[ v16 p872 ]
16:0872(122)CA
The decision of the Authority follows:
16 FLRA No. 122
UNITED STATES AIR FORCE
2750th AIR BASE WING HEADQUARTERS
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1138, AFL-CIO
Charging Party
Case No. 5-CA-20335
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts, accompanying exhibits and parties' contentions,
the Authority finds:
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) /1/ by unilaterally terminating the dues
deductions of several unit employees and by denying a union steward's
request for official time in order to prepare a unit employee's
grievance.
At all times material herein, the American Federation of Government
Employees, Local 1138, AFL-CIO (Local 1138/the Union) has held exclusive
recognition for a unit of nonsupervisory, nonprofessional, General
Schedule employees of the Headquarters Air Force Logistics Command
(AFLC), 2750th Air Base Wing and tenants physically located at the
Wright-Patterson Air Force Base Complex services by the Activity's
Central Civilian Personnel Office. /2/ From December 1981 through March
1982, Respondent moved the Electronic Support Unit composed of some 29
employees of the Air Force Acquisitions Logistics Division (AFALD), an
organization within the AFLC, from Wright-Patterson to the Defense
Electronic Supply Center (DESC) at Gentile Air Force Base, Dayton, Ohio,
some eight miles away. The transferred AFALD/PT employees have
continued to be serviced by the Activity's Civilian Personnel Office
after the move. They retain their prior job descriptions, duties,
supervision, and hours of work; there is no change in the relocated
group's mission, function, or organization. Finally, these employees
are still subject to the same chain of labor-relations authority as they
were prior to the move.
In a memorandum dated July 1, 1982, the Respondent notified the Union
that it was discontinuing the dues deductions /3/ of several AFALD/PT
employees because it considered them to have been severed from the
established bargaining unit. In September 1982, the Respondent also
denied Fred George, a union steward, official time to meet with Mary
Root, an AFALD/PT employee, regarding her grievance /4/ because it
claimed she was no longer a bargaining unit member.
The Respondent contends that the phrase describing the established
bargaining unit as "physically located at the Wright-Patterson Air Force
Base Complex . . . " /5/ is the decisive element in determining whether
the AFALD/PT employees are still part of the involved unit. Thus,
because the AFALD/PT employees are no longer physically located at
Wright-Patterson, the Respondent contends that they are no longer part
of the established unit and that it was, therefore, justified in
terminating their dues allotments and in denying official time for
representational purposes. The General Counsel, however, contends that
the unit description language is not a legitimate substitute for the
statutorily prescribed criteria for determining unit appropriateness.
The Authority finds no merit to the Respondent's argument. The
stipulated facts show that the involved AFALD/PT employees continue to
share a clear and identifiable community of interest with their fellow
AFLC employees in the established unit. The Authority notes that the
duties, job descriptions, and working hours of the AFALD/PT employees
are unchanged following the relocation; that they enjoy a common
mission and common supervision with fellow AFALD employees remaining at
Wright-Patterson; that both employee groups are subject to the same
personnel and labor relations policies; and, that both groups are
serviced by the Activity's civilian personnel office. The Authority,
therefore, finds that the AFALD/PT employees continue to be part of the
established bargaining unit and that this unit promotes effective
dealings and efficiency of agency operations. See, e.g., Department of
Defense, Defense Communications Agency Headquarters, 11 FLRA No. 96
(1983). /6/
Section 7115(a) of the Statute provides for allotments to exclusive
bargaining representatives. /7/ Section 7115(b)(1) provides that such
an allotment shall terminate when "the agreement between the agency and
the exclusive representative involved ceases to be applicable to the
employee." When an employee ceases to be part of an established
bargaining unit, the termination of dues is warranted. Here, however,
the Authority concludes that the AFALD/PT employees remained a part of
the established bargaining unit, and therefore the Respondent, acting at
its peril, and ignoring the mandates of section 7115 of the Statute,
thereby violated section 7116(a)(1) and (8) of the Statute by failing to
continue to honor the AFALD/PT employees' voluntary written requests for
dues allotments. See Internal Revenue Service, Seattle District, et
al., 12 FLRA No. 74 (1983). /8/
Section 7131(d) of the Statute provides that, except as previously
provided in section 7131, an employee representing an exclusive
representative shall be granted official time in an amount agreed upon
by the parties to be reasonable, necessary, and in the public interest.
