34 FLRA NO. 50
U.S. DEPARTMENT OF THE ARMY
LEXINGTON-BLUE GRASS ARMY DEPOT
LEXINGTON, KENTUCKY
(Respondent)
and
MARY H. SALISBURY
(An Individual)
4-CA-80085
DECISION AND ORDER
January 12, 1990
Before Chairman McKee and Members Talkin and Armendariz.
The Administrative Law Judge issued the attached decision in
the above-entitled proceeding finding that the Respondent had
violated section 7116(a)(1) and (5) of the Federal Service Labor
- Management Relations Statute (the Statute) by removing American
Federation of Government Employees, Local 894 (the Union) from
office space without giving it notice and an opportunity to
bargain about the decision and its impact and implementation. He
concluded that, by this act, the Respondent unilaterally changed
a term and condition of employment in violation of the Statute.
The Respondent filed exceptions to the Judge's Decision and the
General Counsel filed a response to the exceptions.
The Respondent excepts to the Judge's finding that it
unilaterally changed a term and condition of employment by ending
the use of office space by the Union. The Respondent asserts that
the office space was provided for a particular individual, Luther
Sapp, when he was president of the Union. It asserts that space
never was provided for the Union as an organization. The
Respondent asserts that the Judge's conclusion is based on the
Judge's determination "to discredit the testimony of Mr. Sapp(,)"
and that the Judge "states no basis for this determination."
Respondent's Brief at 4.
The demeanor of witnesses is an important factor in
resolving issues of credibility. Only the Judge has had the
benefit of observing the witnesses while they testified. We will
not overrule a Judge's determination regarding credibility of
witnesses unless a clear preponderance of all the relevant
evidence demonstrates that the determination was incorrect. We
have examined the record carefully, and find no basis for
reversing the Judge's credibility findings. See Marine Corps
Logistics Base, Barstow, California, 33 FLRA 626 (1988).
The Respondent also excepts to the Judge's conclusion that
the General Counsel established by a preponderance of the
evidence that the Respondent made a unilateral change in a past
practice. This exception is based on the Respondent's
disagreement with the Judge's evaluation of the evidence. We have
examined the entire record and, for the reasons stated by the
Judge, we agree with the Judge's conclusion.
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. We affirm the rulings. Upon
consideration of the Judge's Decision and the entire record, we
adopt the Judge's findings, conclusions and recommended Order.
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 Department of Defense,
Department of the Army, Lexington - Blue Grass Army Depot,
Lexington, Kentucky, shall:
1. Cease and desist from:
(a) Unilaterally removing the American Federation of
Government Employees, Local 894, AFL - CIO, the exclusive
representative of its employees, from its office space in
Building 5-B without providing notice and an opportunity to
bargain over the change and its impact and implementation.
(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of the
rights assured them by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request, restore American Federation of Government
Employees, Local 894, AFL - CIO to its office space in Building
5-B.
(b) Upon request, meet and negotiate with the American
Federation of Government Employees, Local 894, AFL - CIO, the
exclusive representative of its employees, with regard to any
changes in established practices concerning the use of or removal
from its office space.
(c) Make whole American Federation of Government Employees,
Local 894, AFL - CIO for any losses it incurred as a result of
its removal from its office space in Building 5-B.
(d) Post at its facility at Department of Defense,
Department of the Army, Lexington - Blue Grass Army Depot,
Lexington, Kentucky, 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 Commanding Officer,
Lexington - Blue Grass Army Depot, Lexington, Kentucky, 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 IV, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply.
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 unilaterally remove American Federation of Government
Employees, Local 894, AFL - CIO, the exclusive representative of
our employees, from its office space in Building 5-B without
providing notice and an opportunity to bargain over the change
and its impact and implementation.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
assured them by the Statute.
WE WILL, upon request, restore American Federation of
Government Employees, Local 894, AFL - CIO to its office space in
Building 5-B.
WE WILL, upon request, meet and negotiate with the American
Federation of Government Employees, Local 894, AFL - CIO, the
exclusive representative of our employees, with regard to any
changes in established practices concerning the use of or removal
from its office space in Building 5-B.
