17:0469(74)CA - Air Force, Lowry AFB, Denver, CO and AFGE Local 1974 -- 1985 FLRAdec CA
[ v17 p469 ]
The decision of the Authority follows:
17 FLRA No. 74 DEPARTMENT OF THE AIR FORCE LOWRY AIR FORCE BASE DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1974 Charging Party Case No. 7-CA-30298 DECISION AND ORDER The Administrative Law Judge issued the attached 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. The General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition thereto. 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. 7-CA-30298 be, and it hereby is, dismissed. Issued, Washington, D.C., April 15, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 7-CA-30298 Lt. Colonel Franklin E. Wright For the Respondent James J. Gonzales, Esquire Joseph Swerdzewski, Esquire For the General Counsel Mr. Dariel S. Case For the Charging Party Before: WILLIAM B. DEVANEY, Administrative Law Judge Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,et seq. /1/, and the final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., concerns the meaning of Sec. 21(b)(3)(B) and specifically where a grievance is presented on employees own behalf; the employees do not want the exclusive representative's assistance; and there are no meetings or discussions, is the employer under a duty, pursuant to Sec. 21(b)(3)(B), violation of which is an unfair labor practice, pursuant to Sec. 16(a)(8) and/or (1), to: a) give the exclusive representative notice of the filing of the grievance; /2/ and/or b) serve the exclusive representative with a copy of the grievance; and/or c) serve the exclusive representative with all documents and letters issued by the employer concerning such grievance? So far as I am aware, this is a case of first impression. This proceeding was initiated by a charge filed on March 24, 1983 (G.C. Exh. 1A), which alleged a violation of Sec. 16(a)(1); and a First Amended charge filed on June 2, 1983 (G.C. Exh. 1C), which alleged violations of Secs. 16(a)(1) and (8). The Complaint and Notice of Hearing issued on June 20, 1983 (G.C. Exh. 1E), pursuant to which a hearing was duly held on August 23, 1983, in Denver, Colorado, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues involved and were afforded opportunity to present oral argument which each party waived. At the close of the hearing, September 23, 1983, was fixed as the date for mailing post-hearing briefs which time was subsequently extended, upon timely motion of the Respondent, for good cause shown, to October 21, 1983. General Counsel and Respondent each timely mailed an excellent brief, received on October 24, 1983, which have been carefully considered. Upon the basis of the entire record, /3/ including my observation of the witnesses and their demeanor, I make the following findings and conclusions: Findings 1. American Federation of Government Employees, AFL-CIO, Local 1974 (hereinafter, also, referred to as the "Union"), is the exclusive representative of all eligible non-professional civilian employees employed by Lowry Air Force Base, Denver, Colorado (hereinafter, also, referred to as "Respondent"), as more fully set forth in the Agreement of the parties (G.C. Exh. 2, Art. 2). 2. On January 28, 1983, representatives of the Union and Respondent negotiated an agreement concerning the hours of work of all full-time and part-time Commissary sales store checkers (cashiers) (G.C. Exh. 3 Attachment). This agreement inter alia, changed the hours of work for full-time cashiers from 8:45 a.m. to 5:30 p.m. to 10:30 a.m. to 7:30 p.m., Tuesday through Friday. Part-time cashiers would work varying shifts with the early shift being 9:00 a.m. to 3:00 p.m. and the late shift being 2:00 p.m. to 8:00 p.m. (G.C. Exh. 3, Attachment). The new schedule was announced to employees, and posted, on January 28, 1983, to be effective February 8, 1983. Respondent on Saturday, January 29, 1983,met separately with the full-time and part-time cashiers to inform them of the new work schedules (G.C. Exh. 5, Par. 2). At the meeting with the full-time cashiers, Mr. Calvin Mullins, Commissary Officer, was asked to come to the meeting to explain the rationale for the change. Mr. Mullins stated that the revised schedule was necessary, " . . . because we were needed during the revised schedule periods. He also stated that the action had been discussed with responsible persons and negotiated with the Union . . . ." (G.C. Exh. 5, Par. 4.), and after making these remarks, Mr. Mullins left the meeting. 