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28 FLRA No. 145

438th AIR BASE GROUP (MAC)
MCGUIRE AIR FORCE BASE, NEW JERSEY

              Respondent

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1778, WILLIAM G.
BAILLIE, JR., LOCAL, AFL-CIO

              CHARGING PARTY

Case No. 2-CA-60139

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) when it bypassed the Union in dealing directly with a unit employee. He also found that the Respondent independently violated section 7116(a)(1) of the Statute because its conduct demeaned the Union and inherently interfered with the right of employees to designate and rely on the Union to represent them. The Judge recommended that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's Decision and a supporting brief. The General Counsel filed an opposition to the exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

The Respondent knew that the unit employee was being represented by the Union in the disciplinary matter. Additionally, the employee asked the Respondent directly before the meeting whether he needed the Union, and the Respondent advised him that he did not. We find, in [PAGE] agreement with the Judge, that in the circumstances of this case the Respondent violated the Statute when it bypassed the Union and dealt directly with the employee.

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 438th Air Base Group (MAC), McGuire Air Force Base, New Jersey, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain in good faith with the American Federation of Government Employees, Local 1778, William G. Baillie, Jr., Local, AFL - CIO, the exclusive bargaining representative of its employees, by bypassing designated union representatives of its employees and furnishing or delivering disciplinary decisions or other responses only to the disciplined employees.

(b) Interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute by furnishing or delivering decisions or other responses involving disciplinary proceedings directly to employees while failing to furnish same to the American Federation of Government Employees, Local 1778, William G. Baillie, Jr., Local, AFL - CIO, the designated representative of such employees.

(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Furnish or deliver all decisions or other responses involving disciplinary proceedings to designated union representatives of employees at the same time as they are furnished or delivered to employees.

(b) Post at its McGuire Air Force Base facilities, 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 Commander of the 438th Air Base Group (MAC), and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including [ v28 p2 ] 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 II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C., September 23, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p3 ]

                   NOTICE TO ALL EMPLOYEES
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
            AND TO EFFECTUATE THE POLICIES OF THE
      FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to bargain in good faith with the American Federation of Government Employees, Local 1778, William G. Baillie, Jr., Local, AFL - CIO, the exclusive bargaining representative of our employees, by bypassing designated union representatives of our employees and furnishing or delivering disciplinary decisions or other responses only to the disciplined employees.

WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute by furnishing or delivering decisions or other responses involving disciplinary proceedings directly to employees while failing to furnish same to the American Federation of Government Employees, Local 1778, William G. Baillie, Jr., Local, AFL - CIO, the designated representative of such employees.

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 furnish or deliver all decisions or other responses involving disciplinary proceedings to designated union representatives of our employees at the same time as they are furnished or delivered to employees.

                           _____________________________
                                     (Activity)

Dated: _______________ By: _____________________________
                              (Signature)    (Title)

[PAGE]

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 II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, whose telephone number is: (212) 264-4934. [ v28 p2 ]

438TH AIR BASE GROUP (MAC)
McGUIRE AIR FORCE BASE,
NEW JERSEY

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1778,
WILLIAM G. BAILLIE, JR.
LOCAL, AFL-CIO

              Charging Party

Case No.: 2-CA-60139

James A. Harper, Esq.
    For the Respondent

Reginald A. Hurdle
    For the Charging Party

Allan W. Stadtmauer, Esq.
    For the General Counsel of FLRA

Before:  SAMUEL A. CHAITOVITZ
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et. seq., 92 Stat. 1191 (hereinafter referred to as the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2410 et. seq.

A charge was filed on February 3, 1986 by American Federation of Government Employees, Local 1778, William G. Baillie, Jr. Local, AFL - CIO, hereinafter called AFGE Local 1778 and the Union, against 438th Air Base Group, McGuire Air Force Base, New Jersey, hereinafter called Respondent and 438th A.B.G. The charge was amended on March 12, 1986 [PAGE] and was again amended on April 11, 1986. A Complaint and Notice of Hearing was issued by the General Counsel of the FLRA by the Director of Region II alleging that Respondent violated Section 7116(a)(1) and (5) of the Statute by dealing directly with an employee concerning a suspension, thereby bypassing the Union. Respondent filed an Answer denying it had violated the Statute.

A hearing was held before the undersigned in Philadelphia, Pennsylvania. Respondent, Charging Party and General Counsel of the FLRA were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Post hearing briefs were filed and have been fully considered.

Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and my evaluation of the evidence I make the following:

Findings of Fact

At all times material, herein, AFGE Local 1778 has been the exclusive collective bargaining representative for a unit consisting of all appropriated fund employees serviced by the McGuire Air Force Base Civilian Personnel Office, with certain exceptions not relevant in this case. Employees of the 438th A.B.G. are included in this unit. Respondent and the Union are parties of a collective bargaining agreement dated March 30, 1984.

