13:0135(33)CA - Air Force, 915th Tactical Fighter Group, Homestead AFB, FL and NFFE Local 1167 -- 1983 FLRAdec CA



[ v13 p135 ]
13:0135(33)CA
The decision of the Authority follows:


 13 FLRA No. 33
 
 DEPARTMENT OF THE AIR FORCE
 915th TACTICAL FIGHTER GROUP
 HOMESTEAD AIR FORCE BASE, FLORIDA /1/
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1167
 Charging Party
 
                                            Case No. 4-CA-596
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain of the unfair labor practices alleged in the complaint and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge also found that certain
 allegations of the complaint should be dismissed in their entirety.
 Thereafter, both the Respondent and the General Counsel filed exceptions
 to the Judge's Decision.
 
    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
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, /2/ conclusions and Recommended Order.  /3/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 Department of the Air Force, 915th Tactical Fighter Group, Homestead Air
 Force Base, Florida, shall:
 
    1.  Cease and desist from:
 
    (a) Designating the representatives of the National Federation of
 Federal Employees, Local 1167, who are to attend meetings of the Working
 Committee, or any other committee established for the purpose of
 discussing terms and conditions of employment of employees in the
 bargaining unit represented by the National Federation of Federal
 Employees, Local 1167.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Notify the National Federation of Federal Employees, Local 1167,
 that the employer recognizes the right of the exclusive representative
 to designate its own representatives to the Working Committee or any
 other committee established by the employer for the purpose of meeting
 with management to discuss terms and conditions of employment of
 employees in the bargaining unit represented by the National Federation
 of Federal Employees, Local 1167.
 
    (b) Post at the Homestead Air Force Base, Florida 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
 an authorized representative of the Respondent 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, 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.  
 
 Issued, Washington, D.C., September 28, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 designate the representatives of the National Federation of
 Federal Employees, Local 1167, who are to attend meetings of the Working
 Committee, or any other committee established for the purpose of
 discussing terms and conditions of employment of employees in the
 bargaining unit represented by the National Federation of Federal
 Employees, Local 1167.  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.  WE WILL notify the National Federation of Federal Employees,
 Local 1167, that we recognize the right of the exclusive representative
 to designate its own representatives to the Working Committee or any
 other committee established for the purpose of meeting with management
 to discuss terms and conditions of employment of employees in the
 bargaining unit represented by the National Federation of Federal
 Employees, Local 1167.
                                       (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 any of its
 provisions, they may communicate directly with the Regional Director for
 the Federal Labor Relations Authority, Region IV, whose address is:
 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Ga. 30309
 and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF THE AIR FORCE,
    915th TACTICAL FIGHTER GROUP,
    HOMESTEAD AIR FORCE BASE, FLORIDA
                                       Respondent /4/
 
                                    and
 
                                            Case No. 4-CA-596
    NATIONAL FEDERATION OF FEDERAL
    EMPLOYEES, LOCAL 1167
                                       Charging Party
 
    James A. Harper, Esq.
       For the Respondent
 
    Bob R. Brown
       For the Charging Party
 
    Barbara S. Liggett, Esq. and
    Brenda S. Green, Esq.
       For the General Counsel
 
    Before:  FRANCIS E. DOWD
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101, et seq.  It was instituted by the Acting Regional Director
 of the Fourth Region of the Federal Labor Relations Authority by the
 issuance of a Complaint and Notice of Hearing dated December 31, 1980.
 The Complaint was issued following the investigation of an unfair labor
 practice charge filed on September 16, 1980 and an amended charge filed
 on December 29, 1980 by National Federation of Federal Employees, Local
 1167, herein referred to as the Union, NFFE or Charging Party.
 
    The Complaint alleges that Respondent, through its agent, Colonel
 Ralph D. Erwin, Commander of the 915th Tactical Fighter Group, violated
 Sections 7116(a)(1), (3) and (5) of the Statute by the following
 conduct:
 
                                    7.
 
          (a) On or about April 14, 1980, Respondent, by Erwin,
       established a committee composed of representatives of various
       components of Respondent and the Union which committee had as an
       object the discussion of terms and conditions of employment at
       Respondent.
 
          (b) On or about April 14, 1980, Respondent, by Erwin,
       designated and selected representatives of the Union to attend and
       participate in meetings and affairs of the committee.
 
          (c) At no time was the Union given the opportunity to designate
       and select representatives or participate in the designation and
       selection of representatives of its own choosing to attend and
       participate in the meetings and affairs of the committee.
 