3. The full-time cashiers were dissatisfied with the new schedule of hours /4/ and, on February 2, 1983, met with Mr. Dariel Case, President of Local 1974, Ms. Vickie Sampson, steward, and assistant commissary manager Tydinko (as spelled in Respondents Brief; the name is spelled in the transcript and G.C. Exh. 5 as "Tydingco"). Ms. Lillie M. Masby testified that they, the full-time cashiers, requested the meeting, " . . . to find out why we hadn't been notified . . . had been given no consideration whatsoever, and . . . part-time cashiers had been asked . . . their opinion, and we wanted to first find out with him (Mr. Case) just why is it that we were discriminated against and they (part-time cashiers) weren't." (Tr. 118). Mr. Case conceded that, "They wanted to-- they were curious as to why we hadn't sought input from them. They felt that it was unfair for us to negotiate those hours without having checked with them first . . . ." (Tr. 51). There is no dispute that Mr. Case stated at this meeting, " . . . that a person who was not a union member could not file within the Union a grievance against a union officer" (Tr. 123). Although it appears that Mr. Case's reference to "grievance" related to action within the Union (Tr. 73, 123), Ms. Masby very credibly testified that Mr. Case said, '"If you file a grievance, you wouldn't be represented anyway, because you know, if you are too lazy to get off your butts and go to the Union meeting and all this then I wouldn't bother to even look at your case.' Look at your grievance, I am sorry" (Tr. 122), from which Ms. Masby understood Mr. Case meant any grievance, "In my mind, it just-- just grievance, period. That's the way I took it." (Tr. 124-125). /5/ 4. The full-time cashiers prepared a group grievance, dated February 5, 1983 (G.C. Exh. 5), which purported to be pursuant to AFR 40-771, which Ms. Masby and Ms. Cecilia Jones sought to file with Ms. Cheryl Lepard, Respondent's Chief of Labor and Employee Relations, on February 7, 1983. Ms. Lepard told Ms. Masby and Ms. Jones that: a) " . . . the 771 procedure was not appropriate and that they had to, since they were bargaining unit employees, use the procedure in the negotiated agreement" (Tr. 141, 106); and b) " . . . They said that they had informally discussed the grievance with the supervisor. Therefore, . . . the next step was the first step formal . . ." and that " . . . they should submit the grievance to Mr. Day (Commissary Complex Director) at Peterson Field in Colorado Springs." (Tr. 141; 107). Ms. Lepard further told Ms. Masby and Ms. Jones that the second step would be to the Wing Commander at Lowry Air Force Base (Tr. 107). Ms. Lepard retained a copy of the grievance. 5. On February 8, the grievance was mailed to the Director, Rocky Mountain Complex Air Force Commissary Service, and was received on February 10, 1983 (Tr. 110). Before Mr. Day responded, the employees wrote Colonel Kellum (the letter was not dated), Vice-Commander of Lowry Technical Training Center, the "second level" official, complaining of the lack of response to their grievance (G.C. Exh. 6). In the meantime, Mr. Day responded to the grievance (undated, but received by the employees on March 8, 1983, G.C. Exh. 7), as follows: "1. Your group grievance is being processed under the negotiated grievance procedure . . . rather than AFR 40-771, the grievance procedure you stated. This is required as you are bargaining unit employees represented by AFGE Local 1974. "2. As a result of your grievance, we are proposing to the union a different work schedule for the full-time sales store checkers. "3. While I cannot grant the total remedy you requested, I hope that the proposed schedule will provide flexibility to the full-time sales store checkers to work a more desirable schedule on a rotating basis. "4. I will notify you of the outcome of these negotiations on this matter. A copy of the letter to the union is attached. "5. I trust this will resolve your grievance." (G.C. Exh. 7). The attachment (G.C. Exh. 9) referenced in Mr. Day's response was not received by the employees. 