[ v19 p1054 ]
19:1054(122)CA
The decision of the Authority follows:
19 FLRA No. 122
VETERANS ADMINISTRATION
VETERANS ADMINISTRATION MEDICAL
CENTER, MUSKOGEE, OKLAHOMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2250, AFL-CIO
Charging Party
Case Nos. 6-CA-399
6-CA-567
6-CA-577
6-CA-802
6-CA-804
DECISION AND ORDER */
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the consolidated complaint,
and recommending that it be ordered to cease and desist therefrom and
take certain affirmative action. The Judge found that the Respondent
had not engaged in other unfair labor practices alleged in the
consolidated complaint, and recommended dismissal of those portions of
the consolidated complaint. Thereafter, the Respondent filed
exceptions, the General Counsel filed cross-exceptions, /1/ and the
Respondent filed an opposition to the General Counsel's
cross-exceptions.
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), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
entire record in these cases, the Authority hereby adopts the Judge's
findings, conclusions and recommendations only to the extent consistent
herewith.
In Case No. 6-CA-399, the Judge found that the Respondent violated
section 7116(a)(1), (5) and (8) of the Statute /2/ by conducting a
meeting with bargaining unit employees which was a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute /3/ on
January 2, 1980, and bypassing the Union by announcing a change in
working conditions regarding the use of official time for union stewards
and officers at that formal meeting without providing the Union with
prior notice and the opportunity to be present. The Authority does not
adopt his conclusion that the Respondent violated section 7116(a)(1) and
(8) of the Statute by failing to provide the Union advance notice of,
and the opportunity to be represented at, the meeting alleged to be a
formal discussion.
The Authority concludes that actual representation by an exclusive
representative at a formal discussion is sufficient to demonstrate
compliance with the requirement of section 7114(a)(2)(A) of the Statute
that such an exclusive representative "be given an opportunity to be
represented." /4/ Neither section 7114(a)(2)(A) nor its legislative
history supports a conclusion that Congress intended that a union
representative must be given notification of a formal discussion in
advance, specifically in his or her capacity as a union official. /5/
It is necessary, in the language of the Statute, only that an exclusive
representative "be given the opportunity to be represented." Here, the
exclusive representative was in fact represented at the formal
discussion by its president, its third vice president and its steward,
although they had not been notified in their capacities as union
officials but rather as employees. /6/ Thus, the Union had the
opportunity to be represented and therefore no violation of section
7116(a)(1) and (8) has been established. /7/ Of course, when an agency
fails to notify union officials of a formal discussion, it does so at
its peril. If union representatives do in fact attend, no violation
will be found and no inquiry will be made concerning how such
representatives received notice of or happened to be in attendance at
the meetings. However, if no union representatives are present at the
formal discussion, the question of whether they were afforded adequate
notice and an opportunity to be present would need to be resolved, and a
finding that no such notice was given to the union's representatives
would lead to a conclusion that the agency violated section 7116(a)(1)
and (8) of the Statute if all of the other elements set forth in section
7114(a)(2)(A) of the Statute were satisfied. /8/
The Authority also disagrees with the Judge's conclusion that the
meeting constituted a bypass of the Union in violation of section
7116(a)(1) and (5) of the Statute. In so finding, the Authority notes
particularly that there is no evidence that management attempted to deal
or negotiate directly with employees on matters properly bargainable
with their representatives. See Internal Revenue Service (District,
Region, National Office Units), 19 FLRA No. 48 (1985); Department of
Health and Human Services, Social Security Administration, 19 FLRA No.
56 (1985).
The Authority adopts the Judge's findings in Case Nos. 6-CA-567 and
6-CA-577 that a past practice of allowing Union officers to use official
time at their discretion was established at the facility prior to the
January 2, 1980 meeting, after which Union officers were required to
obtain permission from supervisors in order to take official time, in
the same manner required of union stewards under the parties' negotiated
agreement. Accordingly, the Respondent's unilateral change in policy
without affording the Union notice and an opportunity to bargain
concerning that proposed change in established practice violated section
7116(a)(1) and (5) of the Statute. Social Security Administration, 13
FLRA 112 (1983). Furthermore, the Respondent violated section
7116(a)(1) and (5) of the Statute when it implemented this policy by not
authorizing official time for Union Vice President White while he was
engaged in representing unit employees in pending grievances, meeting
with Respondent's representatives on labor-management business, or
otherwise involved in representational responsibilities on behalf of the
exclusive representative, and by placing Union President Hawpe and White
in AWOL status while they were engaged in such representational duties
on or about May 15 and September 2, 1980, respectively. With regard to
the Judge's recommended remedy to make whole employees Hawpe and White
for the periods of time on May 15 and September 2, 1980, respectively,
when they were placed on AWOL status while performing representational
duties, the Authority has held such a remedy appropriate under the Back
Pay Act, 5 U.S.C. 5596, when "but for" an unjustified or unwarranted
personnel action the employee would not have suffered a loss or
reduction in pay, allowances, or differentials. Department of the Air
Force, Air Force Systems Command, Electronic Systems Division, 14 FLRA
390 (1984). It is clear that under the practice which existed before
the Respondent unilaterally changed the method of allowing Union
officers to use official time while performing representational duties,
Hawpe and White advised the Respondent when they were going to utilize
official time, and the request was never challenged. The unilateral
change in that established practice required Hawpe and White to request
official time and the Respondent to approve or deny the request. When
such requests were rejected and Hawpe and White attempted to utilize
official time nonetheless, they were placed on AWOL status and thereby
suffered a reduction in pay. Thus, "but for" the Respondent's unlawful
unilateral change in the established practice concerning use of official
time for representational duties performed by employees on behalf of the
exclusive representative, such loss or reduction in pay would not have
been suffered, and the Authority therefore adopts the Judge's
recommended make whole remedy.
