[ v25 p661 ]
25:0661(54)CO
The decision of the Authority follows:
25 FLRA No. 54
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2924, AFL-CIO
(UNITED STATES AIR FORCE,
DAVIS-MONTHAN AIR FORCE BASE,
TUCSON, ARIZONA)
Respondent
and
A. Elayne Severson,
An Individual
Charging Party
Case No. 8-CO-50011
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in this
case 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 from those practices and take certain
affirmative action. The Respondent filed exceptions and the Charging
Party filed a cross-exception to the Judge's decision. The Charging
Party and the General Counsel filed oppositions to the Respondent's
exceptions, and the Respondent filed an opposition to the Charging
Party's cross-exception.
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), we have reviewed the rulings that the Judge made
at the hearing, and we find that no prejudicial error was committed.
The rulings are affirmed. Upon consideration of the Judge's decision,
the exceptions to that decision, the oppositions to exceptions, and the
entire record, we adopt the Judge's findings, conclusions, and
recommended order with a slightly modified notice.
ORDER
The American Federation of Government Employees, AFL-CIO, Local 2924
shall:
1. Cease and desist from refusing and/or failing to bargain in good
faith with the Davis-Monthan Air Force Base, Tucson, Arizona, by
refusing to execute a written document embodying the terms of a
negotiated collective bargaining agreement agreed to on or about March
27, 1984.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request execute a written document embodying the terms of a
negotiated collective bargaining agreement agreed to on or about March
27, 1984, with the Davis-Monthan Air Force Base, Tucson, Arizona.
(b) Post at all its locations within the Davis-Monthan Air Force
Base, Tucson, Arizona, 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 the President of Local 2924 and
shall be posted and maintained by him 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII in writing,
within 30 days from the date of this Order, as to what steps have been
taken to comply.
Issued, Washington, D.C., February 12, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES AS ORDERED BY THE
FEDERAL
LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE PURPOSES OF
THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR
MEMBERS AND
OTHER EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the Davis-Monthan
Air Force Base, Tucson, Arizona, by refusing to execute a written
document embodying the terms of a negotiated collective bargaining
agreement agreed to on or about March 27, 1984.
WE WILL upon request, execute a written document embodying the terms
of a negotiated collective bargaining agreement agreed to on about March
27, 1984, with the Davis-Monthan Air Force Base, Tucson, Arizona.
(Labor Organization)
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 VIII,
whose address is: 350 South Figuora St., 10th Floor, Los Angeles,
California 90071 and whose telephone is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 8-CO-50011
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2924, AFL-CIO (UNITED STATES AIR FORCE,
DAVIS-MONTHAN AIR FORCE BASE, TUCSON, ARIZONA)
Respondent
and
A. ELAYNE SEVERSON, An Individual
Charging Party
Deborah S. Wagner, Esquire For the General Counsel
Major Charles Beckenhauer For the Charging Party
Stanley Lubin, Esquire For the Respondent
Before: BURTON S. STERNBURG 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.
Section 7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on January 31, 1985, by A. Elayne
Severson, Chief, Labor and Employee Management Relations Section,
Davis-Monthan Air Force Base, Tucson, Arizona (hereinafter referred to
as Ms. Severson or Charging Party), a Complaint and Notice of Hearing
was issued on November 26, 1985, by the Regional Director for Region
VIII, Federal Labor Relations Authority, Los Angeles, California. The
Complaint alleges that the American Federation of Government Employees,
Local 2924, AFL-CIO (hereinafter referred to as the Respondent or the
Union), violated Sections 7116(b) (5) and (8) of the Federal Service
Labor-Management Relations Statute, (hereinafter referred to as the
Statute), by virtue of its action in refusing to execute a written
document embodying the agreed upon terms of a collective bargaining
agreement.
A hearing was held in the captioned matter on February 27, 1986, in
Tucson, Arizona. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The respective representatives
of the General Counsel, Respondent and Charging Party submitted post
hearing briefs on April 24, 1986, which have been duly considered. /1/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union is the exclusive representative of three separate units of
employees serviced by the Central Civilian Personnel Office,
Davis-Monthan Air Force Base, Tucson, Arizona. The Union and the Air
Force Base had executed a collective bargaining contract in October
1980, which was applicable to the three units of employees represented
by the Union. Inasmuch as the collective bargaining contract was due to
expire in October 1983, the parties in the summer of 1983 commenced
preparations for the negotiation of a new collective bargaining
agreement. On July 15, 1983, Mr. Michael Coiro, then President of AFGE
Local 2924, and Ms. Severson signed off on the gound rules for the
negotiations which provided in pertinent part as follows:
IV Maintenance of Records: As agreement is reached on an
article each spokesman will initial the other spokesman's copy to
signify tentative agreement to accept a proposal. Any tentative
agreement to accept a proposal shall be binding only upon the
acceptance of the final agreement. The Employer agrees to provide
the Union with a typewritten copy of agreed upon Articles. A
Master copy of each proposal agreed upon will be initialed by both
spokes-persons and maintained by the Employer. /2/
The parties exchanged proposals on August 13, 1983 and bargaining
thereon commenced in September, 1983. By the end of September the
parties had reached agreement on all but eight Articles. As each
article was agreed upon the parties in accordance with the ground rules
would affix their respective initials to their own and the other side's
copy of the article. The initials would be that of the person acting as
chief spokesman. At all times Ms. Severson was the chief spokesman for
management, while Mr. Coiro and Mr. Margosian individually acted at
different times as the chief spokesman for the Local Union.