William Reynolds is a Flightline Aircraft Mechanic employed by Respondent and is in the unit described above represented by AFGE Local 1778.

On December 17, 1985 Reynolds was given a "Notice Of Proposal To Suspend For Twenty - One (21) Calendar Days" dated December 10, 1985. The Notice of Proposal to Suspend was based on alleged negligence which resulted in $23,671.90 damage to an aircraft and which granted Reynolds seven calendar days to respond. Reynolds executed a power of attorney to AFGE Local 1778 on December 17, 1985, immediately after receiving the Notice of Proposal to Suspend. AFGE Local 1778 did not provide Respondent with a copy of the Power of Attorney. A letter dated December 18, 1985 from Reginald Hurdle, President of AFGE Local 1778, to Patricia A. Smith, Respondent's Employee Management Specialist, confirmed a telephone conversation between Smith and Hurdle on December 17, 1985 during which Smith agreed to extend to January 3, 1986 the time to respond to the Reynolds' Notice [ v28 p2 ] of Proposal to Suspend. Hurdle, on behalf of AFGE Local 1778, wrote a letter dated January 2, 1986 to Lt. Col. Joseph Ori, Commander of the 438th Organization Maintenance Squadron, which responded to Reynolds' Notice of Proposed Suspension. Hurdle handed the response to Ori. In addition to responding to the char e this response also requested an answer within five days. 1

On January 15, 1986 during the morning Reynolds was notified to go see Ori in Ori's office. 2 While waiting outside Ori's office, Ori and Senior Master Sergeant Joseph L. Snell, Superintendent of the 514th MAW, walked by going to Ori's office, and invited Reynolds in. Reynolds asked if he needed a union representative and Snell stated that Reynolds did not need one. 3 At the meeting Ori read to Reynolds the entire "Notice Of Decision - Suspension" dated January 14, 1986 which, among other things, referred to AFGE Local 1778's January 2 written reply and advised Reynolds he was suspended for 10 days and it set forth the grievance procedure. Reynolds stated that he did not concur with the Notice of Decision. Ori gave Reynolds one copy of the Notice of Decision and Reynolds refused to sign for it. He was not given a copy for AFGE Local 1778. The meeting lasted ten minutes. AFGE Local 1778 was not notified of this meeting and was not sent a copy of the Notice of Decision.

As Reynolds left Ori's office, he bumped into Hurdle and another unit employee, Frank Bernardini, 4 in a nearby walkway. Hurdle and Bernardini were on their way to Ori's [ v28 p3 ] office. Reynolds told Hurdle that he had received the Notice of Decision from Ori and had asked for union representation. They agreed to meet later at the AFGE Local 1778 office. Later that day, at the Union office, Reynolds gave Hurdle a copy of the Notice of Decision. Until Hurdle received this letter from Reynolds, the union did not have a copy of the Notice of Decision. Respondent did not give AFGE Local 1778 a copy of the Notice of Decision, did not advise Reynolds to give the Union a copy and did not give Reynolds more than one copy.

Article 40 Section 2, of the collective bargaining agreement provides:

"An employee against whom a disciplinary action is taken is entitled to:

"A. At least five (5) workdays advance written notice of any proposed action except if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, or in the case of an oral admonishment.

"B. A reasonable time, but not less than seven (7) calendar days to respond, except for oral admonishments.

"C. The right to be represented by the union or a representative approved by the union.

"D. A written decision prior to the effective date of the action, except for oral admonishments.

"E. In the case of removal, opportunity to resign prior to issuance of the final decision (oral or written)."

Discussion and Conclusions of Law Section 7114(a)(1) 5 of the Statute states: [ v28 p4 ]

"7114. Representation rights and duties

"(a)(1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership."

In Department of the Treasury, Internal Revenue Service, Memphis Service Center, 17 FLRA 107 (1985), hereinafter called the IRS case, the FLRA affirmed and adopted the decision of the Administrative Law Judge. In the IRS case, supra, the FLRA found, in the context of a grievance, that management violated Sections 7116(a)(1) and (5) of the Statute when it dealt with the husband of the grievant in an attempt to resolve the grievance, when the grievant had been represented by the union. The Administrative Law Judge, stating that Section 7114 6 of the Statute articulates the obligation of an agency to negotiate with union representatives concerning conditions of employment, concluded that in meeting with the grievant's husband, management bypassed the union and that such bypassing, concerning personnel matters or other conditions of employment, tended to undermine the status of the union and interferred with the rights of employees under the Statute. Thus, it was concluded that the agency violated Section 7116(a)(1) and (5) of the Statute.