In Case No. 6-CA-804, the Judge concluded that the question of
Vice-President White's entitlement to a representative of his own
choosing is a matter involving an interpretation and application of the
parties' collective bargaining agreement, and dismissed the allegation
that the Respondent violated the Statute by preventing him from making
such a choice. The Authority adopts this conclusion, noting
particularly that even if the Respondent's action in this regard were
more than a differing and arguable interpretation of the contract, a
single instance of failure or refusal by a party to comply with a
contractual provision does not under the Statute constitute a rejection
of the collective bargaining agreement in violation of section
7116(a)(1) and (5) of the Statute. See, e.g., Federal Aviation
Administration, Alaskan Regional Office, 7 FLRA 164 (1981). See also
Internal Revenue Service and Internal Revenue Service, Detroit District,
12 FLRA 445 (1983); Harry S. Truman Memorial Veterans Hospital,
Columbia, Missouri, 11 FLRA 516 (1983); U.S. Customs Service, Region
VII, Los Angeles, California, 10 FLRA 251 (1982); Kaiserslautern
American High School, Department of Defense Dependents Schools, Germany
North Region, 9 FLRA 184 (1982). Accordingly, the section 7116(a)(1)
and (5) allegations of the complaint are dismissed. /9/ Furthermore,
the Authority adopts the Judge's conclusion in Case No. 6-CA-804 that
the Respondent did not violate section 7116(a)(1) and (2) of the Statute
/10/ by charging White as AWOL while he was representing an employee in
another bargaining unit, noting particularly the absence of evidence
that such action by the Respondent constituted disparate treatment or
was discriminatorily motivated.
Noting particularly the absence of timely exceptions thereto, the
Authority adopts the Judge's conclusion in Case No. 6-CA-802 that the
Respondent met its statutory obligation to bargain regarding the
relocation of conduit pipes. Accordingly, the allegations raised in
Case No. 6-CA-802 are dismissed.
Henry B. Frazier III, Acting
Chairman
Concurring Opinion of Member McGinnis:
I concur with the rationale and conclusion of this decision.
However, in reviewing compliance with the section 7114(a)(2)(A) rights
of a majority representative (i.e., to "be given an opportunity to be
represented" at "formal discussions" as defined by the Statute and case
law), I place primary emphasis on management's right to control the
scope of such meetings. The nature of the majority representative's
right to be represented at a formal discussion is inextricably
intertwined with the scope of the meeting as determined by management.
As the Authority has previously noted, "formal discussions" under
section 7114(a)(2)(A) can encompass a broad range of conduct. Indeed,
the term "discussions" can be misleading; the Authority has held that a
formal meeting called by management for the sole purpose of making an
announcement is a "discussion" implicating section 7114(a)(2)(A) rights.
Department of Defense, National Guard Bureau, Texas Adjutant General's
Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base,
15 FLRA No. 111 (1984). On the other hand, management could conduct a
"formal discussion" with employees encompassing actual dialogue between
management and employees in a controlled setting.
It follows that the majority representative's right to "be given an
opportunity to be represented" at a "formal discussion" is necessarily
tied to the scope of the actual meeting conducted. That is, when
management determines to make a formal announcement to employees,
implementing a management right, the majority representative's right to
"be given an opportunity to be represented" is limited to the right to
be present. No discussion need take place, even if the majority
representative desires it. Should management open a "formal discussion"
to active dialogue between employees and management, the individual(s)
representing the majority representative, upon proper identification,
can also participate in such dialogue. In either case, the statutory
framework enables participation by the majority representative analogous
to, but not greater than, participation rights afforded to unit
employees by management in the formal discussion.
William J. McGinnis, Jr., Member
Having found that the Respondent failed to meet its obligations under
the Statute in connection with certain allegations of the consolidated
complaint, and having further found that other allegations of the
consolidated complaint have not been established, the Authority shall
issue the following order:
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 Veterans Administration, Veterans
Administration Medical Center, Muskogee, Oklahoma, shall:
1. Cease and desist from:
(a) Unilaterally instituting changes in an established practice with
respect to the use of official time by unit employees serving as Union
officers to engage in representational duties on behalf of the exclusive
representative without providing notice to, and upon request bargaining
with, American Federation of Government Employees, Local 2250, AFL-CIO,
the exclusive representative of its employees, or any other exclusive
representative.
(b) 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 Statute:
(a) Upon request, meet and negotiate with the American Federation of
Government Employees, Local 2250, AFL-CIO, the exclusive representative
of its employees, with regard to any changes in established practices
concerning the use of official time by unit employees serving as Union
officers to engage in representational duties on behalf of the exclusive
representative, and the implementation of any such changes, at the
Muskogee, Oklahoma facility.
(b) Make whole employees Esten Hawpe and Eugene White in accordance
with the Back Pay Act, 5 U.S.C. 5596 (Supp. III 1979) for any loss of
pay or other benefits they suffered on or about May 15 and September 2,
1980, respectively, when they were placed on AWOL status while
performing representational duties on behalf of the exclusive
representative, American Federation of Government Employees, Local 2250,
AFL-CIO.
(c) Post at its Veterans Administration Medical Center, Muskogee,
Oklahoma 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 Director, or a designee, and shall be posted
and maintained 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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.
IT IS FURTHER ORDERED that those allegations of the consolidated
complaint found unsupported herein be, and they hereby are, dismissed.
Issued, Washington, D.C., August 30, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally institute changes in an established practice
with respect to the use of official time by unit employees serving as
Union officers to engage in representational duties on behalf of the
exclusive representative without providing notice to, and upon request
bargaining with, American Federation of Government Employees, Local
2250, AFL-CIO, the exclusive representative of our employees, or any
other exclusive representative. 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 Statute. WE WILL, upon request, meet and
negotiate with the American Federation of Government Employees, Local
2250, AFL-CIO, the exclusive representative of our employees, with
regard to any changes in established practices concerning the use of
official time by unit employees serving as Union officers to engage in
representational duties on behalf of the exclusive representative, and
the implementation of such changes, at the Muskogee, Oklahoma facility.
WE WILL make whole employees Esten Hawpe and Eugene White in accordance
with the Back Pay Act, 5 U.S.C. 5596 (Supp. III 1979) for any loss of
pay or benefits they suffered on or about May 15 and September 2, 1980,
respectively, when they were placed on AWOL status while performing
representational duties on behalf of the exclusive representative,
American Federation of Government Employees, Local 2250, AFL-CIO.
(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 VI,
Federal Labor Relations Authority, whose address is: 525 Griffin
Street, Suite 926, Dallas, Texas 75202, and whose telephone number is:
(214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 6-CA-399, 6-CA-567,
6-CA-577,
6-CA-802, 6-CA-804
Robert M. James and
Roy H. Wells, Esqs.
For the Respondent
Susan E. Jelen and
Elizabeth Martinez, Esqs.
For the General Counsel
Karla Mann
For the Charging Party
Before: ELI NASH, JR.