In December 1983, the parties met with a Federal mediator for
purposes of working out an agreement on the eight remaining proposals.
By December 22, 1983 the parties with the help of the mediator initialed
off on five of the eight remaining proposals. /3/ Included among the
provisions of the contract agreed to on December 22, 1983 were Article
26 Union Representation and Official Time and Article 27 Grievance
Procedure. It is these latter two provisions which are the basis of the
instant dispute between the parties. /4/
On February 7, 1984, Ms. Severson met with Mr. Margosian for purposes
of proofreading those sections of the proposed contract upon which
agreement had been reached and to number such provisions in order to
prepare a table of contents.
According to Mr. Margosian on February 7, 1984, he was not presented
with copies of the two disputed provisions dealing with the grievance
procedure and union representation. Further according to Margosian,
upon inquiring about same, Ms. Severson informed him that management was
having trouble with its word processor and that her secretary was out on
sick leave. Ms. Severson testified, contrary to Mr. Margosian, that
copies of the two disputed provisions were given to Mr. Margosian that
day and points to Mr. Margosian's initials deleting "Section 8" from the
official time provision. Mr. Margosian acknowledges that the initials
are his, but claims that he affixed them to the document on December 22,
1983. However, as noted above it was Mr. Coiro who appears to have been
the chief spokesman for the Union that day as his initials appear on the
face of the document approving same. There was no evidence in the
record showing that it was customary for anyone other than the Union's
chief spokesman for the day to sign off for the Union.
Subsequently, in the latter part of March 1984, the parties, with the
help of the Federal Service Impasse Panel reached agreement on the
remaining three provisions of the proposed contract.
On April 3 or 4, 1984, Management sent the Local Union a final typed
draft of the new contract. Several days later on April 6, 1984, Ms.
Severson met with Mr. Margosian for purposes of proofreading the draft.
At such time, Mr. Margosian took the position that the draft did not
reflect what the Union had agreed to on December 22, 1983.
Thus, according to Mr. Margosian Section 7 of Article 26 entitled
Union Representation and Official Time should read:
Section 7. The Employer agrees that the Union representatives
if otherwise in duty status shall be granted official time for the
purpose of receiving information, orientation briefing, or
training relating to matters which are of mutual concern to the
Employer and the Union.
Instead, the draft contract contained the word "may" in place of
"shall".
With respect to the draft grievance procedure, Mr. Margosian took
position that the Union never agreed to exclusion "w", which reads as
follows:
This grievance procedure will not be used for any of the
following:
(w) 5 U.S.C. 4303 and 5 U.S.C. 7512, except removals. /5/
Subsequently, on April 20, 1984, Ms. Severson sent a letter to the
Union wherein she proposed a contract signing ceremony be held on May 1,
1984. The Union declined to participate in such a ceremony and filed an
unfair labor practice charge with Region VIII alleging, among other
things, that the Air Force Base had changed the wording of the two
disputed proposals from the language that had been agreed to on December
22, 1983. The charge was dismissed by the Region on July 31, 1984. The
Union then filed an appeal. On November 13, 1984, the Regional
Director's dismissal was upheld.
Thereafter, the Air Force Base renewed its request to the Union that
a date be set for the contract signing ceremony. The Union responded by
requesting a meeting for purposes of resuming collective bargaining
negotiations for a new contract. The Air Force Base, taking the
position that a collective bargaining contract had been agreed to,
proceeded to file the charge underlying the instant complaint.
With regard to the two provisions in dispute, both Mr. Margosian and
Mr. Coiro acknowledged that their respective initials appear on the
documents that encompass the disputed proposals. However, as noted
above, they take the position that they never agreed to the disputed
provisions in the form presented to them for final signature.
According to Mr. Margosian he never saw a copy of the disputed
provisions until April 3, 1984, when he was sent a final draft of the
new contract. When he met with Ms. Severson on April 6, 1984, for
purposes of proofreading the draft contract the only thing that he had
to compare the draft with was his memory. Thus, he testified that there
"were a lot of articles that we did not get from Ms. Severson and that
was probably error on our part, was an oversight . . ."
