[ v26 p40 ]
26:0040(5)CA
The decision of the Authority follows:
26 FLRA No. 5
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON
AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
COUNCIL 214, AFL-CIO
Charging Party
Case No. 5-CA-60103
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a
supporting brief. The Respondent filed an opposition to the exceptions
of the General Counsel.
Pursuant to Section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), we have reviewed the rulings of the Judge made at
the hearing and find that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's
Decision, the exceptions to that Decision, and the entire record, we
adopt the Judge's findings, conclusions, and recommended Order that the
complaint be dismissed.
The complaint in Case No. 5-CA-60103 is dismissed.
Issued, Washington, D.C., March 5, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 5-CA-60103
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS,
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON
AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
COUNCIL 214, AFL-CIO
Charging Party
C. R. Swint, Jr., Esquire
For the Respondent
Mr. Paul Palacio
For the Charging Party
Judith A. Ramey, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an amended unfair labor practice complaint
issued by the Regional Director, Region V, Federal Labor Relations
Authority, Chicago, Illinois, against the Department of the Air Force,
Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio (Respondent), based on an amended charge filed by the
American Federation of Government Employees, Council 214, AFL-CIO
(Charging Party, Council, or Union). The complaint alleged, in
substance, that the Respondent violated Section 7116(a)(1), (5) and (8)
of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
Section 7101 et seq. (the Statute), by refusing to process a grievance
and a request for dues withholding of employee Bernice Givhan on the
basis that she is not in the bargaining unit.
The Respondent's answer admitted that it had refused to process the
grievance and dues checkoff authorization of Ms. Givhan on the basis
that Ms. Givhan is not in the bargaining unit. Respondent denied any
violation of the Statute.
The essential issue presented for determination is whether Ms. Givhan
is a member of the bargaining unit. A hearing was held at Robins Air
Force Base, Georgia. The Respondent, Charging Party, and the General
Counsel were represented and afforded full opportunity to be heard,
adduce relevant evidence, examine and cross-examine witnesses, and file
post-hearing briefs. The Respondent and General Counsel filed helpful
briefs, and the proposed findings have been adopted where found
supported by the record as a whole. Based on the entire record,
including my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommendations.
Findings of Fact
1. Respondent maintains its Headquarters at Wright-Patterson Air
Force Base, Ohio. Respondent maintains several other facilities, one of
which is Warner Robins Air Logistics Center at Robins Air Force Base,
Georgia (Robins AFB or Warner Robins). Through Robins AFB Respondent
maintains and operates a facility in St. Louis, Missouri known as the
F-15 Logistics Support Cadre.
2. On February 28, 1966, Lodge 987 (now, Local 987), American
Federation of Government Employees, AFL-CIO (AFGE) requested that an
election be held "for a determination of exclusive jurisdiction
base-wide at Robins Air Force Base, Georgia." This request was forwarded
through channels on April 14, 1966, to Headquarters, United States Air
Force. The forwarding letter from Robins AFB described the proposed
unit as "encompassing all organizations on the installation in the same
commuting area serviced by the Civilian Personnel Office" and listed
certain excepted organizations not relevant herein. On April 15, 1966,
the Air Force approved "a unit at Robins AFB, GA encompassing all
organizations on the Installation" with certain exceptions. Lodge 987
was notified of the approval of the unit. Subsequently, on May 10,
1966, an agreement was reached between Lodge 987 and Robins AFB which
detailed the procedures to be followed in conducting the
representational election. This agreement specified that the unit "is
Robins Air Force Base" with certain exceptions. Additionally, the
agreement defined those eligible to vote as "all employees occupying
permanent career positions at Robins AFB; are serviced by the Central
Civilian Personnel Office of Robins Air Force Base; and are not
excluded in Item 3 below." Among those excluded were, "i. Employees who
have received official notice of reassignment or transfer outside Robins
Air Force Base to another Air Force installation or another agency." On
May 13, 1966, notices were issued to employees about the election.