6. By letter dated March 9, 1983, to the attention of Mr. Day (G.C. Exh. 8), the full-time cashiers protested the refusal to accept the grievance under AFR 40-771 and requested a copy of the referenced letter to the Union which had not been provided as Mr. Day's letter had purported to show. 7. Both a copy of Mr. Day's undated response (G.C. Exh. 7) and Mr. Calvin Mullins' (Commissary Officer) memorandum (also undated) to Mr. Case were received by Mr. Case; however, Mr. Case was not given a copy of the group grievance (G.C. Exh. 5) at any time (Tr. 148). In his memorandum to Mr. Case, Mr. Mullins stated as follows: "We are proposing a change in the tour of duty for two of the full-time sales store checkers. Our proposal is to place two full-time sales store checkers on the 9:00 a.m. to 6:00 p.m. shift and rotate the full-time cashiers from their previously negotiated shift. "Request your input no later than 21 March 1983." (G.C. Exh. 9). 8. By letter dated March 15, 1983, Mr. Case responded as follows: "Concerning undated letter from Curtis Day, Commissary Director. Management's acceptance and adjudication of a grievance concerning tours of duty for full time cashiers constitutes an unfair labor practice by management on internal affairs of the union. "The union negotiated in good faith with management to set up temporary schedules for cashiers less than thirty days ago. Management's failure to honor that agreement would constitute another unfair labor practice. Management had the obligation to inform the employees that they did not have a grievance and that the matter had been properly negotiated and therefore, was an internal union matter." (G.C. Exh. 10). 9. Respondent considered the grievant's letter to Mr. Day (G.C. Exh. 8), together with their earlier letter to Colonel Kellum (G.C. Exh. 6), as an elevation of the grievance to the second level (Tr. 144) and Colonel Swain by letter dated April 5, 1983, addressed to Ms. Masby, responded as follows: "1. This is in response to you (sic) grievance. This grievance is being processed under the negotiated grievance procedure between Lowry AFB and AFGE Local 1974. This negotiated grievance procedure is the sole grievance procedure available to you since you are members of that bargaining unit. "2. Management of the Lowry AFB Commissary and Local 1974, representing the bargaining unit, entered into negotiations on changing the work schedule of part-time and full-time sales store checkers so as to have more complete coverage of the store when needed. An agreement was reached between the Commissary Management and Local 1974 concerning the matter. After receiving your grievance, Mr. Day of the Rocky Mountain Complex offered to renegotiate some changes for you in this schedule. The union has declined to renegotiate. Also, since you did not consider this remedy to be sufficient, management has decided to remain with the schedule initially negotiated. /6/ "3. After carefully considering the facts as presented, I find I must deny your grievance." (G.C. Exh. 11). 10. Mr. Lepard testified that she had instructed one of her assistants, Mr. Vannoy, to furnish a copy of Colonel Swain's letter on April 5, 1983 (G.C. Exh. 11) to the Union (Tr. 145); however, Mr. Case testified that he never received a copy of General Counsel's Exhibit 11 (Tr. 61). Conclusions Sec. 21(b) of the Statute provides, in pertinent part, that: "(b) Any negotiated grievance procedure referred to in subsection (a) of this section shall-- . . . . (3) include procedures that - . . . . "(B) assure such an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding . . . ." (5 U.S.C. 7121(b)(3)(B). The collective bargaining agreement of the parties (G.C. Exh. 2) does assure employees the right to present a grievance on the employee's own behalf and assures the exclusive representative the right to be present during the grievance proceeding. Thus, Article 24, Section E, Par. 2 a. provides: "a. An employee is entitled to a Union representative at any stage of the grievance procedure. Any unit employee may present and process a grievance under this procedure without the intervention of the Union except that only the Union or the Employer may invoke arbitration. If the employee represents himself/herself, the Union will be given an opportunity to be present during the grievance proceeding." (G.C. Exh. 2, Article 24, Section E, Par. 2 a.). Where, as here, the parties' negotiated grievance procedure fully complies with the statutory requirement that the negotiated grievance procedure "assure . . . an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding", is there any further right enforceable