Mr. Coiro testified that on December 15 and 22, 1983, when the two
disputed provisions were discussed the table was scattered with
documents and he had a working copy. However, he cannot remember
whether he asked Ms. Severson to sign his copy which was the usual
practice. Although he denies that the two disputed provisions reflect
the union position, he does not "recollect" whether "may" rather than
"shall" appeared in Section 7 of the Union Representation and Official
Time article and whether section "w" was in the Grievance Procedure.
According to Ms. Severson the initialed documents were not changed by
her between the time they were initialed and the time they were shown to
Mr. Margosian. Further according to Ms. Severson the Union was very
concerned about being able to grieve removals and the final grievance
procedure allowed the Union to grieve removals. Additionally the Union
was given additional hours for Union representation and training. Thus,
according to Ms. Severson, it was a package deal. Mr. Coiro
substantiates Ms. Severson's testimony that the Air Force was attempting
to make a package deal to break the impasse on the two articles.
However, the package fell through when the Air Force failed to give 500
hours for training.
Mr. Margosian, who was not the chief spokesman on December 22, 1983,
when the Union signed off on the two disputed articles, testified that
the Union wanted a broad grievance procedure and never would have agreed
to the exclusion in section "w" of the grievance procedure in return for
approximately 100 additional hours for union training.
With respect to article and/or section IV of the ground rules
concerning initialing off on agreed to provisions and the statement that
any agreement so initialed shall be tentative until acceptance of the
final agreement, both Mr. Margosian and Mr. Coiro testified that such
provision was initiated by the Air Force Base since they wanted it made
clear that any agreed to provision of the contract would not be
effective until agreement had been reached on the entire contract.
Again, according to Mr. Coiro and Mr. Margosian's testimony, until the
Union actually signed off on a formal final contract, it was at liberty
to change any provision despite the fact that it had previously
initialed off on every provision. According to the Union
representatives the provision was for purposes of allowing them to
proofread the contract. They further testified that proofreading had
been discussed with the Air Force Base in discussions concerning the
ground rules. Finally, the Union representatives testified that any
agreement was subject to ratification by the Union's Executive Board, a
fact that they, admittedly, did not convey to Ms. Severson, the Air
Force Base's chief negotiator.
Discussion and Conclusions
All parties acknowledge that resolution of the instant controversy
turns for the most part on a credibility determination. Thus, the
General Counsel and Charging Party would credit Ms. Severson's testimony
that the Union signed off on the two disputed provisions on December 22,
1983, and that there was no change in the wording of the provisions in
the final draft of the collective bargaining agreement submitted to the
Union on April 6, 1984. In such circumstances, the Union was obligated
under the Statute to sign the final agreement and its refusal to do same
violated Sections 7116(b)(5) and (8) of the Statute. Contrary to the
Union's contention, they would find no defense for the Union's action in
the ground rules. According to the General Counsel and the Charging
Party, the ground rules, particularly Section IV Maintenance of Records,
merely provides that any agreement on any single provision will be
tentative until such time as agreement is reached on all the provisions
of the contract. Once agreement is reached on the entire collective
bargaining contract the Union is obligated to sign same. Finally, with
regard to the Union's belated defense predicated upon the absence of
ratification from the Executive Board, the General Counsel and Charging
Party point out that the Union representatives, admittedly, did not
inform the Air Force Base representatives of such requirement prior to
reaching final agreement on the collective bargaining contract.
The Union on the other hand takes the position that Mr. Coiro and Mr.
Margosian's testimony to the effect that the two disputed provisions
contained in the draft submitted to the Union on April 6, 1984, were
different from what Mr. Coiro had agreed to on December 22, 1983, should
be credited. In such circumstances, they were under no obligation to
sign the draft since it did not represent what they had agreed to.
Further, the Union takes the position that the ground rules provide that
either party may renege on any provision of the contract prior to the
time they actually sign a final contract. Inasmuch as the Union had not
signed off on the final contract, it was at liberty to refuse to sign
until such time as changes were made in the disputed provisions.
Lastly, it appears to be the Union's position that since there is an
argument over the correct interpretation of the ground rules the proper
procedure would be to dismiss the complaint and settle the matter
through the grievance and arbitration machinery.
Based upon a thorough analysis of the documentary evidence, the
testimony of the respective witnesses for the various parties, and
particularly my observation of the witnesses and their demeanor, I
credit Ms. Severson's testimony that there was no alteration,
whatsoever, of the documents dealing with the "grievance procedure" and
"union representation and official time" which were initialed off on by
Mr. Coiro and Ms. Severson on December 22, 1983. In such circumstances,
I find that as of April 6, 1984, the parties had reached agreement on
every provision of the collective bargaining contract under negotiation.
