[ v13 p612 ]
13:0612(103)CA
The decision of the Authority follows:
13 FLRA No. 103
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
ARMAMENT DIVISION, AFSC
EGLIN AIR FORCE BASE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1897, AFL-CIO
Charging Party
Case No. 4-CA-351
DECISION AND ORDER
The Administrative Law Judge issued her Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a brief in
support thereof. /1/ The Respondent also filed an opposition to the
General Counsel's exceptions.
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, conclusions and recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-351 be, and it
hereby is, dismissed.
Issued, Washington, D.C., January 13, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
ARMAMENT DIVISION, AFSC
EGLIN AIR FORCE BASE,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1897, AFL-CIO,
Charging Party
Case No. 4-CA-351
Gordon B. Finley., Lt. Col., USAF,
Attorney for the Respondent
Regina N. Kane,
Attorney for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. Cappello
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191(1978), 5 U.S.C. 7101 et seq. (Supp. IV,
1980), hereinafter referred to as the "Statute," and the rules and
regulations issued thereunder and published in 5 CFR 2411 et seq.
Pursuant to a charge filed on January 29, 1980, by Local 1897 of the
American Federation of Government Employees (hereinafter, the "Union" or
the "Charging Party"), the General Counsel of the Federal Labor
Relations Authority investigated and filed the complaint in this case.
The complaint alleges that violations of Section 7116(a)(1) and (5) of
the Statute have occurred. /1/ The violative acts and conduct are
alleged to be that, on or about January 5, 1980, Major General Robert M.
Bond, acting for Respondent, signed the final version of an affirmative
action plan for fiscal year 1980 (hereinafter, the "Plan"), and
thereafter forwarded it to Air Force Headquarters for consolidation with
other such plans from throughout the Command, without giving the Union
prior notice and an opportunity to bargain concerning the Plan.
Respondent admits that an "official copy" of the Plan was "signed and
staffed" at Eglin Air Force Base and, on about January 5, was forwarded
to Headquarters, Air Force Systems Command, Andrews Air Force Base,
Maryland, (GC-1(D)). /2/ It denies that the official copy was "final,"
in the sense that it was beyond revision necessary to comply with any
labor-management negotiations. It denies that signing and forwarding
the Plan to Air Force Systems Command (hereinafter, "AFSC") constituted
unilateral and unlawful implementation of the Plan without notice and an
opportunity to bargain to the Union. Respondent affirmatively avers
that it gave the Union a copy of the Plan on January 8 and timely notice
and an opportunity to bargain over the Plan, and that the Union failed
to avail itself of this opportunity.
A hearing in this matter was held at Eglin Air Force Base on April
22, 1982. The parties appeared, adduced evidence, and examined and
cross-examined witnesses. Briefs were filed on June 14, by Respondent,
and June 18, by the General Counsel. Based upon my consideration of the
briefs and the record made in this case, including my observation of the
demeanor of witnesses, I make the following findings of fact,
conclusions of law, and recommended order.
Findings of Fact
1. It has been admitted that the Department of Defense ("DOD"), is
an agency, within the meaning of the Statute, that the Department of the
Air Force is a primary national subdivision of DOD, and that the
Armament Division, AFSC, at Eglin Air Force Base is an activity of the
Air Force, within the meaning of 5 CFR 2421.4 and .5. The only remedy
being sought by the General Counsel is the posting of a cease-and-desist
order at Eglin Air Force Base. See TR 13.
2. Major General Robert M. Bond was the senior installation
commander at Eglin Air Force Base during the period of the alleged
violative acts and conduct, and up until May 1981. Douglas M. Johnson
has been the Labor Relations Officer at Eglin during the period at issue
in this proceeding. Eddie L. White was the Equal Employment Opportunity
("EEO") Officer from the early fall of 1979 until on or about June 1980.
Mr. White's office was responsible for developing the Plan at issue.