/9/ Here, it is undisputed that the parties' negotiated agreement
(Article 4, Section 4.06) provided for a reasonable amount of official
time for union stewards to process unit employees' grievances, and that
the Respondent denied such a request by the union steward solely on the
ground that the grieving employee was no longer in the bargaining unit.
As with the question regarding dues allotments, the question to be first
decided is whether the employee/grievant involved was still a member of
the bargaining unit. The grievant was in the group of employees found
above to have continued to be part of the appropriate unit. Thus, the
Respondent, again acting at its peril, and ignoring the mandate of
section 7131(d) of the Statute that an employee representing an
exclusive representative shall be granted official time as agreed upon
by the parties to be reasonable, violated section 7116(a)(1) and (8) of
the Statute by denying any official time to the employee designated by
the exclusive representative to process a unit employee's grievance,
contrary to the terms of the parties' agreement. As the Authority has
previously held, "(W)here the contractual provisions are closely tied
to, and implement rights and obligations established by, a specific
substantive provision of the Statute, the finding of a violation of
section 7116(a)(1) and (8) is appropriate." Veterans Administration
Lakeside Medical Center, Chicago, Illinois, 12 FLRA No. 57 (1983).
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the United States Air Force,
2750th Air Base Wing Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Failing to comply with the provisions of section 7115 of the
Federal Service Labor-Management Relations Statute by refusing to honor
valid written assignments from Cynthia R. Arnett, Jesse O. Gooding,
William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani
and Carl B. Wright, or any other unit employee, for the payment of
regular and periodic dues to the American Federation of Government
Employees, Local 1138, AFL-CIO, or any other exclusive representative of
its employees.
(b) Interfering with, restraining, or coercing unit employees by
refusing to honor valid written assignments from Cynthia R. Arnett,
Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper,
Matthew Vitaliani and Carl B. Wright, or any other unit employee, for
the payment of regular and periodic dues to American Federation of
Government employees, Local 1138, AFL-CIO, or any other exclusive
representative of its employees.
(c) Failing and refusing to grant official time to any employee
designated as representative of the American Federation of Government
Employees, Local 1138, AFL-CIO, or any other exclusive representative of
its employees, in accordance with the requirements of section 7131(d) of
the Federal Service Labor-Management Relations Statute, as requested, in
order to prepare the grievance of Mary Root, or any other bargaining
unit employee.
(d) 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 Federal Service Labor-Management Relations
Statute:
(a) Reimburse the exclusive representative, American Federation of
Government Employees, Local 1138, AFL-CIO, in an amount equal to the
regular and periodic dues it would have received from the pay of Cynthia
R. Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull,
Ivan J. Soper, Matthew Vitaliani, and Carl B. Wright since July 1, 1982,
but did not receive as a result of the unlawful refusal to honor their
valid written assignments for such purpose.
(b) Commencing with the first pay period after the date of this
Order, deduct regular and periodic dues from the pay of Cynthia R.
Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan
J. Soper, Matthew Vitaliani and Carl B. Wright, and remit such dues to
the American Federation of Government Employees, Local 1138, AFL-CIO.
(c) Process the grievance of Mary Root if requested, and grant
official time to the designated representative of the American
Federation of Government Employees, Local 1138, AFL-CIO, in order to
process such grievance, upon request.
(d) Post at its facilities, where bargaining 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 appropriate official of the Respondent and shall
be posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(e) 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.
Issued, Washington, D.C., December 18, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, 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 fail to comply with the provisions of Section 7115 of the
Federal Service Labor-Management Relations Statute by refusing to honor
valid written assignments from Cynthia R. Arnett, Jessie O. Gooding,
William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani
and Carl B. Wright, or any other unit employee, for the payment of
regular and periodic dues to the American Federation of Government
Employees, Local 1138, AFL-CIO, or any other exclusive representative of
our employees.