These notices advised "all employees at Robins AFB" of the unit as "all
of Robins Air Force Base" with the exceptions. The election was held on
May 26, 1966 resulting in a vote for exclusive recognition. Lodge 987
was afforded exclusive recognition on June 17, 1966 for the unit
established for the election. Collective bargaining agreements were
then consummated with Lodge 987 on December 22, 1967 and September 24,
1970. Both of these agreements described the unit as "all eligible
employees at Robins Air Force Base paid from appropriated funds."
3. At the time of recognition of Lodge 987, AFGE in 1966, the St.
Louis Support Cadre had not yet been established. It was established in
1970. Subsequently, two other agreements were reached with Local 987 on
November 16, 1973 and on May 20, 1976. These agreements were multi-unit
agreements which included "all eligible employees" in the "Basewide
Bargaining Unit, WRAMA, Robins Air Force Base." Employees of the
Directorate of Materiel Management were included in this Basewide
Bargaining Unit.
4. On January 13, 1978, the American Federation of Government
Employees, AFL-CIO (AFGE) was certified as the exclusive bargaining
representative of a consolidated unit of Respondent's employees at its
several facilities around the country. That consolidated unit is
described, in part, as follows:
Included: All non-supervisory, non-professional employees at
the following Air Force Logistics Command Facilities paid from
Appropriated Funds and who are serviced by AFLC Civilian Personnel
Offices:
Hill Air Force Base, Ogden, Utah
Kelly Air Force Base, San Antonio, Texas
McClellan Air Force Base, Sacramento, California
Newark Air Force Station, Newark, Ohio
Robins Air Force Base, Warner Robins, Georgia
Tinker Air Force Base, Oklahoma City, Oklahoma
Wright-Patterson Air Force Base, Dayton, Ohio
Detachment 21, AFCMC, AFPRO, Boeing, Wichita, Kansas
Cataloguing and Standardization Office, Battle Creek, Michigan
5. The certification of the consolidated unit followed a
"Stipulation of Unit Recognition and Certification" between AFLC and
AFGE wherein it was agreed, inter alia, that the Robins AFB unit was an
appropriate unit for the purpose of unit consolidation. The
consolidation of units in January 1978 was done without an all-employee
election.
6. Subsequent to the consolidation, AFGE delegated to the Charging
Party its authority to deal with Respondent on behalf of the
consolidated unit. Some of that bargaining authority has been further
delegated through the parties' Master Labor Agreement (MLA), in Article
33, to the local unions which comprise the Council. Article 33.03a.
provides that activity-wide changes in local conditions of employment,
not covered by the MLA nor covered by Command-wide negotiations, which
are within the discretion of the subordinate activity commander, will be
brought to the attention of Local Union officials. Section 33.03b. of
the MLA provides that changes in local conditions of employment at
echelons below the activity commander will be brought to the attention
of the Union representative designated to be contacted by the supervisor
or manager making the changes. At all times material, AFGE, Local 987
has been, and is now, an agent of the Council with respect to the
employees of Respondent at Robins AFB. There are approximately
15,000-16,000 bargaining unit members at Robins AFB.
7. The currently effective MLA includes a grievance procedure, at
Article 6, and a dues withholding provision, at Article 8.
8. The Robins AFB unit, which was consolidated into the greater AFLC
unit, includes many employees who are not employed by the Respondent.
Included in the Robins AFB unit are employees from Commands which are
parallel and distinct from AFLC and, hence, have entirely different
chains of command. An example of this are employees of Headquarters,
Air Force Reserve, who are located at Robins AFB. The Robins unit
includes widely varying types of employees. They vary in job skills,
classifications, pay systems, chain of command, and work setting.
9. The overall mission of AFLC is to repair and service aircraft and
aircraft engines, modify aircraft, and maintain aircraft parts
world-wide for the U.S. Air Force. One of the aircraft maintained by
AFLC is the F-15, which is built by the McDonnell-Douglas Corporation in
St. Louis, Missouri. The F-15 program is located, organizationally,
within the Directorate of Material Management (MM), which is
headquartered at Robins AFB. The MM Directorate includes the F-15
System Program Management Division (MMF). Within the MMF is the
Requirements and Distribution Branch (MMFD) headed by Walter Wilson,
also at Robins AFB. Under MMFD is the St. Louis F-15 Logistics Support
Cadre (LSC) which has been headed, since January 1985, by Major Peter
Inglis, who reports to Mr. Wilson. Major Inglis functions
organizationally as a Section Chief and, operationally, as a Detachment
Commander due to the LSC location.
