Department of the Air Force, Electronic Systems Division, Hanscom Air Force Base, Massachusetts (Respondent) and National Federation of Federal Employees, Local 975 (Charging Party)

 



[ v07 p447 ]
07:0447(67)CA
The decision of the Authority follows:


 7 FLRA No. 67
 
 DEPARTMENT OF THE AIR FORCE
 ELECTRONIC SYSTEMS DIVISION
 HANSCOM AIR FORCE BASE,
 MASSACHUSETTS
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 975
 Charging Party
 
                                            Case No. 1-CA-194
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE UNFAIR LABOR PRACTICE CHARGE
 HEREIN WAS UNTIMELY FILED, AND RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE JUDGE'S
 DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    THEREFORE, PURSUANT TO SECTION 2423.1 AND 2423.29 OF THE AUTHORITY'S
 RULES AND REGULATIONS AND SECTIONS 7135(B) AND 7118 OF THE STATUTE, 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 JUDGE'S DECISION
 AND ORDER AND THE ENTIRE RECORD HEREIN, NOTING PARTICULARLY THE ABSENCE
 OF EXCEPTIONS, THE AUTHORITY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS
 AND RECOMMENDATION.  /A/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-194 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    JAMES DUMERER, MAJOR
    FOR THE RESPONDENT
 
    RICHARD BLAZAR, ESQ.
    FOR THE GENERAL COUNSEL
 
    BEFORE:  SAMUEL A.CHAITOVITZ
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING ARISING UNDER THE PROVISIONS OF THE FEDERAL
 LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 71101 ET
 SEQ. (HEREIN REFERRED TO AS STATUTE) AND THE RULES AND REGULATIONS
 ISSUED THEREUNDER AND EXECUTIVE ORDER 11491 (HEREINAFTER CALLED THE
 ORDER) AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
 
    THE CHARGE IN CASE NO. 1-CA-194 WAS FILED BY NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 975 (HEREINAFTER CALLED THE UNION OR NFFE,
 LOCAL 975) ON NOVEMBER 16, 1979 ALLEGING THAT DEPARTMENT OF THE AIR
 FORCE, ELECTRONICS SYSTEMS DIVISION, HANSCOM AIR FORCE BASE (HEREINAFTER
 CALLED RESPONDENT) VIOLATED 5 U.S.C. 7116(A)(1), (2) AND (5) "ON A DATE
 PRIOR TO SEPTEMBER 7, 1979" BY UNILATERALLY DISCONTINUING AN ALCOHOLIC,
 DRUG AND MATRIMONIAL COUNSELING PROGRAM.  AN AMENDED CHARGE IN THIS
 MATTER WAS FILED BY THE UNION ON JULY 28, 1980 ALLEGING THAT
 RESPONDENT'S CONDUCT ON SEPTEMBER 22, 1978 CONSTITUTED A VIOLATION OF
 7116(A)(1) AND (5) OF THE STATUTE AND OF SEC. 19 (A)(1) AND (6) OF THE
 ORDER AND FURTHER THAT RESPONDENT CONCEALED THIS CONDUCT FROM THE UNION
 UNTIL AT LEAST JULY 16, 1979.  THE REGIONAL DIRECTOR FOR THE FIRST
 REGION OF THE FEDERAL LABOR RELATIONS AUTHORITY ISSUED THE COMPLAINT AND
 NOTICE OF HEARING IN THE SUBJECT CASE ON JULY 31, 1980 AND THE ANSWER
 WAS FILED BY THE RESPONDENT ON AUGUST 20, 1980.
 
    A TWO DAY HEARING WAS HELD ON THIS COMPLAINT IN BOSTON MASSACHUSETTS
 AT WHICH TIME ALL PARTIES WERE GIVEN AN OPPORTUNITY TO BE REPRESENTED BY
 COUNSEL AND AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL,
 EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE ORALLY.  /1/ RESPONDENT
 AND GENERAL COUNSEL FILED POST HEARING BRIEFS WHICH HAVE BEEN DULY
 CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATION:
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL, HEREIN, NFFE LOCAL 975 HAS BEEN THE CERTIFIED
 COLLECTIVE BARGAINING REPRESENTATIVE FOR ALL NON-SUPERVISORY
 PROFESSIONAL GENERAL SCHEDULE EMPLOYEES SERVICED BY THE CENTRAL CIVILIAN
 PERSONNEL OFFICE, L. G. HANSCOM AFB, EXCLUDING, IN ADDITION TO THE USUAL
 EXCLUSIONS, ALL NON-PROFESSIONAL EMPLOYEES.  MR. WILLIAM J. SMITH, WHO
 WAS EMPLOYED AS ENGINEER, WAS PRESIDENT OF THE UNION FROM EARLY 1974
 UNTIL HIS RETIREMENT FROM RESPONDENT IN FEBRUARY 1980.
 
