22:0843(91)CA - Air Force, 63rd Civil Engineers Squadron, Norton AFB, CA And AFGE Interdepartmental Local 3854 -- 1986 FLRAdec CA
[ v22 p843 ]
22:0843(91)CA
The decision of the Authority follows:
22 FLRA No. 91
DEPARTMENT OF THE AIR FORCE
63rd CIVIL ENGINEERS SQUADRON
NORTON AIR FORCE BASE, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, INTERDEPARTMENTAL
LOCAL 3854, AFL-CIO
Charging Party
Case No. 8-CA-40473
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice complaint is before the Authority based on
exceptions filed both by the General Counsel to certain aspects of the
attached Decision of the Administrative Law Judge and by the Respondent
to other aspects of the attached Decision. The complaint contained four
separate allegations arising out of a meeting held on May 2, 1984,
between two agents of the Respondent and the Charging Party's (the
Union's) local representative. The complaint alleged that the meeting
was a formal discussion within the meaning of section 7114(a)(2)(A) of
the Federal Service Labor-Management Relations Statute (the Statute) and
that the Respondent's failure to provide the Union with an opportunity
to be represented constituted a failure to comply with that section in
violation of section 7116(a)(1) and (8) of the Statute. The complaint
also alleged that a statement made to the Union's local representative
at the meeting constituted interference with his protected rights in
violation of section 7116(a)(1) of the Statute and that the decision to
reassign the local representative was based on his having engaged in
protected activity in violation of section 7116(a)(1) and (2) of the
Statute. Finally, the complaint alleged that the reassignment of the
local representative constituted a unilateral change in conditions of
employment in which the exclusive representative was not notified and
afforded an opportunity to bargain concerning its impact and
implementation in violation of section 7116(a)(1) and (5) of the
Statute.
II. Background
As more fully set forth by the Judge, Howard Wright is the unit
vice-president of the Charging Party and its only representative at the
Respondent's facility. On November 6, 1983, Wright complained to an
agent of the Respondent regarding what he viewed to be inequitable
assignment of details. His complaint eventually resulted in a formal
grievance filed on his behalf by the President of the Charging Party,
who is located at March Air Force Base. His grievance was denied at the
second step by Fire Chief Smith in a letter dated April 9, 1984. Wright
then requested an extension of time in which to file his grievance at
the third step in a letter incorrectly directed to the Wing Commander.
As a result of the misdirection, Fire Chief Smith was then contacted by
the Base Commander who told him that the Wing Commander was upset
because of the misdirection of Wright's extension request. The Chief of
Labor and Employee Relations also called Smith and said he had been
called by the Base Commander about the misdirected request. He related
that they had a problem with Wright not following the contract
requirements. On May 2, 1984, Wright was told to report to Deputy Fire
Chief Turner's office. There is nothing in the record to indicate that
he was told why he should report. When he arrived, Fire Chief Smith was
also there. A statement, alleged to be coercive, was made to Wright by
Smith, as set forth in the Judge's Decision, which the Judge found to be
in reference to the misdirected request for a grievance extension.
Wright was then asked how his grievance could be resolved. A discussion
of the grievance and its resolution ensued. Wright was ultimately
reassigned to Fire Station 2 based on, among other things, his need to
get certain training, which was only offered there. The reassignment
was made permanent at a later date.
III. Judge's Decision
The Judge concluded, with respect to the first allegation of the
complaint, that the May 2, 1984 meeting constituted a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute at which the
Respondent failed to provide the exclusive representative an opportunity
to be represented thereby failing to comply with that section in
violation of section 7116(a)(1) and (8) of the Statute. In response to
the Respondent's contention that the meeting was not formal, the Judge
noted that it involved the discussion and/or resolution of a grievance,
the employee was called to the office by management, the meeting was
conducted by two supervisors of the Respondent, one of whom was not
merely a first level supervisor, and the meeting was not impromptu or
casual. In answer to the question of whether the Union was, in fact,
represented by Wright, given his status as an officer of the Union, the
Judge noted that Wright was the grievant in this case and should not "be
compelled to wear two hats at the same time so as to permit management
to avoid its obligation under section 7114(a)(2)(A) of the Statute."
Therefore, he concluded that the Union did not receive notification of
the meeting in which Wright's grievance was discussed.
With respect to the allegation that the statement made to Wright at
the May 2, 1984 meeting was coercive in nature, the Judge found that he
was not persuaded that the statement constituted interference with
Wright's protected activity. The Judge noted that the statement was
specifically related to the misdirected extension request that caused
problems within the management chain, and not to Wright's processing of
the grievance itself. The Judge did not view the remarks, in these
circumstances, as reasonably tending to coerce or intimidate Wright.
Therefore, he concluded that the statement was not violative of section
7116(a)(1) of the Statute.
The Judge also was not persuaded that a prima facie case of
discrimination had been proven regarding the third allegation of the
complaint. Thus, the Judge found that there was no basis in the record
testimony to establish that Wright's reassignment was in any way
intended to thwart the processing of the grievance by Wright. Rather,
the Judge noted, a sufficient basis did exist for management's action,
particularly Wright's need for certain training, which in his view
dispelled any suspicion caused by the timing of the reassignment.
Therefore, he concluded that the reassignment of Wright was not
discriminatory and thus was not violative of section 7116(a)(1) and (2)
of the Statute.