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. (hereinafter referred to as the Statute) and the Rules and
Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter
XIV, Sec. 2410 et seq. In December 1980, the Regional Director for
Region 6 of the Federal Labor Relations Authority, (herein called the
Authority) pursuant to charges originally filed by the American
Federation of Government Employees, Local 2250 (herein called the union)
issued an Amended Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing /11/ alleging that the Veterans Administration,
Veterans Administration Medical Center, Muskogee, Oklahoma (herein
called the respondent) engaged in unfair labor practices within the
meaning of section 7116(a)(1), (2), (5), and (8) of the Statute by
refusing to negotiate with the union by unilaterally implementing new
procedures concerning the use of official time by union officers without
affording it an opportunity to bargain; refusing to negotiate in good
faith by unilaterally implementing new procedures concerning the amount
and use of official time granted to the union's president, without
affording it an opportunity to bargain; refusing to negotiate in good
faith with the union by unilaterally implementing new procedures
concerning the amount and use of official time granted to a union
vice-president, without affording it an opportunity to bargain; and
refusing to negotiate in good faith by unilaterally changing the terms
of an agreement concerning the relocation of conduit pipes at the
facility without affording the union notice or an opportunity to
bargain.
Respondent filed an Answer denying all the allegations of the
Consolidated Complaint.
A hearing in this matter was conducted before the undersigned in
Muskogee, Oklahoma. All parties were represented by counsel and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. Also all parties
filed timely briefs.
Based upon the entire record in this matter, including my observation
of the witnesses and their demeanor, and upon my evaluation of the
evidence, I make the following findings, conclusions, and
recommendations.
Findings of Fact
A. Background
The union at all times material herein, has been the exclusive
bargaining representative for an appropriate unit of employees at
Respondent's Muskogee, Oklahoma facility. The respondent and the union
have been parties to a collective bargaining agreement since October 24,
1972 which agreement was amended around February 25, 1974. Sometime in
1979 the parties began negotiating a new collective bargaining
agreement, however, they reached impasse on several issues. At the time
of the hearing, national level negotiations between the Veterans
Administration and the union were being conducted.
The collective bargaining agreement previously mentioned sets forth
the criteria under which union stewards at the facility receive official
time to perform various representational duties. Article X, Section 3
states:
Should it be necessary for a Union steward to leave his
assigned work area to investigate complaints, the steward will
obtain permission from his immediate supervisor prior to his
leaving. The steward will advise the supervisor of his reason for
leaving the jobsite and probable duration. Unless there are
compelling circumstances, hospital officials will authorize
stewards to leave their work area to bring about a prompt
disposition of a grievance or complaint without loss of pay or
leave. The union agrees that stewards will conduct business with
dispatch. Prior to discussion with an employee in another work
area, the steward will report to the immediate supervisor in that
particular area and state the purpose of his visit. In each
instance the supervisor's permission will be granted as soon as
practicable. The steward will report back to his supervisor at
the time he returns to his job. The same procedure will be
followed by employees in seeking out and discussing complaints or
grievances with stewards in their designated areas.
However, the use of official time for union officers, which is in
question here, is not specifically addressed in the collective
bargaining agreement. According to the testimony of several union
officers, the procedure outlined in the collective bargaining agreement
for stewards, did not apply to officers and union officers did not
follow that procedure when taking official time. Instead, Esten Hawpe
local union president and a former union steward, /12/ testified that
prior to January 1980, as an officer of the union, he merely informed
his supervisor that he was going on labor management business. Hawpe
states that when informing his supervisor that he was taking official
time he was not requesting permission to take official time but, rather
he was informing his supervisor as a courtesy; he did not tell the
supervisor the nature of the labor-management business and did not take
official time for internal union business; he did not estimate the time
he would need on official time or report to his supervisor when he
returned; and, if the supervisor was not in the area when he needed to
take official time, Hawpe would inform the supervisor that he had been
on official time when he returned to work.
According to Hawpe, former union president Leo Woodard, had also
taken official time in the same manner and that in Hawpe's presence,
Woodard had informed his supervisor that he was going on
labor-management business. Former president Woodard also testified that
he informed supervisors that he was taking official time as a courtesy
and not to beg permission. According to the testimony of both Hawpe and
Woodard, Woodard never had problems with the use of official time.
However, this could have been because Woodard worked a rotating shift
and often delegated authority concerning representational duties to
other union personnel. Considering the nature of the work and certain
emergencies attendant to the job, Woodard admits that there were certain
times when arrangements "to turn you loose" had to be made.
Contrary to the testimony of union officers, supervisor Myrl Goad,
the facilities foreman, stated in a deposition that the policy was that
both union officers and stewards had to ask for labor-management time
from their respective supervisors. Goad stated, it was his
understanding that Garland Olinger, who was Hawpe's immediate
supervisor, also followed the policy of requiring both officers and
stewards to request time. However, Goad did admit that he was never
present when Olinger was involved in granting official time and that he
was, not aware of the method used by Hawpe in taking official time.
J. Eugene White, a union vice-president testified that prior to
January 1980, in his capacity as a union officer, he used official time
to conduct labor-management business and that he merely notified his
supervisor and would then take the official time when needed. White
like Hawpe states that he did not request permission from his supervisor
or inform his supervisor of the nature of the labor-management business,
but was allowed to take official time without question by his
supervisor. White's immediate supervisor, Doyle Stiles testified that
White requested permission to take labor-management time and that Stiles
granted the time whenever possible.
B. Formal Meeting
Sometime during the last week of December 1979, Facilities Foreman,
Engineering Services, Myrl Goad informed a unit employee Joe Grayson,
who worked as a pipefitter in the plumbing shop, that there was going to
be a meeting with everyone in the shop on the following Monday.
According to Grayson, Goad told him that there were going to be some
changes that some of the employees would like and some that they would
not.
The following Monday, January 2, 1980, Goad held a meeting with
approximately 12 employees from the carpentry, plumbing, electrical, and
paint shops. Foreman Goad and Doyle Stiles, Carpentry Foreman,
Engineering Services were present as management representatives. Esten
Hawpe, union president, Eugene White, third vice-president, and William
Marler, a union steward, were all present at the meeting but, in their
capacity as unit employees rather than representatives of the union.
Hawpe was a pipefitter, White was a carpenter, and Marler was an
electrician. The union was not notified that the meeting was to take
place or of its purpose. According to Goad, the purpose of the meeting
was to emphasize existing personnel policies and regulations regarding
tardiness and arranging for labor-management time by stewards and
officers of the union.
The meeting began with Goad stating that he had been chewed out the
week before. It is not clear from the record who "chewed" out Goad.