under Sec. 16(a) of the Statute? For reasons set forth hereinafter, I conclude there is not. Under the Executive Order, the Assistant Secretary consistently held that Section 7(d)(1), /7/ inter alia, did not confer any rights enforceable under Section 19 (unfair labor practices). U.S. Department of the Army, Transportation Motor Pool, Fort Wainright, Alaska, A/SLMR No. 278, 3 A/SLMR 290 (1973); Internal Revenue Service, Chicago District, A/SLMR No. 279, 3 A/SLMR 304 (1973); U.S. Department of the Treasury, Internal Revenue Service, Western Service Center, Ogden, Utah, A/SLMR No. 280, 3 A/SLMR 310 (1973). I am aware that the Executive Order did not contain a provision like Sec. 16(a)(8); nevertheless, as the Statute imposes no duty to serve the Union with a copy of any grievance filed by an employee, or group of employees, the allegation of the Complaint that Respondent committed an unfair labor practice by its failure "to serve the Union with a copy of the grievance and all documents and letters filed by employees and issued by Respondent, to which the Union was, and is entitled under 5 U.S.C. 7121(b)(3)(B) . . ." (Complaint, G.C. Exh. 1E, Par. 12), in violation of Sec. 16(a)(8) /8/ must be dismissed. Not only does Sec. 21(b)(3)(B) not impose any duty to serve the Union with a copy of any document, including the grievance, filed by employees or issued by Respondent, but the tenor of the Statute is to the effect that the duty of an agency to furnish material to the exclusive representative is upon request. Thus, Sec. 14(b)(4) provides: "(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data-- . . . . " The more difficult question is whether the statutory requirement, that any negotiated grievance procedure include procedures that " . . . assure the exclusive representative the right to be present during the grievance proceeding . . . ", carries with it the implied duty of management to notify the exclusive representative when a grievance has been filed by an employee, or by employees, on the employee's own behalf. Logic strongly indicates that, if the exclusive representative's "right to be present during the grievance proceeding", is to be assured, the exclusive representative must know that a grievance has been filed; but whether logical, or desirable, does the failure to give such notice to the exclusive representative constitute an unfair labor practice? The Authority has made it clear that there is a duty to give the Union notice and an opportunity to be present at any meeting, Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 10 FLRA No. 36, 10 FLRA 172 (1982), where it stated, in part, as follows: "Reading Sections 7114(a)(2)(A) and 7121(b)(3)(B) together, it is clear that Congress intended that negotiated grievance procedures assure the exclusive representative the right to be present (represented) during formal discussions of a grievance, such as the discussions at issue in this case." (10 FLRA at 177). Respondent concedes that there is an obligation to give the Union notice of any meeting or discussion, but asserts that where, as here, there are no meetings or discussions, /9/ Sec. 14(a)(2)(A) does not apply, and Sec. 21(b)(3)(B) imposes no obligation to give notice to the Union that an individual grievance has been filed. Office of Program Operations, supra, although the specific issue was not an allegation of the Complaint before the Authority, at least by inference, can be read as supporting Respondent's position. There, a unit employee filed on her own behalf a written grievance on, or about, November 7; at the first step of the grievance procedure, without any notice to the union or any meeting between the grievant and the supervisor, one item of the grievance was granted and the other four items raised by the grievance were denied. Grievant was not satisfied and appealed. Meetings were held with grievant at the second step, on December 12, 1979, and at the third step, on January 17, 1980. The Complaint alleged that the respondent violated the Statute by conducting formal discussions on December 12, 1979, and January 17, 1980. The Complaint did not allege that respondent violated the statute either by its failure to notify the union that a grievance had been filed or by its adjustment of the grievance at step one; and the Authority, as set forth above, addressed Sec. 21(b)(3)(B) only in conjunction with Sec. 14(a)(2)(A) and held, in