WE WILL make whole American Federation of Government
Employees, Local 894, AFL - CIO for any losses it incurred as a
result of our removing it from its office space in Building
5-B.
________________________
(Agency)
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 any of its provisions, they may communicate
directly with the Regional Director, Region IV, Federal Labor
Relations Authority, whose address is: 1371 Peachtree Street,
N.E., Suite 736, Atlanta, GA 30367, and whose telephone number
is: (404) 347-2324.
_________________________
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE ARMY
LEXINGTON-BLUE GRASS ARMY
DEPOT, LEXINGTON, KENTUCKY
Respondent
and
MARY H. SALISBURY,
AN INDIVIDUAL
Charging Party
Case No. 4-CA-80085
Philip T. Roberts, Esq.
For the General Counsel
Mr. Leslie E. Renkey
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor -
Management Relations Statute, 92 Stat. 1191, 5 U.S.C. section
7101 et seq., (herein called the Statute). It was instituted by
the Regional Director of Region IV based upon an unfair labor
practice charge filed on October 26, 1987, by Mary H. Salisbury,
an individual, against the Department of Defense, Department of
the Army, Lexington - Blue Grass Army Depot, Lexington, Kentucky
(herein called the Respondent). The Complaint alleged that
Respondent violated section 7116(a)(1) and (5) of the Statute by
refusing to bargain over and by implementing the removal of
American Federation of Government Employees, Local 894 (herein
called the Union) from its office space without fulfilling its
statutory obligation to bargain.
Respondent's Answer denied the commission of any unfair
labor practices.
A hearing was held before the undersigned in Lexington,
Kentucky, at which time the parties were represented by counsel
and afforded full opportunity to adduce evidence and to call,
examine, and cross-examine witnesses and to argue orally. Timely
briefs were filed by the Respondent and the General Counsel and
have been duly considered.
Upon consideration of the entire record in this case,
including my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions of law, and
recommendation.
Findings of Fact
1. Around 1981 or 1982, Luther D. Sapp then President of the
Union approached one Colonel Parker and requested office space
from which he could perform his union duties.
2. Sapp retired from work at the Depot in 1976. Sapp said
the space given him by Colonel Parker was in a building known as
Building 5-B (herein called 5-B). According to Sapp the agreement
with Parker was never reduced to writing, but he was given the
space with the understanding that Respondent could take it back
whenever the space was needed. Colonel Parker did not testify at
this proceeding.
3. Since the space was granted to Sapp, there were at least
two gaps in his presidency: in 1983 and 1984, when John Holly was
president and again in 1985 when Sapp was incapacitated and the
Union had an Acting President Ronald Lewis. Union business was
conducted as usual in 5-B during these periods. Further, 5-B has
been used on a regular basis by both union officers and stewards
to conduct union business. This business has been conducted with
or without Sapp's presence and meetings with management officials
have been held in the building.
4. The record discloses that Respondent management is aware
that 5-B has long been known as the Union office. It's telephone
number listed in the phone book controlled by management; service
orders for the Union consistently refer to it as "the Union
Office;" correspondence from Sapp and others refer to 5-B as the
Union Office; Respondent's security guards call it the Union
office; and for years 5-B has been marked as "AFGE Local 894
office" by signs displayed in front of it.
5. Sometime in September 1987, Sapp was accused of failure
to fulfill his fiduciary duties and other improprieties and
removed from Union office. At a union meeting held on September
22 the membership took control of the meeting from Sapp and voted
itself into trusteeship. The next day Sapp apparently "outraged"
over the previous day's events, was overheard attempting to have
the furniture removed from the Union office.
6. On September 28, 1987, James R. Lowe, a National Vice -
President for American Federation of Government Employees Sixth
District, informed Respondent that official trusteeship
proceedings had been initiated and confirmed that Sapp had been
relieved of his duties as a Union officer. Upon receiving this
letter, Respondent wrote Sapp, suggesting that 5-B was his
personal office space and inquiring if he would be needing it any
longer. Sapp replied that he would not. On October 15, 1987,
Respondent wrote to American Federation of Government Employees
National Representative Patrick O'Connor ordering the Union to
vacate 5-B by October 23.
