Department of the Air Force, 35th Combat Support Group (TAC), George Air Force Base, California (Activity) and National Federation of Federal Employees, Local 977 (Labor Organization) 



[ v04 p22 ]
04:0022(5)CA
The decision of the Authority follows:


 4 FLRA No. 5
 
 DEPARTMENT OF THE AIR FORCE
 35TH COMBAT SUPPORT GROUP (TAC)
 GEORGE AIR FORCE BASE, CALIFORNIA
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 977
 Labor Organization
 
                                            Case No. 8-CA-113
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
 ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER.  THEREAFTER, THE RESPONDENT
 FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
 AND ORDER, AND THE GENERAL COUNSEL FILED A BRIEF IN RESPONSE THERETO.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
 RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
 THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
 INCLUDING THE RESPONDENT'S EXCEPTIONS AND THE GENERAL COUNSEL'S RESPONSE
 THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATION AS SET FORTH BELOW.
 
    THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT VIOLATED
 SECTION 7116(A)(1) OF THE STATUTE BY FAILING AND REFUSING TO PROCESS AN
 EMPLOYEE'S GRIEVANCE, FILED UNDER THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE AFTER THEIR AGREEMENT HAD EXPIRED BUT BASED UPON EVENTS WHICH
 OCCURRED DURING THE TERM OF THAT AGREEMENT, AND BY STATING THAT THE
 EMPLOYEE HAD NO RIGHTS OR RECOURSE UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE.  RELYING UPON ESTABLISHED PRECEDENT UNDER E.O. 11491, AS
 AMENDED, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT'S
 CONDUCT CLEARLY DISCOURAGED OR INTERFERED WITH THE EMPLOYEE'S RIGHT
 UNDER THE STATUTE TO FILE A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE AND THEREFORE INTERFERED WITH, RESTRAINED OR COERCED THE
 EMPLOYEE IN VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE.
 
    IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS
 THAT THE RESPONDENT VIOLATED THE STATUTE IN THE CIRCUMSTANCES OF THE
 INSTANT CASE.  IN THE AUTHORITY'S VIEW, THE PURPOSES AND POLICIES OF THE
 STATUTE ARE BEST EFFECTUATED BY A REQUIREMENT THAT THE EXISTING
 PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS-- INCLUDING NEGOTIATED GRIEVANCE AND ARBITRATION PROCEDURES--
 MUST CONTINUE AS ESTABLISHED UPON THE EXPIRATION OF A NEGOTIATED
 AGREEMENT, ABSENT AN EXPRESS AGREEMENT BY THE PARTIES TO THE CONTRARY OR
 UNLESS MODIFIED IN A MANNER CONSISTENT WITH THE STATUTE.  SUCH
 CONCLUSION FOSTERS DESIRABLE STABILITY IN FEDERAL LABOR-MANAGEMENT
 RELATIONS;  IS CONSISTENT WITH THE ESTABLISHED FRAMEWORK OF THE STATUTE
 WHICH PROVIDES FOR THE PEACEFUL RESOLUTION OF BARGAINING DISPUTES;  AND
 "FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF DISPUTES BETWEEN
 EMPLOYEES AND THEIR EMPLOYERS INVOLVING CONDITIONS OF EMPLOYMENT," WHICH
 IS AN UNDERLYING PURPOSE OF THE STATUTE.
 
    ACCORDINGLY, INASMUCH AS IT DOES NOT APPEAR FROM THE RECORD HEREIN
 THAT THE PARTIES HAD AGREED TO TERMINATE THEIR NEGOTIATED
 GRIEVANCE-ARBITRATION PROCEDURES UPON THE EXPIRATION OF THEIR AGREEMENT,
 OR HAD OTHERWISE MODIFIED THE EXISTING PERSONNEL POLICIES AND PRACTICES
 AND MATTERS AFFECTING WORKING CONDITIONS IN A MANNER CONSISTENT WITH THE
 STATUTE, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION
 THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE STATUTE IN THE
 CIRCUMSTANCES OF THIS CASE.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE AIR FORCE, 35TH
 COMBAT SUPPORT GROUP (TAC), GEORGE AIR FORCE BASE, CALIFORNIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROCESS A GRIEVANCE UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE
 
    CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT EXECUTED BETWEEN IT
 AND THE NATIONAL
 
    FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977, OR ANY OTHER LABOR
 ORGANIZATION, FOR THE REASON
 
    THAT SUCH AGREEMENT HAS EXPIRED AND THAT THE EMPLOYEES HAVE NO RIGHT
 TO FILE A GRIEVANCE
 
    THEREUNDER.
 
    (B) DISCOURAGING ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, FROM FILING
 A GRIEVANCE UNDER THE
 
    NEGOTIATED GRIEVANCE PROCEDURE CONTAINED IN THE COLLECTIVE BARGAINING
 AGREEMENT EXECUTED
 
    BETWEEN IT AND THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
 977, OR ANY OTHER LABOR
 
    ORGANIZATION, BY INFORMING ANNA M. CROCKER, OR ANY OTHER EMPLOYEE,
 THAT SUCH AGREEMENT HAS
 
    EXPIRED AND THEY HAVE NO RIGHT TO FILE A GRIEVANCE THEREUNDER.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES
 
    OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
 
    (A) POST AT ITS FACILITY AT THE GEORGE AIR FORCE BASE, CALIFORNIA
 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
 COMMANDER, 35TH COMBAT
 
    SUPPORT GROUP (TAC), AND THEY SHALL BE POSTED FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN
 
    CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
 ARE CUSTOMARILY
 
    POSTED.  THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT
 SUCH NOTICES ARE NOT
 
    ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE
 
    REGIONAL DIRECTOR OF REGION 8, 350 S. FIGUEROA STREET 10TH FLOOR, LOS
 ANGELES CALIFORNIA
 
    90012, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
 WHAT STEPS HAVE BEEN TAKEN
 
    TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., AUGUST 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL OR REFUSE TO PROCESS GRIEVANCES UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT
 EXECUTED WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977,
 OR ANY OTHER LABOR ORGANIZATION, FOR THE REASON THAT SUCH AGREEMENT HAS
 EXPIRED AND THAT THE EMPLOYEES HAVE NO RIGHT TO FILE A GRIEVANCE
 THEREUNDER.
 
    WE WILL NOT DISCOURAGE ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, FROM
 FILING A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE CONTAINED IN
 THE COLLECTIVE BARGAINING AGREEMENT EXECUTED WITH THE NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977, OR ANY OTHER LABOR
 ORGANIZATION, BY INFORMING THE SAID ANNA M. CROCKER, OR ANY OTHER
 EMPLOYEE, THAT SUCH AGREEMENT HAS EXPIRED AND THEY HAVE NO RIGHT TO FILE
 A GRIEVANCE THEREUNDER.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
   .          .          .          .
 
 
                            AGENCY OR ACTIVITY
 
    DATED:  . . . BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 8, WHOSE
 ADDRESS IS:  350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES,
 CALIFORNIA 90071, AND WHOSE TELEPHONE NUMBER IS (213) 688-3805.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    JAMES A. HARPER, ESQ.
    USAF CENTRAL LABOR LAW OFFICE
    RANDOLPH AIR FORCE BASE, TEXAS 78148
                            FOR THE RESPONDENT
 
    GERALD M. COLE, ESQ.
    FEDERAL LABOR RELATIONS AUTHORITY, REGION 8
    350 S. FIGUEROA STREET, 10TH FLOOR
    LOS ANGELES, CALIFORNIA 90071
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM NAIMARK
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING ARISING UNDER THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S.
 CODE, 5 U.S.C. SECTION 7101 ET SEQ.  AND THE RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY.  PURSUANT TO A COMPLAINT AND
 NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR
 RELATIONS AUTHORITY, REGION 8, ON OCTOBER 9, 1979, A HEARING WAS HELD
 BEFORE THE UNDERSIGNED ON DECEMBER 12, 1979 AT VICTORVILLE, CALIFORNIA.
 
