15:0790(150)CA - DOD, Army, HQ, XVIII Airborne Corps, and Fort Bragg and AFGE Local 1770 -- 1984 FLRAdec CA



[ v15 p790 ]
15:0790(150)CA
The decision of the Authority follows:


 15 FLRA No. 150
 
 DEPARTMENT OF DEFENSE
 DEPARTMENT OF THE ARMY
 HEADQUARTERS, XVIII AIRBORNE
 CORPS, AND FORT BRAGG
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1770, AFL-CIO
 Charging Party
 
                                            Case Nos. 4-CA-803 
                                                             4-CA-895
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Authority" in accordance with
 section 2429.1(a) of the Authority's Rules and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the parties' contentions, the
 Authority finds:
 
    At all times relevant herein, the American Federation of Government
 Employees, Local 1770, AFL-CIO (the Union), has been recognized as the
 exclusive representative of a unit consisting of all eligible
 appropriated fund civilian employees who are "administered by
 Respondent's Civilian Personnel Office." A collective bargaining
 agreement between the parties has been in effect during this period,
 Article VI of which provides as follows:
 
                                ARTICLE VI
 
          SECTION 1.  The Employer recognizes the Officers, duly
       designated representatives, and a reasonable number of stewards,
       duly elected or appointed, who shall meet with the employer or his
       designated representatives, on a mutually agreeable basis.  The
       primary purpose of such meetings will be to exchange information
       regarding current work problems, to discuss expected changes in
       civilian personnel policies or regulations, and to consult as
       necessary on matters covered by this Agreement.
 
          SECTION 2.  The Employer agrees to recognize the Officers of
       the Union and a reasonable numbers (sic) of Stewards as required.
       The Union agrees that Shop Stewards and Chief Stewards will be
       selected who possess qualities of leadership and responsibility
       and who will deal with employees and Management in a manner that
       will inspire confidence and respect.
 
          SECTION 3.  The Union will designate stewards so that each
       employee in the Unit will have reasonable access to a steward and
       shall supply the Civilian Personnel Office in writing, on a
       current basis, a complete list of all Union Officers,
       Representatives, and Stewards together with the organizational
       area and location where each such representative and steward has
       been assigned.
 
          SECTION 4.  Each steward will normally restrict his union
       activities to his assigned work area or organizational location in
       which he is appointed to serve.  Time used by stewards during duty
       hours in the performance of their steward duties will be with the
       prior knowledge and permission of the steward's immediate
       supervisor and shall be limited to the extent necessary to
       preclude undue interference with assigned essential duties.
       During such granted absence, the steward will confine his
       activities to the conduct of that business for which approval of
       absence was granted, return directly to his work area upon
       completion of the business at hand, and personally notify his
       appropriate supervisor of his return to duty.  In the event the
       steward's official business cannot be concluded within the
       approved time of absence, he may contact his immediate supervisor
       and request additional time and be governed accordingly.
       Supervisors will grant a steward's request for an absence for
       representational purposes unless such absence would cause an undue
       interruption of work or jeopardize the operation of the work unit.
        If a specific request is denied, the steward and supervisor will
       seek mutual agreement on an alternate time for absence.  The
       steward and supervisor will take reasonable action to prevent
       missing any deadline imposed by law, regulations, or provision of
       this Agreement.
 
    On December 3, 1980, the Union advised Respondent that pursuant to
 Article VI, section 2 of the negotiated agreement, it was appointing Mr.
 Eugene P. Reed as Steward for Handicapped Employees.  Respondent replied
 on December 9, 1980 stating it would not recognize the designation of
 Mr. Reed, due to its position against recognizing Stewards-at-large.  By
 letter dated January 19, 1981, the Union advised the Respondent that it
 had designated Mr. Reed as the Shop Steward for Engine Rebuild Shop,
 Building 2-3614, and that as of December 3, 1980, Mr. Reed was also
 appointed, pursuant to Article VI, sections 1 and 2 of the parties'
 agreement, the Union Representative Specializing in Problems Concerning
 Handicapped Employees on the Installation.  In a written response dated
 January 30, 1981, the Respondent acceded to the appointment of Mr. Reed
 as Shop Steward but refused to recognize Mr. Reed as the Union's
 Representative Specializing in Problems Concerning Handicapped Employees
 on the Installation reiterating its position on Stewards-at-large.
 