essence, that there is a duty to give the union notice and an opportunity to be present at any meeting. Each party has referred to the legislative history of the Statute, but the legislative history, beyond showing that S. 2640 had incorporated the language of the Executive Order (Legis. History p. 470-471); that Representative Clay's bill, H.R. 13, provided that any negotiated procedure, " . . . shall include procedures that insure the labor organization the right to be present when the grievance is adjusted if it is not the representative of the employee." (Legis. History, p. 162); that Representative Ford's bill, H.R. 1589 contained no similar provision; that when Representatives Clay and Ford combined their efforts in H.R. 9094 the provision of Mr. Clay's bill, H.R. 13, was adopted; that Mr. Nick's bill, H.R. 11280, provided that procedures " . . . shall assure the labor organization the right to be present when the grievance is adjusted" (Legis. History p. 355); and that, after amendments, H.R. 11280 was reported on July 31, 1978, and then contained the language as passed (Legis. History p. 419), namely that procedure shall, " . . . assure the exclusive representative the right to be present during the grievance proceeding", sheds no light on the meaning of "proceeding" or on the reason that "proceeding" supplanted "adjusted" or "adjustment." Certainly, the provision of the Executive Order " . . . opportunity to be present at the adjustment" (Section 13(a)) is not the same as the provision of the Statute, "to be present during the grievance proceeding" (Sec. 21(b)(3)(B)). Indeed, the word "proceeding" is broader than "adjustment" and, inter alia, means, "a particular step or series of steps adopted for doing or accomplishing something . . . necessary for bringing the case to a successful conclusion" (Webster's Third New International Dictionary (1971)), which, in my opinion, would include Respondent's disposition of the grievance by Mr. Day's letter, undated but received by the employees on March 8, 1983, as, whether it constituted an "adjustment" of the grievance or merely a proposal to the Union, it was an act taken to resolve the grievance; in fact, Mr. Day's letter concluded by stating "5. I trust this will resolve your grievance" (G.C. Exh. 7). Executive Order 11491 (October 29, 1969) in Section 7(d)(1) provided that Recognition does not: "(1) preclude an employee, regardless of whether he is a member of a labor organization, from bringing matters of personal concern to the attention of appropriate officials . . . or from choosing his own representative in a grievance or appellate action;" but Section 13 made no reference to the exclusive representative being present at the adjustment of any grievance. This language first appeared in the 1971 amendments to Executive Order 11491 and Section 13(a) provided, in part, as follows: " . . . However, any employee or group of employees in the unit may present such grievance to the agency and have them adjusted, without the intervention of the exclusive representative, as long as the adjustment is not inconsistent with the terms of the agreement and the exclusive representative has been given opportunity to be present at the adjustment." If Sec. 21(b)(3)(B), like Sec. 14(a)(2)(A), conferred a direct right to the exclusive representative, I would agree that a "right to be present during the grievance proceeding" carries with it the right to notice, violation of which would constitute an unfair labor practice; but Sec. 21(b)(3)(B), rather than giving the exclusive a direct right, provides that; "(b) Any negotiated grievance procedure . . . shall-- . . . . "(3) include procedures that-- . . . . "(B) assure such an employee the right to present a grievance on the employee's own behalf, and assure that exclusive representative the right to be present during the grievance proceeding . . . ." Article 24, "Grievance Procedure" in Section E 2, provides as follows: "2. Representation Rights "a. An employee is entitled to a Union representative at any stage of the grievance procedure. Any unit employee may present and process a grievance under this procedure without the intervention of the Union except that only the Union or the Employee may invoke arbitration. If the employee represents himself/herself, the Union will be given an opportunity to be present during the grievance proceeding." (G.C. Exh. 2). Section