          (d) At no time did the Union acquiesce in the acts and conduct
       of Respondent set forth in paragraph 7(b), above.
 
                                    8.
 
          Commencing on or about April 28, 1980 and continuing until on
       or about September 2, 1980, Respondent, By Erwin, conducted
       meetings of the committee described above in paragraph 7.
 
 In its Answer, Respondent denies that Colonel Erwin is an agent of
 Respondent and denies any violation of the Statute.
 
    A hearing was held in Homestead, Florida at which the parties were
 represented by counsel and afforded full opportunity to adduce evidence
 and call, examine, and cross-examine witnesses and argue orally.  Briefs
 filed by Respondent and the General Counsel have been duly considered.
 /5/
 
    Upon consideration of the entire record /6/ in this case, including
 my evaluation of the testimony and evidence presented at the hearing,
 and from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                  Findings of Fact and Conclusions of Law
 
 A. Identity of the Respondent and its Agents
 
    1.  General Counsel's Exhibit No. 2 is a Labor-Management Cooperation
 Agreement dated October 31, 1975 between Homestead Air Force Base,
 Florida (the Employer) and National Federation of Federal Employees,
 Local No. 1167.  Article I of the Agreement states as follows:
 
          This agreement is executed pursuant to the exclusive
       recognition granted Local 1167, an affiliate of National
       Federation of Federal Employees by the Base Commander, Homestead
       Air Force Base, Florida.
 
 The Agreement was signed on behalf of the Employer by Colonel T. M.
 Hamilton in his capacity as Base Commander, although he also happened to
 be Commander of the 31st Combat Support Group (TAC).  Throughout the
 agreement references are made to the Employer and to the Base Commander.
  There are no references to the 31st Combat Support Group.  Article 2,
 Section 1 states that the effective date of the agreement shall be the
 date of approval by Headquarters, TAC.  The last page of the agreement
 indicates approval by David V. Barry, Director of Civilian Personnel,
 Tactical Air Command.  From the foregoing I conclude that the Employer
 should be United States Air Force Base, Tactical Air Command, Homestead
 Air Force Base, Florida.  By agreement of the parties at the hearing,
 Tactical Air Command and Department of Defense were deleted from the
 caption.
 
    2.  After the hearing, by motion of the General Counsel (in which
 Respondent concurs), it was requested that the 31st Combat Support Group
 (herein the 31st) be deleted.  The Charging Party opposes the motion.
 The evidence does not establish the 31st Combat Support Group as the
 employing entity.  As noted in Paragraph 6 of the Complaint, the unit
 consists of all employees at Homestead Air Force Base regardless of the
 military unit to which they are assigned so long as they are "Air Force
 civilian employees serviced by the Central Civilian Personnel Office of
 Homestead Air Force Base, Florida." Since the 31st Combat Support Group
 is not the Employer, the only reason to name them as a Respondent would
 be if the evidence warranted their inclusion by reason of activities and
 conduct of supervisors, management officials or agents of the 31st.
 However, the evidence does not establish (and this is apparently the
 basis of the General Counsel's motion) /7/ that any representative of
 the 31st were involved in any of the unfair labor practices alleged in
 the Complaint.  Rather, the sole management official named in the
 Complaint was Colonel Ralph Erwin, Commander of the 915th Tactical
 Fighter Group (herein the 915th).  Since the evidence does not establish
 that Colonel Erwin was acting on behalf of the 31st, I find he was not
 an agent of the 31st and, further, I grant the motion to delete the 31st
 as Respondent.
 
    3.  Finally, with respect to the 915th Tactical Fighter Group, it is
 not clear to me why it is being named in the Complaint, other than the
 fact that all parties are in agreement that it should be so named.
 Clearly, the 915th is not the Employer herein.  Rather it is merely a
 military organization at Homestead whose employees constitute a segment
 of the contractual bargaining unit.  Since Colonel Ralph Erwin is
 commander of the 915th, this appears to be the reason for its being
 named.  I find, however, with respect to the status of Colonel Erwin,
 that in addition to being a supervisor and management official of the
 915th, he is also a supervisor, management official, and an agent of
 United States Air Force, Homestead Air Force Base, Florida, the
 Respondent herein.  I make this finding based (1) on my view that all
 supervisors and management officials at Homestead Air Force Base
 necessarily are - by virtue of their position - agents of Respondent's
 and (2) the fact that the Central Civilian Personnel Office made Erwin
 its agent when CPO chief Forrest Williams instructed him to meet with
 the Union President to discuss the Union's right to be involved with
 Erwin's "working committee" (Tr. 114).  B.  Formation of the Working
 Committee
 
