13:0612(103)CA - DOD, Air Force, Armament Division, AFSC Eglin AFB and AFGE Local 1897 -- 1984 FLRAdec CA



[ v13 p612 ]
13:0612(103)CA
The decision of the Authority follows:


 13 FLRA No. 103
 
 DEPARTMENT OF DEFENSE
 DEPARTMENT OF THE AIR FORCE
 ARMAMENT DIVISION, AFSC
 EGLIN AIR FORCE BASE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1897, AFL-CIO
 Charging Party
 
                                            Case No. 4-CA-351
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued her 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 brief in
 support thereof.  /1/ The Respondent also filed an opposition to the
 General Counsel's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 4-CA-351 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., January 13, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF DEFENSE
    DEPARTMENT OF THE AIR FORCE
    ARMAMENT DIVISION, AFSC
    EGLIN AIR FORCE BASE,
                                Respondent
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, LOCAL 1897, AFL-CIO,
                              Charging Party
 
                                       Case No. 4-CA-351
 
    Gordon B. Finley., Lt. Col., USAF,
    Attorney for the Respondent
 
    Regina N. Kane,
    Attorney for the General Counsel
    Federal Labor Relations Authority
 
    Before:  ISABELLE R. Cappello
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191(1978), 5 U.S.C. 7101 et seq. (Supp. IV,
 1980), hereinafter referred to as the "Statute," and the rules and
 regulations issued thereunder and published in 5 CFR 2411 et seq.
 
    Pursuant to a charge filed on January 29, 1980, by Local 1897 of the
 American Federation of Government Employees (hereinafter, the "Union" or
 the "Charging Party"), the General Counsel of the Federal Labor
 Relations Authority investigated and filed the complaint in this case.
 The complaint alleges that violations of Section 7116(a)(1) and (5) of
 the Statute have occurred.  /1/ The violative acts and conduct are
 alleged to be that, on or about January 5, 1980, Major General Robert M.
 Bond, acting for Respondent, signed the final version of an affirmative
 action plan for fiscal year 1980 (hereinafter, the "Plan"), and
 thereafter forwarded it to Air Force Headquarters for consolidation with
 other such plans from throughout the Command, without giving the Union
 prior notice and an opportunity to bargain concerning the Plan.
 
    Respondent admits that an "official copy" of the Plan was "signed and
 staffed" at Eglin Air Force Base and, on about January 5, was forwarded
 to Headquarters, Air Force Systems Command, Andrews Air Force Base,
 Maryland, (GC-1(D)).  /2/ It denies that the official copy was "final,"
 in the sense that it was beyond revision necessary to comply with any
 labor-management negotiations.  It denies that signing and forwarding
 the Plan to Air Force Systems Command (hereinafter, "AFSC") constituted
 unilateral and unlawful implementation of the Plan without notice and an
 opportunity to bargain to the Union.  Respondent affirmatively avers
 that it gave the Union a copy of the Plan on January 8 and timely notice
 and an opportunity to bargain over the Plan, and that the Union failed
 to avail itself of this opportunity.
 
    A hearing in this matter was held at Eglin Air Force Base on April
 22, 1982.  The parties appeared, adduced evidence, and examined and
 cross-examined witnesses.  Briefs were filed on June 14, by Respondent,
 and June 18, by the General Counsel.  Based upon my consideration of the
 briefs and the record made in this case, including my observation of the
 demeanor of witnesses, I make the following findings of fact,
 conclusions of law, and recommended order.
 
                             Findings of Fact
 
    1.  It has been admitted that the Department of Defense ("DOD"), is
 an agency, within the meaning of the Statute, that the Department of the
 Air Force is a primary national subdivision of DOD, and that the
 Armament Division, AFSC, at Eglin Air Force Base is an activity of the
 Air Force, within the meaning of 5 CFR 2421.4 and .5.  The only remedy
 being sought by the General Counsel is the posting of a cease-and-desist
 order at Eglin Air Force Base.  See TR 13.
 