10. The LSC was established in 1970 to carry out, on the site of the
contractor, the paperwork associated with the initial provisioning (the
acquisition of peculiar spare parts) for the F-15 aircraft. This
function continues as new models of the aircraft continue to be
developed.
11. At all times material herein, there were approximately nine
employees working in the LSC. These included two GS-12 equipment
specialists, one GS-12 item manager, one GS-11 item manager, two GS-5
procurement clerks, and one GS-5 secretary (Ms. Givhan). There is also
a cataloguer, on loan from an AFLC facility in Battle Creek, Michigan.
Major Inglis is the only supervisor at the LSC.
12. The Warner Robins Civilian Personnel Office (CPO) services all
of the Warner Robins civilian personnel including those of the LSC at
St. Louis. These services include position staffing and management,
classification, employee relations, labor relations, and training.
13. The Warner Robins employees located in St. Louis are subject to
the same personnel policies, Air Force regulations, and Air Force
operations instructions as are other Warner Robins personnel, with the
exception of those that are logically inapplicable due to the differing
locations, e.g., parking, access to the base. St. Louis employees are
subject to the same appraisal program, disciplinary procedures, awards,
and suggestion programs as are the other Warner Robins employees. The
Warner Robins Accounting and Finance Office maintains the payroll for,
and issues paychecks to, the LSC employees.
14. The LSC is physically located on premises owned by
McDonnell-Douglas Aircraft Corporation in St. Louis. The LSC office is
separate from that of the McDonnell-Douglas employees; however, one
representative of McDonnell-Douglas works in the LSC office on a
continuous basis. McDonnell-Douglas provides utilities, parking, outer
security, and eating facilities for the LSC office. The normal duty day
at LSC is from 0730 until 1600 hours. The LSC tour of duty is not used
in the Directorate of Material Management at Robins AFB where a
flexitime agreement with Local 987 covering all bargaining unit
employees is in effect. This agreement has never been applied to the
LSC. The work schedule at LSC is not the same nor geared to
McDonnell-Douglas work hours. LSC employees do not use time clocks, as
do McDonnell-Douglas employees. The LSC employees observe the holidays
for Federal employees which are sometimes different than those observed
by McDonnell-Douglas. LSC can arrange access to its office space as
necessary.
15. The higher graded employees at LSC, i.e., the item managers and
equipment specialists, are all serving on temporary rotational
assignments from Warner Robins. The basic term of assignment is three
years. The employee may opt for additional years in St. Louis. The
employee has a right to return to Warner Robins to a job at the same pay
and grade.
16. The clerical employees at LSC, i.e., the two GS-5 procurement
clerks and the GS-5 secretary (Ms. Givhan), are hired locally from
Office of Personnel Management (OPM) registers for the St. Louis area.
The Robins AFB Personnel Office secures the list and transmits the
paperwork to the LSC where the St. Louis LSC manager is the selecting
official.
17. Robin's AFB's clerical positions are filled either through
promotion from Warner Robins promotion lists or, in the case of
entry-level positions, local hires from OPM registers. Clerical
positions physically located at Warner Robins are filled by both of
these procedures. Clerical positions at Robins AFB are usually hired at
the GS-2 level with internal promotion to higher grades. Occasionally a
federal employee transfers in at a higher grade.
18. The clerical workers in the St. Louis LSC are maintained in the
computerized promotion registers for positions at Robins AFB.