3. Eglin is organized into "two-letter" commands and has a base
commander, who is a colonel. There are about 25 two-letter commands at
Eglin. During the period here at issue, Major General Bond was directly
responsible for the equal employment opportunity ("EEO") program at
Eglin Air Force Base. This came about because of a class action suit,
filed in November 1976, against Eglin Air Force Base. The suit alleged
discrimination with regard to minorities. As a result of the suit,
there has been a "very charged atmosphere that existed in the local
communities with regard to hiring at Eglin." (TR 112) The suit has
received "quite a bit of notoriety in Washington with the AFSC
Commander." (TR 113).
4. It was admitted that the Union has been the exclusive
representative of certain employees at Eglin since on or about April 14,
1975. James E. Sanders was president of Local 1897 of the Union from
1978 to 1980. He is not presently a member of the union. Maureen Preta
has been the women's coordinator for Local 1897 since April 1978, and a
Union member for approximately four to five years. As women's
coordinator, she is the Union representative on the EEO Advisory
Committee at Eglin. Her Union duties include participation in
negotiations on affirmative action plans.
5. Beginning in the summer of 1979, Ms. Preta attended four or five
meetings in regard to formulation of the Plan. Others attending
included representatives from each two-letter organization at Eglin and
other special-interest groups at Eglin. Other than these meetings, Ms.
Preta participated in no meetings concerning the Plan. The meetings
concerning the Plan were chaired by the EEO Officer. The Purpose of the
meetings was to pass on information coming in from Headquarters, Air
Force Systems Command ("HQ AFSC") on how the Plan was to be developed.
6. Fiscal year 1980 was considered a transitional year in the
development of an EEO plan, in that labor force data from the 1970
Census was to be applied against projected vacancies at Eglin to
establish goals, at the "Center" level, the "Center" being Eglin Air
Force Base. (TR 31). Previously, such a statistical approach had not
been used; and each two-letter organization at Eglin had developed its
own plan. In the development of the Center Plan, the role of the
two-letter organizations was limited to submission of their projected
vacancies to Mr. White.
7. On December 11, 1979, at a meeting chaired by Mr. White, Mr.
White advised attendees, including Ms. Preta, that a "suspense" of
January 3 had been given to Eglin in which to have the Plan signed and
off the Base to AFSC. A suspense" is an internally-imposed due date.
Development of the Plan had not been started at the time of the December
11 meeting, because final instructions on how to construct it had just
been received from HQ AFSC.
8. Ms. Preta, who was planning leave over the December holiday
period, was concerned about being able to adequately review the Plan,
because of the January 3 suspense date. She alerted Mr. Sanders to keep
a lookout for a copy of the Plan, and volunteered to come in to review
it, once he received a copy. Ms. Preta was on leave between December
19, 1979, and January 7. No copy of the Plan was received by Mr.
Sanders during this period.
9. The Plan was signed on a Saturday, January 7, by Major General
Bond. An "official" copy of it was placed on an aircraft to HQ AFSC, in
lieu of using the regular mail. (GC-1(d), paragraph 7(a). It was
apparently forwarded without a transmittal memorandum, as none could be
located in the files at the Base. Mr. Johnson talked, many times, with
Respondent's legal counsel about bargaining obligations concerning the
Plan. On Friday, January 5, the legal counsel assured Mr. Johnson that
Major General Bond was aware of the obligation. Mr. Johnson then felt
assured that he was free to negotiate concerning the Plan, even after it
had been forwarded to HQ AFSC. Mr. Johnson admitted that, initially, he
had some "concerns" about forwarding the signed Plan to Headquarters,
before negotiating with the Union. (TR 136). Mr. Johnson did not
himself discuss the matter with Major General Bond.
10. No negotiations with the Union preceded the signing and
forwarding of the Plan to HQ AFSC.