Accordingly, absent some provision to the contrary in the ground rules,
the Union was obligated by Section 7114(b)(5) of the Statute to sign a
document embodying the terms of agreement. American Federation of
Government Employees, AFL-CIO, Local 3732, 16 FLRA 318.
To the extent that the union takes the position that the ground
rules, particularly Section IV Maintenance of Records, allows it, the
Union, to renege on any or all provisions agreed to prior to the actual
signing of a final contract embodying the agreed upon terms of the
collective bargaining agreement, I find such position to be untenable.
Thus, despite Mr. Coiro and Mr. Margosian's respective testimony
supporting such an interpretation of Section IV Maintenance of Records,
I note that other parts of their testimony establish that such provision
in the ground rules was proposed by the Air Force Base to rectify a
situation which arose during mid-term negotiations under the expiring
contract. Thus, according to their testimony Section IV was
incorporated into the ground rules in order to make it clear that there
would be no piecemeal implementation of the contract provisions and that
any agreement on any particular provision of the collective bargaining
contract would be tentative and unenforceable until such time as a
complete and final agreement was reached on all provisions of the
collective bargaining agreement.
Moreover to adopt the interpretation of the ground rules urged by the
Union would effectively negate Section 7114(b)(5) of the Statute and
forever deprive the Air Force Base of its right to request execution of
a written document embodying the final agreement. While it is true that
a statutory right may be waived, such waiver must be clear and
unmistakable, which is hardly the case herein. Scott Air Force Base, 5
FLRA 9; Internal Revenue Service, Midwest Regional Office, 16 FLRA 141.
Finally, although not urged by the Union in its post hearing brief, I
find that inasmuch as prior approval by the Union's Executive Board of
the contract was not announced prior to agreement on the contract the
Union's policy of ratification provides no defense to the Union's action
in failing to sign the agreed upon contract.
In view of the above conclusions and findings, I further find that
the Respondent Union violated Sections 7116(b)(5) and (8) of the Statute
by refusing to sign a written document embodying the agreed to
collective bargaining contract. Accordingly, it is recommended that the
Federal Labor Relations Authority issue the following Order designed to
effectuate the purposes and policies of the Statute.
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the American Federation of Government Employees, AFL-CIO, Local
2924 shall:
1. Cease and desist from:
(a) Refusing and/or failing to bargain in good faith with the
Davis-Monthan Air Force Base, Tucson, Arizona by refusing to
execute a written document embodying the terms of a negotiated
collective bargaining agreement agreed to on or about March 27,
1984.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request execute a written document embodying the terms
of a negotiated collective bargaining agreement agreed to on or
about March 27, 1984, with the Davis-Monthan Air Force Base,
Tucson, Arizona.
(b) Post at all its locations within the Davis-Monthan Air
Force Base, Tucson, Arizona, copies of the attached notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
president of Local 2924, and shall be posted and maintained by him
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 insure that said notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director for Region VIII, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: August 6, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In the absence of any objection, the respective Motions to
Correct Transcript filed by the General Counsel and Counsel for the
Charging Party are hereby granted.
(2) The record indicates that the aforementioned language was
different from management's original proposal in that it provides that
the tentative agreements initialed off by both parties will not be
binding until agreement is reached on the entire contract. According to
Mr. Michael Coiro one of the mainstays of the Union's bargaining
committee, the language was changed because management was concerned
about a Union attempt to implement an agreement on a piecemeal basis
during mid-term bargaining the previous year. Thus, it appears that
management wanted to make sure that any agreed upon provision would not
be implemented prior to agreement on the entire contract. Mr. Coiro was
president of the Local Union until sometime in March 1985 when he became
a supervisor. Mr. Margosian, who was vice president, then replaced him
as president of the Local Union.
(3) Mr. Coiro initialed the documents containing the agreed upon
provisions on behalf of the Union.
(4) The negotiations leading up to these disputed provisions will be
discussed infra.
(5) 5 U.S.C. 7512 concerns unacceptable work performance and 5 U.S.C.
7512 concerns adverse actions, such as down grades, transfers, RIFs,
suspensions for more than 15 days and removals.
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 SERVICES LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the Davis-Monthan
Air Force Base, Tucson, Arizona by refusing to execute a written
document embodying the terms of a negotiated collective bargaining
agreement agreed to on or about March 27, 1984.
WE WILL upon request execute a written document embodying the terms
of a negotiated collective bargaining agreement agreed to on or about
March 27, 1984, with the Davis-Monthan Air Force Base, Tucson, Arizona.
. . . (Labor Organization)
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 S. Figueroa Street, 10th Floor, Los Angeles, CA
90071 and whose telephone number is: (213) 894-3805.