    2.  Major General Robert M. Bond was the senior installation
 commander at Eglin Air Force Base during the period of the alleged
 violative acts and conduct, and up until May 1981.  Douglas M. Johnson
 has been the Labor Relations Officer at Eglin during the period at issue
 in this proceeding.  Eddie L. White was the Equal Employment Opportunity
 ("EEO") Officer from the early fall of 1979 until on or about June 1980.
  Mr. White's office was responsible for developing the Plan at issue.
 
    3.  Eglin is organized into "two-letter" commands and has a base
 commander, who is a colonel.  There are about 25 two-letter commands at
 Eglin.  During the period here at issue, Major General Bond was directly
 responsible for the equal employment opportunity ("EEO") program at
 Eglin Air Force Base.  This came about because of a class action suit,
 filed in November 1976, against Eglin Air Force Base.  The suit alleged
 discrimination with regard to minorities.  As a result of the suit,
 there has been a "very charged atmosphere that existed in the local
 communities with regard to hiring at Eglin." (TR 112) The suit has
 received "quite a bit of notoriety in Washington with the AFSC
 Commander." (TR 113).
 
    4.  It was admitted that the Union has been the exclusive
 representative of certain employees at Eglin since on or about April 14,
 1975.  James E. Sanders was president of Local 1897 of the Union from
 1978 to 1980.  He is not presently a member of the union.  Maureen Preta
 has been the women's coordinator for Local 1897 since April 1978, and a
 Union member for approximately four to five years.  As women's
 coordinator, she is the Union representative on the EEO Advisory
 Committee at Eglin.  Her Union duties include participation in
 negotiations on affirmative action plans.
 
    5.  Beginning in the summer of 1979, Ms. Preta attended four or five
 meetings in regard to formulation of the Plan.  Others attending
 included representatives from each two-letter organization at Eglin and
 other special-interest groups at Eglin.  Other than these meetings, Ms.
 Preta participated in no meetings concerning the Plan.  The meetings
 concerning the Plan were chaired by the EEO Officer.  The Purpose of the
 meetings was to pass on information coming in from Headquarters, Air
 Force Systems Command ("HQ AFSC") on how the Plan was to be developed.
 
    6.  Fiscal year 1980 was considered a transitional year in the
 development of an EEO plan, in that labor force data from the 1970
 Census was to be applied against projected vacancies at Eglin to
 establish goals, at the "Center" level, the "Center" being Eglin Air
 Force Base.  (TR 31).  Previously, such a statistical approach had not
 been used;  and each two-letter organization at Eglin had developed its
 own plan.  In the development of the Center Plan, the role of the
 two-letter organizations was limited to submission of their projected
 vacancies to Mr. White.
 
    7.  On December 11, 1979, at a meeting chaired by Mr. White, Mr.
 White advised attendees, including Ms. Preta, that a "suspense" of
 January 3 had been given to Eglin in which to have the Plan signed and
 off the Base to AFSC.  A suspense" is an internally-imposed due date.
 Development of the Plan had not been started at the time of the December
 11 meeting, because final instructions on how to construct it had just
 been received from HQ AFSC.
 
    8.  Ms. Preta, who was planning leave over the December holiday
 period, was concerned about being able to adequately review the Plan,
 because of the January 3 suspense date.  She alerted Mr. Sanders to keep
 a lookout for a copy of the Plan, and volunteered to come in to review
 it, once he received a copy.  Ms. Preta was on leave between December
 19, 1979, and January 7.  No copy of the Plan was received by Mr.
 Sanders during this period.
 