    4.  During late March or early April of 1980, Colonel Ralph Erwin
 asked Union President, Arthur Schaffer, to come to his office for a
 meeting.  As noted above, this meeting resulted from a call Erwin had
 received from Forrest Williams, the Chief of Civilian Personnel.
 Williams told Erwin that the Union was upset by reports that Erwin was
 forming a committee and that it was necessary that the Union be
 involved.  Erwin testified that he had told his managers about the
 concept a couple of days earlier and that somehow the information about
 the committee had gotten to the Union "before we were ready to talk to
 them about it." Nonetheless, Erwin asked Williams to send Schaffer to
 his office that same day so that Erwin could "brief him, and bring him
 up to status on it."
 
    5.  At this meeting, Erwin explained to Schaffer that the purpose of
 the working committee was to identify problems within the 915th, and to
 boost morale and productivity within the organization.  Schaffer
 endorsed the concept of having working committees and naming union
 stewards to the committee.  Schaffer opposed a few of the names proposed
 by Erwin, including James Bruno and Kim Firmani.  There is a dispute
 concerning precisely what was decided at the meeting.  Schaffer's
 version, which I credit, is that Erwin told him the working committee
 was just a proposal, and that if he did in fact decide to establish the
 committee, Erwin would coordinate the meetings with Schaffer so that the
 members of the committee could be selected.  /5/ Erwin denies telling
 Schaffer that he would get back in touch with Schaffer concerning the
 meetings, but admits telling Schaffer that he would "keep him posted."
 The significance of the foregoing is that Schaffer left the meeting with
 the expectation of being consulted further before Col. Erwin implemented
 his proposal.  But even if Schaffer knew, as contended by Respondent,
 that the working committees definitely were going to be established, he
 clearly expected to be at least notified of the meetings as well as to
 be consulted as to the Union representatives on the committee.
 
    6.  Despite Erwin's promise to coordinate the meetings with Schaffer,
 he instead met with other representatives of the Union in April when
 Erwin informed Union Steward John Breslin and Chief Steward George
 Vitetta, that he was establishing a working committee and the stewards
 in the 915th would attend.  Breslin testified that he did not object to
 Erwin's proposal because he assumed that it had all been taken care of
 with the Union's Executive Board.  Presumably, Vitetta did not object
 because it was his "impression" that Erwin and Schaffer had reached
 agreement on the committee meetings (see footnote 8 supra).  C. The
 First Meeting (April 28)
 
    7.  Thereafter, Breslin received a memorandum from Erwin, dated April
 14, 1980, addressed to the "915 TGF Union Stewards" which announced a
 meeting for April 28, 1980, in Erwin's office and explained that Erwin
 was "attempting to establish a working committee to discuss the 'grass
 roots' problems within the 915th." Copies of the memorandum, as shown by
 the distribution list on the memorandum, went to three Union stewards--
 Breslin, Philip Paynter, and Warren Van Amringe;  as well as to Sergeant
 Kim Firmani who had been selected by Erwin to represent active duty
 military personnel.  Schaffer was not sent a copy of the memorandum.
 /9/
 
    8.  Breslin attended the meeting on April 28, 1980 and recalled that
 initially the discussion at the meeting concerned the purpose of the
 committee.  Erwin said that morale was down and that the participants
 should bring information about problem areas within the 915th so that
 the problems could be resolved.  One of the participants noted that not
 all of the stewards in the 915th had been included in the meeting.
 Erwin said that he would make sure that all the stewards were included
 in the next meeting.  D.  The Union's First Protest
 
    9.  A day or two after this first committee meeting, Breslin told
 Schaffer about the meeting and showed him the April 14 memorandum.
 Schaffer told Breslin that the meeting had not been coordinated with the
 Union and that Firmani really had no business being in a meeting to
 discuss civilian affairs.
 
    10.  After Breslin learned that Schaffer had not been contacted about
 the April 28 committee meeting, Breslin and Vitetta met with Erwin and
 requested that he coordinate the meetings with the Union.  Erwin agreed
 to see that this was done.  Vitetta testified that they explained that a
 copy of the meeting announcements should be sent to Schaffer, and he
 thought that Erwin agreed.  E.  The Second Meeting (May 19)
 
    11.  On May 12, 1980, Erwin sent out a memorandum announcing a second
 meeting of the working committee, and again did not send a copy of the
 memorandum to Schaffer.  This second memorandum announced a meeting for
 May 19, 1980, and was sent to the participants of the April 28 meeting,
 plus two additional Union stewards, Antonio Diaz and Edward Thompson;
 and also to Vitetta.
 