    THE PROCEEDING HEREIN WAS INITIATED BY THE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 977 (HEREIN CALLED THE UNION) WHICH FILED A
 CHARGE ON JUNE 22, 1979 AGAINST THE DEPARTMENT OF THE AIR FORCE, 35TH
 COMBAT SUPPORT GROUP (TAC), GEORGE AIR FORCE BASE, CALIFORNIA (HEREIN
 CALLED THE RESPONDENT OR EMPLOYER).  IT WAS ALLEGED IN THE COMPLAINT
 THAT (A) ON OR ABOUT MARCH 6, 1979 RESPONDENT INFORMED EMPLOYEES THAT
 GRIEVANCES COULD NOT BE FILED UNDER THE COLLECTIVE BARGAINING AGREEMENT
 SINCE IT WAS NOT IN EFFECT;  (B) ON OR ABOUT MARCH 7, 1979 RESPONDENT,
 BY MEMORANDUM, INFORMED EMPLOYEES THERE WAS NO NEGOTIATED GRIEVANCE
 PROCEDURE FOR CONSIDERATION OF EMPLOYEE GRIEVANCES-- ALL IN VIOLATION OF
 SECTION 7116(A)(1) OF THE FEDERAL SERVICE LABOR-- MANAGEMENT RELATIONS
 STATUTE (HEREIN CALLED THE ACT).
 
    RESPONDENT'S ANSWER, DATED OCTOBER 19, 1979 AND ITS AMENDED ANSWER
 DATED NOVEMBER 26, 1979, DENIED THE COMMISSION OF ANY UNFAIR LABOR
 PRACTICES.  IT WAS ALSO ALLEGED BY RESPONDENT THAT IT WAS MERELY
 ATTEMPTING TO ASSIST EMPLOYEE ANNE M. CROCKER, A GRIEVANT, IN FOLLOWING
 THE CORRECT PROCEDURE IN RESPECT TO HER GRIEVANCE;  THAT CROCKER WAS
 ADVISED TO PURSUE HER GRIEVANCE UNDER THE AGENCY GRIEVANCE SYSTEM, SINCE
 HER GRIEVANCE DID NOT FALL WITHIN THE AMBIT OF THE EXPIRED CONTRACT'S
 NEGOTIATED GRIEVANCE PROCEDURE.
 
    ALL PARTIES WERE REPRESENTED AT THE HEARING.  THEY WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
 CROSS EXAMINE WITNESSES.  THEREAFTER THE PARTIES FILED BRIEFS WHICH HAVE
 BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 977, HAS BEEN, AND STILL IS, THE COLLECTIVE BARGAINING
 REPRESENTATIVE OF ALL AIR FORCE EMPLOYEES SERVICED BY THE CENTRAL
 CIVILIAN PERSONNEL OFFICE, GEORGE AIR FORCE BASE, CALIFORNIA.
 
    2.  FOR SEVERAL YEARS PRIOR TO 1978 THE UNION AND RESPONDENT HAVE
 BEEN PARTIES TO A WRITTEN COLLECTIVE BARGAINING AGREEMENT COVERING THE
 AFORESAID UNIT.  THE AGREEMENT WAS EXTENDED BY THE PARTIES TO RUN FROM
 DECEMBER 17, 1978 UNTIL FEBRUARY 14, 1979.  A NEW COLLECTIVE BARGAINING
 AGREEMENT WAS EXECUTED BY THE PARTIES IN JUNE 1979.  BETWEEN FEBRUARY 14
 AND JUNE 1979, NO CONTRACT BETWEEN THE UNION AND RESPONDENT WAS IN
 EFFECT.
 