7. On October 20, 1987, Lowe, O'Connor and Mary H. Salisbury
met with Respondent's Labor Relations Specialist, John Vice to
discuss, inter alia, the office situation. At one point, O'Connor
specifically asked to negotiate over the question of office space
for the Union, and Vice replied that Respondent would not
negotiate. Vice testified that he said, "(m)y response was that
office space is a negotiable matter and when we open the contract
up we'll be happy to negotiate it . . . (b)ut not until then."
Even after this meeting, Respondent held firm to its position
that 5-B was strictly Sapp's personal office space, supplied only
as a convenience to him a non-employee Union official. Therefore,
when the Union requested that the status quo be maintained,
Respondent said that it would do so only so long as O'Connor and
Lowe, as non-employee Union officials, needed the space.
Respondent entertained requests by the Union to delay their
ejection from 5-B, but it steadfastly refused to bargain over the
ejection itself. Ultimately, Respondent ordered the Union to
vacate 5-B by December 5, 1987, and it complied with this order.
Sometime thereafter, a military amateur radio station took over
5-B.
8. Losing this office has had a significant effect on the
Union. It prevents O'Connor from having a place to work and meet
with stewards on post and thus hampers his work in rebuilding
with Local. It also means that there is no private place to meet
with potential grievants and much of what needs to be discussed
in these meetings is of a very private nature. As a
result, employees have been more reluctant to provide the Union
with the information it needs to properly pursue their
grievances. Even those employees who are eager to pursue their
grievances may find it difficult to do so because, without a
Union office, Salisbury (now the Union President) must be
contacted by telephone at her worksite, which is apparently hard
to do.
9. The Depot is located in a rural area and the nearest
off-post office space is around 10 or 12 miles away.
Nevertheless, Respondent refused to authorize official time for
employees to go to any off-post union office not right outside
the gate. Even Respondent admits that the Union had a
longstanding practice of using Building 138 for their meetings,
but in spite of this, on January 21, 1988, the Union's request to
use that space on a regular basis for representational purposes
was denied.
10. In addition to these problems, the Union incurred
certain specific monetary costs as a result of their being
ejected from 5-B, viz., the cost of physically moving the Union's
possessions out of the office, the annual leave used to
accomplish the move and the cost of the telephone which was
installed in 5-B at Union expense.
Union office space is a substantively negotiable condition
of employment. See, American Federation of Government Employees,
Local 1631, 25 FLRA 366, 368-70 (1987). Prior to changing a
substantively negotiable condition of employment, notice and an
opportunity to bargain over the substance of the change as well
as its impact and implementation must be given to the exclusive
representative. U.S. Army Reserve Components Personnel and
Administration Center St. Louis, Missouri, 19 FLRA 290 (1985).
Respondent argues that no office space provision was
negotiated by the parties in their latest agreement signed in
1979. Respondent, in essence, claims that the use of 5-B was
merely a privilege extended to Sapp and not a right. While
conceding that the use of agency facilities can become as
established term or condition of employment which may not
thereafter be unilaterally changed Respondent notes that some
efforts to stop union use of agency facilities does not violate
the Statute. Department of Treasury, Internal Revenue Service,
Cleveland, Ohio, 3 FLRA 656 (1980); U.S. Nuclear Regulatory
Commission, 6 FLRA 18 (1981), relied on by Respondent are
inapposite because they are factually distinguishable from this
matter.
Respondent argues in brief, that there was a clear practice
known and approved by it. The practice, according to Respondent,
was limited to use by Sapp as an off-depot union officer and
there was no consent by Respondent management to any general
union use over an extended time. Respondent to a great extent
used Sapp to establish its position that the office was intended
for his use as an off-depot union president. I do not credit Sapp
based primarily on his demeanor. Furthermore, in view of the
utilization of 5-B, including other union presidents and officers
using the office when Sapp was not president, it is clear that
there was no understanding between Sapp and anyone else that 5-B
was only for Sapp's personal use.