    9.  The Plan was signed on a Saturday, January 7, by Major General
 Bond.  An "official" copy of it was placed on an aircraft to HQ AFSC, in
 lieu of using the regular mail.  (GC-1(d), paragraph 7(a).  It was
 apparently forwarded without a transmittal memorandum, as none could be
 located in the files at the Base.  Mr. Johnson talked, many times, with
 Respondent's legal counsel about bargaining obligations concerning the
 Plan.  On Friday, January 5, the legal counsel assured Mr. Johnson that
 Major General Bond was aware of the obligation.  Mr. Johnson then felt
 assured that he was free to negotiate concerning the Plan, even after it
 had been forwarded to HQ AFSC.  Mr. Johnson admitted that, initially, he
 had some "concerns" about forwarding the signed Plan to Headquarters,
 before negotiating with the Union.  (TR 136).  Mr. Johnson did not
 himself discuss the matter with Major General Bond.
 
    10.  No negotiations with the Union preceded the signing and
 forwarding of the Plan to HQ AFSC.
 
    11.  HQ AFSC needed the Eglin Plan to consolidate with plans prepared
 by each of the other eight AFSC bases.  Each year, the consolidated data
 is used to produce a "Command Plan" for the entire AFSC.  The four-star
 general who is the overall commander of AFSC then signs the Command
 Plan, thereby making a "commitment" to it.  (TR 174).  The Command Plan
 is then printed and sent to Headquarters, Air Force.  The Air Force uses
 the data to produce a book entitled "EEO Affirmative Action Plan." (TR
 174).
 
    12.  At the HQ AFSC level, the plans are used to see what commitments
 the bases have made and whether they are adequate, and to track
 accomplishments.  After the plans are sent in by the bases, they are
 still subject to changes which HQ AFSC thinks are needed.  Since HQ AFSC
 usually works closely with the bases, by telephone, in preparing the
 goals, the plans received from the bases are usually "all set," by the
 time they reach HQ AFSC.  (TR 177).  Since it takes about four weeks for
 HQ AFSC to consolidate the data received from the bases, the bases can
 also call in changes, of their own volition.  Even after the Command
 Plan is printed, the bases can make changes, if they have a reason for
 so doing.
 
    13.  HQ AFSC distributes copies of the printed Command Plan, for each
 year, to each of the eight bases in the command.  This is done because
 the bases like to see how they compare to one another.
 
    14.  Upon her return to the office, on January 7, Ms. Preta called
 the EEO office to ask about the status of the Plan.  She was told that
 it was signed and had been sent to HQ AFSC.  She so informed Mr. Sanders
 who, in turn, called Mr. Johnson about its status.  Mr. Johnson told Mr.
 Sanders that he would get him a copy of the Plan, when it was
 "finalized." (TR 72) At that time, not enough copies of the Plan had
 been received from the printing office, and not even Mr. Sanders had
 seen it.
 
    15.  The next day Mr. Sanders received a copy of the Plan, through
 the mail.  An accompanying memorandum from Mr. Johnson dated January 8,
 referred to the Plan and the "attendant" FY 80 Federal Equal Opportunity
 Recruitment Plan ("FEORP").  (Jt-2) FEORP is one section of an equal
 employment opportunity plan.  The January 8 memorandum states that:
 "Although the Plans have been forwarded to HQ AFSC for consolidation
 with other submissions from throughout the command, this installation
 stands ready in good faith to meet its obligation under Chapter 71 of 5
 U.S.C." (Jt-2).  He also referred Mr. Sanders to Mr. White for the
 answers to any technical questions.  He gave the Union until January 16
 to make formal comments or requests.
 
    16.  On January 16, Mr. Sanders sent to Mr. Johnson, a memorandum
 detailing the results of the Union review of the Plan.  Five
 inadequacies were noted, and five items of data were questioned.  A
 request for a response from the EEO office was made.  The Union
 considered this letter to be a request to negotiate.  Respondent did
 not.
 