F. Procedural Steps provides, in part, as follows: 1. Employee Grievance . . . a. Informal Discussion-- Within 15 calendar days of the action complained of . . . the employee will discuss resolution with the immediate supervisor, if the employee desires Union representation at this stage, notifies his/her immediate supervisor and steward . . . . b. Formal Grievance-- Step One. The written grievance shall be filed with the Group Commander or comparable level management official (reviewing authority) under which the employee serves . . . Within 15 calendar days from receipt of the grievance, a written decision will be provided to the employee. During the said 15 day period, the Reviewing Authority will consider all evidence, statements of the employee, and the Union representative, if the employee is represented by the Union, and conduct such investigation and interviews as in his/her opinion is necessary to resolve the complaint . . . Step Two. A request for review . . . shall be directed by the Civilian Personnel Officer who will forward it immediately to the Final Administrative Authority (i.e., Vice Commander/LTTC). The Final Administrative Authority shall render his/her written decision to the employee within 15 calendar days . . . . "2. Union Grievances . . . . "3. Employer Grievances . . . . (G.C. Exh. 2). By contrast, Section H of Article 24, which provides for expedited grievance/arbitration, states, in part, as follows: " . . . "3. . . . a notice of decision to remove an employee . . . will be delivered to the employee and the Union . . . . . . . . "5. . . . "b. Arrange as soon as possible . . . a meeting of the Union and the affected employee(s) . . . for the purpose of resolving the grievance. . . . " (G.C. Exh. 2.) The informal discussion stage of the negotiated grievance procedure appears to contemplate discussion by the grieving employee and the immediate supervisor without notice to the Union unless the employee wants Union representation (I express no opinion as to the effect of Sec. 14(a)(2)(A) on the informal discussion since this issue is not before me). Step One of the formal grievance procedure contemplates consideration of statements of the Union only "if the employee is represented by the Union"; directs "such investigation and interviews" as the reviewing authority deems "necessary to resolve the Complaint." Meetings within the meaning of Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, supra, may well occur and, as noted previously, Respondent concedes an obligation to give notice to the Union and an opportunity to be present during formal discussion of a grievance; however the negotiated grievance procedure, neither in Section E 2 nor in Section F b, Step One, addresses specifically either notice to the Union or the right of the Union to be present in the absence of any meeting or discussion, and the right conferred by Sec. 14(a)(2)(A) does not attach in the absence of a meeting or discussion of the grievance. Of course, not every breach of contract constitutes an unfair labor practice and, here, I find no clear breach of contract much less such egregious conduct as to constitute an unfair labor practice. See, Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90, 11 FLRA 516 (1983); Iowa National Guard and National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500 (1982). Obviously, where notice to the Union was desired, the negotiated grievance procedure so provided; and where a meeting was mandated, the negotiated grievance procedure also so provided. Sec. 21(b)(3)(B) simply requires that any negotiated grievance procedure shall, inter alia, assure the exclusive representative " . . . the right to be present during the grievance proceeding" without providing at what point in the grievance proceeding the exclusive representative shall have the right to be present; and Respondent's construction and interpretation of the negotiated procedure to mean that the Union's right to be present at an individual's grievance attaches only when there is a meeting or discussion, as required by Sec. 14(a)(2)(A), is not unreasonable but, to the contrary, is consistent with specific provisions of the negotiated procedure, including, for example, providing written decision "to the employee" (Steps One and Two); consideration of evidence and statement of the Union Representative "if the employee is represented by the Union". Beyond deciding