Historically the clerical workers have not been interested in such
positions for personal reasons. Ms. Givhan and other GS-5s have been
offered promotions to positions at Robins AFB, but have declined. As a
general rule, the GS-5s at LSC have not been interested in moving to
Robins AFB and none has ever done so, although the situation could
change. While no GS-5 has ever transferred to Robins AFB, several have
transferred to other federal agencies in the St. Louis area. Ms. Givhan
regards her promotion possibilities to be limited to other St. Louis
agencies due to her desire to remain in the St. Louis area.
19. A reduction in force (RIF) occurred at the LSC in the
mid-1970's. The RIF affected only the clerical employees. The
competitive area for this RIF was St. Louis. The clerical employees
were unable to exercise bumping rights. The clerical employees affected
by the RIF were able to transfer to different federal agencies in the
St. Louis area. McDonnell-Douglas initially replaced the clerical
workers with their own workers in the LSC office, at no cost to the
Government, in an effort to ensure the continuation of the LSC in St.
Louis. The McDonnell-Douglas employees were removed shortly thereafter
following a complaint concerning this practice.
20. Documents listing the F-15 spare parts requirements are
initiated from McDonnell-Douglas and processed by the employees of the
St. Louis LSC, subject to the ratification of the Warner Robins
Procurement Officer. The chief document, the data accumulation and
transmittal sheet, is processed at LSC first by the supply clerk, then
the equipment specialists, item managers, cataloguer, then the
procurement clerk, in a chain. The entire process is continually
coordinated with Robins AFB. Robins must authorize the funds before any
purchase can be made.
22. Functions and tasks similar to those carried out by the LSC
employees, i.e. initial provisioning and provisioning of aircraft in St.
Louis, are carried out by similarly titled employees at Robins AFB.
However, at St. Louis, Employees with different specialties work
side-by-side. At Robins AFB, they work in different branches of the
Directorate or, in the case of procurement clerks, in another
Directorate.
23. The St. Louis LSC employees are in daily telephone contact with
Warner Robins personnel. Ninety-five percent of the incoming calls are
from personnel at Robins AFB. The LSC purchasing functions cannot be
completed without the involvement of Warner Robins management and
personnel.
24. The primary duty of the LSC secretary (Bernice Givhan) is to
support the office personnel and functions by doing general secretarial
work. She performs typing, filing, word processing, answering the
telephone, maintaining time and attendance records for forwarding to
Robins AFB, ordering forms, supplies, and publications from Robins AFB,
mailing correspondence, and seeing that the office machines are
accounted for, maintained, and supplied. She is the security monitor
and receives and follows security briefings sent from Robins AFB.
25. Marion Dyche, a 35-year Warner Robins employee, now retired,
spent five years in St. Louis at the LSC on a rotational assignment.
She was a member of Local 987 for about twenty years. Her Union dues
were withheld from her salary during that entire period, including the
five years she was in St. Louis. The dues withholding was initiated
before she went to the LSC. There are about 2500 employees on dues
withholding. No checking is done as to location. Thus, the
continuation of Ms. Dyche on dues withholding at LSC was not a conscious
decision by management to include LSC employees in the bargaining unit.
At least two other employees from Robins AFB who have served at the LSC
have also continued on dues deduction while at the LSC.
26. Periodically, the Directorate of Material Management at Robins
AFB sends to the St. Louis LSC a "care package" containing various items
of probable interest to the St. Louis employees. Included are
management publications as well as the Local 987 newsletter.
27. On January 2, 1986, Bernice Givhan, the GS-5 secretary at the
St. Louis LSC, filed a first step grievance under the negotiated
grievance procedure of the MLA. On January 21, 1986, Ms. Givhan,
through AFGE, Local 987, filed a step two grievance under the MLA
grievance procedure. The Union determined that it should represent Ms.
Givhan as a member of the bargaining unit since she was serviced by the
Robins AFB Civilian Personnel Office and prior dues deductions had been
received from employees of the LSC.
28. On January 6, 1986 and January 30, 1986, Respondent, by Major
Peter R. Inglis, Chief, LSC, and Earl W. Briesch, Deputy Director,
Material Management, respectively, returned Ms. Givhan's grievance
without action, stating that Ms. Givhan is not in the bargaining unit,
and refused to process Ms. Givhan's grievance under the negotiated
grievance procedure of the MLA. Ms. Givhan was advised that she would
have to use the Air Force grievance procedure under Air Force Regulation
40-771 and should contact the Robins AFB Civilian Personnel Office to
obtain any desired assistance in doing so.