With respect to the final allegation of the complaint, that Wright's
reassignment and ultimate transfer to Fire Station 2 constituted a
unilateral change in conditions of employment in violation of section
7116(a)(1) and (5) of the Statute, the Judge first discussed the
Respondent's contention that this allegation was untimely filed under
section 7118(a)(4)(A) of the Statute. He concluded that the amended
charge, which was filed more than six months after the alleged
unilateral change, was not untimely in that it did not raise a new cause
of action. Turning to the merits of the unfair labor practice
allegation, the Judge concluded that the reassignment did not give rise
to a duty to bargain. Therefore, the Judge dismissed this aspect of the
complaint.
IV. Positions of the Pa0ties
The Respondent excepted only to the Judge's conclusion regarding the
first allegation of the complaint, contending that the meeting was not a
formal discussion. Thus, the Respondent argued that the meeting was not
formal in nature and that even if the meeting was a formal discussion,
the Union was provided with an opportunity to be represented because its
vice-president was notified and attended the meeting. The General
Counsel, in opposing the Respondent's exceptions, notes that Wright had
no idea what the meeting would be about at the time he was summoned.
Moreover, the General Counsel argues in support of the Judge's
conclusion that a union official would not necessarily have the
interests of all unit employees in mind when the meeting involved his
own personal grievance.
The General Counsel excepted to the Judge's dismissal of the unfair
labor practice allegations concerning the statement made to Wright at
the May 2, 1984 meeting and Wright's alleged discriminatory
reassignment. The General Counsel contends that the Judge should have
concluded that the statement made to Wright would reasonably have caused
him to draw a coercive inference. The General Counsel also contends
that a prima facie case of discrimination had been proven with respect
to the reassignment. Thus, in the view of the General Counsel, given
the timing of the reassignment, and the inference that should have been
drawn regarding Smith's statement to Wright, a discriminatory basis for
the reassignment had been established.
In its opposition to the General Counsel's exceptions, the Respondent
noted that Wright was not an average employee. He was the Union
vice-president, and he should have reasonably perceived that the
statement made to him by Smith related to his misdirection of the
extension request and not to his having engaged in protected activity.
The Respondent also contends with respect to the reassignment, that its
purpose was to provide Wright with needed training and to put him where
he would be subject to less details in response to his grievance.
Neither party filed exceptions with respect to the Judge's dismissal
of the final allegation of the unfair labor practice complaint.
V. Analysis
The Authority adopts the Judge's findings, conclusions and supporting
rationale with respect to all four of the allegations set forth in the
unfair labor practice complaint. Thus, the Authority concludes, in
agreement with the Judge, that the May 2, 1984 meeting was a formal
discussion within the meaning of section 7114(a)(2)(A) of the Statute
inasmuch as it involved the discussion of an actual grievance with the
employee grievant and was initiated and conducted by agents of the
Respondent. With respect to the Respondent's contentions that the
notification and attendance of Wright, a Union officer, at the meeting
satisfied the requirements of the Statute that the Union, who filed the
grievance on Wright's behalf, was informed of the purpose of the meeting
prior to Wright's arrival at the meeting. Once he arrived and
management began discussion resolution of the grievance, Wright was
placed in the position of representing himself in his own grievance.
Therefore, we conclude, in agreement with the Judge, and in the unique
circumstances of this case, that the rationale contained in Veterans
Administration, Veterans Administration Medical Center, Muskogee,
Oklahoma, 19 FLRA No. 122 (1985) is distinguishable and, therefore, the
Union was neither notified nor provided with an opportunity to be
represented at this formal discussion concerning Wright's grievance by
the Respondent. Accordingly, the Respondent failed to comply with
section 7114(a)(2)(A) of the Statute in violation of section 7116(a)(1)
and (8).
The Authority also adopts the Judge's conclusions, and supporting
rationale, that the Respondent did not violate section 7116(a)(1) of the
Statute based on the statement made to Wright at the May 2, 1984
meeting; nor did it violate section 7116(a)(1) and (2) based on its
reassignment of Wright. Thus, the Judge applied appropriate case law to
his conclusions and the General Counsel's exceptions constitute mere
disagreement with his factual analysis. We find no basis for reversing
these conclusions.
Finally, with regard to the final allegation of the unfair labor
practice complaint, no exceptions were filed to the Judge's conclusion
that the impact of the Respondent's reassignment of Wright did not
create a bargaining obligation. We agree with the Judge and conclude
that the Respondent's failure to give notice to the Union of the
reassignment and afford it an opportunity to request bargaining
concerning its impact was not violative of section 7116(a)(1) and (5) of
the Statute.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms these rulings. The Authority has considered
the Judge's Decision, the exceptions to that Decision and the entire
record, and adopts the Judge's findings, conclusions, and recommended
Order. We therefore conclude that the Respondent violated section
7116(a)(1) and (8) of the Statute when it failed to afford the Union an
opportunity to be represented at a formal discussion conducted on May 2,
1984, thereby failing to comply with section 7114(a)(2)(A) of the
Statute. We also conclude that the General Counsel did not establish
that the Respondent violated section 7116(a)(1), (2) and (5) of the
Statute with respect to other conduct related to the May 2, 1984
meeting. Accordingly, these aspects of the complaint shall be
dismissed.
ORDER
Pursuant to section 7118 of the Statute and section 2423.29 of the
Rules and Regulations, it is hereby ordered that the Department of the
Air Force, 63rd Civil Engineers Squadron, Norton Air Force Base,
California, shall:
1. Cease and desist from:
(a) Failing to provide its employees' exclusive representative,
American Federation of Government Employees, Interdepartmental Local
3854, AFL-CIO, an opportunity to be represented at formal discussions
with bargaining unit employees concerning grievances, personnel policies
and practices or other general conditions of employment.
(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:
(a) Post at its facilities, 63rd Civil Engineers Squadron, Norton Air
Force Base, California, 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 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.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply therewith.