Goad stated that from now on the supervisors were going to have to know
where their employees were at all times and that, "if the supervisor
cannot find you, you will be placed on AWOL (absent without leave)."
Goad also stated that employees were spending too much time on breaks
and in the canteen.
Concerning official time, Goad told the employees that union officers
and stewards could not spend so much time as they had spent in the past
on official time. Goad warned that they would now have to notify their
supervisor of where they were going and how much time they would need.
The supervisor would then let them know if they could be released. He
added that, if union officers on official time needed more time, they
would be required to call their supervisor and request the additional
time. Further, he stated that official time would be allowed only in
increments of one or two hours. President Hawpe asked if the announced
policy applied to union officers as well as stewards. Goad responded
that, he did not care whether the employee was an officer or not. If
official time was needed they would have to ask for it. Hawpe requested
this new policy in writing and Goad said he would get it. Goad also
stated that this policy came from "higher up". The union never received
any written notification policy in writing.
C. Official Time for Union Officers
On January 14, 1980, Hawpe and White met with the new Chief,
Engineering Service, Ron Richter, at Richter's request. The purpose of
this meeting was to discuss a safety matter, but after they had finished
discussing safety, Richter indicated that he was not happy with the way
the union officers used official time without asking permission and
without being under the same restrictions as stewards. Hawpe answered
that most of the official time used by officers was as a result of
requests by management. Hawpe further stated that respondent could make
proposals concerning official time for union officers to the union and
they could negotiate. However, the union never received any proposals
from respondent regarding official time.
Around April 24, 1980, Richter requested another meeting with union
president Hawpe. The purpose of this meeting according to Hawpe was for
Richter to inform Hawpe that if he did not work under the restrictions
of the collective bargaining agreement placed on stewards, he would be
placed in AWOL status by Richter. Present at the meeting were Hawpe;
Karla Mann, the union's second vice-president; Tommy Jackson, chief
steward; Richter; Larry Deal, a personnel officer; and Billy Loftin,
a personnel management specialist. Richter told Hawpe that from this
point on, Hawpe was to request permission to leave the worksite.
Richter instructed Hawpe to tell his supervisor the nature of the
business and to report back to the supervisor when he returned to the
worksite. Hawpe requested that the announced policy be placed in
writing, but both Richter and Deal refused to do so. During the
meeting, only Hawpe's use of official time and the method he was to use
in requesting it were discussed. No other union officers were
mentioned.
Following the above meeting, on April 24, 1980, Hawpe sent a letter
to Richter requesting that:
In order for Union officers in Engineering Service to abide by
your decision regarding the use of official time, it is requested
that you provide to the Local in writing your specific
requirements and proposed changes in this regard.
The union received no response to this letter.
A few days after the above meeting, sometime around May 5, 1980,
Hawpe informed his immediate supervisor Olinger that he was leaving on
labor-management business. Olinger told Hawpe that he could not let him
leave without checking with Myrl Goad. According to Hawpe, Goad would
then apparently check with Bill Cockerill, Assistant Chief, Engineering
Service, Cockerill would then make the decision as to whether Hawpe
could receive official time and would tell Goad. Goad in turn would
tell Olinger, who would then let Hawpe know if Hawpe could leave or not.
Olinger told Hawpe that this was a procedure to begin that day and that
he had been told to keep Hawpe out of the union office. According to
Hawpe, on previous occasions when Hawpe had requested official time
Olinger had not consulted anyone to see whether Hawpe would be allowed
to take the time.
In his deposition Goad denies that he ever told Olinger to clear
Hawpe's official time. However, Goad admits that Olinger did call him a
few times about letting Hawpe take official time. Goad also states that
Richter instructed him to restrict Hawpe's labor-management time since
he thought Hawpe was spending too much time on labor-management
business. Goad was told to keep Hawpe's use of official time down as
much as they could. These instructions were communicated by Goad to
Hawpe's supervisor Olinger.
On or about May 5, an employee in the engineering department, Lester
Rouse, sought to consult with Hawpe concerning settlement of a pending
grievance. Following Richter's instructions, Hawpe requested official
time from Olinger. Olinger contacted Goad and Hawpe's request was
denied. Olinger told Hawpe he could meet with Rouse in the afternoon,
however. Rouse made a regular trip to Tulsa as part of his duties, and
was gone in the afternoon thereby no meeting between Hawpe and Rouse was
possible on that day.
The following day, on May 6, 1980, the union requested a meeting with
the Medical Center Director Floyd McNair. Chief Steward Tommy Jackson
arranged the meeting to discuss the use of official time and the new
procedure which Hawpe was to use. When Hawpe informed Olinger that he
had to leave the jobsite to meet with the Director, Olinger refused to
allow Hawpe to leave. Olinger told Hawpe that they did not want him
taking care of union business. Jackson upon learning of this, requested
McNair have Hawpe attend the meeting, but McNair refused to override the
supervisor. Jackson, therefore, declined to discuss Hawpe's use of
official time and the meeting was never held.
Hawpe allegedly encountered other difficulties concerning his use of
official time during this period. On one occasion Hawpe was allowed
official time by his supervisor, but when he got to the union office, he
was told to return to the shop. Hawpe asked if there was an emergency,
indicating he would go to that location immediately. Olinger replied
that there was no emergency, but Cockerill and others wanted Hawpe out
of the union office. Hawpe returned to the shop, but was allowed to
take care of the labor-management business later that day. Hawpe
further testified that on other occasions he was told by his supervisor
that he would know at 2:00 if official time could be granted to Hawpe
however, the supervisor would not know at the designated time whether
Hawpe could take official time, thereby causing further delay.
Sometime in early May 1980, Hawpe and Jackson met with the Medical
Center Director McNair and Larry Deal to discuss the problems union
officers were having concerning their use of official time. McNair was
asked why he was allowing the service chiefs to ignore the provisions of
the collective bargaining agreement. Hawpe explained there were no
procedures negotiated for the use of official time by union officers.
McNair allegedly agreed that there was no established procedure and that
in the past union officers had used what time they needed. McNair asked
if the union would agree to negotiate on the official time issue. Hawpe
responded that the union would never refuse to negotiate. Larry Deal
then asked if the union would propose something. Hawpe refused, saying
the union was satisfied but, that it would not refuse to negotiate if
respondent made a proposal. No proposals were ever received from
respondent.