11. HQ AFSC needed the Eglin Plan to consolidate with plans prepared
by each of the other eight AFSC bases. Each year, the consolidated data
is used to produce a "Command Plan" for the entire AFSC. The four-star
general who is the overall commander of AFSC then signs the Command
Plan, thereby making a "commitment" to it. (TR 174). The Command Plan
is then printed and sent to Headquarters, Air Force. The Air Force uses
the data to produce a book entitled "EEO Affirmative Action Plan." (TR
174).
12. At the HQ AFSC level, the plans are used to see what commitments
the bases have made and whether they are adequate, and to track
accomplishments. After the plans are sent in by the bases, they are
still subject to changes which HQ AFSC thinks are needed. Since HQ AFSC
usually works closely with the bases, by telephone, in preparing the
goals, the plans received from the bases are usually "all set," by the
time they reach HQ AFSC. (TR 177). Since it takes about four weeks for
HQ AFSC to consolidate the data received from the bases, the bases can
also call in changes, of their own volition. Even after the Command
Plan is printed, the bases can make changes, if they have a reason for
so doing.
13. HQ AFSC distributes copies of the printed Command Plan, for each
year, to each of the eight bases in the command. This is done because
the bases like to see how they compare to one another.
14. Upon her return to the office, on January 7, Ms. Preta called
the EEO office to ask about the status of the Plan. She was told that
it was signed and had been sent to HQ AFSC. She so informed Mr. Sanders
who, in turn, called Mr. Johnson about its status. Mr. Johnson told Mr.
Sanders that he would get him a copy of the Plan, when it was
"finalized." (TR 72) At that time, not enough copies of the Plan had
been received from the printing office, and not even Mr. Sanders had
seen it.
15. The next day Mr. Sanders received a copy of the Plan, through
the mail. An accompanying memorandum from Mr. Johnson dated January 8,
referred to the Plan and the "attendant" FY 80 Federal Equal Opportunity
Recruitment Plan ("FEORP"). (Jt-2) FEORP is one section of an equal
employment opportunity plan. The January 8 memorandum states that:
"Although the Plans have been forwarded to HQ AFSC for consolidation
with other submissions from throughout the command, this installation
stands ready in good faith to meet its obligation under Chapter 71 of 5
U.S.C." (Jt-2). He also referred Mr. Sanders to Mr. White for the
answers to any technical questions. He gave the Union until January 16
to make formal comments or requests.
16. On January 16, Mr. Sanders sent to Mr. Johnson, a memorandum
detailing the results of the Union review of the Plan. Five
inadequacies were noted, and five items of data were questioned. A
request for a response from the EEO office was made. The Union
considered this letter to be a request to negotiate. Respondent did
not.
17. On January 19, Ms. Preta attended a meeting of local black
community leaders who were also concerned about the Plan. The meeting
was called by the president of the local NAACP chapter and held in a
community center at Fort Walton Beach, Florida, near where Eglin Air
Force Base is located. The meeting was called because of the black
community concern over the goals in the Plan. Mr. White attended the
meeting and acted as the spokesperson for Eglin Air Force Base. Ms.
Preta spoke up at the meeting, and asked Mr. White if he knew whether
the Plan could be or would be amended. Mr. White replied that he did
not know. As the EEO officer, Mr. White had no responsibility for
collective bargaining. Ms. Preta then asked him to consult with Major
General Bond about the possibility of amending the Plan and get back to
the group with his reply. Mr. White agreed to meet with Major General
Bond on Monday morning. Mr. White left the meeting before it ended.
After Mr. White left, the attendees agreed to meet on Monday evening,
January 21, to hear the response from Major General Bond.