IT IS FURTHER ORDERED that the remaining allegations of the complaint
in Case No. 8-CA-40473 be, and they hereby are, dismissed.
Issued, Washington, D.C., July 30, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NTOICE 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 provide our employees' exclusive representative,
American Federation of Government Employees, Interdepartmental Local
3854, AFL-CIO, an opportunity to be represented at formal discussions
with bargaining unit employees concerning grievances, personnel policies
and practices or other general conditions of employment.
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.
(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 VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 8-CA-40473
DEPARTMENT OF THE AIR FORCE
63rd CIVIL ENGINEERS SQUADRON
NORTON AIR FORCE BASE, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL 3854, AFL-CIO
Charging Party
Lt. Col. Wade B. Morrison
For the Respondent
Jonathan S. Levine, Esquire
For the General Counsel
Del Mar Callaway
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
A hearing in the above-entitled case was held before the undersigned
on April 18, 1985 at Los Angeles, California. The Complaint and Notice
of Hearing was issued on January 11, 1985 by the Regional Director for
the Federal Labor Relations Authority, Los Angeles, California.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq. (herein called the Statute). It is
based on a first amended charge filed on December 31, 1984 by American
Federation of Government Employees, Interdepartmental Local 3854,
AFL-CIO (herein called the Union) against Department of the Air Force,
63rd Civil Engineers Squadron, Norton Air Force Base, California (herein
called Respondent).
The Complaint alleged, in substance, that (a) on or about May 2, 1984
Respondent, via a management official, conducted a meeting with a unit
employee concerning the latter's grievance, without affording the Union,
the exclusive representative of Respondent's employees, an opportunity
to be present; /1/ (b) on or about September 13, 1984 Respondent, via a
management official, unilaterally changed working conditions of a unit
employee by reassigning said employee to Fire Station 2 without first
notifying the Union and affording it an opportunity to negotiate re the
implementation of the change and its impact on unit employees; (c) on
or about September 13, 1984 Respondent permanently reassigned Howard
Wright to Station 2 because he engaged in protected union activity on
behalf of the Union; (d) on or about May 2, 1984 Respondent, via a
management official, made statements to a unit employee to the effect
that he would be disciplined or subject to reprisal because he engaged
in protected union activity -- all in violation of Section 7116(a)(1),
(2), (5) and (8) of the Statute.
Respondent's Answer dated January 23, 1985 denied the aforesaid
allegations as well as the commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered. /2/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and is now, the
exclusive representative of all civilian employees of the Fire
Protection Branch, 63rd Civil Engineers Squadron of Respondent with
specified exclusions from said unit.
2. Both the Union and Respondent are parties to a written collective
bargaining agreement entered into in January 18, 1982. /3/ The said
agreement provides, inter alia, as follows:
Article 19
Section 6
The Employer and Union agree that any discussion or meeting
between stewards and supervisors shall generally be with
supervisors up to and including the second-level supervisor.
Discussions or meetings with the supervisors above the
second-level (or management officials) will normally be restriced
to officers of the Union. Officers may be accompanied by the
appropriate steward at such meeting if determined necessary.
Section 8
The employer will notify the steward seven (7) days prior to
reassignment to another organization.
3. Since 1974 Howard Wright has been employed by Respondent as a
firefighter. He was made steward of the Union in 1981, and on February
15, 1983 Wright was designated as unit vice-president for the Union.
4. Until 1984, and for about six years, Wright worked at Fire
Station #1 where he was assigned to the primary rescue crew which was
responsible for protecting life and property. As a firefighter in that
unit Wright was required to know all rescue procedures, and he underwent
continuous training in structural and aircraft emergencies. In order to
obtain a layout of buildings he was required to pre-fire plan buildings,
to learn where chemicals were stored and what hazards existed therein.
Wright also received medical training at that station. He was required
to maintain equipment, clean the station and cut the grass.
5. In his capacity as union representative, Wright filed grievances
for employees as well as unfair labor practice charges. He became
involved in membership drives and negotiations on implementing the Air
Force Regulations. Wright was the only representative at Norton Air
Force Base for the local union. /4/
6. On November 6, 1983 Wright spoke to Chief Arnold, a management
official, and complained that details of employees were not being
distributed or assigned in an equal manner.
7. A series of communications between the Union and Respondent
ensued as to whether Wright's complaint was in fact a grievance and
properly brought to management's attention. The Union felt that Wright
had "grieved" about the inequity of detail assignment, and that
Respondent was avoiding its obligation to negotiate the matter.
Respondent did not deem the oral complaint or subsequent correspondence
to constitute a grievance as required under the collective bargaining
agreement. /5/
8. In a letter dated January 27, 1984 the Union filed a grievance
with Respondent concerning the allegation that details were being
assigned in an inequitable manner.
9. A reply letter dated February 27, 1984 /6/ was written by
Commander George W. Hillyer III to Union President Callaway. It was
stated therein that management attempted to assign details in an
equitable manner; that Respondent could not take Wright off all details
and extra duties as he requested; that it could not expunge the records
of any action taken against him by chiefs Arnold or Smith; that
disciplinary action would not be taken against the management officials.
10. In an attempt to resolve the grievance Wright met with Smith on
April 4, in accord with Step II of the grievance procedure. Thereafter,
by letter dated April 9, Smith denied Wright's grievance. The Fire
Chief termed this his final decision, and he deemed the matter to be
resolved.
11. By letter dated April 22, addressed to the Wing Commander and
hand delivered, Wright requested 10 days extension to move his grievance
to the next step of the grievance procedure.