    IN EARLY 1974, NFFE LOCAL 975 PRESIDENT SMITH WAS INVITED BY
 RESPONDENT'S LABOR RELATIONS OFFICE TO ATTEND A BRIEFING, WITH A NUMBER
 OF REPRESENTATIVES FROM RESPONDENT'S PERSONNEL OFFICE AND FROM OTHER
 UNIONS, AT WHICH A REPRESENTATIVE FROM THE BOSTON COLLEGE GRADUATE
 SCHOOL OF SOCIAL WORK PRESENTED A PROPOSAL TO ESTABLISH A DRUG AND
 ALCOHOL COUNSELING PROGRAM FOR CIVILIAN EMPLOYEES AT HANSCOM.  THE
 PROGRAM WAS TO BE STAFFED BY THREE DOCTORAL STUDENTS WHO WOULD PROVIDE
 THE COUNSELING SERVICES AT HANSCOM FIVE DAYS A WEEK, FROM 8:00 AM TO
 5:00 PM.  IN SEPTEMBER OF 1974 THIS BASIC PROGRAM WAS PUT INTO
 OPERATION.
 
    THE SERVICES PROVIDED BY BOSTON COLLEGE EVENTUALLY EXPANDED TO
 INCLUDE NOT ONLY DRUG AND ALCOHOL COUNSELING BUT ALSO COUNSELING
 INVOLVING MATRIMONIAL, FINANCIAL, EMOTIONAL AND OTHER FAMILY-RELATED
 PROBLEMS.  THE PROGRAM WAS ESSENTIALLY ONE INVOLVING THE INDIVIDUAL
 EMPLOYEES AND THE COUNSELORS AND WAS CONFIDENTIAL.  THE UNION'S CONTACT
 WITH THE COUNSELORS WERE LIMITED AND INVOLVED GENERALLY A DISCUSSION AS
 TO HOW THE PROGRAM WAS GOING AND ADVERTISEMENTS OF THE PROGRAM IN THE
 UNION NEWSLETTER.
 
    THE BOSTON COLLEGE PROGRAM OPERATED AS A SUPPLEMENT TO THE DRUG AND
 ALCOHOL ABUSE COUNSELING AVAILABLE TO CIVILIAN EMPLOYEES THROUGH THE
 SOCIAL ACTIONS OFFICE OF HANSCOM AIR FORCE BASE AND WAS FORMALIZED IN A
 CONTRACT BETWEEN THE BASE AND THE BOSTON FEDERAL EXECUTIVE BOARD.
 PURSUANT TO THE LAST SUCH CONTRACT THE BOSTON COLLEGE PROGRAM EXPIRED ON
 MAY 15, 1978.  RESPONDENT HAD DISCUSSIONS WITH THE BOSTON REGIONAL
 OFFICE OF THE CIVIL SERVICE COMMISSION CONCERNING THE UTILIZATION OF
 BOSTON COLLEGE GRADUATE STUDENTS IN SETTING UP A PROGRAM SIMILAR TO THE
 ONE THEN EXISTING.  THE BOSTON REGIONAL OFFICE OF THE CIVIL SERVICE
 COMMISSION SENT A PROPOSED CONTRACT FOR SUCH A PROGRAM TO THE
 RESPONDENT
 TOGETHER WITH A LETTER WHICH NOTED THAT THE PRIOR PROGRAM HAD BEEN MADE
 POSSIBLE, IN PART, BECAUSE FUNDS HAD BEEN MADE AVAILABLE BY THE NATIONAL
 INSTITUTE ON ALCOHOL ABUSE AND ALCOHOLISM AND THAT BECAUSE SUCH FUNDS
 WERE DECLINING, THE AGENCIES WOULD BE REQUIRED TO SUBSIDIZE THE
 SERVICES.  THIS LETTER WENT ON TO STATE THAT THE BOSTON REGIONAL OFFICE
 OF THE CIVIL SERVICE COMMISSION WOULD ASSUME ADMINISTRATIVE
 RESPONSIBILITY FOR THE PROGRAM AND THAT THE PROGRAM WOULD BECOME
 EFFECTIVE OCTOBER 1, 1978.  RESPONDENT NOTIFIED THE BOSTON REGION OF THE
 CIVIL SERVICE COMMISSION OF THE DECISION NOT TO TAKE PART IN THE
 PROGRAM.
 