    17.  On January 19, Ms. Preta attended a meeting of local black
 community leaders who were also concerned about the Plan.  The meeting
 was called by the president of the local NAACP chapter and held in a
 community center at Fort Walton Beach, Florida, near where Eglin Air
 Force Base is located.  The meeting was called because of the black
 community concern over the goals in the Plan.  Mr. White attended the
 meeting and acted as the spokesperson for Eglin Air Force Base.  Ms.
 Preta spoke up at the meeting, and asked Mr. White if he knew whether
 the Plan could be or would be amended.  Mr. White replied that he did
 not know.  As the EEO officer, Mr. White had no responsibility for
 collective bargaining.  Ms. Preta then asked him to consult with Major
 General Bond about the possibility of amending the Plan and get back to
 the group with his reply.  Mr. White agreed to meet with Major General
 Bond on Monday morning.  Mr. White left the meeting before it ended.
 After Mr. White left, the attendees agreed to meet on Monday evening,
 January 21, to hear the response from Major General Bond.
 
    18.  On January 21, at 7:00 p.m., the community was held as planned.
 Ten to 15 people attended, among whom were Mr. White, Mr. Sanders, and
 Ms. Preta.  Mr. White personally delivered to the meeting the response
 he had received from Major General Bond.  Mr. White stated that he had
 had the meeting with Major General Bond, and that "General Bond said
 that he would not amend the plan." (TR 45).  /4/
 
    19.  Mr. Sanders testified that, at a later date, Mr. White told him
 that "General Bond did not intend to say that." (TR 79).  Mr. Sanders
 also testified that Mr. White "seemed to be under some pressure" when he
 made this explanation.  (TR 77).  Because of Mr. White's denial of
 certain statements he had made, and the fear that he might even deny
 being at the January 21 meeting, Mr. Sanders, Ms. Preta, and five other
 attendees at the January 21 meeting, signed a statement that Mr. White
 was at the meeting.  The statement also notes that Mr. White had
 presented the group with Major General Bond's response to the question
 of whether he was willing to amend the Plan, and that the response was
 that the Plan would not be amended, but that the 2-letter organizations
 would compile their own plans and he would hold the 2-letter chiefs
 responsible for achieving reasonable goals.  See GC-3.  This statement
 was signed a day or so after January 21.
 
    20.  After Mr. White left the meeting on January 21, the group
 decided to draft a letter to Major General Bond expressing concern over
 the Plan.  The letter was drafted and signed by Mr. Sanders, as
 president of the Union, and by representatives of three local community
 groups.  It was read by Mr. Sanders to a press conference called by the
 president of the local NAACP chapter, on January 22, and then delivered
 to Major General Bond that day.  The letter stated objections to the
 Plan, including its not having been negotiated with the Union.  It
 concluded with the statement that the Plan "represented a major
 regression and is not considered to be in either the spirit or the
 letter of the law." (Jt-4).
 
    21.  On January 24, Major General Bond wrote a letter to Mr. Sanders
 complaining that the content of the January 22 letter, and statements
 attributed to Mr. Sanders in the press, were inflammatory and divisive
 in nature.  Major General Bond defended his commitment to affirmative
 action, and noted that the planning process for fiscal year 1980, as
 regards equal employment opportunity, was carried out under new and
 often changing guidance, and aggravated by "the pressures of meeting a
 short suspense." (Jt-5, paragraph 3).  He made comments on objections
 raised to the "1980 equal employment opportunity plan." (Jt-5, paragraph
 4).  He noted that there was no requirement to solicit input from
 interest groups during the planning process, and only upon completion of
 the planning process was it appropriate to solicit comments from labor
 organizations at Eglin.  (Jt. 59, paragraph 4d).  He reiterated that
 Eglin stood "ready in good faith to meet its obligations under the law,"
 and was assessing each expressed concern of the Union, and would
 "negotiate in good faith." (Jt-5, paragraph 4c).  He invited Mr.
 Sanders, and other Union officers, and those who were a party to the
 January 22 letter, to attend a staff briefing on affirmative action
 planning, on January 31.
 