12. Record facts show that shortly thereafter the Base Commander
called Smith re the extension request made by Wright. The Base
Commander was disturbed because the request had mistakenly been
addressed to the Wing Commander, and he told Smith that the Wing
Commander was upset because of its misdirection. Further, Donald
Larsen, Chief of Labor and Employee Management Relations for Respondent,
testified that the Base Commander also called him and stated that the
Wing Commander was upset due to the misdirected request. Larsen then
phoned Smith and related the fact that the extension request was sent to
the Wing Commander in error, and he said they had a problem with Wright
not following the requirements of the contract.
13. On May 2 Wright called Larsen to ascertain whether his extension
request had been granted. He was told it was rejected. Later than
morning Wright was told to report to Deputy Fire Chief Turner's office.
He did so and was informed Smith wanted to speak with him. A meeting
then took place in Smith's office which was attended by Turner, Wright
and Fire Chief Smith.
14. At the outset of the meeting on May 2 Smith told Wright he
didn't appreciate the latter calling him a liar. The employee denied
doing so. Smith then referred to the request for a grievance extension
made by Wright; that how the Wing Commander "chewed out" the Base
Commander who "chewed out" Larsen, and that the latter "chewed out"
Smith. The Fire Chief then stated that Wright was at the bottom of the
ladder and if he's going to "stir shit", plan on getting some on
himself. /7/
Smith asked Wright what he could do to resolve the grievance. The
employee replied that there should be an equal distribution of details.
The Fire Chief then inquired as to the vehicles Wright was trained to
drive at Station 2 and whether he was trained on P2D and P-13. The
employee acknowledged that both were on his license. When asked as to
P-15, Wright replied that such vehicle was not on his license. Smith
said he would be sending Wright to Fire Station 2 for P-15 training and
have it put on his license. The employee did not respond. Then Smith
asked Wright how much notice must be given before transferring the
latter to Station 2, and the employee said "two weeks." /8/
15. Turner sent a memo dated May 3 to Assistant Chief Arnold which
recited that effective May 13 Wright would be assigned to Fire Station 2
for duties.
16. Wright reported to Fire Station 2 on May 13. He worked a few
days but was involved in a motorcycle accident on May 18. After being
off for several months due to the accident, Wright was released for
work. Upon directions from Smith, the employee reported to Station 1 on
August 20 where he worked for several days as a driver on the primary
rescue crew, his usual position. Wright reported to Station 2 on August
26 as directed by Arnold. On September 13 Sgt. Ebert informed Wright
that after the latter completes his P-15 training he would be
permanently assigned to Station 2 as primary driver on that vehicle.
The transfer was made permanent on September 13.
17. Both parties stipulated that Respondent did not notify the
Union's president, Del Mar Callaway, of the permanent assignment of
Wright to Fire Station 2 on September 13.
18. By letter dated September 17 the Union requested that Respondent
meet and bargain re the change in Wright's condition of employment, i.e.
the transfer from Fire Station 1 to Fire Station 2.
19. In a reply letter dated September 21 Respondent notified the
Union that Wright's transfer was not considered a change in condition of
employment since he still performed duties of a GS-081-05 Fire Fighter.
Further, it was stated the transfer was effected on May 13 as an
employer right, and that the transfer did not affect Wright's
representational duties.
20. Record facts show both fire stations are located about
three-fourths of a mile from each other. Employees are rotated between
stations on a daily basis, although only about six permanent transfers
are made per year. Of the 19 bargaining unit employees there are more
located at Station 2. The rescue mission at Station 1 requires that the
employees be skilled in various aspects of fire service and a
self-development program was in effect to that end. More knowledge of
aircraft is required of employees at Station 2.
21. There are about 12-13 vehicles in the fleet at the fire stations
and two shifts are in operation thereat. The rescue truck (P-10) has
three people per shift assigned thereto. The P-15 is a million dollar
fire truck, which is big and bulky, and is strictly a crash-rescue
vehicle. All drivers are required to be qualified on all vehicles.
Wright was the only driver not qualified to drive the P-15. Inspections
in regard to proficiency are made by outside agency personnel on a
routine basis.
22. Fire Station 1 acts as a delivery service for the fire
department since it is on the main base and has access to most areas
needing attention. Fire Station 2 is a more restricted area. It is on
the flight line and the noise level is quite high. The record indicates
Wright could come and go while at Station 1 with relative ease so as to
visit the base and expand his knowledge of what happened thereat. At
Station 2 he was quite confined although it appears he could leave if
official time was requested. /9/ On at least two days of each week,
Monday and Wednesday, Station 1 employees come over to Station 2 for
training. All of the fire station employees eat meals at the same
location.
Conclusions
The principal issues for determination herein are as follows:
1. Whether Respondent conducted a formal discussion on May 2,
1984 and failed to provide the Union with an opportunity to by
represented thereat -- all in violation of Section 7116(a)(1) and
(8) of the Statute.
2. Whether statements made by Respondent's representative to
Wright on May 2 constituted a violation of Section 7116(a) of the
Statute.
3. Whether Respondent transferred or reassigned Wright from
Station 1 to Station 2 because of his protected activity in
violation of Sections 7116(a)(1) and (2) of the Statute.
4(a). Whether the allegation of a violation of 7116(a)(5),
based on a unilateral change in Wright's employment conditions,
due to Respondent's transferring him from Station 1 to 2, was
untimely under Section 7118(a)(4) of the Statute.
(b). If not untimely, whether the transfer or reassignment of
Wright was a unilateral change effected without notifying the
Union and affording it an opportunity to bargain thereon -- all in
violation of Section 7116(a)(1) and (5) of the Statute.
