[ v14 p113 ]
14:0113(25)CA
The decision of the Authority follows:
14 FLRA No. 25
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO
Charging Party
Case No. 5-CA-20150
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that the Respondent be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision and the Charging Party filed an opposition to
the Respondent'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 recommendations only to the extent
consistent herewith.
The Judge concluded that the Respondent's refusal to authorize
payment of per diem allowances and travel expenses to William S. Shoell,
the Union's designated representative for mid-term bargaining,
constituted a refusal to comply with section 7131(a) of the Statute in
violation of section 7116(a)(1) and (8). Subsequent to the issuance of
the Judge's Decision, the United States Supreme Court concluded in
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439(1983)
that the obligation of an agency under section 7131(a) of the Statute to
provide official time to employees representing an exclusive
representative in the negotiation of a collective bargaining agreement
does not encompass the payment of travel expenses and per diem
allowances.
Pursuant to that decision, and for the reasons set forth by the
Court, the Authority concludes herein that the Respondent did not fail
or refuse to comply with the provisions of section 7131(a) of the
Statute. Therefore, it follows that the Respondent did not violate
section 7116(a)(1) and (8) of the Statute. /1/
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 5-CA-20150 be,
and it hereby is, dismissed. /2/
Issued, Washington, D.C., March 23, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE,
OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO
Charging Party
Case No.: 5-CA-20150
Janet T. Wachter
For Charging Party
Roger T. McNamara, Esq.
For Respondent
Sandra LeBold, Esq.
For General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
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, 5 U.S.C. 7101
et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the
Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
C.F.R. Chapter XIV, 2410 et seq.
Pursuant to a Charge filed on March 15, 1982 and amended on June 30,
1982, by American Federation of Government Employees, Council 214
(hereinafter called the Union and/or AFGE Council 214) against
Department of the Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio (hereinafter called Respondent
and/or AFLC), the General Counsel of the FLRA, by the Director of Region
5, issued a Complaint and Notice of Hearing on July 12, 1982 and amended
it on October 21, 1982. The Complaint, as amended, alleges that
Respondent violated Sections 7116(a)(1) and (8) of the Statute by
failing and refusing to grant travel and per diem expenses to a Union
representative for the time the representative was to engage in
negotiations with Respondent. AFLC filed an Answer denying that it had
violated the Statute.
A hearing in this matter was conducted before the undersigned in
Chicago, Illinois. The Respondent, the Union and the General Counsel of
the FLRA were represented and afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence, and to argue
orally. Post hearing briefs were filed and have been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
On January 13, 1978, American Federation of Government Employees,
AFL-CIO (hereinafter called AFGE) was certified as the collective
bargaining representative for a consolidated unit of all Respondent's
wage grade and general schedule employees, with certain exclusions not
here relevant. The collective bargaining unit includes employees of the
AFLC located, inter alia, at Wright-Patterson Air Force Base, Dayton,
Ohio and the Hill Air Force Base, Utah and at all times material William
Shoell was an employee within the unit. A master collective bargaining
agreement between Respondent and AFGE became effective May 3, 1979.
At all times material AFGE Council 214 has been an agent of AFGE with
respect to bargaining with Respondent on behalf of the above described
collective bargaining unit.
In mid-August 1979 General John P. Rollston, Respondent's Deputy
Chief of Staff for Manpower and Personnel, was advised by Val Buxton,
Respondent's Chief of Labor and Employee Relations, that relations
between AFLC and AFGE Council 214 was deteriorating, especially as it
related to mid-term bargaining, because there was no Union
representative at the Wright-Patterson Air Force Base to carry on
day-to-day bargaining. Either at that time, or shortly thereafter,
Rollston telephoned AFGE President Kenneth Blaylock. Rollston suggested
that it would be in their mutual interest, regarding mid-term
bargaining, if there were a Union representative physically located at
the Wright-Patterson Air Force Base so that Respondent could deal with
the representative regularly, frequently and consistently and that this
would expedite the resolution of problems. Blaylock said that he was
thinking the same thing, perhaps for different reasons, and that it was
a good idea. Blaylock expressed concern about AFGE's financial ability
to lease office space and to pay for phones, etc., for a
Wright-Patterson office. Rollston suggested that perhaps an arrangement
could be made whereby Respondent provided the space. Rollston and
Blaylock agreed to meet in Washington to discuss this matter further.