18. On January 21, at 7:00 p.m., the community was held as planned.
Ten to 15 people attended, among whom were Mr. White, Mr. Sanders, and
Ms. Preta. Mr. White personally delivered to the meeting the response
he had received from Major General Bond. Mr. White stated that he had
had the meeting with Major General Bond, and that "General Bond said
that he would not amend the plan." (TR 45). /4/
19. Mr. Sanders testified that, at a later date, Mr. White told him
that "General Bond did not intend to say that." (TR 79). Mr. Sanders
also testified that Mr. White "seemed to be under some pressure" when he
made this explanation. (TR 77). Because of Mr. White's denial of
certain statements he had made, and the fear that he might even deny
being at the January 21 meeting, Mr. Sanders, Ms. Preta, and five other
attendees at the January 21 meeting, signed a statement that Mr. White
was at the meeting. The statement also notes that Mr. White had
presented the group with Major General Bond's response to the question
of whether he was willing to amend the Plan, and that the response was
that the Plan would not be amended, but that the 2-letter organizations
would compile their own plans and he would hold the 2-letter chiefs
responsible for achieving reasonable goals. See GC-3. This statement
was signed a day or so after January 21.
20. After Mr. White left the meeting on January 21, the group
decided to draft a letter to Major General Bond expressing concern over
the Plan. The letter was drafted and signed by Mr. Sanders, as
president of the Union, and by representatives of three local community
groups. It was read by Mr. Sanders to a press conference called by the
president of the local NAACP chapter, on January 22, and then delivered
to Major General Bond that day. The letter stated objections to the
Plan, including its not having been negotiated with the Union. It
concluded with the statement that the Plan "represented a major
regression and is not considered to be in either the spirit or the
letter of the law." (Jt-4).
21. On January 24, Major General Bond wrote a letter to Mr. Sanders
complaining that the content of the January 22 letter, and statements
attributed to Mr. Sanders in the press, were inflammatory and divisive
in nature. Major General Bond defended his commitment to affirmative
action, and noted that the planning process for fiscal year 1980, as
regards equal employment opportunity, was carried out under new and
often changing guidance, and aggravated by "the pressures of meeting a
short suspense." (Jt-5, paragraph 3). He made comments on objections
raised to the "1980 equal employment opportunity plan." (Jt-5, paragraph
4). He noted that there was no requirement to solicit input from
interest groups during the planning process, and only upon completion of
the planning process was it appropriate to solicit comments from labor
organizations at Eglin. (Jt. 59, paragraph 4d). He reiterated that
Eglin stood "ready in good faith to meet its obligations under the law,"
and was assessing each expressed concern of the Union, and would
"negotiate in good faith." (Jt-5, paragraph 4c). He invited Mr.
Sanders, and other Union officers, and those who were a party to the
January 22 letter, to attend a staff briefing on affirmative action
planning, on January 31.
22. Based on the fact that the Plan had already been signed by Major
General Bond, the senior commander at Eglin Air Force Base, and sent off
the base, coupled with the advice of the EEO Officer that Major General
Bond would not amend the Plan, it was the view of the Union that "there
could not be any negotiations on something that was already set in
concrete." (TR 58). Accordingly, on January 24, Mr. Sanders signed the
unfair labor practice charge which is the subject of this proceeding.
It is not clear from the record as to whether Mr. Sanders signed the
charge before or after receiving Major General Bond's letter of January
24.
23. On January 31, a press conference called by Major General Bond
was held. Mr. Sanders, Ms. Preta and the Fifth District Vice President
of the Union attended. Mr. Johnson was also there. Staff personnel
from Major General Bond's office explained the Plan. At the end of the
presentation, someone from the press "pointedly asked Mr. Johnson a
question - said, 'Well, after this will the Union be allowed to
negotiate the 1980 EEO Plan?'" (TR 83). Mr. Johnson replied: "No, we
don't negotiate anything until its finalized." (TR 83). The Union and
Mr. Johnson hold different views as to the meaning of the word
"finalized," in connection with the Plan. To the Union, it means "no
possible change could be made," after the Plan was sent to Washington.
(TR 93, 126). To Mr. Johnson it means that management has finalized its
proposal, and is ready to negotiate with the Union. At the January 31
meeting, Mr. Johnson again assured Union officials that the Plan could
be negotiated even though it had left the base.