(1) Respondent takes the position that its meeting with Howard Wright
on May 2 was not "formal" within the meaning of Section 7114(a)(2)(A) of
the Statute. It contends that said discussion was an informal attempt
to discuss resolution of a grievance already denied.
The aforesaid section of the Statute provides for representation by
an exclusive representative of unit employees at any formal discussion
concerning any greivance or any personnel policy or practices or other
general condition of employment. The obvious purport of the term
"formal" is to preclude requiring union representation at casual
meetings or discussions. In the case at bar the employee was called to
the office by management, the discussion was held with two of the chief
supervisors of Respondent, and it was admittedly for the purpose of
discussing and/or resolving the employee's grievance. Thus, as the
record reflects, Chief Smith initiated the discussion by asking Wright
what could be done to resolve the grievance. Further, the subsequent
remarks centered around the manner in which the grievance extension had
been filed.
It seems quite clear that discussions which center around a grievance
already filed, which are initiated by management, are "formal" within
the aforesaid statutory language. While distinguishing such provision
from 7114(a)(2)(B) of the Statute, the Authority has recognized that
discussions re a grievance, which has been filed under the negotiated
grievance procedure, comes within the purview of 7114(a)(2)(A). In such
instances the discussions are deemed formal in nature and mandate that
an agency provide for union representation thereat. See Department of
Health and Human Services, Social Security Administration, 18 FLRA No.
7; Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region. 10 FLRA No. 36.
In asserting that no formal discussion occurred on May 2, Respondent
lays stress upon the Authority's decision in Department of the Air
Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 17 FLRA
No. 124. Although adhering to the standards for determining when a
union's rights attach under 7114(a)(2)(A) of the Statute, the Authority
held in the cited case that a meeting with an employee was not "formal"
as contemplated by the statutory language. It emphasized the fact that
the meeting with the employee concerning his grievance was held with a
first-level supervisor, with no other management officials present;
that the meeting was called informally and not scheduled in advance.
There are, however, notable distinctions between the facts present
herein and those involved in the cited case. Firstly, the meeting with
Wright was held with two management officials: the Base Fire Chief and
the Deputy Chief. Thus the discussion was not one merely with a
first-level supervisor. Moreover, the discussion concerning Wright's
grievance was not called informally. Record facts show it was
pre-arranged and not an impromptu or casual meeting. /10/ Thus, Smith
testified as follows in response to a query as to what transpired
thereat:
"Well, primarily I wanted to talk to Howard about a particular
grievance that's been going on for some time. I wanted to find
out what we had to do to resolve it to everyone's satisfaction so
that we could get about other things, basically.
"Howard's problem was with the details. Chief Turner had
another problem. In between the two we made a basic resolution
that Mr. Wright, to get out from under the pressure of the
details, go to Station 2 . . . " (Tr. 108, 109) (Emphasis
supplied).
The foregoing testimony, in addition to the content and manner of the
discussion, convinces me that the discussion re Wright's grievance is
distinguishable, at least, from the Ogden Air Logistics Center, Hill Air
Force Base, Utah case, supra. Further, that the discussion which the
management officials had with Wright concerning his grievance on May 2
was formal within the meaning of 7114(a)(2)(A) of the Statute.
In view of certain recent decisions by the Authority, consideration
has been given by the undersigned as to whether the Union was in fact
represented at the May 2 discussion re Wright's grievance. Thus, the
Authority has held that it is not always necessary for an agency to
notify union representatives in advance of a formal discussion. It is
only necessary that an exclusive representative "be given the
opportunity to be present." Accordingly, if union representatives do in
fact attend such discussions, no inquiry will be made as to how they
were notified or happened to be in attendance. No notice need be given
to a union qua union. Where, in such instances, a shop steward or
vice-president of a union attended such discussions, no violation
existed even though notice was not sent to the union itself. Department
of the Treasury, U.S. Customs Service, Miami, Florida, 19 FLRA No. 126;
Veterans Administration, Veterans Administration Medical Center,
Muskogee, Oklahoma.
Despite the fact, however, that Wright was the vice-president of the
Union herein, it would defy the bounds of logic to conclude that the
Union was represented during the discussion with the employee concerning
his grievance. Such a conclusion would be equatable with determining
that a defendant has received legal representation because he is also a
lawyer; that therefore his attorney cannot represent him.
In the case at bar the Union did not receive notification of the
meeting or discussion which concerned Wright's grievance. As the
exclusive representative of the unit employees its concerns, as well as
any presentation to Respondent at the said discussion, might well differ
from those advanced by the employee on his own behalf. In this respect
Wright cannot be compelled to wear two hats at the same time so as to
permit management to avoid its obligation under 7114(a)(2)(A) of the
Statute. Thus, reason compels the conclusion by the undersigned that
Respondent violated Section 7116(a)(1) and (8) by failing to afford the
Union an opportunity to be represented at the formal discussion on May 2
concerning employee Wright's grievance.
(2) Under section 7116(a)(1) of the Statute it is specifically stated
that it is an unfair labor practice for an agency "to interfere with,
restrain, or coerce any employee in the exercise of any right under this
chapter." General Counsel insists that the remarks made by Fire Chief
Smith to Wright on May 2, at the meeting in the former's office, were
coercive in nature and hence violative of the said statutory
proscription. It is argued that the statement to Wright regarding his
being at the bottom of the ladder and "if you're going to stir up shit,
plan on getting some on you" referred to the grievance filed by the
employee and the attendant request by Wright for a grievance extension.