    12.  Breslin testified that he attended the meeting on May 19, 1980.
 He recalled that the discussion at this meeting included a problem with
 the repair or the parking lot at Building 714, a proposal from Erwin for
 a fishing trip for the whole squad, and a suggestion from one of the
 stewards that the civilian employees perform their military reserve
 duties during the week, rather than on weekends.  The last subject
 caught Breslin's attention because he knew that the Union was opposed to
 such a proposal.  Breslin also noted that the group discussed the
 problem that stewards on the night shift had in attending meetings of
 the working committee, since it was held in the morning.  Erwin agreed
 to change the time of the committee meetings to the afternoon so that
 stewards from both the day and night shifts could attend.  /10/ F. The
 Union's Second Protest
 
    13.  On June 3, 1980, the Union Executive Board had its regular
 monthly meeting.  As a result of lengthy discussion on the working
 committee the Executive Board decided to send a letter (G.C. Exh. No. 6)
 to Erwin.  That letter, dated and delivered June 23, 1980, pointed out
 to Erwin that he had not properly notified the Union with respect to the
 working committee.  The letter emphasized that it was the right of the
 Union to appoint its own representatives to the working committee, and
 requested that if Erwin intended to continue the meetings, to advise the
 Union and it would appoint representatives to the committee.  The letter
 also referred to Sections 7116(a)(1) and (8) of the Statute but asserted
 that, in the interest of fostering better labor-management relations, no
 unfair labor practice charge would be filed.  G.  The Third Meeting
 (June 23)
 
    14.  On the afternoon of June 23, the same day Schaffer delivered the
 Union's protest, he received a memorandum announcing a meeting of the
 working committee on June 23 at 2:30 p.m.  The memo was dated June 18
 and presumably prepared prior to the Union's protest.  The memo showed
 distribution of a copy to NFFE Local 1167.
 
    15.  Schaffer was not the only one to receive a late notice of that
 meeting.  Steward Edward Thompson testified that he learned of the
 meeting when he arrived at work on the afternoon of June 23, 1980, to
 begin his regular night shift.  Thompson's supervisor told him that he
 had received a telephone call from the Deputy Commander of Maintenance,
 and that Thompson was supposed to be at a meeting.  When Thompson
 arrived for the meeting, it was already in progress.  The memorandum
 announcing this meeting was received by Thompson after the meeting.
 
    16.  Thompson recalled when testifying that the civil service awards
 program was discussed as a possible way of improving morale.  There was
 a suggestion that supervisors initiate awards to some of the workers who
 had been doing a good job.  Changes in the work shifts were also
 discussed at the meeting.  Thompson testified that changes to the lunch
 period were discussed, so that the heavy workload on the flight line
 during that part of the day could be better covered.  H.  Colonel
 Erwin's Reaction to the Union's Protest
 
    17.  Sometime after the June 23 letter from Schaffer was received by
 Erwin, Erwin had a conversation with Breslin concerning the letter.
 Erwin testified that he asked Breslin what was the intent of the June
 23, 1980 letter from the Union.  Breslin, who had not been present at
 the Executive Board meeting where the letter was discussed, told Erwin
 that he did not know.  I note that Erwin did not attempt to contact and
 deal with Union President Schaffer.
 
    18.  Rather than respond to the request, stated in the letter, that
 Erwin contact the Union office if he wished to continue with the
 committee meetings so that the Union could appoint representatives,
 Erwin testified that he did not feel that he had to respond because he
 "didn't feel like it reflected the Union." (Tr. 132) Erwin testified
 that he felt "that it was probably a personal thing." (Tr. 132) Although
 Erwin admitted knowing that Schaffer was the President of the Union,
 Erwin testified that he was of the opinion that "the Union is not
 necessarily reflected by the Union personnel and I think that quite
 often it becomes a matter of a personality which stipulates Union policy
 rather than the Union itself."
 
    19.  In addition to the foregoing, Erwin testified as follows in
 response to questioning by Counsel for the General Counsel:
 
          Q.  I see.  So, did you think that by choosing a particular
       Union officer to deal with you could find someone who more nearly
       reflected the views of the Union?
 
          A. No, ma'am, that is not true at all.  I am saying that it is
       my intention to find the reflection of the Union and try to
       establish.  And then, if that was the case, then go from there.
 
          Q.  You are aware that Mr. Schaffer is the president?
 
          A. Oh, yes, ma'am.
 
          Q.  All right.
 
          A. But I am also aware of the fact that there is a Union
       involved, membership.  And as Mr. Vitetta pointed out, he was not
       in concert with the idea and he was the chief steward.
 