    3.  SINCE ABOUT 1977 ANNA M. CROCKER HAS BEEN EMPLOYED BY RESPONDENT
 AS A MEMBER OF THE COLLECTIVE BARGAINING UNIT.  IN THE FALL OF 1978
 CROCKER APPLIED FOR THE POSITION OF GARDENER TRACTOR OPERATOR.
 THEREAFTER ON JANUARY 5, 1979, CROCKER WAS INFORMED BY HER SUPERVISOR
 THAT SHE WOULD START THE NEW JOB ON JANUARY 29, 1979.
 
    4.  ON ABOUT JANUARY 23, 1979 THE CIVILIAN PERSONNEL OFFICE ADVISED
 CROCKER SHE MUST OBTAIN A PHYSICAL EXAMINATION.  AS A RESULT OF THE
 DELAY IN COMPLETING SUCH EXAMINATION, CROCKER DID NOT COMMENCE WORK AT
 THE NEW JOB UNTIL FEBRUARY 12, 1979.
 
    5.  SINCE CROCKER FELT THE DELAY WAS UNWARRANTED, SHE DECIDED TO FILE
 A GRIEVANCE CONCERNING HER LOSS OF PAY AND TIME OCCASIONED THEREBY.  ON
 MARCH 2, 1979 CROCKER SUBMITTED TO THE CIVILIAN PERSONNEL OFFICE HER
 GRIEVANCE SEEKING REIMBURSEMENT AS A RESULT OF THE DELAY IN HER
 COMMENCING THE NEW JOB.
 
    6.  THEREAFTER ON MARCH 6, 1979 CROCKER APPROACHED JEAN REID,
 RESPONDENT'S LABOR RELATIONS SPECIALIST, TO DISCUSS THE GRIEVANCE AND
 ASCERTAIN WHETHER SHE SHOULD TAKE ANY FURTHER STEPS IN REGARD THERETO.
 REID TOLD THE EMPLOYEE THE UNION WAS NOT UNDER A NEGOTIATED GRIEVANCE
 PROCEDURE, AND THERE WAS NO REMEDY FOR HER SITUATION.  SHE FURTHER
 INFORMED CROCKER THEY WERE BOUND TO THE AIR FORCE REGULATIONS WHICH THE
 EMPLOYER MUST FOLLOW, AND REID GAVE A COPY OF AFR 771 TO CROCKER AT THE
 TIME.  /1/
 
    7.  A MEMO DATED MARCH 7, 1979, WHICH WAS PREPARED BY REID, WAS SENT
 TO CROCKER.  THE GRIEVANCE FILED BY THE EMPLOYEE WAS RETURNED ALONG
 THEREWITH.  THE MEMO OUTLINED THE STEPS TO FOLLOW IN FILING A GRIEVANCE
 UNDER THE AGENCY GRIEVANCE PROCEDURE.  IT ALSO STATED THAT "AS OUTLINED
 BY MS. REID, OF THIS OFFICE, ON 6 MAR 79 AT PRESENT THERE IS NO
 NEGOTIATED GRIEVANCE PROCEDURE FOR CONSIDERATION OF EMPLOYEES
 GRIEVANCES.  THEREFORE THE PROCEDURES OUTLINED ABOVE APPLY".
 
    8.  IN ACCORDANCE WITH MANAGEMENT'S INSTRUCTIONS, CROCKER FILED A
 FORMAL GRIEVANCE ON MARCH 9, 1979 UNDER THE PROCEDURES OUTLINED IN AFR
 771 SEEKING TIME IN GRADE AND BACK PAY TO THE ORIGINAL DATE OF TRANSFER
 TO HER NEW POSITION.
 