The IRS case, although dealing with a grievance, was not based primarily upon that fact. Rather it was a situation wherein the union was representing an employee in dealing with management concerning personnel policies and working [ v28 p5 ] conditions. When a labor organization is performing its duties so representing employees, the IRS case, supra, stands for the proposition that the agency is not free to ignore the union, bypass the union, and deal directly with the employees. The FLRA's holding is a sound one recognizing, as set forth in Section 7114(a)(1) of the Statute, that the collective bargaining representative is entitled to act for and represent all employees in the unit. 7 In the collective bargaining relationship, this right to represent employees in their dealings with management concerning personnel policies and working conditions is one of the fundamental rights of a collective bargaining representative. The union, in such circumstances, is the representative of and the protector of the employees it represents, and, it makes no basic difference whether it is representing the employee in a grievance, protesting the treatment of an employee, or in a disciplinary proceeding, protecting the employee from possible mistreatment. Thus, I conclude the FLRA's holding in the IRS case, supra, is equally applicable in both adverse action and grievance procedures and any bypassing of the union, while it is representing an employee in a disciplinary proceeding would constitute a violation of Section 7116(a)(1) and (5) of the Statute.

In the subject case, it is clear from its January 2, 1986 response, that AFGE Local 1778 was representing Reynolds in the disciplinary proceeding and any bypassing of AFGE Local 1778 by Respondent would constitute a violation of Section 7116(a)(1) and (5) of the Statute.

In Social Security Administration, 16 FLRA 434 (1984), herein called the SSA case, the FLRA held that the agency violated Section 7116(1)(1) and (5) of the Statute by delivering grievance decisions and responses directly to employee grievants, thus bypassing their exclusive representative. 8 Again, although the SSA case, supra, involves a grievance situation, the FLRA's holding and reasoning apply to the representation of an employee in a disciplinary [ v28 p6 ] proceeding. Thus I conclude, in the subject case, that Respondent bypassed AFGE Local 1778, when, on January 15, 1986, Ori and Snell met with Reynolds and read to him the "Notice of Decision - Suspension" and delivered to him a copy of this "Notice of Decision - Suspension" without inviting the AFGE Local 1778 to the meeting and without furnishing them a copy of the "Notice of Decision - Suspension." Thus, Respondent had already received the January 2, 1986 letter from AFGE Local 1778 so it knew that AFGE Local 1778 was representing Reynolds in the disciplinary proceeding and on January 15, 1986, directly before the meeting, Reynolds asked if he needed AFGE Local 1778 and was advised by Snell that he did not. Subsequently, at the meeting Reynolds was read and given a copy of the "Notice of Decision - Suspension" and none was supplied to AFGE Local 1778. This constituted a bypassing of AFGE Local 1778 by Respondent as it dealt directly with Reynolds. Respondent, in bypassing the Union, was engaged in conduct which denied the Union its right to represent employees and thereby Respondent refused to bargain in good faith with AFGE Local 1778. Respondent's conduct thus violated Section 7116(a)(1) and (5) of the Statute and further, constituted an independent violation of Section 7116(a)(1) because it demeaned the Union and it inherently interfered with the right of employees to designate and rely upon AFGE Local 1778 to represent them. SSA case, supra. 9

Respondent contends that they acted in conformity with the collective bargaining agreement, which provides that copies of the basis of discipline will be served upon the employee and that the employee has a right to be represented by the Union. There is no allegation that Respondent violated the collective bargaining agreement; rather it is alleged, and I have found, that AFGE Local 1778, as the employees' collective bargaining representative had a statutory right to represent any employee who so requests it in a disciplinary proceeding. The contract is relevant in the subject case only insofar as it might constitute a waiver or modification of the Union's statutory rights. [ v28 p7 ] Such a waiver must be clear and unmistakable, 10 and the collective bargaining agreement does not constitute such a clear and unmistakable waiver.

Similarly Respondent contends AFGE Local 1778 has waived its statutory right by means of past and established practice. Again, the record fails to establish a sufficient and consistent past practice to constitute a clear and unmistakable waiver. In fact, immediately after Reynolds' meeting an AFGE Local 1778 representative came with Bernardini to Ori's office for a similar meeting. This incident indicates there was no agreement by the Union to any past practice of Respondent's bypassing AFGE Local 1778 in disciplinary proceedings.