    20.  The testimony of Colonel Erwin (Tr. 132-133) is most revealing
 with respect to his attitude towards the Union as an institution and the
 Union members themselves.  He quite clearly seemed to be of the opinion
 that the views of the Union as expressed by its leadership (in this case
 Schaffer), did not necessarily coincide with the views of other Union
 officers (like Vitetta) or the membership as a whole.  His objective, by
 his own testimony, was "to find the reflection of the Union." Based upon
 my review of the record, particularly the testimony of Erwin, I can only
 conclude that Erwin deliberately chose to deal with those sources whom
 he felt would best "reflect" the Union.  Thus, he met with and dealt
 with Union officials other than President Schaffer, and with Union
 stewards at the working committee meetings.  In so doing, he
 deliberately bypassed the Union.  I.  The Third and Fourth Meetings
 (July 31 and September 2)
 
    21.  Even after receipt of the Union's protest, Erwin continued to
 schedule meetings.  One memorandum, dated July 31, 1980, announced a
 meeting for August 6, 1980.  Thompson testified that he attended this
 meeting and recalled some of the topics discussed.  He recalled a
 discussion of work shift changes, brought up by Erwin.  There was a
 proposal that one group begin work an hour earlier so that they could be
 ready upon the arrival of the rest of the employees.  There was also a
 discussion concerning the length of overlap between the day and night
 shifts and the consequent loss of productivity.  Other topics of
 discussion included employee complaints about unequal distribution of
 work on the night shift, and safety hazards in the parking lot due to
 poor lighting, a large hole, and no painted parking spaces.  Thompson
 also recalled a brief discussion about allowing the reservists to use
 the PX on weekends when they were on the base.
 
    22.  Thompson testified that although he knew of the Union's
 unhappiness with the fact that it had not been allowed to appoint its
 own representatives to the meetings, he attended the meetings anyway,
 because he received a letter from Erwin asking him to attend and because
 his supervisor told him to attend.
 
    23.  The final memorandum announcing a meeting of the working
 committee was dated August 29, 1980, and set the meeting date as
 September 2, 1980.  Erwin testified that no business was discussed at
 that meeting because only one steward showed up, and after a period of
 waiting, the meeting broke up.  J.  The Union's Decision to File a
 Charge
 
    24.  Breslin testified that he attended his first Executive Board
 meeting in July of 1980.  At that meeting there was a discussion of the
 letter which had been sent to Erwin, and that there had been no response
 to the letter.  It was noted that the meetings were still going on.  At
 the August meeting of the Union Executive Board, the Board unanimously
 voted to file an unfair labor practice charge because Erwin had not
 responded to the Union's letter and Erwin was continuing to hold
 meetings of the committee with representatives not chosen by the Union.
 Schaffer testified that the Board voted to file a charge because it had
 been unsuccessful in resolving the problem.
 
                                Discussion
 
    The factual allegations contained in paragraphs 7 and 8 of the
 Complaint have been proven by the General Counsel.  Thus, I find that
 Respondent, through its agent Col. Erwin, established a committee on
 April 14, 1980 composed of representatives of various components of
 Respondent;  that these representatives, including Union stewards, were
 designated and selected to attend and participate by Respondent;  that
 the Union was not given the opportunity to select and designate its own
 representatives and did not acquiesce in Respondent's acts and conduct;
 and that Respondent scheduled and participated in meetings at which
 conditions of employment, within the meaning of Section 7103(a)(14) of
 the Statute, were discussed with employees.  Of the foregoing findings
 and conclusions, the only issue is whether the Union acquiesced in the
 selection of stewards as its representatives on the committee.  While it
 is true that the Union did not oppose the concept of establishing the
 committee, I have concluded that the original meeting between Erwin and
 Schaffer did not result in an agreement between them with respect to the
 composition of the committee and that Schaffer expected to be consulted
 further so that the Union could select and designate its
 representatives.  But, even if there were a misunderstanding between
 Erwin and Schaffer as of early April, this does not excuse Erwin's
 failure to notify the Union of the first two meetings so that Schaffer
 could attend the meetings or give instructions to his designee.  As it
 was, the stewards attended because they were directed to by the
 memoranda scheduling the meetings.  Certainly, I cannot accept the
 suggestion that the stewards were merely invitees and that their
 acceptance was voluntary.  The tone of the memoranda and the testimony
 of Thompson makes this clear to me.  Nor does the evidence establish
 that the stewards were ever instructed by the Union to attend the
 meetings.
 