    SINCE 1977 THE UNION HAS HAD OBSERVER STATUS ON THE HANSCOM AIR FORCE
 BASE DRUG AND ALCOHOL ABUSE COORDINATING COMMITTEE (DAAC).  THE UNION,
 ALONG WITH OTHER MEMBERS OF THE COMMITTEE RECEIVED MULTIPLE NOTICES OF
 EACH DAAC MEETING.  MINUTES OF THE DAAC MEETING OF SEPTEMBER 29, 1978
 INDICATE THAT NOTICE WAS GIVEN THAT BOSTON COLLEGE WAS NO LONGER
 PROVIDING SERVICES AT HANSCOM.  A COPY OF THESE MINUTES WERE SENT WITHIN
 A FEW DAYS OF THE MEETING TO THE CHARGING PARTY, PURSUANT TO THE NORMAL
 PROCEDURES, AT THE ADDRESS WHERE SUCH NOTICES TO THE UNION WERE, AT THAT
 TIME, NORMALLY SENT.  THE UNION HAD NOT COMPLAINED AT THAT TIME, THAT IT
 WAS NOT RECEIVING NOTICES OR MINUTES.  /2/ UNION PRESIDENT SMITH
 TESTIFIED THAT HE DID NOT RECEIVE THE MINUTES OF THE SEPTEMBER 29, 1978
 DAAC MEETING.  PRIOR TO THE SEPTEMBER 29, 1978 MEETING THERE WAS NO
 NOTIFICATION TO THE UNION THAT THE BOSTON COLLEGE PROGRAM WOULD NOT
 RETURN TO HANSCOM.
 
    BY LETTER DATED MARCH 9, 1979 UNION PRESIDENT SMITH RECOMMENDED TO
 CIVILIAN PERSONNEL OFFICER OWENS THAT BOSTON COLLEGE BE INVITED AND BE
 REPRESENTED ON DAAC.  RESPONDENT DID NOT REPLY TO THIS LETTER.  THE
 UNION LEARNED OF THE RESPONDENT'S DECISION CONCERNING THE BOSTON COLLEGE
 PROGRAM DURING JULY 1979.
 
                                DISCUSSION
 
    THE FIRST ISSUE PRESENTED IS WHETHER THE UNFAIR LABOR PRACTICE CHARGE
 IN THE SUBJECT CASE WAS TIMELY FILED.  THE RESPONDENT CONTENDS THAT THE
 STATUTE OF LIMITATIONS APPLICABLE TO EXECUTIVE ORDER 11491 SHOULD APPLY
 TO THE SUBJECT CASE AND RESPONDENT, THUS, MOVES THAT THE SUBJECT CHARGE
 MUST BE DISMISSED BECAUSE IT WAS FILED MORE THAN 6 MONTHS AFTER THE
 ALLEGED UNFAIR LABOR PRACTICE OCCURRED.  THE GENERAL COUNSEL URGES
 HOWEVER, THAT SECTION 7118(A)(4) B OF THE STATUTE IS APPLICABLE AND
 SHOULD BE INTERPRETED AS REQUIRING THAT THE CHARGE BE FILED DURING THE
 SIX MONTH PERIOD BEGINNING ON THE DAY OF DISCOVERY OF THE ALLEGED UNFAIR
 LABOR PRACTICE.  ACCORDINGLY, GENERAL COUNSEL URGES THAT SINCE THE UNION
 FIRST LEARNED OF RESONDENT'S DECISION IN JULY OF 1979, THE CHARGE WAS
 TIMELY FILED. GENERAL COUNSEL CONTENDS THAT EVEN IF THE TIME LIMITATIONS
 SET FORTH IN EXECUTIVE ORDER 11491 APPLIED, THE CHARGE WOULD HAVE BEEN
 TIMELY UNDER SECTION 203.2 OF THE ASSISTANT SECRETARY'S RULES AND
 REGULATIONS.
 