Employees are afforded the right to engage in protected activity
without infringement thereon by an agency. They are entitled to engage
in such activity freely and without fear of penalty or reprisal
therefor. It is also well established that such protected activity
includes the processing of a grievance. Federal Election Commission, 6
FLRA No. 59; Bureau of Alcohol, Tobacco and Firearms, Chicago,
Illinois, 3 FLRA No. 116.
Turning to the case at bar, I am not persuaded that Smith's
statements to Wright constituted an interference with the latter's
protected activity or were coercive in nature. While it is true that
Smith initiated the discussion by inquiring how to resolve the
grievance, his subsequent comments re "stirring up shit" were not
referable to Wright's filing or processing the grievance. The basis for
Smith's intemperate use of language and remarks to Wright stemmed from
the misdirection of the request of extension for pursuing the grievance,
and this was admitted by Wright at the hearing. The Wing Commander's
irateness was due to the fact that the request was made to him, and he
"chewed out" the Base Commander. Thereafter each subordinate supervisor
was the recipient of some censure until it reached Wright who was at the
bottom of the ladder. There is no indication that management sought to
interfere with, or forestall, the processing of the grievance. The
record supports the conclusion that Smith, who had been "chewed out"
also, was likewise upset because the grievance extension had been sent
to the wrong person. Thus I conclude that the statements made by Smith
to Wright on May 2 were not intimidating in nature. They neither
suggested any reprisal for requesting a grievance extension nor implied
that Wright would suffer consequences for continuing to process same.
/11/ I conclude said statements by Smith did not violate 7116(a)(1) of
the Statute.
(3) It is well established that the burden is on the General Counsel
to make a prima facie showing that an employee became engaged in
protected activity, which was known to management, and that such conduct
was a motivating factor in any action taken against said individual.
Internal Revenue Service, Washington, D.C., 6 FLRA No. 23. In the case
at bar, General Counsel contends that the filing of a grievance by
Wright, and his continued attempt to process it further, motivated
Respondent in transferring the employee from Station 1 to Station 2.
While the transfer of Wright may give rise to suspicion in respect to
the basis therefor, I am not persuaded that a prima facie case of
discrimination has been proven. The record reflects that Wright was not
prevented or hindered in the filing of the grievance re the assignment
of details. Although the grievance had been rejected through Step 2, it
had been processed in the normal manner and in accordance with Section
10 of the collective bargaining agreement. Moreover, it also appears
that Wright had, in his capacity as a union representative, filed
grievances and unfair labor practice charges in the past without
interference, or intimidatory conduct, on the part of management.
It is urged that Smith's remarks to Wright on May 2 demonstrate that
the exercise of protected activity by the union vice-president was the
motivating factor in his transfer. Thus, General Counsel adverts to the
statement by the Fire Chief to Wright: "if you're going to stir up
shit, plan on getting some on you." However, the record supports the
finding that this comment referred to the fact that the request for an
extension to pursue the grievance was misdirected. The Wing Commander
was upset because he felt the request should have been made elsewhere.
His "chewing out" of the Base Commander resulted in the latter doing the
same to his subordinate until, as Smith commented, it reached Wright who
was at the bottom of the ladder. The testimonies of both Smith and
Wright lend credence to the conclusion that the aforesaid comment did
not refer to the processing of the grievance by Wright. There is no
indication that the statement by Smith on May 2 was an attempt to thwart
processing of the grievance which the employee filed. It was, as Wright
conceded at the hearing, referable to the disturbance caused by sending
the requested extension to the wrong person. As such, I do not conclude
that it evinces discriminatory intent on the part of management.
General Counsel also points to the fact that no mention of
transferring Wright had been broached prior to May 2; that the employee
did not request the transfer; and that it developed only after the
discussion re the grievance on that date. While the timing of the
decision to make the reassignment might be deemed suspect, sufficient
basis did exist for management's actions to dispel such suspicion.
Wright had been trained on almost all vehicles except the P-15 truck,
and this training was a necessary part of a firefighter's job. His
reassignment to Station 2 for such training was not a unique action
since others had been assigned or detailed in the past to said station
for a similar purpose. While the permanency of Wright's assignment may
not have been in accord with the employee's wishes, the decision of
management to take such action does not warrant an inference that it was
effected in retaliation for Wright's zeal in pursuing his grievance.
Although contacts with fellow employees in respect to grievances or
union matters may have been somewhat more difficult due to his new
location, it does not appear that Wright was prevented or thwarted from
such activities by Respondent. Accordingly, I conclude the reassignment
of Wright to Station 2 was not discriminatory and violative of
7116(a)(1) and (2) of the Statute.
(4)(a). It is contended by Respondent that the alleged violation of
7116(a)(5) by Respondent, as set forth in the amended charge filed on
December 31, 1984, was untimely. This contention is posited on the
assertion that the reassignment of Wright to Fire Station 2 took place
on May 13, 1984. Thus, Respondent insists, the amended charge raised a
new cause of action which was filed more than six months after the
conduct alleged, i.e., the reassignment of Wright as a unilateral act
and refusal to bargain.
Section 7118(a)(4)(A) states that " . . . no complaint shall be
inssued based on any alleged unfair labor practice which occurred more
than six months before the filing of the charge with the Authority."
This statutory proscription was clearly structured in line with Section
10(b) of the NLRA. Its intent was to prevent the litigation of stale
charges wherein the recollection of witnesses may be clouded, witnesses
not readily available, and documents not at hand. See Lower Colorado
Dams Project, Water and Power Resources Services, 14 FLRA No. 81.