    In any event, when Schaffer did learn about the meetings, he promptly
 notified Erwin and protested.  By so doing, he gave Erwin an opportunity
 to clarify any misunderstanding which may have existed up until this
 point in time.  But Erwin chose not to contact the President of the
 Union and continued to schedule meetings, except that now a copy of the
 announcements were sent to the Union.  There seems to be no question
 that Erwin preferred to deal with Union representatives other than
 Schaffer.  While this may have been due to a personality conflict
 between them, I am unable to overlook Erwin's own testimony where he
 stated that Schaffer's views did not accurately reflect the views of the
 Union membership.  Simply stated, it is not the business of Erwin to
 make these kind of judgments.  Rather, the role of management is to deal
 with the employees' elected representative, the Union President.  Thus,
 from Erwin's testimony, I have no choice but to conclude that he
 deliberately bypassed Union President Schaffer.
 
    In contrast to his treatment of the Union President, Erwin's conduct
 toward the Union officials of whom he approved was quite cordial.
 Vitetta, who admitted to a good rapport with Erwin, discussed the
 committee with Erwin on at least two occasions, and received copies of
 meeting announcements.  And Breslin, who informed Erwin that he was no
 longer a Union steward in the 915th, continued to receive meeting
 announcements and Erwin's assurance that he was welcome to attend the
 committee meetings.  Significantly, however, Schaffer, the Union's
 principal officer and an employee of the 915th, received no personal
 invitations from Erwin to attend meetings of the committee.  Indeed,
 Erwin had no contact with Schaffer after their meeting in early April
 arranged by the Civilian Personnel Office.
 
    Respondent asserts in its brief that it had no obligation to consult
 with the Union President before "talking to" the stewards.  But, this
 case does not involve talking to union stewards about the application of
 the contract (Article III, Section 3.4(c)), or about setting grievances
 expeditiously at the lowest level (Article VII) - as argued in
 Respondent's brief.  Rather, this case involves the establishment by
 Erwin of a new committee, unlike any existing entity within the 915th.
 Accordingly, the steward's attendance at such meetings would not, in my
 opinion, be considered part of his ordinary duties as a steward.
 Therefore, as contended by counsel for the General Counsel in her brief,
 "it is axiomatic that Union stewards have only the duties and
 responsibilities which a union assigns them." Here, Article III, Section
 3.4(a) of the parties' collective bargaining agreement provides, in
 part, that "(t)he duties and responsibilities assigned by NFFE, Local
 1167 to its Stewards shall be consistent with applicable Federal laws,
 Executive Orders, rules and regulations, and the provisions of this
 Agreement." Respondent's reliance on the contract to argue that it was
 required to deal with stewards and was under no obligation to consult
 the Union President is misplaced.  Clearly, the Union had a right to
 designate its own representatives to serve on the working committee.
 What Respondent did here was to usurp the functions of the Union
 President and determine which Union stewards and officers would be
 informed of the meetings and invited to attend the meetings.  In effect,
 then, Erwin designated the Union's representatives just as he designated
 Sgt. Kim Firmani to represent another group of employees - active duty
 military personnel.
 
    An additional defense offered by Respondent is that the Union had
 actual notice because the stewards and Union Vice President had notice
 of the meetings.  This defense is rejected.  In the first place, the
 gravamen of the complaint is not lack of notice of Respondent's decision
 to conduct meetings without notifying the Union;  rather, it is
 Respondent's failure to permit the Union to select its own
 representatives to attend the committee meetings as official Union
 representatives.  To the extent Respondent is attempting to argue that
 the Union had actual notice and may be deemed to have acquiesced, this
 defense also is rejected.  The stewards attending the first few meetings
 were unaware that Schaffer had not designated them and was not being
 informed of the meetings.  In the circumstances of this case, it was
 Schaffer to whom notice should have been given.  When Schaffer did learn
 of the meetings, he promptly protested.  When his protest was ignored,
 he protested again.  Thus there was no acquiescence by the Union.
 
    As I view the facts of this case, Respondent acted unlawfully when
 Erwin designated the stewards who would receive notice and attend the
 meetings.  If Erwin regarded the stewards as representatives of the
 Union, it was unlawful not to permit the Union to designate its own
 representatives.  On the other hand, if Erwin regarded the stewards as
 representing groups of employees in their respective shops and
 departments, this was also unlawful because it means he was bypassing
 the exclusive representative and dealing directly with "employees"
 concerning their conditions of employment.
 