On or around May 15, Nurse Donna Burkybile requested that Hawpe
represent her in a settlement discussion regarding a grievance she had
filed, since her regular representative was unavailable. Hawpe
requested and was granted official time to attend the meeting from
Foreman Goad. Before the meeting, Goad told Hawpe that he could not
leave to represent Burkybile as requested. Goad explained there was no
emergency, but that Richter had stated he would put Hawpe on AWOL if he
left to represent Burkybile. Hawpe represented the employee at the
scheduled meeting and was placed on AWOL status for the hour that he was
gone.
A similar incident occurred on or around September 2, 1980, when
White, then a union third vice-president, needed official time to
respond to a management proposal regarding tours of duty for certain
unit employees. White notified his supervisor, Stiles that he would be
taking official time. Stiles responded that due to the workload, he
could not allow White to go. White told Stiles that the collective
bargaining agreement was silent on union officers and he needed the time
to take care of union business. White then went to the union office to
work for one hour. The following day he was charged one hour AWOL and
docked one hour on his paycheck.
D. Union Representation and Official Time to Represent An Employee
in Another Unit
On September 3, 1980, White received a call from Richter informing
him of a meeting on September 4, at which he would receive a letter of
counseling. White had chosen O. D. Sanders, a national AFGE
representative from Norman, Oklahoma, to be his representative at this
meeting. Article XII of the collective bargaining agreement concerning
matters which may lead to disciplinary actions against an employer
states, "he must be advised . . . of his right to be represented by the
Union or any other person of his choice." By letter dated September 3,
1980, White requested that the meeting be postponed until September 10
when his representative would be available. Richter postponed the
meeting until September 8, but declined to postpone it any further. At
the scheduled meeting on September 8, White and Chief Steward Jackson
were present. Jackson allegedly was present to represent the union and
not to represent White individually. Jackson protested that White's
personal representative was not present and that Richter was therefore
denying White's right to a representative of his own choice as stated in
the collective bargaining agreement. Nevertheless, Richter proceeded to
read White's letter of counseling and presented the letter to White. At
that time, Richter also verbally counseled White on his use of official
time.
In addition to being a local union officer, White was District
President for the National Veterans Administration Council in which
capacity, White serviced a district covering the states of Kansas,
Missouri, Oklahoma, and Arkansas. On two previous occasions White had
represented an employee at the Veterans Administration in Fayetteville,
Arkansas, at the employee's request. White informed his supervisor of
the absences stating that he would be on official time the two days he
was absent from work. However, White was placed on AWOL status for both
occasions by Respondent, resulting in a total loss of 15 hours from his
paycheck. Further, as already noted White was reprimanded on September
4, 1980 by Richter for representing the employee in Fayetteville.
E. Conduit Pipes
In approximately March 1979, White, as union safety representative
received complaints from engineering employees regarding some conduit
pipes located in the sub-basement of C-Wing of the facility. The pipes
involved were located in a walk area where engineering employees
occasionally worked. The pipes were mounted with pieces of unistrut
with sharp edges that were approximately chest high. The union
considered the pipes hazardous to personnel who could be working in the
area. The area involved also contained steam lines which could impair
visibility because of steam leakage. White notified Hawpe, who brought
up the safety hazard matter at the March 29, 1979 monthly
union-management meeting. At that meeting, Director McNair, promised to
investigate the situation.
On April 2, 1979, McNair wrote Leo Woodard, then union president, and
stated:
The Resident Engineer has been informed about the pipe and
conduit in the sub-basement of C-wing. The relocation of the
pipes in this area will be included as a completion item in the
contract. This means that the contractor will not be paid for the
job until these items are relocated to our satisfaction.
During an official safety and fire protection survey at the facility
around mid-September 1980, the District Safety and Fire Protection
Engineer noted that in the C-Wing sub-basement of Building One was a new
conduit which presented "a head-bumping hazard." The Safety Engineer
recommended that the conduit be padded and painted to provide visual
warning. Although the Safety Engineer's recommendation was followed and
the pipes were padded and painted, the union contended that respondent
had agreed to relocate the pipes and had not done so. Hawpe went to
Richter and requested information regarding the completion date of the
contract which covered the conduit pipes in question. Richter refused
to give the completion date, but Hawpe was able to ascertain that the
contractor had been paid sometime around June 1980.
Discussion
A. Formal Discussion - 6-CA-399
The evidence is uncontroverted that a meeting was held on January 2,
1980 and that the subject matter involved was tardiness and use of
official time for union stewards and officers. There is no contention
by respondent that the exclusive representative was not given any
notification of this meeting or an opportunity to be present. I agree
with the General Counsel that Air Force Logistics Command, Newark, Ohio,
4 FLRA No. 70 is controlling in this matter. In that case, where the
union was not notified as the exclusive representative of changes in
working conditions, the Authority stated:
Thus, the collective bargaining relationship envisaged by the
Statute requires that each party have the ability to function as
an equal partner within the relationship. It follows that each
party should therefore deal with the other on an equal footing.
In this matter, although three union officials were part of the unit
and worked under the supervision of Foreman Goad none of these officers
was informed of the meeting or of its subject matter. Nor were they
allowed to participate in the meeting as union representatives. Such a
meeting, obviously held to discuss working conditions and without giving
notice to union officials as union representatives clearly impeded its
ability to perform as an equal partner with activity management.
Respondent's argument is that the meeting was not a formal discussion
within the meaning of section 7114(a)(2)(A), but merely a reaffirmation
of the existing policy on tardiness, absence, and leave. Respondent
further contends that union officers were present. The latter argument
is rejected since the evidence shows that union officers were not
notified of this meeting in their capacity as union representatives, but
attended the meeting as employees. As to the former argument, the
matters discussed in this meeting involved working conditions of the
employees involved and supervisor Goad announced changes in the manner
in which union officers would be allowed to take official time for union
business and representational duties at the facility. Such action in
holding a meeting to announce changes in working conditions and
precluding participation by the collective bargaining representative
constitutes a violation of the Statute.
It is therefore, found that, respondent's action herein constitutes a
bypass of the union by not giving it notification or an opportunity to
be present at a formal discussion where certain changes in working
conditions of its employees were announced, is in violation of section
7116(a)(1), (5), and (8) of the Statute.
B. New Procedures Concerning Use of Official Time By Union
Officers-- 6-CA-567 and 6-CA-577
1. Generally
The use of official time for representational activities of an
exclusive representative is subject to bargaining by the parties. See
Department of the Navy, Naval Underwater Systems Center, Newport Naval
Base, 3 FLRA No. 64 (1980). Further, established terms and conditions
of employment, may not be altered by either party absent agreement or
impasse following good faith bargaining. In my view, the actions of the
parties concerning use of official time by union officers constituted
the establishment by past practice of a term or condition of employment.