29. On or about December 20, 1985, Bernice Givhan executed a request
and authorization for voluntary allotment for payment of employee
organization dues, which was authorized by AFGE, Local 987.
30. On or about January 7, 1986, Respondent, by John W. Adkins,
Labor Relations Officer, returned Bernice Givhan's request for dues
withholding, and refused to process the request, stating that Ms. Givhan
was not in the bargaining unit.
31. Val Buxton, Chief Labor Relations Officer, Headquarters, AFLC,
was aware of and in agreement with the Robins AFB action to reject Ms.
Givhan's negotiated grievance and dues withholding authorization. The
Respondent has never considered the employees at the LSC to be in the
bargaining unit because they do not physically work at Robins AFB and
for that reason Ms. Givhan's dues withholding request and grievance were
denied. Prior to this time, Respondent has never received any
expression of interest from the Union concerning the LSC. When the
Respondent has been required to make postings at its facilities as a
result of an Authority case, such postings have never been sent to the
LSC.
32. There is no evidence that the Union knew of the existence of the
LSC in St. Louis prior to December 1985. As a result of Ms. Givhan's
grievance, the Union has requested information from Respondent
concerning the location of other AFLC employees in satellite offices
serviced by AFLC Civilian Personnel Offices. The only proposals in the
past by Local 987 concerning employees who work elsewhere than Robins
AFB have involved personnel on temporary duty (TDY) at other locations.
Employees can be placed on TDY for up to 179 days. The Local has
sometimes designated a steward for a group of employees on TDY. Article
22 of the MLA also deals with TDY.
Discussion, Conclusions, and Recommendations
The complaint alleges that Respondent violated section 7116(a)(1),
(5) and (8) of the Statute in January 1986 when it refused to process
the grievance of Bernice Givhan under the negotiated grievance
procedure, and/or when it rejected Bernice Givhan's request for
voluntary allotment of dues to the Union. The General Counsel contends
that Respondent acted at its peril in unilaterally determining that
Bernice Givhan is not a member of the bargaining unit and that an unfair
labor practice proceeding is an appropriate forum for the determination
of the appropriateness of a particular unit of employees and whether an
employee is a member of that unit. The General Counsel claims that the
LSC employees share a community of interest with other Robins AFB
employees, and a unit determination to include them would promote
effective dealings with, and efficiency of the operations of, the
agency. The General Counsel argues that distinctions based solely on
the physical location of the Robins AFB employees located at Robins AFB
and the Robins AFB employees located in St. Louis, or between the
clerical employees, including Ms. Givhan, and non-clerical LSC
employees, are not a sufficient reason to require a separate unit
determination.
Respondent defends on the basis that LSC employees at St. Louis
historically and traditionally have never been considered within the
Robins AFB bargaining unit. Respondent claims that neither a
clarification of unit petition nor an unfair labor practice proceeding
can be used as a vehicle to expand a bargaining unit beyond what the
unit has been certified and traditionally considered to be. Respondent
contends, in the alternative, that an appropriate unit would not include
Ms. Givhan and the other GS-5 clerical employees in the LSC, and the
status of the other higher graded members of the LSC staff are not
relevant to the matter. Respondent asserts that the clerical employees
do not realistically compete with other Robins AFB employees for
promotion, retention, assignments, etc. and, in all other respects, they
have nothing in common with other Robins AFB employees because they do
not physically work on Robins AFB.
Pursuant to section 7114(a)(1) of the Statute an exclusive
representative "is entitled to act for, and negotiate collective
bargaining agreements covering all employees in the unit." Section
7121(a) establishes the requirement that any collective bargaining
agreement provide "procedures for the settlement of grievances" and,
under section 7121(b)(3) any such procedures must,
"(A) assure an exclusive representative the right, in its own
behalf or on behalf of any employee in the unit represented by the
exclusive representative, to present and process grievances;
"(B) assure such an employee the right to present a grievance
on the employee's own behalf, and assure the exclusive
representative the right to be present during the grievance
proceeding(.)"