    On or about February 18, 1981, Mr. Reed was terminated from his
 employment with Respondent.  Thereafter, on or about March 31, 1981, the
 Respondent on two separate occasions, through its representative Charles
 M. Hill and Jerry W. Holstad, verbally refused to recognize Mr. Reed as
 the steward of the Union on the grounds that Mr. Reed was terminated
 from his employment with the Respondent.
 
    The amended consolidated complaint alleges that the Respondent's
 failure and refusal to recognize Mr. Reed as the Union's designated
 representative on January 30, 1981, and as the Union's designated
 representative and steward on March 31, 1981 and April 14, 1981,
 constitutes a violation of section 7116(a)(1) and (5) of the Statute.
 /1/ More specifically, it alleges that such conduct constitutes a clear
 and patent breach of Article VI, section 1 through 3 of the parties'
 negotiated agreement in violation of section 7116(a)(1) and (5) of the
 Statute;  a failure to bargain in good faith with the Union in violation
 of section 7116(a)(1) and (5) of the Statute;  and interference with
 employee rights in violation of section 7116(a)(1) of the Statute.
 
    In American Federation of Government Employees, AFL-CIO, 4 FLRA 272
 (1980), the Authority determined that it is within the discretion of
 labor organizations holding exclusive recognition to designate their
 representatives when fulfilling their responsibilities under the
 Statute.  Furthermore, an agency violates section 7116(a)(5) of the
 Statute when it refuses to deal with the particular individuals selected
 by the exclusive representative of a bargaining unit of its employees
 for negotiation, and also thereby violates section 7116(a)(1) of the
 Statute inasmuch as its action interferes with the rights of employees
 as set forth in section 7102 of the Statute.  See Department of the Air
 Force, 915th Tactical Fighter Group, Homestead Air Force Base, Florida,
 13 FLRA No. 33 (1983).
 
    Respondent contends that it was not obligated to recognize Mr. Reed
 based upon its interpretation of Article VI of the collective bargaining
 agreement.  However, the Authority concludes that Article VI contains no
 clear and unmistakable waiver of the Union's statutory right to choose
 its own stewards or representatives or any restriction requiring those
 selected to be employees of the Respondent.  Absent such a clear and
 unmistakable waiver, a party will not be deemed to have given up a
 statutory right, such as a union's right to designate its
 representatives and stewards involved herein.  Social Security
 Administration, 13 FLRA No. 69 (1983);  Department of the Air Force,
 Scott Air Force Base, Illinois, 5 FLRA 9 (1981).
 
    Accordingly, in the instant case, the Authority finds that the
 Respondent was obligated to recognize the Union's designation of Mr.
 Reed as its representative and steward and that its failure to do so on
 January 30, 1981 and March 31, 1981, constitutes both a failure to
 bargain in good faith in violation of section 7116(a)(1) and (5) of the
 Statute and an interference with the employees' collective bargaining
 rights in violation of section 7116(a)(1) of the Statute.  /2/
 
                                   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 Defense, Department
 of Army, Headquarters, XVIII Airborne Corps, and Fort Bragg shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to recognize Eugene P. Reed as the
 designated representative and/or steward of the American Federation of
 Government Employees, Local 1770, AFL-CIO, the employees' exclusive
 representative.
 
    (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) Recognize Eugene P. Reed as the designated representative and/or
 steward of the American Federation of Government Employees, Local 1770,
 AFL-CIO, the employees' exclusive representative.
 
    (b) Post at its Fort Bragg, North Carolina 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., August 29, 1984
 
                                       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 fail and refuse to recognize Eugene P. Reed as the
 designated representative and/or steward of the American Federation of
 Government Employees, Local 1770, AFL-CIO, our employees' exclusive
 representative.
 
    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 recognize Eugene P. Reed as the designated representative
 and/or steward of the American Federation of Government Employees, Local
 1770, AFL-CIO, our employees' exclusive representative.
                                       Activity
                                       By:  (Signature) (Title)
 
    Dated:  . . .
 
    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 its provisions, they may communicate directly with the Regional
 Director, Region IV, Federal Labor Relations Authority, whose address
 is:  177