Respondent contends further that Reynolds' question whether he needed the Union did not constitute a request to have the union present. I conclude, in common parlance, when an employee asks a management representative if he needs the union, this is an indication that the employee would like the union to be present. This is, I believe, the reality of communications between employees and their bosses. However, in the subject case, Reynolds had already been represented by AFGE Local 1778 in this disciplinary proceeding, so it was incumbent upon Respondent to deal with the Union and serve upon it a copy of the "Notice of Decision - Suspension". The failure by Respondent to do so constituted bypassing the union. Respondent fears this interpretation of the obligations created by the Statute might lead to per se rules that are too rigid. On the contrary, all the Statute provides is that when a collective bargaining representative represents an employee in the unit, you must deal with the collective bargaining representative, and to fail to do so and to bypass it and deal with the represented employee directly violates the Statute. Such a recognition of the collective bargaining representative's right is hardly too rigid and limiting, but rather it is fundamental to an effective and meaningful collective bargaining relationship. [ v28 p8 ]

Having concluded that Respondent violated Sections 7116(a)(1) and (5) of the Statute by bypassing AFGE Local 1778, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Authority hereby orders that the Respondent, 438th Air Base Group (MAC), McGuire Air Force Base, New Jersey, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain in good faith with the American Federation of Government Employees, Local 1778, William G. Baillie, Jr. Local, AFL - CIO, the exclusive bargaining representative of its employees, by bypassing designated union representatives of its employees and furnishing or delivering disciplinary decisions or other responses only to the disciplined employees.

(b) Interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute by furnishing or delivering decisions or other responses in disciplinary proceedings directly to employees while failing to furnish same to American Federation of Government Employees, Local 1778, William G. Baillie, Jr. Local, AFL - CIO, the designated representative of such employees.

(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-management Relations Statute:

(a) Furnish or deliver all decisions or other responses involving disciplinary proceedings to designated union representatives [ v28 p9 ] of employees at the same time as they are furnished or delivered to employees.

(b) Post at its McGuire Air Force Base facilities, 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 Commander of the 438th Air Base Group (MAC), 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 II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

SAMUEL A. CHAITOVITZ
Administrative Law Judge

Dated: April 27, 1987
       Washington, D.C.

[ v28 p10 ]

                    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 have been found by the Federal Labor Relations Authority to have committed an unfair labor practice. We have been ordered to post this Notice and abide by its provisions.

WE WILL NOT fail and refuse to bargain in good faith with the American Federation of Government Employees, Local 1778, William G. Baillie, Jr. Local, AFL - CIO, the exclusive bargaining representatives of our employees by bypassing the designated union representative of our employees and furnishing or delivering disciplinary decisions or other responses only to the employees involved.

WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute by furnishing or delivering decisions or other responses involving disciplinary proceedings directly to employees while failing to furnish same to American Federation of Government Employees, Local 1778, William G. Baillie, Jr. Local, AFL - CIO, the designated representative of such employees.

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, furnish or deliver all decisions or other responses in disciplinary proceedings to the American Federation of Government Employees, Local 1778, William G. Baillie, Jr. [PAGE] Local, AFL - CIO, the designated representative at the same time they are furnished or delivered to employees.

                             ______________________________
                                  (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 II, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose telephone number is: (212) 264-4934. [ v28 p2 ]

FOOTNOTES

Footnote 1 No such answer was sent to AFGE Local 1778.

Footnote 2 Reynolds testified that although not so advised, he knew he was being called to Ori's office concerning his proposed suspension.

Footnote 3 Snell denied that Reynolds requested union representation. I find Reynolds version of the incident more credible and I find Snell to be less credible and his memory less reliable with respect to this and other incidents that occurred soon after the one involving Reynolds.

Footnote 4 Bernardini was also being disciplined for damages to an aircraft and was also represented by Hurdle. Bernardini had called Hurdle and asked him to represent Bernardini at a meeting with Ori at which Bernardini was to be given a suspension letter.

Footnote 5 The complaint herein does not allege that the meeting between Ori and Snell and Reynolds on January 15 was a formal discussion within the meaning of Section 7114 (a)(2)(A).

Footnote 6 Section 7114(a)(2) of the Statute deals with the right of the union to be present at formal discussions concerning, among other things, grievances. That was not alleged to have been accolated in the complaint in that case so it was not dealt with. Similarly such a formal discussion was not alleged in the subject case and will not be dealt with herein.

Footnote 7 In the subject case, AFGE Local 1778 was representing Reynolds in a disciplinary proceeding, which is a personnel matter and a condition of employment.

Footnote 8 The FLRA, in so finding, specifically rejected that the violation was in any way based upon any violation of the collective bargaining agreement.

Footnote 9 Department of the Air Force, Headquarters 832D Combat Support Group, Luke Air Force Base, Arizona, Case No. 8-CA-50075, OALJ 85-138 (September 25, 1985) is distinguishable because, although grievance decisions were given to the grievant, an extra copy of the decision was given to the grievant with instructions to give it to the union.

Footnote 10 See U.S. Department of Labor, Washington, D.C. and Employment Standards Administration, Region 8, 19 FLRA No. 65, 19 FLRA 497 (1985); and U.S. Department of Labor, Occupational Safety and Health Administration, Chicago, Illinois, 19 FLRA No. 60, 19 FLRA 454 (1985).

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