During early September 1979, about ten days after the telephone
conversation, Rollston met Blaylock in Blaylock's office in Washington,
D.C. Both agreed that it would be to their mutual benefit to have a
Union representative at Wright-Patterson to do mid-term bargaining.
according to rollston's testimony ". . . there was a clear recognition
on his (Blaylock's) part and on mine that there would be from time to
time situations arising which would be clearly in our mutual best
interests for the union to have a technical representative, an
authority, some assistance, some outside, if you will, counsel to help .
. . the union resident, representative to negotiate, and with prior
agreement that we would in fact fund the travel of those people to
assist the resident agent. . . . It was agreed-- I think it was
recognized, if you will, because at that time we didn't even strike a
precise agreement, but it was recognized that-- he recognized and I
agreed that from time to time there would be a need on the part of the
union to bring someone other than the resident Wright-Patterson
representative in to conduct negotiations, that if there was that need
and he felt it was appropriate for us to fund that, that there would be,
before the travel was conducted, that there would be a prior and
up-front agreement between the union and the AFLC as to who would fund
that travel." /3/ The meeting adjourned without a final agreement
because Blaylock had to submit the matter to AFGE Council 214 and seek
its approval for the arrangement and Rollston had to seek authority to
commit the funds.
About two weeks later Rollston and Blaylock spoke on the telephone
and Blaylock stated that he had received approval to have an individual
representative stationed at Wright-Patterson and Rollston stated that he
had authorization to furnish office space, office equipment and
furniture. Blaylock indicated that he needed 6,000 copies of the Master
Agreement and that would be very expensive. Rollston agreed to furnish
the 6,000 copies. /4/ Rollston testified "Mr. Blaylock agreed that
Council 214 would have an on-site representative of the Council to deal
with us authoritatively on a day-to-day basis with the mid-term
negotiations of the Labor Agreement, and that we in turn for that
agreement would provide office space for that staff, and that we would
provide eventually 9,000 copies of the Master Labor Agreement." /5/
AFLC and AFGE Council 214 entered into a written "Service Agreement"
signed by Respondent on Feb. 26, 1980 and by AFGE Council 214 on March
14, 1980 wherein Respondent agreed to furnish enumerated facilities and
equipment at Wright-Patterson Air Force Base to AFGE Council 214.
Paragraph III provides, "III. Nothing in this service agreement will be
used to support or oppose positions taken by either party relative to
proposals involving the Master Labor Agreement." There is no reference
in the Service Agreement to travel or per diem, with respect to Union
representatives, nor is there any mention that AFGE Council 214 waived
any rights it may have with respect to the payment of travel and per
diem expenses for its bargaining representatives. Similarly there is no
limitation as to whom AFGE Council 214 could designate as its bargaining
representative.
Union representative Ketcherside arrived at Wright-Patterson Air
Force Base in January 1980 and from then to March 1980, he handled all
mid-term bargaining responsibilities. During the latter part of March
1980, Ketcherside requested personnel from outside the Wright-Patterson
Air Force Base area to handle some mid-term bargaining matters.
Further, Mr. Ketcherside demanded travel and per diem expenses for the
outside negotiators. Respondent denied payment on the grounds of the
Blaylock-Rollston agreement and on the grounds that the expenditure of
government monies for travel and per diem expenses require justification
in accordance with the Joint Travel Regulations (JTRs) issued by the
Department of Defense and in accordance with Air Force Regulation (AFR)
10-7. Subsequent to the denial of payment by the Respondent of the
travel and per diem expenses, the Union filed an unfair labor practice
charge. Department of the Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 10 FLRA 281(1982), Petition for
Review filed sub nom. Air Force Logistics Command (Wright-Patterson Air
Force Base) v. Federal Labor Relations Authority, Docket No. 82-2411
(D.C. Cir., Nov. 29, 1982).