WE WILL NOT interfere with, restrain, or coerce unit employees by
refusing to honor and accept a valid written assignment from Cynthia R.
Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan
J. Soper, Matthew Vitaliani, and Carl B. Wright, or any other unit
employee, for the payment of regular and periodic dues to the American
Federation of Government Employees, Local 1138, AFL-CIO, or any other
exclusive representative of our employees.
WE WILL NOT fail or refuse to grant official time to any employee
designated as representative of the American Federation of Government
Employees, Local 1138, AFL-CIO, or any other exclusive representative of
our employees, in accordance with the requirements of section 7131(d) of
the Federal Service Labor-Management Relations Statute, as requested, in
order to prepare the grievance of Mary Root, or any other bargaining
unit employee.
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 reimburse the exclusive representative, the American
Federation of Government Employees, Local 1138, AFL-CIO, in an amount
equal to the regular and periodic dues it would have received from the
pay of Cynthia R. Arnett, Jessie O. Gooding, William K. Kingrey, William
E. Schull, Ivan J. Soper, Matthew Vitaliani and Carl B. Wright since
July 1, 1982, but did not receive as a result of the unlawful refusal to
honor their valid written assignments for such purpose.
WE WILL, commencing with the first pay period after the date of this
Order, deduct regular and periodic dues from the pay of Cynthia R.
Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan
J. Soper, Matthew Vitaliani and Carl B. Wright, and remit such dues to
the American Federation of Government Employees, Local 1138, AFL-CIO.
WE WILL process the grievance of Mary Root, if requested, and grant
official time to the employee designated as representative of the
American Federation of Government Employees, Local 1138, AFL-CIO, in
order to process such grievance, upon request.
(Activity)
Dated: By:
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is
175 W. Jackson Boulevard, Suite A-1359, Chicago, IL 60604, and whose
telephone number is (312) 353-6306.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1), (5) and (8) provides:
Section 7116. Unfair labor practices
(a) 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;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ While part of a consolidated unit certified in 1978, it is
stipulated that Local 1138 has been the designated bargaining agent for
the employees in the unit herein involved.
/3/ The Respondent, by Article 8, Section 8.01 of the parties' Master
Labor Agreement (MLA) agreed to periodic union dues payroll deductions.
/4/ Article 4, Section 4.06 of the MLA authorizes a reasonable amount
of official time for union representatives to prepare and present
bargaining unit employees' grievances.
/5/ The amended certification dated March 30, 1971, describes the
involved unit as including:
All nonsupervisory (General Schedule) employees of the
Headquarters Air Force Logistics Command and 2750th AF Base Wing,
and Tenants physically located at the Wright-Patterson AF Base
complex and serviced by the Civilian Personnel Office.
/6/ In so concluding, the Authority finds that the words "physically
located" as used in describing the certified bargaining unit were
intended to refer to tenants at Wright-Patterson Air Force Base, and not
intended to otherwise restrict the boundaries of the AFLC bargaining
unit.
/7/ Section 7115. Allotments to representatives
(a) If an agency has received from an employee in an
appropriate unit a written assignment which authorizes the agency
to deduct from the pay of the employee amounts for the payment of
regular and periodic dues of the exclusive representative of the
unit, the agency shall honor the assignment and make an
appropriate allotment pursuant to the assignment. Any such
allotment shall be made at no cost to the exclusive representative
or the employee. Except as provided under subsection (b) of this
section, any such assignment may not be revoked for a period of 1
year.
/8/ In view of this finding, and as the termination of dues
withholding did not result from or accompany a withdrawal of Union
recognition by the Respondent, the Authority does not find that the
Respondent has violated section 7116(a)(5) of the Statute. See Internal
Revenue Service, Seattle District, et al., supra; National Archives and
Records Service and National Archives Trust Board, General Services
Administration, Washington, D.C., 9 FLRA 413 (1982).
/9/ Section 7131(d) provides in pertinent part:
. . . .
(d) Except as provided in the preceding subsections of this
section--
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this
chapter, any employee in an appropriate unit represented by an
exclusive representative, shall be granted official time in any
amount the agency and the exclusive representative involved agree
to be reasonable, necessary, and in the public interest.