Moreover, it is well settled that the purpose of the charge is merely to
set in motion the machinery of an inquiry. NLRB v. Faut Milting Co.,
360 U.S. 301 (1959).
In the case at bar I am not convinced that the amended charge, filed
on December 31, 1984, raised a new cause of action as averred by
Respondent. Both the original charge, filed on September 18, 1984, and
the amended charge alleged that Wright was reassigned on September 13,
1984; that such reassignment changed his working conditions and had an
adverse impact on the employee; and isolated him from bargaining unit
employees in respect to his representational duties. Thus, there is
reference to the reassignment of Wright and to the change in his working
conditions in the charges. The addition of an (a)(5) in the amended
charge did not change the cause of action. Moreover, the Authority
recognized that the General Counsel's authority in issuing a complaint
need not be limited to the strict confines of the charge; that the
charge merely sets in motion the machinery of an investigation. U.S.
Geological Survey, Conservation Division, Gulf of Mexico Region, 9 FLRA
No. 65. /12/
(4)(b). It is contended by General Counsel that the transfer of
Wright to Fire Station 2 required notification be given to the Union,
and that the latter be afforded an opportunity to bargain re the
implementation of the change and its foreseeable impact on unit
employees. Having failed to do so, it is urged that Respondent violated
7116(a)(1) and (5) of the Statute. Respondent, conceding that prior
notice was not given the Union of the assignment, insists that the
transfer resulted in no more than a de minimis impact; that, under such
circumstances, it was not obligated to notify the Union and bargain as
to the change.
In its latest rationale concerning the issue of whether the impact of
a unilateral change in working conditions warrants bargaining, the
Authority has concluded that certain factors should be considered. In
Department of Health and Human Services, Social Security Administration,
Region V, Chicago, Illinois, 19 FLRA No. 101 it looked to: the nature
of the change (e.g. the extent of the change in work duties, location,
office space, hours, loss of benefits or wages and the like); the
temporary, recurring or permanent nature of the change (i.e., duration
and frequency of the change affecting unit employees); the number of
employees affected or foreseeably affected by the change; the size of
the bargaining unit; and the extent to which the parties may have
established through negotiation or past practice procedures and
appropriate arrangements concerning analogous changes in the past, in
determining that the impact, or reasonably foreseeable impact, of the
change was not more than de minimis and thus did not give rise to a duty
to bargain re procedure and appropriate arrangements.
Subsequent to the cited case the Authority has found certain
unilateral action taken by management to have a de minimis impact on
employees in light of the new standards promulgated. Thus, in
Department of Housing and Urban Development, Columbia Area Office,
Columbia, South Carolina, 20 FLRA No. 31 it held that although the work
positions and duties of two employees had been altered, the impact was
de minimis. It predicated that conclusion on the fact that said
employees remained in Columbia, South Carolina, their pay and grade were
not affected, and the change by management only affected two employees.
Further, where the change in working conditions resulted in assigning
extra duties to employees, ordinarily performed by others, the Authority
concluded the impact was nevertheless de minimis. Department of
Transportation, Federal Aviation Administration, Washington, D.C., 20
FLRA No. 53. The Authority was influenced by the fact that the nature
of the duties was substantially the same as performed by the affected
employees previously; that no change occurred to any measurable degree
in the time required by the employees to complete their duties; that no
different skill or experience was needed to handle such added work; and
the employees were part of a nationwide unit of 8000 employees. /13/
Applying those standards to the case at bar, I am constrained to
conclude that the foreseeable impact of the change effected herein must
be termed de minimis. The transfer of Wright to Fire Station 2 from
Fire Station 1 caused a change in location of less than one mile. While
he drove a P-15 fire truck which was larger than the rescue vehicle
driven by Wright at Station 1, the nature of his duties at both stations
involved driving fire-fighting vehciles. Neither his pay nor grade was
changed by virtue of the transfer, and there is no showing his hours
were modified or altered. Although General Counsel adverts to the
difficulty imposed upon Wright in communicating with employees due to
the fact that Station 2 was not easily accessible to personnel, it
appears that the union vice-president could have left that area and
represented employees on official time. The record also reflects that
since 1980 Respondent has made transfers of personnel and issued copies
of memos directing such action to each individual, but it does not
appear that notification was given to the Union in respect thereto.
Based on the foregoing, including the fact that the reassignment
involved only one employee -- with no apparent impact on other unit
employees -- I conclude the change was de minimis. Accordingly, I find
Respondent was under no obligation to notify the Union and afford it an
opportunity to request bargaining, and its failure to do so did not
violate 7116(a)(1) and (5) of the Statute.
Having concluded that: (a) Respondent did not interfere with,
restrain, or coerce Howard Wright in violation of 7116(a)(1) of the
Statute by virtue of the statements made to the employees on May 2, 1984
by Fire Chief Smith; (b) Respondent did not permanently transfer or
reassign Howard Wright from Fire Station 1 to Fire Station 2 on
September 13, 1984 because of his exercise of protected activity in
violation of 7116(a)(2) of the Statute; (c) the failure by Respondent
to notify the Union of the said transfer or reassignment, and afford it
an opportunity to bargain re the impact and implementation thereof, did
not constitute a violation of 7116(a)(5) of the Statute -- it is
recommended that such allegations in the complaint (paragraph 9, 10, and
11) be dismissed.
Having concluded that Respondent violated Section 7116(a)(1) and (8)
of the Statute by conducting a formal discussion with employee Howard
Wright concerning his grievance without affording the Union an
opportunity to be present as required by Section 7114(a)(2)(A) of the
Statute, and thus violated Section 7116(a)(1) & (8) of the Statute, it
is recommended that the Authority issue the following:
ORDER
Pursuant to Section 7118 of the Statute and Section 2423.29 of the
Rules and Regulations, it is hereby ordered that the Department of the
Air Force, 63rd Civil Engineers Squadron, Norton Air Force Base,
California, shall:
1. Cease and desist from:
(a) Failing to give the employees' exclusive representative,
American Federation of Government Employees, Interdepartmental
Local 3854, AFL-CIO, prior notice of, and an opportunity to be
represented at, formal discussions with bargaining unit employees
concerning grievances, personnel policies and practices or other
general conditions of employment.