In April and May 1980 Ketcherside was experiencing a backlog of
proposed mid-term employer changes and he needed outside assistance.
Buxton advised Ketcherside that he had no authority to abridge the
Blaylock-Rollston agreement. Therefore, Ketcherside went to Rollston,
who approved the request for the payment of per diem and travel expenses
for Union representatives. Ketcherside indicated that he did not want
his request on this occasion to establish any precedence.
The only other instance in which Respondent paid travel and per diem
expenses for mid-term negotiations arose as a result of the Job
Performance Appraisal System (JPAS) that had to be in place by October
1980. In this case, AFLC approved travel and per diem funding for Union
representatives because the JPAS negotiations were complex and outside
assistance was required and justified under the JTRs.
By letter dated December 4, 1981, AFLC notified the AFGE Council 214
of Respondent's intention to extend its Electronic Mechanic Job Element
Test (JET) from WG-10 employees, "to other grade levels within that
series, as well as extend the JET to other series". Respondent set a
December 28, 1981 deadline for submission of proposals by the Union
concerning the JETs. By letter dated December 9, 1981, Paul Palacio,
President of AFGE Council 214, requested that AFLC bargain with the
Union concerning the extension of the JETs to the additional grade
levels and series and also requested an extension of 45 days within
which to submit proposals. AFLC notified Palacio by letter dated
December 14, 1981, that the date for submission of proposals was
extended to January 8, 1982.
By letter dated December 17, 1981, Palacio notified Respondent that
the AFGE Council 214 Vice-President, William S. Shoell, a bargaining
unit employee at Hill Air Force Base, Utah, would be handling
negotiations on behalf of the Union concerning the JETs. This letter
advised Respondent to send correspondence to Shoell at Hill Air Force
Base. /6/ During mid January 1982, Shoell was on military leave and was
unavailable for bargaining. The Union designated different
representatives to bargain with AFLC's representative, Ms. Corliss,
during the period Shoell was unavailable. On January 26, 1982 Palacio
sent a letter to AFLC advising it that Shoell, who had been temporarily
unavailable due to the military commitment, was again available to
continue the negotiations on JETs. Palacio asked Respondent to submit
information regarding JETs and stated that AFGE Council 214 was awaiting
the Respondent's counterproposals.
By letter dated January 29, 1982, Palacio confirmed a telephone
conversation of January 28, 1982 with William Langley, Respondent's
Labor Relations Specialist. In the telephone conversation, Palacio had
requested that arrangements be made to bring Shoell to the
Wright-Patterson Air Force Base to negotiate. Langley said, in
response, that negotiations with Shoell would take place by telephone
and/or mail. Palacio advised Respondent on the telephone, and in his
letter, that AFGE Council 214 strongly objected to negotiations by
telephone and/or mail. Palacio stated that this proposed manner of
negotiating is contrary to "Public Law 95-454". By letter dated
February 1, 1982, AFLC responded to Palacio's letter stating that
Respondent had been able to find nothing in the Statute indicating that
negotiations by mail and/or telephone are improper. Respondent stated
that since Palacio had chosen to designate a negotiator from outside
Wright-Patterson Air Force Base, rather than conduct the negotiations
himself, negotiations by mail and/or telephone were appropriate.
Langley, contacted Shoell's supervisor at Hill Air Force Base and
arranged a telephone meeting. On February 3, 1982, Langley phoned
Shoell early in the morning. Shoell explained that he was at his work
site where it was difficult to talk and that he had not seen the
Respondent's proposals. He said he would go to the Union office, review
the proposals and then would talk to Langley. Langley later phoned
Shoell at the Union office and Shoell advised Langley that negotiations
should take place across the table because the parties were far apart on
the issues and the negotiations could be very lengthy. Shoell
reiterated the position of AFGE Council 214 that the AFLC was required
by law to bring him to Wright-Patterson to conduct negotiations.