    22.  Based on the fact that the Plan had already been signed by Major
 General Bond, the senior commander at Eglin Air Force Base, and sent off
 the base, coupled with the advice of the EEO Officer that Major General
 Bond would not amend the Plan, it was the view of the Union that "there
 could not be any negotiations on something that was already set in
 concrete." (TR 58).  Accordingly, on January 24, Mr. Sanders signed the
 unfair labor practice charge which is the subject of this proceeding.
 It is not clear from the record as to whether Mr. Sanders signed the
 charge before or after receiving Major General Bond's letter of January
 24.
 
    23.  On January 31, a press conference called by Major General Bond
 was held.  Mr. Sanders, Ms. Preta and the Fifth District Vice President
 of the Union attended.  Mr. Johnson was also there.  Staff personnel
 from Major General Bond's office explained the Plan.  At the end of the
 presentation, someone from the press "pointedly asked Mr. Johnson a
 question - said, 'Well, after this will the Union be allowed to
 negotiate the 1980 EEO Plan?'" (TR 83).  Mr. Johnson replied:  "No, we
 don't negotiate anything until its finalized." (TR 83).  The Union and
 Mr. Johnson hold different views as to the meaning of the word
 "finalized," in connection with the Plan.  To the Union, it means "no
 possible change could be made," after the Plan was sent to Washington.
 (TR 93, 126).  To Mr. Johnson it means that management has finalized its
 proposal, and is ready to negotiate with the Union.  At the January 31
 meeting, Mr. Johnson again assured Union officials that the Plan could
 be negotiated even though it had left the base.
 
    24.  On February 15, Mr. Johnson replied by letter to the January 16
 letter from the Union President.  It stated that:  "The guidelines
 pertaining to the FY 80 affirmative action Plan do not require input
 from labor organizations or other interested groups during the
 formulation stage." It justified what was in the Plan.  It ended with a
 declaration that the Plan had been prepared in strict compliance with
 prevailing guidance.  The letter left the Union with the impression that
 "management did not believe that they had to negotiate with the Union."
 (TR 66).  The delay in formulating the February 16 letter was caused by
 the involvement of the EEO staff in preparing for the January 31 press
 conference and in working on a consent judgment to be entered in the
 lawsuit pending over EEO matters at Eglin.  Had Mr. Johnson viewed the
 January 16 letter from Mr. Sanders as a request to negotiate, he
 declared that a more immediate response would have been forthcoming.
 
    25.  Eglin Air Force Base implemented the Plan on May 1, after the
 charge in this case had been investigated and the Regional Director of
 the Authority had, on April 8, upheld Eglin's actions and refused to
 issue a complaint.  (After an appeal by the Union, this complaint
 eventually did issue.  See TR 162.) Mr. Johnson speculated that, if the
 Union had not filed a charge, implementation would have taken place
 after Respondent responded to the Union's January 16 letter, because the
 Union had not made a specific request to negotiate, accompanied by
 specific proposals.
 
    26.  At the time of the hearing a FY 82 Plan was in effect.
 Negotiations with the Union took place before the Plan was signed by the
 Commander.
 
                        Discussion and Conclusions
 
    Respondent concedes that it "probably could have" found a "better way
 to address the fiscal year 1980 Plan," but argues that, under the
 circumstances which obtained in January 1980, it did not deprive the
 Union of its opportunity to bargain over the Plan, as alleged.  (RBr
 13-14.) Bearing in mind that the General Counsel must prove its case by
 the "preponderance of the evidence" (5 CFR 2423.18), I am constrained to
 agree with the argument of Respondent.  And I heartily concur in its
 concession.
 
    There is no doubt, as the General Counsel points out at page 9 of his
 brief, that the Union had no specific notice or any meaningful
 opportunity to proffer proposals before the Plan was shipped off base to
 headquarters, on January 7.  This act understandably gave rise to
 suspicion that the Union was faced with a fait accompli.  However,
 credible evidence established that the act of sending the Plan off base
 to headquarters was for informational purposes and did not constitute
 implementation, and that changes could still be made.  Indeed,
 headquarters probably expected subsequent changes, since it was issuing
 instructions on how to construct the Plan as late as December and then
 set a due date of January 3.  There was little chance, over a holiday
 period, that the bases could finalize the Plans, offer them to the
 unions for negotiations, and complete the negotiations within such a
 time frame.
 