Beginning in the fall of 1979, the need for official time apparently
increased dramatically at the facility. At that same time, union
president Hawpe was in light duty status and performing very little, if
any, pipefitting work. Further, the union was taking the position that
its officers were entitled to the same time for labor-management
relation as management agents. In all these circumstances, it is no
wonder that Engineering Chief Richter became concerned with the amount
of time being used by union officials in this shop and it would not be
unreasonable to assume from this record that management made certain
efforts to curb the use of official time, particularly use of such time
by then union president Hawpe.
I credit union witnesses that prior to 1980, union officers did not
follow the provisions of Article X of the contract when taking official
time to perform representational duties. I further credit union
officers that they merely informed their supervisors as a courtesy that
they were taking official time and were not questioned by supervisors
regarding use of such time, and that union officers were not alloted
official time in hourly increments. In fact, the record demonstrates
that a rather lax policy was employed in granting official time to union
officers specifically those in the Engineering Service. Thus, it
appears that a past practice of allowing unfettered usage of official
time to union officers existed at the facility prior to January 1980.
The changes announced on January 2, 1980 meeting unilaterally altered
that past practice since union officers were then required to wait for
approval of official time, take that official time in increments of one
or two hours and to basically follow the provisions of Article X of the
collective bargaining agreement concerning union stewards, even though
union officers had not been required to follow such procedures when
performing official union business at the facility prior to that time.
It is further noted that the parties collective bargaining agreement
contains no provision for use of official time by union officers. Prior
to January 1980, at least the union was operating under the assumption
that its officers were free to use official time without so requesting.
Management did nothing to disavow this notion until a new service chief
attempted to apply a provision in the contract which the parties had not
previously applied. It is clear from the record and the credited
testimony of union officers that both parties recognized a distinction
between officers and stewards for official purposes. Thus, in my view a
practice of allowing union officers to use official time at their
discretion was established at the Muskogee facility. If indeed, Richter
suspected abuse of use of that time by union officers then disciplinary
action along those lines should have been initiated. However, in order
to change the existing past practice bargaining is required under the
Statute. Furthermore, the evidence clearly established that the parties
had amended the agreement and still had placed no restrictions on union
officers use of official time.
Respondent maintains that, among other things, Veterans
Administration policy dictated that local management require union
officials to obtain permission for official time usage. While this may
be true, the record in this matter reveals that such a policy was not
enforced by respondent until after January 1980 and that prior to that
time union officers, at least, did not have to obtain permission from
supervisors in order to take official time to perform official union
function at the Muskogee facility.
Based on the foregoing, it is found that respondent's unilateral
announcement which restricted or changed the manner in which union
officers could use official time and the imposition of different
criteria for union officers to use official time without affording the
exclusive representative notice or an opportunity to bargain concerning
the restrictions constituted a violation of section 7116(a)(1) and (5)
of the Statute.
2. Hawpe
The General Counsel contends that president Hawpe as the most visible
union officer was the primary objective of management's attempts to
control the use of official time by union officers. In my view, the
General Counsel established by a preponderance of the evidence that
Hawpe's use of official time for representational purposes was
restricted without notification to or bargaining with the union. As
previously stated, Hawpe was on restricted duty status during the
greater part of 1980 and while it appears that respondent might have
been somewhat concerned with the fact that he was not able to perform
his pipefitting duties, it is also clear that respondent was not happy
with the amount of time consumed by Hawpe in representational activities
and that the change was directed primarily at him. The record also
shows that on two different occasions while Hawpe was on restricted duty
status and no claim could be made that an emergency or other condition
existed which would prevent his being released from work, Hawpe was not
allowed to represent employees, even though requested as their
representative. Hawpe under the new procedure was also required to go
through several levels of supervision to obtain official time and even
then his requests for official time were sometimes not answered. The
record as a whole supports a finding that respondent did implement such
restrictions on Hawpe's activities as union president without notice to
a bargaining with the union. /13/ It is concluded that such
restrictions on Hawpe's use of official time as a union officer, without
notice to a bargaining with the union was violative of section
7116(a)(1) and (5) of the Statute.
3. White
On September 2, 1980, White, as a union officer requested official
time to submit a response to management concerning a change in a tour of
duty. According to the credited testimony of White, the request was
made to his supervisor Doyle Stiles in the same manner that he always
made such requests. Stiles claimed that White could not be spared, but
White left asserting that he was required only to inform his supervisor.
White was charged one hour AWOL.
It is noted that former union president Woodard states that there
were certain situations in which provisions would have to be made to
"turn us loose". I find that this was not one of those occasions and
that the General Counsel has established by a preponderance of the
evidence that respondent's refusal to allow White to take official time
to perform representational duties was violative of the Statute. Here
respondent presented no evidence that an emergency situation existed or
that any other appropriate reason existed for not allowing White to
pursue his representational duties as a union officer as he had done in
the past. In these circumstances, it is found that the General Counsel
established that Stiles' refusal to allow White official time and
charging him AWOL for pursuing representational duties as a union
officer was violative of section 7116(a)(1) and (5) of the Statute.
c. Denying White a Representative of his Own Choosing-- and Charging
Him AWOL Because of his Activities on Behalf of the Union 6-CA-804.
The General Counsel contends that White was denied his right to a
representative of his choice as allowed by Article 12 of the collective
bargaining agreement. Without doubt the counseling session, which
included both a counseling letter and verbal counseling, constituted a
disciplinary action which entitled White to union representation.
However, a union representative, Chief Steward White was present during
the entire meeting. The General Counsel asserts that Jackson's presence
did not diminish White's right to his chosen representative since
Jackson clearly represented the union and not White. White therefore
refused to speak during the meeting since he was not represented by
Sanders, his chosen representative. Although Richter claimed the
meeting could not be postponed because of the seriousness of the issue
and although Steward Jackson was present the General Counsel asserts
that White's contract rights should have taken precedence since the
requested postponement was only for two days. Also it is contended that
White's choice of Sanders was not unreasonable considering White's
position in the union and Sanders nearness. According to the General
Counsel's theory since Sanders was to be present in Muskogee on
September 10, 1980, on other matters, he should have been allowed to
represent White. Under this rationale the question is not whether White
was denied a union representative, but whether terms of the contract
were breached.