(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:
(a) Post at its facilities, 63rd Civil Engineers Squadro;,
Norton Air Force Base, California, 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 and shall be posted and maintained by him 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.
(b) Notify the Federal Labor Relations Authority in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply therewith.
IT IS FURTHER ORDERED that the remaining allegations of the complaint
in Case No. 8-CA-40473 be, and they hereby are, dismissed.
/s/ WILLIAM NAIMARK
WILLIAM NAIMARK
Administrative Law Judge
Dated: November 13, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) It is alleged that by this conduct Respondent refused to comply
with 7114(a)(2)(A) of the Statute in that the exclusive representative
was not afforded an opportunity to be present at said meeting which
constituted a formal discussion.
(2) Subsequent to the hearing several motions were filed with the
undersigned. Respondent moved for the consideration by the
Administrative Law Judge of additional citations of cases decided by the
Authority. The Charging Party moved for the consideration by the
Administrative Law Judge of two provisions of the negotiated agreement
between Respondent and the Union. No objection having been interposed
by either party, the motions are granted. The cited matters have been
considered by the undersigned.
(3) Although the agreement was entered into by AFGE, Local 1953,
AFL-CIO, the Union herein, which succeeded to Local 1953 as the
representative of the unit employees, is admittedly bound by its terms.
(4) The President of the Union, Del Mar Callaway, is located at March
Air Force Base, near Edgemont, California.
(5) Section 10 of the collective bargaining agreement is entitled
GRIEVANCE PROCEDURE (Resp. Exhibit 1). It provides for the submission
of a grievance by a concerned employee to the first-level supervisor
either orally or in writing as Step 1. The grievance must be submitted
within 15 days of the incident or the date on which the employee or
Union became aware thereof.
(6) All dates hereinafter mentioned, unless otherwise specified,
occurred in 1984.
(7) Smith admits to making the statement that if Wright "stirred up
shit" some would get on that employee. He testified that this referred
to Wright's misdirecting correspondence and sending it to the wrong
people; that there was no intent to stop the employee from processing
his grievance. Wright's testimony confirms the fact that Smith's
comment re "stirring up shit" was in reference to the misdirected
request for grievance extension.
(8) There is a disparity between the testimonies of Wright and Smith
in regard to whether certain other statements were made at this May 2
meeting. Thus, Smith testified that all participants, including Wright,
agreed to the transfer of the employee to Station 2; that he asked
Wright how the transfer suited him and the employee stated "it would be
fine." Wright denies that he accepted the transfer. Turner, who was
present at the meeting, did not testify. The version as recited by
Wright is credited. Apart from the fact that Turner did not testify at
the hearing, Smith's testimony reflects that Turner made the decision
and that Wright did not seek or request a transfer. Moreover, Smith's
recollection, as he acknowledged, was somewhat deficient.
(9) Wright was not denied official time to represent unit employees.
However, Wright testified he could not communicate with employees who
did not have clearance to visit Station 2; that he was therefore
unaware of a campaign by a rival union to take over the units
represented by the Union herein.
(10) Note is taken of the decision by the U.S. Court of Appeals for
the District of Columbia Circuit in National Treasury Employees Union v.
Federal Labor Relations Authority, No. 84-1493, October 11, 1985
(renewing 15 FLRA No. 87). The Court stated therein that lack of notice
and formal agenda, as relied upon by the Authority, do not always
correlate with spontaneity and thus mere absence of notice or an agenda
will not necessarily indicate that a meeting is not "formal."
(11) The undersigned is mindful of the adopted standard to determine
whether a statement by management constitutes interference, restraint
and coercion, as set forth in Federal Mediation and Conciliation
Service, 9 FLRA No. 31. However, I am of the opinion that Smtih's
remarks would not reasonably tend to coerce or intimidate Wright; that
the latter was made aware that the statements were not related to his
pursuing the grievance or engaging in protected activity; and that the
circumstances negate any inference which might be drawn as to a coercive
intent.
(12) The statute of limitations would not apply, in my opinion, even
if the alleged refusal to bargain were raised for the first time in the
amended charge filed on December 31, 1984. I agree with General Counsel
that the transfer of Wright to Station 2 occurred on September 13, 1984
and not on May 13, 1984, and therefore the allegation of (a)(5) was
timely under both charges. The record reflects the assignment of Wright
in May was to train on the P-15 vehicle; that the transfer of Wright to
Station 2 as a permanent employee occurred on September 13.
Accordingly, the conduct complained about in the amended charge as well
as the original charge -- (a)(5) -- took place within six months of the
filings thereof.
(13) See also U.S. Department of Housing and Urban Development,
Washington, D.C. Area Office, 20 FLRA No. 38 where the Authority held
the transfer of three employees to be de minimis, relying on the fact
that it was for a temporary, albeit extended, period; that the duties
remained the same, and the change involved only a few employees.
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 to give the employees' exclusive representative,
American Federation of Government Employees, Interdepartmental Local
3854, AFL-CIO, prior notice of, and an opportunity to be represented at,
formal discussions with bargaining unit employees concerning grievances,
personnel policies and practices or other general conditions of
employment.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(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 this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 8,
whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles,
CA 90071, and whose telephone number is: (213) 688-3805.