24. On February 15, Mr. Johnson replied by letter to the January 16
letter from the Union President. It stated that: "The guidelines
pertaining to the FY 80 affirmative action Plan do not require input
from labor organizations or other interested groups during the
formulation stage." It justified what was in the Plan. It ended with a
declaration that the Plan had been prepared in strict compliance with
prevailing guidance. The letter left the Union with the impression that
"management did not believe that they had to negotiate with the Union."
(TR 66). The delay in formulating the February 16 letter was caused by
the involvement of the EEO staff in preparing for the January 31 press
conference and in working on a consent judgment to be entered in the
lawsuit pending over EEO matters at Eglin. Had Mr. Johnson viewed the
January 16 letter from Mr. Sanders as a request to negotiate, he
declared that a more immediate response would have been forthcoming.
25. Eglin Air Force Base implemented the Plan on May 1, after the
charge in this case had been investigated and the Regional Director of
the Authority had, on April 8, upheld Eglin's actions and refused to
issue a complaint. (After an appeal by the Union, this complaint
eventually did issue. See TR 162.) Mr. Johnson speculated that, if the
Union had not filed a charge, implementation would have taken place
after Respondent responded to the Union's January 16 letter, because the
Union had not made a specific request to negotiate, accompanied by
specific proposals.
26. At the time of the hearing a FY 82 Plan was in effect.
Negotiations with the Union took place before the Plan was signed by the
Commander.
Discussion and Conclusions
Respondent concedes that it "probably could have" found a "better way
to address the fiscal year 1980 Plan," but argues that, under the
circumstances which obtained in January 1980, it did not deprive the
Union of its opportunity to bargain over the Plan, as alleged. (RBr
13-14.) Bearing in mind that the General Counsel must prove its case by
the "preponderance of the evidence" (5 CFR 2423.18), I am constrained to
agree with the argument of Respondent. And I heartily concur in its
concession.
There is no doubt, as the General Counsel points out at page 9 of his
brief, that the Union had no specific notice or any meaningful
opportunity to proffer proposals before the Plan was shipped off base to
headquarters, on January 7. This act understandably gave rise to
suspicion that the Union was faced with a fait accompli. However,
credible evidence established that the act of sending the Plan off base
to headquarters was for informational purposes and did not constitute
implementation, and that changes could still be made. Indeed,
headquarters probably expected subsequent changes, since it was issuing
instructions on how to construct the Plan as late as December and then
set a due date of January 3. There was little chance, over a holiday
period, that the bases could finalize the Plans, offer them to the
unions for negotiations, and complete the negotiations within such a
time frame.
The Plan was not implemented at Eglin until May 1. By then the Union
had a copy of the Plan for several months, and had received repeated
assurances from management that it intended to negotiate in good faith
with the Union. On January 8, such an assurance was given by the labor
relations officer, when he presented the Plan to the Union. On January
24, such an assurance was repeated by the senior installation commander.
On January 31, the labor relations officer reassured the Union that
negotiations could proceed.
See findings 15, 21 and 23 supra. Even the Union appears to have
felt that negotiations were possible after the Plan was sent to
headquarters, for on January 16, it submitted what it considered to be a
request to negotiate, in the form of a letter criticizing the Plan and
asking for information.
The Union understandably became convinced that there was no
meaningful opportunity for negotiations, when the EEO officer, on
January 21, informed its president and a group of community
organizations, that the senior installation commander did not intend to
amend the Plan. This unfortunate advice, however, was almost
immediately corrected, by both the EEO officer and, on January 24, by
the senior installation commander. See findings 19 and 21, supra.
Nothing thereafter transpired, before implementation on May 1, to
indicate that the January 24 advice of the senior installation
commander, that he stood ready to negotiate in good faith, was false.
The February 16 letter of the labor relations officer, in response to
the January 16 critique of the Plan by the Union, did attempt to explain
and justify the Plan. But it cannot fairly be read as flatly
foreclosing consideration of any specific proposals the Union chose to
submit for negotiation. While it did not specifically reiterate
management's intent to negotiate in good faith over the Plan, this may
have been the result of the fact that the Union had already filed a
charge of failure to bargain in good faith. In any event, the February
15 letter is not clear evidence that Respondent was refusing to bargain
in good faith.