It is established that absent a patent breach or lack of good faith
on a respondent's part, the proper forum to resolve disputes over the
meaning of provisions contained in a collective bargaining agreement
would be that which the parties themselves adopted for such a purpose.
American Federation of Government Employees, AFL-CIO, Local 1661 and
Department of Justice, Bureau of Prisons, Federal Correctional
Institution, Danville, Connecticut, 2 FLRA No. 56 (1980); American
Federation of Government Employees, AFL-CIO, Local 1917 and United
States Department of Justice, Immigration and Naturalization Service, 4
FLRA No. 29 (1980).
In this instance, the question of entitlement to a representative of
his own choosing is not argued as being a statutory right but rather one
arising from a contractual term arrived at between the parties. The
criteria for establishing whether such a breach is an unfair labor
practice of course depends on the seriousness of the breach. In this
matter, White was clearly not denied union representation because a
union representative, the Chief Steward was, in fact, present during the
meeting. What appears to have occurred was the union's testing of the
contractual terms and Respondent's insistence that the matter be handled
expeditiously. In my view, the refusal to extend the meeting another
two days was neither patent nor does it establish lack of good faith on
respondent's part. Furthermore, it has not been established on this
record that respondent's interpretation of the clause concerning a
representative of ones own choosing, would constitute a unilateral
change in the terms of the contract. It is therefore, concluded that
this matter involves an interpretation and application of the parties
collective bargaining agreement, and must be resolved in a manner
provided for under that agreement.
The General Counsel also contends that White was charged AWOL for
representing an employee, on two occasions, in Fayetteville, Arkansas
"to punish him" for union activities in violation of section 7116(a)(1)
and (2) of the Statute. The General Counsel asserts that White was
placed on AWOL status in retaliation for his having asserted his rights
as a union representative, that he told his supervisor that he was
taking official time and that the denial of the time constituted a
disciplinary action against White. The General Counsel's reliance on
Corpus Christi Army Depot, Corpus Christi, Texas, 4 FLRA 80 (1980) is
misplaced. In that case the Authority found that a past practice of
allowing certain usage of time had been established. In this matter,
while it has already been found that respondent allowed unfettered usage
of official time to union officials to perform representational duties
in the Muskogee unit the record does not support a finding that official
time was allowed to District union officers to perform such functions or
that union officers performed such representational duties outside the
Muskogee unit for which respondent granted official time. Section
7131(d)(2) states in pertinent part:
. . . any employee in an appropriate unit represented by an
exclusive representative, shall be granted official time in any
amount the agency and the exclusive representative agree to be
reasonable, necessary and in the public interest.
Under section 7131(d) it is not clear that respondent had any obligation
to grant White official time to represent an employee outside the
Muskogee unit. Nor does the record support a finding that White was
entitled to such official time under the parties negotiated agreement.
A review of the agreement between the parties shows that it is silent on
this matter. Thus, any entitlement to such time would have to be
supported by some informal or tacit agreement between the parties. I
find that no such agreement existed and that there is no statutory or
contractual entitlement to use such time.
Accordingly, it is found that respondent's placing White in AWOL
status did not constitute discrimination against him because of his
union activities.
D. The Conduit Pipes-- 6-CA-802
Respondent contends that it has no statutory obligation to bargain
with the union on expenditure of funds or use of a specific technology
to correct a safety hazard. Even if such a statutory obligation exists,
it is my view that the General Counsel failed to establish by a
preponderance of the evidence that Respondent refused to bargain over a
change in the location of conduit pipes.
The record indicates that the parties did indeed discuss safety
matters concerning the pipes and that respondent agreed not to pay to
contractor until the "items are relocated to our satisfaction." Further,
the record reveals that in correcting the safety hazard substantial
changes were made, including relocation, padding and other safety
related work on the conduit pipes in question. Furthermore, the union
offered no formal proposals concerning the correction of the hazard, but
relied on the judgment of Director McNair to correct the problem.
Finally, the contractor was paid. It is noted, that the Engineering
Report relied on as indicating a safety hazard in the pipes did not
require that all pipes be relocated and the safety hazard was corrected
to the extent that it was possible under the engineering conditions as
they existed. While the union may not have been entirely satisfied with
the relocation and color coding when the work was completed it is clear
from the record that all of the pipes could not have possibly been
relocated and the work which was done was apparently, in the best
judgment of the contractor and respondent, satisfactory since the
contractor was paid. In the total circumstances of the case, I find
that respondent met its obligation, if any, to bargain over the matter.
/14/
Based on the aforementioned, I find that the record does not
establish bad faith bargaining on respondent's part over this matter and
recommend dismissal of the complaint in Case No. 6-CA-802.
Having found that respondent violated section 7116(a)(1), (2), (5),
and (8) of the Statute as alleged in Cases 6-CA-399, 6-CA-567 and
6-CA-577, I recommend that the Authority adopt the following Order.
Having further found that respondent did not violate section 7116(a)(1),
(2) and (5) it is recommended that the complaint in Cases 6-CA-802 and
6-CA-804 be dismissed in their entirety.
ORDER
Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.6 of the Rules and
Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby ordered that
the Veterans Administration, Veterans Administration Medical Center,
Muskogee, Oklahoma shall:
1. Cease and desist from:
(a) Unilaterally instituting changes with respect to usage of
official time by union officers, without providing notice to, and
upon request, bargaining with American Federation of Government
Employees, Local 2250, AFL-CIO, the exclusive representative of
its employees, or any other exclusive representative.
(b) Dealing directly with unit employees at the Muskogee,
Oklahoma facility represented by the American Federation of
Government Employees, Local 2250, AFL-CIO with respect to
personnel policies and practices or other matters affecting the
general working conditions of employees at that facility.
(c) Conducting formal discussions between management and unit
employees, or their representatives, concerning personnel policies
and practices, or other matters affecting general working
conditions of employees in the unit, without notifying and
affording American Federation of Government Employees, Local 2250,
AFL-CIO, the opportunity to be represented at formal discussions
between management and employees, as their representative,
concerning personnel policies and practices, or other matters
affecting general working conditions of employees in the unit.
(d) In any like or related manner interfering with, restraining
or coercing its employees of their rights assured by the Statute.
2. Take the following affirmative action:
(a) Upon request, meet and negotiate only with the American
Federation of Government Employees, Local 2250, AFL-CIO, the
exclusive representative of its employees, with regard to
personnel policies and practices, or other matters affecting the
general working conditions of employees at the Muskogee, Oklahoma
facility.