    Section 7116(a)(5) of the Statute makes it an unfair labor practice
 for an agency "to refuse to consult or negotiate in good faith with a
 labor organization," including a refusal to deal with the particular
 individuals selected by the labor organization for such consultation or
 negotiation.  Counsel for the General Counsel submits, and I agree, that
 an agency commits a violation of Section 7116(a)(5) when it designates
 the representatives of a labor organization with whom it will deal,
 rather than allowing the labor organization the right to designate its
 own representatives.  /11/ In addition, an agency violates Section
 7116(a)(1) of the Statute, in that the agency's action interferes with
 the right of employees to form, join, or assist a labor organization,
 and "to engage in collective bargaining with respect to conditions of
 employment through representatives chosen by employees" as set forth in
 Section 7102 of the Statute.
 
    The Authority, in a landmark decision, /12/ has stated as follows:
 
          Section 7103(12) of the Statute defines collective bargaining
       in terms of the "mutual obligation" of the parties to consult and
       bargain in good faith.  The goal of balanced, mutual
       responsibility on the part of the parties is also stressed in the
       legislative history of the Statute.  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 with the directness and dignity appropriate to
       partners on an equal footing.  (Footnotes omitted).
 
 Respondent herein did not deal with the Union on an equal footing.  What
 Col. Erwin did here was to ignore the Union President and deliberately
 avoid dealing with him.  By so doing, Respondent must be held to have
 bypassed the Union itself.  In my view, this bypassing of the Union was
 in derogation of the Union's rights as the exclusive representative and
 such conduct tended to undermine its status as the employees' exclusive
 representative.  Accordingly, I conclude that Respondent, by the acts
 and conduct of its agent Colonel Ralph Erwin, violated Section
 7116(a)(1) and (5) of the Statute.  /13/
 
    The General Counsel alleges that the same conduct described above
 also constitutes a violation of Section 7116(a)(3).  That section of the
 Statute makes it an unfair labor practice for an agency "to sponsor,
 control, or otherwise assist any labor organization, other than to
 furnish, upon request, customary and routine services and facilities . .
 . ." To prove a violation of Section 7116(a)(3), it would first be
 necessary to demonstrate that the committee was a labor organization
 within the meaning of Section 7103(a).  That would require deciding
 whether the committee was an "entity" as discussed previously, or merely
 a "concept" used to describe a series of meetings.  It would also
 require deciding whether the Respondent was dealing with "employees" or
 with Union representatives (albeit designated by Erwin).  The theory of
 General Counsel's case with respect to Section 7116(a)(5) is that the
 Respondent designated "Union representatives" to the committee and thus
 usurped the Union's prerogative in making such appointments.  Union
 President Schaffer testified, however, that he did not object to the
 formation of the committee and its purpose, but he did object to its
 composition and his right to designate his own representatives.
 Clearly, Schaffer did not regard the committee as a labor organization,
 else why would he insist on making appointments to a rival union.  Nor
 does it appear that what started out as a committee ever ripened into a
 labor organization as time passed.  On the contrary, after the Union
 voted in August to file a charge, only one steward showed up at the next
 committee meeting on September 2.  As a result, the meeting broke up
 with no business transacted.  No further meetings were scheduled.  So,
 without the participation of NFFE stewards, it would appear that no
 purpose was to be served in scheduling more meetings.
 
    In my opinion, the foregoing facts do not establish that the
 committee was a labor organization or that it was controlled by
 Respondent.  Accordingly, I recommend dismissal of the Section
 7116(a)(3) allegation in the Complaint.
 
    Having found and concluded that Respondent violated Section
 7116(a)(1) and (5) of the Statute, I recommend that the Authority issue
 the following order:
 
                                   ORDER
 
    Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final
 Rules and Regulations of the Federal Labor Relations Authority, U.S.
 Fed. Reg. 3842, 3510 (1980), it is hereby ordered that United States Air
 Force, 915th Tactical Fighter Group, Homestead Air Force Base, Florida,
 shall:
 
    1.  Cease and desist from:
 
          (a) Designating the representatives of the National Federation
       of Federal Employees, Local 1167, who are to attend meetings of
       the Working Committee, or any other committee established for the
       purpose of discussing terms and conditions of employment of
       employees in a bargaining unit represented by the National
       Federation of Federal Employees, Local 1167.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing our employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Notify the National Federation of Federal Employees, Local
       1167, that the employer recognizes the right of the exclusive
       representative to designate its own representatives to the Working
       Committee or any other committee established by the employer for
       the purpose of meeting with management to discuss terms and
       conditions of employment of employees in a bargaining unit
       represented by National Federation of Federal Employees, Local
       1167.
 