Langley refused, saying there was no justification for bringing Shoell
to the Wright-Patterson Air Force Base.
By letter dated February 8, 1982, AFGE Council 214 refused AFLC's
request that the negotiations concerning the JETs be conducted by mail
or over the telephone and requested that official time, travel, per diem
and lodging be provided to Shoell for his travel from Hill Air Force
Base, Utah to the Wright-Patterson Air Force Base to engage in such
negotiations. By letter dated February 12, 1982, AFLC informed the AFGE
Council 214 that, while Respondent was willing to negotiate concerning
the JETs with Shoell or anyone designated by the Union for such purpose,
it would not pay travel and per diem expenses for such negotiations.
By letter, dated February 25, 1982, the Union requested, in lieu of
AFLC affording official time, travel and per diem expenses to Shoell,
that Respondent either send one of its negotiators to Hill Air Force
Base, to negotiate the JETs issue or that it designate someone at Hill
Air Force Base as its negotiator to negotiate with Shoell. By letter
dated March 3, 1982, AFLC denied the request of the AFGE Council 214 and
reiterated that it would not pay Shoell's travel and per diem expenses
and announced that it would implement the JETs on March 19, 1982, unless
AFGE Council 214 presented itself for negotiations prior to that date or
agreed to bargain by telephone and/or mail.
During early March 1982 Shoell was at Wright-Patterson Air Force Base
to attend a hearing and an Executive Board meeting. The Union paid his
transportation expenses and he was on leave without pay status. Shoell
did not contact Respondent and ask to bargain about the JETs.
Management officials knew of Shoell's presence and did not ask to meet
with him concerning the JETs.
On or about March 30, 1982, the JETs were extended from WG-10
employees to the WG-11 grade level in the Electronic Mechanic series.
Shoell did not travel to Wright-Patterson Air Force Base, Ohio and no
negotiations took place regarding JETs.
Discussion and Conclusions
The Federal Labor Relations Authority (FLRA) has held that Section
7131(a) of the Statute authorizes an employee representative of an
exclusive collective bargaining representative official time, including
payment for travel and per diem expenses, for the purposes of conducting
negotiations with Agency representatives. Interpretation and Guidance,
2 FLRA 265(1979). The FLRA has held that such a representative of an
exclusive collective bargaining representative is entitled to payments
for travel and per diem expenses to negotiate proposed agency changes in
working conditions during the term of a collective bargaining agreement.
Bureau of Alcohol, Tobacco and Firearms, Western Region, Department of
the Treasury, San Francisco, California, 4 FLRA No. 40(1980), enforced
sub nom. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor
Relations Authority, 672 F.2d 732 (9th Cir. 1982), Cert. granted, 51
U.S. Law Week 3432 (January 17, 1983) and Department of the Air Force,
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio,
supra. But see, Division of Military and Naval Affairs, State of New
York (Albany, New York), 7 FLRA 458(1981), reversed sub nom. Division
of Military and Naval Affairs v. Federal Labor Relations Authority, 683
F.2d 45 (2d Cir. 1982), U.S. Department of Agriculture, Science and
Education Administration, Agricultural Research, North Central Region,
Dakotas-Alaska Area, 6 FLRA 265(1981), reversed sub nom. United States
Department of Agriculture v. Federal Labor Relations Authority, 691 F.2d
1242 (8th Cir. 1982); and Florida National Guard, 5 FLRA No. 49, (1981)
reversed sub nom. Florida National Guard and Department of Defense v.
Federal Labor Relations Authority, 699 F.2d 1092 (11th Cir., 1983).