(b) Notify the American Federation of Government Employees,
Local 2250, AFL-CIO, of and afford it the opportunity to be
represented at formal discussions between management and unit
employees, as their representative, concerning personnel policies
and practices, or other matters affecting general working
conditions of employees in the unit.
(c) Make whole employees Esten Hawpe and Eugene White for the
period of time on May 15 and September 2, 1980, respectively when
they were placed on AWOL status while performing representational
duties.
(d) Post at its Veterans Administration Medical Center,
Muskogee, Oklahoma facility 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
Director, 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. The Director shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(e) 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 herewith.
ELI NASH, JR.
Administrative Law Judge
Dated: December 8, 1981
Washington, D.C.
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 THE
FEDERAL
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT institute changes concerning the procedures for usage of
official time by union officers without first notifying the American
Federation of Government Employees, Local 2250, AFL-CIO and affording it
the opportunity to bargain concerning the implementation of such changes
and their impact on adversely affected employees. WE WILL NOT deal
directly with unit employees of the Veterans Administration Medical
Center, Muskogee, Oklahoma represented exclusively by the American
Federation of Government Employees, Local 2250, AFL-CIO, with respect to
personnel policies and practices, or other matters affecting the general
working conditions of employees in the Veterans Administration Medical
Center, Muskogee, Oklahoma. WE WILL NOT conduct formal discussions
between management and unit employees, or their representatives,
concerning personnel policies and practices or other matters affecting
general working conditions of employees in the unit, without notifying
and affording, American Federation of Government Employees, Local 2250,
AFL-CIO, the exclusive representative of our employees, or any other
exclusive representative of our employees, the opportunity to be
represented at such discussions. 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 Statute. WE WILL, upon request, meet and
negotiate in good faith only with the American Federation of Government
Employees, Local 2250, AFL-CIO, with respect to personnel policies and
practices, or other matters affecting the general working conditions of
employees in Veterans Administration Medical Center, Muskogee, Oklahoma.
WE WILL upon request make whole employees Esten Hawpe and Eugene White
for periods of time they were denied official time to perform
representational duties in the Muskogee, Oklahoma facility.
(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 materials. If employees have any
question concerning this Notice, or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, Region VI, whose address is: Bryan &
Ervay Street, Old Post Office Building, Room 450, Dallas, TX 75221; and
telephone number is (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1A/ Member McGinnis' separate opinion is set forth, infra.
/1/ The General Counsel's cross-exceptions were not timely filed and
have not been considered by the Authority.
/2/ Section 7116(a)(1), (5) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ Section 7114(a)(2)(A) provides:
Sec. 7114. Representation rights and duties
. . . .
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment(.)
/4/ To the extent that they are inconsistent herewith, Norfolk Naval
Shipyard, Portsmouth, Virginia, 6 FLRA 74 (1981) and Internal Revenue
Service, Fresno Service Center, Fresno, California, 7 FLRA 371 (1981),
rev'd on other grounds sub nom. Internal Revenue Service, Fresno Service
Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983), shall
no longer be followed. That is, to the extent that the Norfolk Naval
Shipyard and IRS, Fresno cases stand for the proposition that, to be
adequate, the required prior notice of a formal discussion must be
specifically given to the union qua union, they are hereby rejected.
/5/ The Authority recently noted that a formal discussion may be a
meeting called for the purpose of making a statement or announcement.
In such circumstances, the exclusive representative's interest protected
by section 7114(a)(2)(A) is to hear, along with unit employees, about
matters of interest to unit employees and to be in a position to take
appropriate action to safeguard those interests. See Department of
Defense, National Guard Bureau, Texas Adjutant General's Department,
149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA No.
111 (1984), wherein the Authority considered whether the meeting in
question constituted a "discussion" as that term is used in section
7114(a)(2)(A) of the Statute even though no dialogue occurred at the
meeting. It was stipulated that the union had received no prior notice
of the meeting, and there was no showing or finding that any employees
attending the meeting were union representatives.
/6/ Cf. United States Air Force, Air Force Logistics Command,
Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA 512
(1980), rev. sub nom. United States Air Force v. FLRA, 681 F.2d 466 (6th
Cir. 1982), where the Authority held, with regard to notice of a change
in conditions of employment, that an agency violates the Statute when it
fails to give notice to a union official in his or her capacity as a
union representative. The Court of Appeals for the Sixth Circuit
observed: "The Authority's decision appears to interject needless
formality into (the) process. It seems to require that union officials
be specifically addressed according to the role, employee or union
representative, to which the speaker's message pertains. That could
hardly have been the result intended." United States Air Force, 681 F.2d
at 468.
/7/ The Authority in so concluding finds it unnecessary to, and does
not, pass upon whether the meeting was a "formal discussion" within the
meaning of section 7114(a)(2)(A) of the Statute.
/8/ These elements are identified and discussed in Bureau of
Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984),
petition for review filed sub nom. National Treasury Employees Union v.
FLRA, No. 84-1493 (D.C. Cir. Oct. 1, 1984).
/9/ As noted by the Judge, White's entitlement to a representative of
his own choosing is not argued on the basis of the Statute, but only on
the basis of the negotiated agreement.
/10/ Section 7116(a)(1) and (2) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment(.)
/11/ At the hearing the General Counsel moved to sever case number
6-CA-791 from the Consolidated Complaint. The severance was granted,
thereby, eliminated paragraph 5(d) of the Consolidated Complaint
concerning the broadening of the scope of work assignments for
timekeepers. It also eliminated the September 22, 1980 date from
paragraph 6(a) and 6(b) of the Consolidated Complaint. Further,
paragraph 5(b) was amended to include a second date, which now reads
about May 16, 1980.
/12/ Hawpe during the period involved herein was employed by
respondent as a pipefitter. However, during the greater part of 1980,
Hawpe was unable to perform his assigned duties because of a job related
injury. Hawpe spent a large part of 1980 sitting in the plumbing office
answering the telephone and ordering materials. Hawpe is no longer
employed by respondent.
/13/ I also agree with the General Counsel that various meetings held
between the parties to discuss official time usage for union officials
did not constitute meaningful bargaining sessions. Thus, both sides
offered no definitive proposals, but merely shadow-boxed over the issue,
the union desiring to maintain the status quo and management although
adamant for change offered no proposals.
/14/ Based on the above finding it is unnecessary to decide whether
or not respondent had any obligation to bargain over the matter since it
allegedly concerned matters enumerated under section 7106(a)(1) and
(b)(1).