                                CONCLUSIONS
 
    THE SOLE SUBSTANTIVE ISSUE POSED FOR DETERMINATION HEREIN IS WHETHER
 THE STATEMENTS MADE BY MANAGEMENT TO EMPLOYEE CROCKER, IN RESPECT TO THE
 FILING OF HER GRIEVANCE, VIOLATED SECTION 7116(A)(1) OF THE ACT.  APART
 FROM SEVERAL PROCEDURAL DEFENSES RAISED BY IT, THE RESPONDENT CONTENDS
 THAT A GRIEVANCE-ARBITRATION CLAUSE EXPIRES WITH THE COLLECTIVE
 BARGAINING AGREEMENT.  THUS, IT IS ARGUED, THE EMPLOYER WOULD NOT BE
 OBLIGED, IN ANY EVENT, TO CONSIDER CROCKER'S GRIEVANCE UNDER ARTICLE
 XVIII OF THE AGREEMENT WHICH TERMINATED ON FEBRUARY 14, 1979.
 
    SEVERAL DECISIONS IN THE PUBLIC SECTOR HAVE DEALT WITH THE
 SURVIVABILITY OF CLAUSES UPON THE EXPIRATION OF A COLLECTIVE BARGAINING
 AGREEMENT.  IN INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, ET. AL,
 A/SLMR NO. 806 IT WAS HELD THAT RIGHTS AND PRIVILEGES ACCORDED THE
 EXCLUSIVE REPRESENTATIVE CONTINUE UNTIL A NEW AGREEMENT IS REACHED OR
 IMPASSE RESULTS FROM NEGOTIATIONS.  RIGHTS AND PRIVILEGES DEPENDENT
 SOLELY ON THE WRITTEN AGREEMENT, AS CHECK OFF PRIVILEGES, DO TERMINATE
 WITH THE AGREEMENT.  IT WAS LATER HELD THAT AN ARBITRATION CLAUSE UNDER
 A NEGOTIATED AGREEMENT CONTINUES AS A TERM AND CONDITION OF EMPLOYMENT
 EVEN THOUGH THE AGREEMENT ITSELF HAS EXPIRED.  DEPARTMENT OF THE
 TREASURY, INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER, A/SLMR
 NO. 859.  THE FEDERAL LABOR RELATIONS COUNCIL EXPRESSED ITS SUSTAINING
 VIEWS IN RESPECT TO THE AFORESAID CASES IN FLRC NOS. 77A-40 AND 77A-92
 RESPECTIVELY.  SUBSEQUENT TO THE FOREGOING DETERMINATIONS IT WAS FURTHER
 HELD THAT AN AGENCY COULD NOT, WITH IMPUNITY, UNILATERALLY DISCONTINUE
 CONTRACTUAL GRIEVANCE PROCEDURES EVEN THOUGH THE AGREEMENT HAD
 TERMINATED.  SINCE THESE PROCEDURES WERE A MANDATORY SUBJECT OF
 BARGAINING, THE AGENCY MUST AFFORD THE UNION AN OPPORTUNITY TO INVOKE
 THE IMPASSE PANEL PRIOR TO IMPLEMENTING A CHANGE THEREOF.  FAILURE TO DO
 SO WAS VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER
 11491, AS AMENDED.  INTERNAL REVENUE SERVICE, A/SLMR NO. 1091.
 
    IT THUS APPEARS SETTLED IN THE PUBLIC SECTOR THAT THE GRIEVANCE
 MACHINERY UNDER THE NEGOTIATED CONTRACT SURVIVES THE EXPIRATION OF THE
 CONTRACT ITSELF.  RESPONDENT INSISTS THE CITED CASES HEREIN ARE
 INAPPLICABLE SINCE CROCKER'S GRIEVANCE AROSE DURING THE EXTENDED PERIOD
 OF THE CONTRACT TERM.  HENCE, IT IS ARGUED THAT THE GRIEVANCE DID NOT
 INVOLVE AN INTERPRETATION AS APPLICATION OF THE CONTRACT, AND THEREFORE
 WOULD HAVE NO VALIDITY THEREUNDER.  HOWEVER, SUCH AN ARGUMENT GOES TO
 THE MERIT OF THE GRIEVANCE WHICH IS NOT THE CONCERN OF THE UNFAIR LABOR
 PRACTICE ALLEGED HEREIN.  MOREOVER, THE STATEMENTS MADE TO CROCKER WERE
 MADE SUBSEQUENT TO THE CONTRACT TERMINATION, AND THE GRIEVANCE WAS FILED
 AFTER ITS EXPIRATION.
 