    The Plan was not implemented at Eglin until May 1.  By then the Union
 had a copy of the Plan for several months, and had received repeated
 assurances from management that it intended to negotiate in good faith
 with the Union.  On January 8, such an assurance was given by the labor
 relations officer, when he presented the Plan to the Union.  On January
 24, such an assurance was repeated by the senior installation commander.
  On January 31, the labor relations officer reassured the Union that
 negotiations could proceed.
 
    See findings 15, 21 and 23 supra.  Even the Union appears to have
 felt that negotiations were possible after the Plan was sent to
 headquarters, for on January 16, it submitted what it considered to be a
 request to negotiate, in the form of a letter criticizing the Plan and
 asking for information.
 
    The Union understandably became convinced that there was no
 meaningful opportunity for negotiations, when the EEO officer, on
 January 21, informed its president and a group of community
 organizations, that the senior installation commander did not intend to
 amend the Plan.  This unfortunate advice, however, was almost
 immediately corrected, by both the EEO officer and, on January 24, by
 the senior installation commander.  See findings 19 and 21, supra.
 
    Nothing thereafter transpired, before implementation on May 1, to
 indicate that the January 24 advice of the senior installation
 commander, that he stood ready to negotiate in good faith, was false.
 The February 16 letter of the labor relations officer, in response to
 the January 16 critique of the Plan by the Union, did attempt to explain
 and justify the Plan.  But it cannot fairly be read as flatly
 foreclosing consideration of any specific proposals the Union chose to
 submit for negotiation.  While it did not specifically reiterate
 management's intent to negotiate in good faith over the Plan, this may
 have been the result of the fact that the Union had already filed a
 charge of failure to bargain in good faith.  In any event, the February
 15 letter is not clear evidence that Respondent was refusing to bargain
 in good faith.
 
    The General Counsel argues that Respondent's offers to negotiate were
 "merely paying lip service to its obligation to engage in meaningful
 collective bargaining with the Union." (GCBr-15).  The General Counsel
 relies on the absence of anything, in writing, that indicates that
 Respondent considered altering or amending the Plan submitted to the
 Union on January 8.  While the presence of such a statement would have
 bolstered Respondent's case, its absence is not fatal.
 
    The General Counsel also relies on the presence of several written
 statements, one being that of the senior installation commander, in his
 January 24 letter to the Union, that there was no obligation to solicit
 comments from labor organizations until "completion of the planning
 process." See GCBr-16.  I take this to mean only that there was no
 obligation to bargain until Respondent had completed the process of
 getting its offer on the bargaining table, which is correct.
 
    Another statement relied upon by the General Counsel to support the
 "mere lip service" argument is that of the labor relations officer, in
 his February 15 letter to the Union in which he stated that input from
 labor organizations is not required "during the formulation stage" of
 affirmative action plans.  (GCBr-16).  Since the labor relations officer
 had earlier submitted the Plan to the Union with an offer to negotiate
 in good faith concerning it, I also view this statement to have been
 intended to apply to input while the Respondent is formulating its
 offer.
 
    In a footnote, the General Counsel also asks that an adverse
 inference be drawn from the failure of the Respondent to call either the
 EEO officer or the senior installation commander to testify.  (GCBr-18,
 fn, 35).  Neither is presently employed or stationed at Eglin.  I
 therefore decline to draw such an inference, in the belief that agencies
 should not have to act, at such a peril, in declining to go to the
 expense of locating and transporting such witnesses.
 
    Both parties continue to argue about the admissibility of evidence
 under the Federal Rules of Evidence.  See GCBr 17-18 and RBr 11-12.
 They are reminded that such rules do not apply to these proceedings.
 See 5 CFR 2423.17.
 
    While all the issues raised by the parties have been c