The General Counsel argues that Respondent's offers to negotiate were
"merely paying lip service to its obligation to engage in meaningful
collective bargaining with the Union." (GCBr-15). The General Counsel
relies on the absence of anything, in writing, that indicates that
Respondent considered altering or amending the Plan submitted to the
Union on January 8. While the presence of such a statement would have
bolstered Respondent's case, its absence is not fatal.
The General Counsel also relies on the presence of several written
statements, one being that of the senior installation commander, in his
January 24 letter to the Union, that there was no obligation to solicit
comments from labor organizations until "completion of the planning
process." See GCBr-16. I take this to mean only that there was no
obligation to bargain until Respondent had completed the process of
getting its offer on the bargaining table, which is correct.
Another statement relied upon by the General Counsel to support the
"mere lip service" argument is that of the labor relations officer, in
his February 15 letter to the Union in which he stated that input from
labor organizations is not required "during the formulation stage" of
affirmative action plans. (GCBr-16). Since the labor relations officer
had earlier submitted the Plan to the Union with an offer to negotiate
in good faith concerning it, I also view this statement to have been
intended to apply to input while the Respondent is formulating its
offer.
In a footnote, the General Counsel also asks that an adverse
inference be drawn from the failure of the Respondent to call either the
EEO officer or the senior installation commander to testify. (GCBr-18,
fn, 35). Neither is presently employed or stationed at Eglin. I
therefore decline to draw such an inference, in the belief that agencies
should not have to act, at such a peril, in declining to go to the
expense of locating and transporting such witnesses.
Both parties continue to argue about the admissibility of evidence
under the Federal Rules of Evidence. See GCBr 17-18 and RBr 11-12.
They are reminded that such rules do not apply to these proceedings.
See 5 CFR 2423.17.
While all the issues raised by the parties have been considered, the
resolution of some would only serve to lengthen this discussion without
altering the order to be recommended. Accordingly, judicial restraint
is exercised.
Ultimate Findings and Recommended Order
The preponderance of the evidence does not demonstrate that the
alleged violations of Section 7116(a)(1) and (5) have occurred.
Accordingly, it is ORDERED, that the complaint be, and hereby is,
dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: July 20, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent contends that the General Counsel's exceptions
should not be considered on the basis that they were inappropriately
served and thus were not timely filed in accordance with the Authority's
Rules and Regulations. Inasmuch as the General Counsel's exceptions and
brief in support thereof were received by the Authority within the
prescribed time limits, the Respondent's contention is rejected.
/2/ Section 7116(a) provides, in pertinent part, that:
For the purpose of this chapter, it shall be an unfair labor practice
for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . . (or)
(5) to refuse to consult or negotiate in good faith with a labor
organization as required by this chapter . . ..
/3/ "GC" refers to the exhibits of the General Counsel. Other
abbreviations used in this decision are as follows: "JT" refers to
joint exhibits of the parties. Multipage exhibits will be referenced by
the exhibit number, followed by the page or paragraph number. "GCBr"
refers to the brief of the General Counsel and "RBr," to that of
Respondent. "TR" refers to the transcript. All dates referenced herein
are in 1980, unless otherwise specified.
/4/ Ms. Preta and Mr. Sanders both so testified. Both were credible
witnesses, giving their testimony in an honest and forthright manner.
Since Mr. Sanders is no longer a member of the Union, his testimony may
be regarded as unbiased. Respondent called no witnesses to rebut their
testimony. Accordingly, I have credited their testimony that Mr. White
made this statement at the meeting.
Since it is unlikely that Mr. White would have fabricated such an
unpopular message for delivery to an audience concerned with obtaining
changes to the Plan, I also find that Major General Bond did indeed say
something to Mr. White that left the impression that the Plan sent to HQ
AFSC would not be amended.