    IN THE SUBJECT CASE IT NEED NOT BE DETERMINED WHETHER SECTION
 7118(A)(4) B OF THE STATUTE OR THE SIX MONTH TIME LIMITATION UNDER
 EXECUTIVE ORDER IS APPLICABLE.  THUS, EVEN THOUGH PRIOR TO SEPTEMBER 29,
 1978 RESPONDENT ALLEGEDLY HAD MADE THE UNILATERAL DECISION TO
 DISCONTINUE THE BOSTON COLLEGE PROGRAM, WITHOUT NOTIFICATION TO THE
 UNION, RESPONDENT DID ON OR ABOUT SEPTEMBER 29, 1978 OR A FEW DAYS
 THEREAFTER TAKE REASONABLE STEPS TO NOTIFY THE UNION OF THE CHANGE.
 RESPONDENT INVITED THE UNION TO THE SEPTEMBER 29 DAAC MEETING WHERE THE
 CHANGE WAS ANNOUNCED AND THEN, WITHIN A FEW DAYS AND IN THE NORMAL
 COURSE OF BUSINESS, SENT THE UNION THE MINUTES OF THE DAAC MEETING WHICH
 REPEATED THE NOTIFICATION OF THE CHANGE.  THE STATUTE OF LIMITATION,
 WHICH EVER ONE APPLIES, RUNS FROM THESE EVENTS AND THEREFORE IT IS
 CONCLUDED THAT THE UNFAIR LABOR PRACTICE CHARGE FILED ON NOVEMBER 16,
 1979 WAS UNTIMELY FILED.
 
    GENERAL COUNSEL CONTENDS FURTHER THAT SOMEHOW RESPONDENT'S FAILURE TO
 RESPOND TO THE UNION'S MARCH 29, 1979 LETTER, TOLLED THE STATUTE OF
 LIMITATIONS FROM RUNNING.  THIS CONTENTION IS REJECTED BECAUSE ONCE
 RESPONDENT ACTED REASONABLY IN NOTIFYING THE UNION OF THE CHANGE, THE
 TIME LIMITATIONS STARTED TO RUN.  ANY INTERVENING CONDUCT, ALTHOUGH
 PERHAPS OTHER UNFAIR LABOR PRACTICE, SHOULD NOT STOP THE TIME
 CONSTRICTURES FROM APPLYING.  TO SO CONSTRUE THIS TIME LIMITATION WOULD
 NOT ONLY BE CUMBERSOME AND COMPLICATED BUT WOULD ALSO FRUSTRATE THE VERY
 PURPOSE BEHIND SUCH A LIMITATION.
 
    THE COMPLAINT ISSUED HEREIN WAS BASED ON ALLEGED UNFAIR LABOR
 PRACTICES WHICH OCCURRED MORE THAN SIX MONTHS BEFORE THE FILING OF THE
 CHARGE WITH THE AUTHORITY, OR THE SERVING OF THE COMPLAINT UNDER
 EXECUTIVE ORDER 11491 UPON THE RESPONDENT, AND IT IS, THEREFORE,
 CONCLUDED THAT SUCH COMPLAINT IS UNTIMELY PURSUANT TO SECTION
 7118(A)(4)(A) AND (B) OF THE STATUTE AND TO EXECUTIVE ORDER 11491 AND
 SECTION 203.2 OF THE ASSISTANT SECRETARY'S RULES AND REGULATIONS.
 ACCORDINGLY I RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN FLRA CASE NO. 1-CA-194 BE
 AND IT HEREBY IS DISMISSED.
 
                           SAMUEL A. CHAITOVITZ
                           ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 2, 1981
 
    WASHINGTON, D.C.
 
    /A/ IN AGREEMENT WITH THE JUDGE, THE AUTHORITY FINDS IT UNNECESSARY
 TO DETERMINE WHETHER THE TIME LIMITATION UNDER EXECUTIVE ORDER 11491 OR
 THE STATUTE IS APPLICABLE, BECAUSE THE COMPLAINT WAS UNTIMELY IN EITHER
 EVENT.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ RESPONDENT AND GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS
 AUTHORITY (HEREINAFTER CALLED GENERAL COUNSEL) WERE REPRESENTED.
 
    /2/ APPARENTLY ABOUT A YEAR LATER UNION PRESIDENT COMPLAINED THAT HE
 WAS NOT RECEIVING MINUTES AND THE MAIL STOP WAS CHANGED.  ALSO UNION
 PRESIDENT HAD CHANGED MAIL STOPS.