AFLC, however contends that AFGE Council 214, by the agreement
between Rollston and Blaylock, waived its right to per diem and travel
payments for any designated representative from a base other than
Wright-Patterson, who has to travel to Wright-Patterson in order to
negotiate. The FLRA has held that any waiver of any statutory rights,
by a labor organization, must be clear and unmistakable. Absent such a
clear and unmistakable waiver, the labor organization will not be
concluded to have waived its statutory rights. Department of Health and
Human Services, Region IV, Atlanta, Georgia, 9 FLRA 1065(1982) and
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
2(1981). I conclude that the agreement between Blaylock and Rollston
did not constitute such a clear and unmistakable waiver of the Union's
rights, under 7131(a) of the Statute, to payments of per diem and travel
expenses for Union designated representatives. The agreement was the
product of a series of conversations between Blaylock and Rollston and
the two individuals apparently did not specifically discuss any waiver
of statutory rights by the Union. Rather, the agreement was a vague one
whereby AFGE Council 214 agreed to have a designated representative
stationed at Wright-Patterson if the Respondent agreed to provide office
space, furniture and equipment. This would provide Respondent with
quick and ready access to Union representatives for day-to-day problems.
The purpose of this agreement was to improve communications by making
the parties quickly accessible to each other. The Union did not
specifically agree that it would never designate any other
representative for negotiating or that it waived its right to travel and
per diem payments for such a representative. In fact, Blaylock and
Rollston specifically recognized that the Union would, on occasion, need
to use representatives from bases other than Wright-Patterson. The
parties seemed to mention that, with advance agreement, such a
representative would be paid per diem and travel expenses. This
reference to "agreement" does not clearly mean that both sides must
agree on the necessity for an off-base Union representative before the
representative would be entitled to payment of travel and per diem
expenses. Rather, it could equally reasonably mean that, when given
advance notice by the Union of its need for an off-base representative,
there would be agreement by AFLC to pay such representative travel and
per diem expenses. In this regard it must be noted that in negotiating
the Master Agreement, the Union specifically and lawfully refused to
negotiate concerning a waiver of its statutory rights under Section 7131
of the Statute. American Federation of Government Employees, AFL-CIO, 4
FLRA No. 39(1980). Further, when the Rollston-blaylock oral agreement
was reduced to writing, it made no mention of any limitation on the
Union's right to designate its representatives for bargaining or its
rights to payments to such representatives for travel and per diem
expenses. Accordingly, I reject Respondent's contention that the
Blaylock-Rollston agreement constituted a waiver by the Union of its
rights granted by Section 7131(a) of the Statute. /7/
Respondent seems to urge that because, in 1980, Ketcherside asked
that Union representatives be brought from other bases, this somehow
either establishes a waiver by practice or was consistent with AFLC's
interpretation of the Blaylock-Rollston agreement. This is rejected.
When AFLC refused to pay the per diem expenses, the Union filed a
successful unfair labor practice charge. Department of the Air Force,
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio,
supra. This is hardly consistent with AFLC's position that there was a
waiver. /8/
Similarly, I reject Respondent's contention that Shoell agreed to
negotiate by telephone when he received the call at his work site at
Hill Air Force Base. The Union had been insisting on face-to-face
negotiations. Upon receiving the telephone call from Respondent and
stating he would call back, Shoell was merely removing himself from his
work site, and going to the Union office where he could hear better and
could review Respondent's proposals, which Shoell had not yet seen, so
that he could make a reasonable response. Respondent then called Shoell
at the Union office and Shoell reiterated the Union's position that they
should bargain face-to-face. Shoell did not agree or waive any rights
that the Union had to bargain face-to-face over the change in the use of
the JETs or to receive per diem and travel payments under Section
7131(a) of the Statute. /9/
Thus it is concluded that the change in the use of the JETs
constituted a change in conditions of employment and that the Union was
entitled to bargain about such change, to designate its own
representative and to have the per diem and travel expenses of the
representative paid by AFLC. Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, supra.
Shoell, a bargaining unit employee at Hill Air Force Base, was
designated by the AFGE Council 214 to be its negotiator concerning
Respondent's proposal to extend the JETs. Shoell was entitled, pursuant
to Section 7131(a) of the Statute, to have Respondent pay his per diem
and travel expenses so that he could represent the Union at the JET
negotiations at Wright-Patterson Air Force Base, and Respondent's
refusal to authorize such payment violated Section 7116(a)(1) and (8) of
the Statute. /10/ Further the FLRA has already rejected AFLC's defense
that it could require justification from the Union for the selection of
out-of-town negotiations before Respondent had any obligation under
Section 7131(a) of the Statute. Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, supra.