Contrary to Respondent's argument, a preponderance of the
evidence shows not only a broad utilization of this office space
by union officers in general; the telephone listing of the office
as that of "AFGE Local 894"; correspondence referring to the
office as the union office; signs in front of the office
designating it was "AFGE Local 894" office; use of the office by
other union officers during periods when Sapp was not the Union
president or when Sapp was incapacitated. Moreover, management
officials met with union officers other than Sapp in that office
thereby, making it difficult to now deny knowledge of its general
use by the Union.
Based on the credited testimony, it is found that a
preponderance of the evidence establishes that a past practice
existed concerning the utilization of 5-B as a union office by
union officials in general and that it was not merely Sapp's
personal office. Finally, its use which was condoned by
Respondent became a term and a condition of employment which
could not be changed without bargaining.
Accordingly, it is found that Respondent's ejection of the
Union from 5-B, which was the Union office at that time, was a
unilateral change in a term and condition of employment and its
failure to give notice and an opportunity to bargain concerning
the change and its impact and implementation constituted a
violation of section 7116(a)(1) and (5) of the Statute. 1
In light of the foregoing, it is recommended that the
Authority adopt the following:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of
the Federal Labor Relations Authority and section 7118 of the
Statute, the Authority hereby orders that the Department of
Defense, Department of the Army, Lexington - Blue Grass Army
Depot, Lexington, Kentucky, shall:
1. Cease and desist from:
(a) Unilaterally removing the American Federation of
Government Employees, Local 894 from its office space without
providing notice and an opportunity to bargain over the change
and its impact and implementation.
(b) In any like or related matter 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 Statute:
(a) Upon request, restore American Federation of Government
Employees, Local 894, AFL - CIO to its office space in Building
5-B.
(b) Upon request, meet and negotiate with the American
Federation of Government Employees, Local 894, AFL - CIO, the
exclusive representative of its employees, with regard to any
changes in established practices concerning the use or removal
from its office space.
(c) Make whole, American Federation of Government Employees,
Local 894, AFL - CIO for any losses it may have incurred as a
result of its removal from its office space in Building 5-B.
(d) Post at its Department of Defense, Department of the
Army, Lexington - Blue Grass Army Depot, Lexington, Kentucky
facility, 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, or a designee, 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 IV, Federal
Labor Relations Authority, 1371 Peachtree Street, N.E., Suite
736, Atlanta, GA 30367, in writing, within 30 days from the date
of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, D.C., October 21, 1988
ELI NASH, JR.
Administrative Law Judge
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 unilaterally remove American Federation of Government
Employees, Local 894, AFL - CIO, the exclusive representative of
our employees from its office space in Building 5-B without
providing notice and an opportunity to bargain over this change
and the impact and implementation thereon.
WE WILL NOT in any like or related manner, interfere with,
restrain or coerce our employees in the exercise of their rights
assured them by the Statute.
WE WILL, upon request, restore American Federation of
Government Employees, Local 894, AFL - CIO to its office space in
Building 5-B.
WE WILL, upon request, meet and negotiate with the American
Federation of Government Employees, Local 894, AFL - CIO, the
exclusive representative of our employees, with regard to removal
from its office space in Building 5-B.
WE WILL make whole American Federation of Government
Employees, Local 894, AFL - CIO for any losses incurred as a
result of our removing it from its offices in Building 5-B.
___________________________
(Agency)
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 any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor
Relations Authority, Region IV, whose address is: 1371 Peachtree
Street, N.E., Suite 736, Atlanta, GA 30367, and whose telephone
number is: (404) 347-2324.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Footnote 1 I agree with the General Counsel that a status
quo ante remedy is prescribed in this matter. Long Beach Naval
Shipyard, 17 FLRA 511, 514, fn. 6 (1985). Also, I agree that a
make whole remedy for any and all costs incurred by the Union as
a result of its ejection from the Union office is appropriate.
See generally, Internal Revenue Service, Western Region, 11 FLRA
655 (1983).