    RESPONDENT MAKES SEVERAL ADDITIONAL CONTENTIONS /2/ WHILE URGING THAT
 NO VIOLATION OCCURRED IN THE CASE AT BAR.  IT MAINTAINS THAT THERE MUST
 BE A FINDING OF ANTI-UNION ANIMUS IN ORDER TO CONCLUDE THAT A VIOLATION
 OF THE ACT OCCURRED.  IN SUPPORT OF THIS POSITION IT CITES VETERANS
 ADMINISTRATION, REGIONAL OFFICE, HONOLULU, HAWAII, A/SLMR NO. 976.
 HOWEVER, ITS RELIANCE UPON THE CITED CASE IS MISPLACED.  WHERE, AS IN
 THE VA CASE, AN EMPLOYER REASSIGNS AN EMPLOYEE TO DIFFERENT DUTIES,
 MOTIVATION BECOMES A SIGNIFICANT FACTOR IN THE ACTION TAKEN BY
 MANAGEMENT.  THUS, UNLESS UNION ANIMUS IS SHOWN, ACTION TAKEN TOWARD AN
 EMPLOYEE MAY WELL BE LEGITIMATE AND BEYOND THE PALE OF DISCRIMINATION.
 ON THE OTHER HAND, ANY ACTION BY AN EMPLOYER WHICH DISCOURAGES OR
 INTERFERES WITH AN EMPLOYEE'S FILING OF A GRIEVANCE PURSUANT TO A
 NEGOTIATED AGREEMENT INHERENTLY INTERFERES WITH THE RIGHTS ASSURED
 EMPLOYEES UNDER SECTION 7102 OF THE ACT.  THUS, SUCH CONDUCT BY THE
 AGENCY WILL ALSO CONSTITUTE A VIOLATION OF SECTION 7116(A)(1) OF THE
 ACT.  SEE NATIONAL LABOR RELATIONS BOARD, ET. AL, A/SLMR NO. 295;
 DEPARTMENT OF DEFENSE, ARKANSAS NATIONAL GUARD, A/SLMR NO. 53.
 
    APPLYING THE DECISIONAL LAW IN THE PUBLIC SECTOR TO THE CASE AT HAND,
 I AM CONSTRAINED TO CONCLUDE THAT THE CONDUCT OF MANAGEMENT HEREIN RAN
 AFOUL OF THE ACT.  ALTHOUGH RESPONDENT MAINTAINS IT WAS MERELY INFORMING
 CROCKER THAT THE BARGAINING AGREEMENT HAD EXPIRED AND SHE COULD OBTAIN
 NO REDRESS THEREUNDER, THE NET RESULT OF MANAGEMENT'S CONDUCT WAS A
 REFUSAL TO PROCESS OR CONSIDER THE GRIEVANCE WHICH THIS EMPLOYEE FILED
 UNDER THE AGREEMENT.  MOREOVER, LACK OF ILLEGAL MOTIVATION UNDER THESE
 CIRCUMSTANCES DOES NOT MILITATE AGAINST FINDING THAT RESPONDENT ENGAGED
 IN ACTS OF INTERFERENCE.  THUS, IN GSA, REGION 5, CHICAGO, ILLINOIS,
 A/SLMR NO.  1139 THE AGENCY'S REFUSAL TO PROCESS A GRIEVANCE UNDER THE
 NEGOTIATED GRIEVANCE PROCEDURE WAS DEEMED VIOLATIVE OF SECTIONS 19(A)(1)
 AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    UNDER SETTLED LAW IN THE PUBLIC SECTOR THE GRIEVANCE-ARBITRATION
 PROCEDURE, SET FORTH IN THE EXPIRED CONTRACT BETWEEN RESPONDENT AND THE
 UNION, CONTINUED IN EFFECT.  THEREFORE, CROCKER HAD THE RIGHT TO FILE
 HER GRIEVANCE PURSUANT THERETO, AND MANAGEMENT HEREIN WAS OBLIGED TO
 PROCESS IT UNDER SUCH PROCEDURES.  ITS FAILURE AND REFUSAL TO DO SO,
 COUPLED WITH ITS STATEMENTS TO THE EMPLOYEE THAT SHE HAD NO RIGHTS OR
 RECOURSE UNDER THE NEGOTIATED GRIEVANCE CLAUSE, CLEARLY DISCOURAGED OR
 INTERFERED WITH CROCKER'S FILING OF HER GRIEVANCE THEREUNDER.  SUCH
 CONDUCT TRANSGRESSES THE ACT, AND I CONCLUDE IT CONSTITUTES
 INTERFERENCE, RESTRAINT OR COERCION IN VIOLATION OF SECTION 7116(A)(1)
 THEREOF.
 
    HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
 SECTION 7116(A)(1) OF THE ACT, I HEREBY ISSUE THE FOLLOWING ORDER
 DESIGNED TO EFFECTUATE THE PURPOSE OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
                                   ORDER
 
    PURSUANT TO SECTION 7105(G)(3) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, AND SECTION 2400.2 OF ITS
 REGULATIONS, IT IS HEREBY ORDERED THAT THE DEPARTMENT OF THE AIR FORCE,
 35TH COMBAT SUPPORT GROUP (TAC), GEORGE AIR FORCE BASE, CALIFORNIA
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DISCOURAGING ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, FROM FILING
 A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, CONTAINED IN THE
 COLLECTIVE BARGAINING AGREEMENT EXECUTED BETWEEN IT AND NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977, OR ANY OTHER LABOR
 ORGANIZATION, BY INFORMING ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, THAT
 SUCH AGREEMENT HAS EXPIRED AND THEY HAVE NO RIGHT TO FILE A GRIEVANCE
 THEREUNDER.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT STATUTE:
 
    (A) POST AT ITS FACILITY AT THE GEORGE AIR FORCE BASE, CALIFORNIA
 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 COMMANDER 35TH COMBAT SUPPORT
 GROUP (TAC), AND THEY SHALL BE POSTED FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDER SHALL TAKE REASONABLE
 STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
 BY ANY OTHER MATERIAL.
 
    (B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY
 THEREWITH.
 
                         WILLIAM NAIMARK
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  14 MAR 1980
    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 SERVICE LABOR-MANAGEMENT STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT DISCOURAGE ANNA M. CROCKER, OR ANY OTHER EMPLOYEE, FROM
 FILING A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, CONTAINED
 IN THE COLLECTIVE BARGAINING AGREEMENT EXECUTED BETWEEN IT AND NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 977, OR ANY OTHER LABOR
 ORGANIZATION, BY INFORMING THE SAID ANNA M. CROCKER, OR ANY OTHER
 EMPLOYEE, THAT SUCH AGREEMENT HAS EXPIRED AND THEY HAVE NO RIGHT TO FILE
 A GRIEVANCE THEREUNDER.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
   .          .          .          .
 
 
                            AGENCY OR ACTIVITY
 
    DATED:  . . . BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 3, 350
 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90071.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ REID, WHO LEFT RESPONDENT'S FACILITY ON MARCH 14, 1979, GAVE A
 DIFFERENT VERSION OF THIS CONVERSATION.  SHE DENIED INFORMING CROCKER
 THAT GRIEVANCE COULD NOT BE FILED SINCE THE CONTRACT EXPIRED.  MOREOVER,
 REID TESTIFIED SHE STATED TO CROCKER THAT HER GRIEVANCE WAS A PERSONAL
 MATTER, AND THE CURRENT AGREEMENT'S GRIEVANCE PROCEDURE APPLIED ONLY TO
 MATTERS INVOLVING INTERPRETATION OR APPLICATION OF THE CONTRACT.  THIS
 VERSION IS NEGATED SIGNIFICANTLY BY THE