
General Counsel's case with respect to Section 7116(a)(5) is that the
Respondent designated "Union representatives" to the committee and thus
usurped the Union's prerogative in making such appointments. Union
President Schaffer testified, however, that he did not object to the
formation of the committee and its purpose, but he did object to its
composition and his right to designate his own representatives.
Clearly, Schaffer did not regard the committee as a labor organization,
else why would he insist on making appointments to a rival union. Nor
does it appear that what started out as a committee ever ripened into a
labor organization as time passed. On the contrary, after the Union
voted in August to file a charge, only one steward showed up at the next
committee meeting on September 2. As a result, the meeting broke up
with no business transacted. No further meetings were scheduled. So,
without the participation of NFFE stewards, it would appear that no
purpose was to be served in scheduling more meetings.
In my opinion, the foregoing facts do not establish that the
committee was a labor organization or that it was controlled by
Respondent. Accordingly, I recommend dismissal of the Section
7116(a)(3) allegation in the Complaint.
Having found and concluded that Respondent violated Section
7116(a)(1) and (5) of the Statute, I recommend that the Authority issue
the following order:
ORDER
Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final
Rules and Regulations of the Federal Labor Relations Authority, U.S.
Fed. Reg. 3842, 3510 (1980), it is hereby ordered that United States Air
Force, 915th Tactical Fighter Group, Homestead Air Force Base, Florida,
shall:
1. Cease and desist from:
(a) Designating the representatives of the National Federation
of Federal Employees, Local 1167, who are to attend meetings of
the Working Committee, or any other committee established for the
purpose of discussing terms and conditions of employment of
employees in a bargaining unit represented by the National
Federation of Federal Employees, Local 1167.
(b) In any like or related manner, interfering with,
restraining, or coercing our 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
purpose and policies of the Statute:
(a) Notify the National Federation of Federal Employees, Local
1167, that the employer recognizes the right of the exclusive
representative to designate its own representatives to the Working
Committee or any other committee established by the employer for
the purpose of meeting with management to discuss terms and
conditions of employment of employees in a bargaining unit
represented by National Federation of Federal Employees, Local
1167.
(b) Post at the Homestead Air Force Base, Florida facility
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 Base Commander 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. The Base
Commander shall take reasonable steps to insure that such notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director of Region IV, 1776 Peachtree
St., NW., Suite 501, North Wing, Atlanta, Georgia, 30309 in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
FRANCIS E. DOWD
Administrative Law Judge
Dated: May 28, 1982
Washington, D.C.
APPENDIX
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 designate the representatives of the National Federation of
Federal Employees, Local 1167, who are to attend meetings of the Working
Committee, or any other committee established for the purpose of
discussing terms and conditions of employment of employees in a
bargaining unit represented by the National Federation of Federal
Employees, Local 1167. 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 notify the National Federation of Federal Employees,
Local 1167, that we recognize the right of the exclusive representative
to designate its own representatives to the Working Committee or any
other committee established for the purpose of meeting with management
to discuss terms and conditions of employment of employees in a
bargaining unit represented by National Federation of Federal Employees,
Local 1167.
(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 the Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, Region IV, 1776 Peachtree St., NW.,
Suite 501, North Wing, Atlanta, Georgia, 30309 and whose telephone
number is (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ The name of the Respondent appears as amended based on the
agreement of the parties at the hearing and the post hearing motion of
the General Counsel granted by the Judge.
/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 that such
resolution is incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
/3/ Based on the determination herein, wherein the Authority has
adopted the Judge's conclusion that the Respondent's conduct constituted
a failure to bargain with the exclusive representative in violation of
section 7116(a)(1) and (5) of the Statute, the Authority finds it
unnecessary to consider and does not pass upon whether such conduct also
constituted a violation of section 7116(a)(3) of the Statute.
/4/ The name of the Respondent, as set forth in the caption, is more
fully discussed in a separate section of this decision dealing with the
General Counsel's motion, which I have granted, to delete the 31st
Combat Support Group.
/5/ The Charging Party did not file a brief within the established
time limits. However, in a post-hearing Motion opposing the General
Counsel's Motion to Amend Complaint, the Charging Party adopted "by
reference" the General Counsel's brief but requested a different remedy
than sought by the General Counsel. Respondent asserts that the
Charging Party's Motion "appears to be nothing more than a subterfuge to
attempt to file a brief untimely" and moved that it be stricken and not
considered. Having carefully considered the matter, I conclude that
Respondent's Motion to Strike should be and hereby is granted.
/6/ The index on page 3 of the transcript is incorrect. The notation
of "not offered" appearing beside General Counsel's Exhibit "No. 2" is
hereby changed to show that the document was offered and received on
page 17 of the transcript. Further, the General Counsel's Motion to
Correct Transcript, to which no objection was filed, is hereby granted.
/7/ The Motion presented no reasons or arguments in support thereof.
/8/ Chief Steward Vitetta, a witness for Respondent, testified that
immediately after the meeting he drove Schaffer home and when he asked
how the meeting went, Schaffer replied that he and Erwin had "reached
agreement that the committee, if they were going to be set up" would
include representation from the Union, and that Erwin recognized the
need to use Union stewards.
/9/ Respondent asserts that attendance was voluntary but there's
nothing in the memorandum telling the stewards that they have any choice
in the matter. Although the tone of the memo is friendly and pleasant,
it nevertheless is couched in language which in my opinion should lead
the recipient to conclude that his or her attendance is mandatory.
There was nothing in the memo to show any coordination with the Union.
/10/ This was the last meeting attended by Breslin who in June was
elected First Vice-President of the Union. Although Erwin knew Breslin
did not intend to attend future meetings, Breslin's name was retained on
the distribution list for notices of subsequent meetings.
/11/ Internal Revenue Service, Atlanta District Office, 8 A/SLMR 370.
See also American Federation of Government Employees, AFL-CIO and U.S.
Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 4 FLRA No. 39 (1980) where the Authority upheld the Union's
refusal to negotiate an agency proposal which would have infringed upon
the Union's prerogative to designate its own representatives when
dealing with agency management in the performance of certain
representational functions.
/12/ United States Air Force, Air Force Logistics Command, Newark,
Ohio, 4 FLRA No. 70 (1980).
/13/ Internal Revenue Service, Washington, D.C. 4 FLRA No. 68 (1980).
See also Internal Revenue Service, Ogden Service Center, 7 A/SLMR 1032
(1977) where the Assistant Secretary stated that "the gravamen of the
violation herein consists of the solicitation of views and
recommendations from unit employees, selected by the Respondent, on
matters for which the Complainant under the Order was entitled to be
dealt with exclusively." See also VA, Veterans Administration, Veterans
Administration Hospital, Muskogee, Oklahoma and American Federation of
Government Employees, Local 2250 3 A/SLMR 491 (1973); Department of the
Navy, Naval Air Station, Fallon, Nevada 4 A/SLMR 590 (1974).