          (b) Post at the Homestead Air Force Base, Florida 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 Base Commander 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.  The Base
       Commander shall take reasonable steps to insure that such notices
       are not altered, defaced, or covered by any other material.
 
          (c) Notify the Regional Director of Region IV, 1776 Peachtree
       St., NW., Suite 501, North Wing, Atlanta, Georgia, 30309 in
       writing, within 30 days from the date of this Order, as to what
       steps have been taken to comply herewith.
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
 Dated:  May 28, 1982
          Washington, D.C.
 
 
                                 APPENDIX
 
  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 designate the representatives of the National Federation of
 Federal Employees, Local 1167, who are to attend meetings of the Working
 Committee, or any other committee established for the purpose of
 discussing terms and conditions of employment of employees in a
 bargaining unit represented by the National Federation of Federal
 Employees, Local 1167.  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.  WE WILL notify the National Federation of Federal Employees,
 Local 1167, that we recognize the right of the exclusive representative
 to designate its own representatives to the Working Committee or any
 other committee established for the purpose of meeting with management
 to discuss terms and conditions of employment of employees in a
 bargaining unit represented by National Federation of Federal Employees,
 Local 1167.
                                       (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 the Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director,
 Federal Labor Relations Authority, Region IV, 1776 Peachtree St., NW.,
 Suite 501, North Wing, Atlanta, Georgia, 30309 and whose telephone
 number is (404) 881-2324.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The name of the Respondent appears as amended based on the
 agreement of the parties at the hearing and the post hearing motion of
 the General Counsel granted by the Judge.
 
 
    /2/ The Respondent excepted to certain credibility findings made by
 the Judge.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge has had the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution is incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
 findings.
 
 
    /3/ Based on the determination herein, wherein the Authority has
 adopted the Judge's conclusion that the Respondent's conduct constituted
 a failure to bargain with the exclusive representative in violation of
 section 7116(a)(1) and (5) of the Statute, the Authority finds it
 unnecessary to consider and does not pass upon whether such conduct also
 constituted a violation of section 7116(a)(3) of the Statute.
 
 
    /4/ The name of the Respondent, as set forth in the caption, is more
 fully discussed in a separate section of this decision dealing with the
 General Counsel's motion, which I have granted, to delete the 31st
 Combat Support Group.
 
 
    /5/ The Charging Party did not file a brief within the established
 time limits.  However, in a post-hearing Motion opposing the General
 Counsel's Motion to Amend Complaint, the Charging Party adopted "by
 reference" the General Counsel's brief but requested a different remedy
 than sought by the General Counsel.  Respondent asserts that the
 Charging Party's Motion "appears to be nothing more than a subterfuge to
 attempt to file a brief untimely" and moved that it be stricken and not
 considered.  Having carefully considered the matter, I conclude that
 Respondent's Motion to Strike should be and hereby is granted.
 
 
    /6/ The index on page 3 of the transcript is incorrect.  The notation
 of "not offered" appearing beside General Counsel's Exhibit "No. 2" is
 hereby changed to show that the document was offered and received on
 page 17 of the transcript.  Further, the General Counsel's Motion to
 Correct Transcript, to which no objection was filed, is hereby granted.
 
 
    /7/ The Motion presented no reasons or arguments in support thereof.
 
 
    /8/ Chief Steward Vitetta, a witness for Respondent, testified that
 immediately after the meeting he drove Schaffer home and when he asked
 how the meeting went, Schaffer replied that he and Erwin had "reached
 agreement that the committee, if they were going to be set up" would
 include representation from the Union, and that Erwin recognized the
 need to use Union stewards.
 
 
    /9/ Respondent asserts that attendance was voluntary but there's
 nothing in the memorandum telling the stewards that they have any choice
 in the matter.  Although the tone of the memo is friendly and pleasant,
 it nevertheless is couched in language which in my opinion should lead
 the recipient to conclude that his or her attendance is mandatory.
 There was nothing in the memo to show any coordination with the Union.
 
 
    /10/ This was the last meeting attended by Breslin who in June was
 elected First Vice-President of the Union.  Although Erwin knew Breslin
 did not intend to attend future meetings, Breslin's name was retained on
 the distribution list for notices of subsequent meetings.
 
 
    /11/ Internal Revenue Service, Atlanta District Office, 8 A/SLMR 370.
  See also American Federation of Government Employees, AFL-CIO and U.S.
 Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
 Ohio, 4 FLRA No. 39 (1980) where the Authority upheld t