Any interference with the right of an employee in the unit
represented by the exclusive representative to present a grievance under
a negotiated agreement would constitute a violation of section
7116(a)(1).
Section 7115(a) of the Statute provides for an allotment by "an
employee in an appropriate unit" to an exclusive bargaining
representative. /1/ Section 7115(b)(1) provides that such an allotment
shall terminate when "the agreement between the agency and the exclusive
representative involved ceases to be applicable to the employee." The
failure of an agency to comply with the mandates of section 7115 would
constitute a violation of section 7116(a)(1) and (8) of the Statute and,
if the action results from or accompanies a withdrawal of union
recognition, a violation of section 7116(a)(5) of the Statute.
The critical issue to be determined in deciding whether Respondent
violated any of these Statutory provisions, as alleged, is whether Ms.
Givhan was, in fact, an employee in the unit represented by the
exclusive representative (the establishing bargaining unit) when
Respondent refused to process her grievance and to honor her dues
deduction. Department of Health and Human Services, Washington, D.C.
(HHS, Washington, D.C.), 16 FLRA 586, 589-590 (1983); United States Air
Force, 2750th Air Base Wing Headquarters (2750th ABW), 16 FLRA 872
(1984); Interpretation and Guidance, 4 FLRA 754, 757 (1980). As Judge
William B. Devaney stated in HHS, Washington, D.C., supra, 16 FLRA at
589:
This is not a representation case and the bargaining unit as
certified may not be altered in an unfair labor practice
proceeding, although unit determinations concerning particular
employees as being included or excluded from bargaining units as
certified may, and in this case must, be resolved in an unfair
labor practice proceeding. See, Internal Revenue Service, Seattle
District, et al., 12 FLRA No. 74, 12 FLRA 324 (1983); North
Carolina Air National Guard, Charlotte, North Carolina, 4 FLRA No.
44, 4 FLRA 348 (1980); The Adjutant General -- Georgia, Georgia
National Guard, Department of Defense, Atlanta, Georgia, 2 FLRA
No. 92, 2 FLRA 712 (1980); U.S. Department of Energy, Western
Area Power Administration, Golden, Colorado and International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245,
1759, 1959 and 2159, Case No. 7-CA-1229, OALJ-82-119 (August 4,
1982) . . . . (Footnote omitted.)
The certification dated January 13, 1978 continues under the Statute
pursuant to section 7135(a)(1). This certification describes the
involved unit as including
All non-supervisory, non-professional employees at the
following Air Force Logistics Command Facilities paid from
Appropriated Funds and who are serviced by AFLC Civilian Personnel
Offices:
. . .
Robins Air Force Base, Warner Robins, Georgia.
It is conceded that Ms. Givhan is a non-supervisory, non-professional
employee, is not otherwise exempt, is paid from appropriated funds, and
is serviced by the AFLC Civilian Personnel Office at Robins AFB.
However, Ms. Givhan is not "at" the AFLC facility at Robins AFB.
Rather, she is an employee "of" the AFLC facility at Robins AFB working
at the LSC office in St. Louis.
In 2750th ABW, supra, the certification described the involved unit
as including "employees of the Headquarters Air Force Logistics Command
and 2750th AF Base Wing, and tenants physically located at the
Wright-Patterson AF Base complex and serviced by the Civilian Personnel
Office." The employer transferred several AFLC personnel to Gentile Air
Force Base, eight miles away, and terminated their dues deductions. The
Authority found that the involved AFLC employees continued to be part of
the established unit and that this unit promoted effective dealings and
efficiency of agency operations. In so concluding, the Authority found
that the words "physically located" as used in the unit description,
were intended to refer to tenants at Wright-Patterson Air Force Base,
and not to the AFLC bargaining unit. 16 FLRA at 874, fn. 6. In the
instant case the involved unit is not described as employees "of" the
AFLC facility at Robins AFB, but employees (which includes non-AFLC
employees) "at the following (AFLC) facilities (Robins AFB) . . . and
who are serviced by the Civilian Personnel Office." Thus, the
description here, although it does not use the more precise words
"physically located at," is, in light of the common dictionary meaning
of "at" to indicate a point, place, location, or position occupied in
space, /2/ just as restrictive as that held by the Authority to apply
only to the tenant organizations in 2750th ABW. Moreover, apart from
employees on temporary duty for up to six months, there is no history of
bargaining with regard to employees physically located elsewhere.