Finally Respondent urges the FLRA to reverse its earlier holdings to
the effect that Section 7131(a) of the Statute requires that agencies
pay travel and per diem expenses for union negotiators. I am
constrained to follow the FLRA decisions and therefore reject
Respondent's contention.
I need not decide whether a status quo ante remedy would be
appropriate in the subject case because neither the General Counsel of
the FLRA nor the Union has requested such a remedy.
Having concluded that Respondent violated Sections 7116(a)(1) and (8)
of Statute I recommend that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Authority and Section 7118 of the Federal Service Labor-Management
Relations Statute, it is hereby ordered that the Department of the Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, shall:
1. Cease and desist from:
(a) Failing and refusing to provide to William Shoell, or any
other representative, official time, including necessary travel
and per diem expenses, in compliance with Section 7131(a) of the
Statute, for the time they were to engage in representing the
American Federation of Government Employees, Council 214, AFL-CIO,
the employees' exclusive representative, during mid-term
negotiations.
(b) Conditioning the payment of travel and per diem expenses
incurred by its employees pursuant to section 7131(a) of the
Statute, upon the Union showing justification for the designation
of its negotiators.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its various installations of the Air Force
Logistics Command wherein unit employees are located 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 all other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said Notices are not altered,
defaced or covered by any other material.
(b) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, 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.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: May 6, 1983
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide to William Shoell, or any other
representative, official time, including necessary travel and per diem
expenses, in compliance with Section 7131(a) of the Statute, for the
time they are engaged in representing the American Federation of
Government Employees, Council 214, AFL-CIO, the employees' exclusive
representative, during mid-term negotiations.
WE WILL NOT condition the payment of travel and per diem expenses
incurred by our employees pursuant to Section 7131(a) of the Statute,
upon the Union showing justification for the designation of its
negotiators.
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
Statute.
(Agency or Activity)
Date:
By:
(Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice, or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
Suite A-1359, 175 West Jackson Boulevard, Chicago, Illinois 60604, and
whose telephone number is: (312) 886-3468.
--------------- FOOTNOTES$ ---------------
/1/ In view of the disposition herein, the Authority finds it
unnecessary to pass upon the Judge's findings with respect to the
alternative defenses raised by the Respondent.
/2/ The Authority received a motion filed by the Regional Director
seeking to have the case remanded to the Regional Director for
withdrawal of the complaint and dismissal of the charge. In view of the
Authority's disposition on the merits of this case, the Regional
Director's motion is hereby denied.
/3/ Transcript pages 79-80.
/4/ 9,000 copies were furnished.
/5/ Transcript page 82.
/6/ Shoell was apparently designated by AFGE Council 214 to handle
the JET negotiations because he had taken the JET himself and had
handled numerous employee complaints regarding JETs.
/7/ Although General Counsel for the FLRA pointed out that the waiver
argument was litigated in Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, supra, neither
General Counsel of the FLRA nor the Charging Party argued the matter was
disposed of in the subject case by operation of collateral estoppel.
Collateral estoppel does not apply in the subject case because, although
litigated, the waiver issue was not determined in the prior case nor has
there been a final judgement in that case. cf. Ashe v. Swensen, 397
U.S. 436(1970).
/8/ Further, with respect to two other occasions AFLC did pay the per
diem and travel expenses of Union representatives.
/9/ Absent some unusual circumstances, effective collective
bargaining and negotiations involve face-to-face meetings between the
parties and AFLC could not, unilaterally, limit the Union's right to
carry on such face-to-face negotiations. There is no allegation,
however, that AFLC's insistence upon telephonic and/or letter
negotiations was an independent violation of the Statute.
/10/ The fact that Shoell was present at Wright-Patterson Air Force
Base, on a leave without pay status, at Union expense, to conduct other
business, did not require him to bargain about JETs at that time or to
give up his right to bargain and be paid for his per diem and travel
expenses.