Compare U.S. Department of Labor, Case No. 3-CA-30634, ALJDR 44 (1985).
The LSC has been in existence for almost sixteen years. There is no
evidence that historically or traditionally the LSC employees have ever
been considered within the Robins AFB bargaining unit. Thus, it is
concluded that since Bernice Givhan was not an employee physically
located "at Robins AFB," she was not a member of the established
bargaining unit when Respondent refused to process her grievance and to
honor her dues deduction. Accordingly, Respondent did not violate
section 7116(a)(1), (5), and (8), as alleged.
As noted at the outset, the certification as it exists is controlling
and may not be changed in an unfair labor practice proceeding. Whether
a unit of Respondent's employees which includes the LSC is an
appropriate unit for purposes of exclusive representation is a matter to
be resolved under section 7112 of the Statute and Part 2422
(Representation Proceedings) of the Authority's Rules and Regulations.
/3/ HHS, Washington, D.C., supra, 16 FLRA at 597. For example, in
Department of Defense, Defense Communications Agency Headquarters, 11
FLRA 582 (1983) a unit was described, in pertinent part, as "employees
of (the agency) . . . physically located at 8th Street and South
Courthouse Road, Arlington, Virginia." The Authority noted that
questions had arisen concerning, in part, whether certain employees who
were previously part of the unit should be excluded simply because their
duty stations had been changed from that location. The Authority
granted a joint petition to clarify the unit description. The
clarification eliminated the "physically located at" description and
changed it, in pertinent part, to "employees of (the agency) serviced by
the Headquarters Civilian Personnel Division."
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
IT IS HEREBY ORDERED, that the Complaint in Case No. 5-CA-60103 be,
and it hereby is, DISMISSED.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: August 29, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Section 7115. Allotments to representatives
(a) If an agency has received from an employee in an
appropriate unit a written assignment which authorizes the agency
to deduct from the pay of the employee amounts for the payment of
regular and periodic dues of the exclusive representative of the
unit, the agency shall honor the assignment and make an
appropriate allotment pursuant to the assignment. Any such
allotment shall be made at no cost to the exclusive representative
or the employee. Except as provided under subsection (b) of this
section, any such assignment may not be revoked for a period of 1
year.
(2) The Random House College Dictionary defines "at" as follows:
at' (at; unstressed at, it), prep. 1. (used to indicate a
point or place occupied in space) in, on, or near: to stand at
the door; at the bottom of the barrel. 2. (used to indicate a
location or position, as in time, on a scale, or in order); at
noon; at age 65. 3. (used to indicate presence or location); at
home; at hand. 4. (used to indicate amount, degree, or rate):
at great speed; at high altitudes. 5. (used to indicate a goal
or objective) toward: Aim at the mark. Look at that. 6. (used
to indicate occupation or involvement): at work; at play. 7.
(used to indicate a state or condition): at ease; at peace. 8.
(used to indicate a cause): She was annoyed at his stupidity. 9.
(used to indicate a method or manner): He spoke at length. 10.
(used to indicate relative quality or value): at one's best; at
cost.
(3) In the event the Authority should deem it necessary to make such
a determination in this proceeding, the extensive findings of fact
concerning the Robins AFB unit and the LSC employees would permit
appropriate conclusions to be drawn pursuant to section 7112 of the
Statute as to whether the LSC employees share a community of interest
with the established unit and whether a unit determination to include
them would promote effective dealings with, and efficiency of the
operations of, the agency.