that the record does not show a clear or patent breach of contract which could constitute an unfair labor practice, I express no opinion as to whether Respondent did, or did not, breach its agreement as, " . . . the appropriate avenue for resolution of the dispute is through the parties' mutually agreed upon contractual grievance and arbitration procedure rather than through the unfair labor practice procedures . . . ." Harry S. Truman Memorial Veterans Hospital, supra, 11 FLRA at 519. As Respondent notes in its Brief (Respondent's Brief, pp. 10-11), under the Executive Order, the opportunity to be "present" at any adjustment was read to mean presence at some meeting. See, Local R7-51, National Association of Government Employees, A/SLMR No. 896, 7 A/SLMR 775 (1977); Internal Revenue Service, Memphis Service Center, Memphis, Tennessee, A/SLMR No. 444, 4 A/SLMR 717 (1974). No basis was shown for an independent violation of Sec. 16(a)(1), i.e., the 16(a)(1) violation is premised on the asserted obligation arising from Sec. 21(b)(3)(B). Having found that Respondent did not violate Secs. 16(a)(1) or (8) as alleged, it is recommended that the Authority adopt the following: ORDER The Complaint in Case No. 7-CA-30298 be, and the same is hereby, dismissed. WILLIAM B. DEVANEY Administrative Law Judge Dated: February 8, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the Statute reference, e.g., Section 7116(a)(8) will be referred to, simply, as "Sec. 16(a)(8)." /2/ The original charge alleged that: "Local 1974 charges the Commissary with interfering in internal affairs of the Local and failing to honor legitimately negotiated agreements on work schedules." (G.C. Exh. 1A). The First Amended charge alleged that: "Since on or about February 5, 1983, and continuing to the present time, the Activity has failed or refused to provide the Union with all documents concerning a group grievance filed by unit employees which was processed under the provisions of the negotiated grievance procedure." (G.C. Exh. 1C). Paragraph 9 of the Complaint alleges that: "9. On or about February 10, 1983, and at all times since, Respondent, through Day, or any other agent, has failed to notify the Union of the filing of the grievance . . . and has failed to serve the Union with a copy of the grievance and all documents and letters issued by Respondent concerning said grievance." The allegation of Paragraph 9 of the Complaint that, "Respondent . . . has failed to notify the Union of the filing of the grievance . . . ." was not specifically alleged in the First Amended charge (nor in the original charge); nevertheless, Respondent has not asserted, either at the hearing or in its post-hearing brief, that this allegation of the Complaint was not encompassed by the allegation of the First Amended charge, " . . . the Activity has failed or refused to provide the Union with all documents concerning a group grievance filed by unit employees . . . ." Accordingly, as the allegation of the charge, "all documents concerning a group grievance", is sufficiently broad as to satisfy jurisdictional requirements for the allegation of Paragraph 9 in the absence of any contention to the contrary, the allegation of Paragraph 9 is deemed covered by the First Amended charge. /3/ General Counsel's Motion to Correct the Transcript, to which no opposition was filed, is granted, as modified, and the transcript is hereby corrected as set forth in the Appendix hereto. /4/ On February 1, 1983, the full-time cashiers had met with the EEOC Officer. /5/ The full-time cashiers filed an unfair labor practice charge against Mr. Case and/or Local 1974 on February 11, 1983, (Tr. 88, 120) which was settled on April 29, 1983 (Tr. 97, 99). /6/ Although the issue is not before me, the record shows that on May 11, 1983, Respondent told the Union that it wanted to change the hours of duty of all full-time cashiers from that of 10:30 a.m. to 7:30 p.m. to 9:00 a.m. to 6:00 p.m., Tuesday through Friday. Mr. Case testified that the Union did not agree to any change (Tr. 85-86; but Mr. Mullins testified that Mr. Case agreed to the change (Tr. 129, 130) and, effective May 18, 1983, the hours of full-time cashiers were changed to 0900-1800, Tuesday through Friday and 0800-1700 on Saturday (G.C. Exh. 12). /7/ Section 7(d)(1) of Executive Order 11491, as amended, provided: "(d) Recognition of a labor organization does not-- "(1) preclude an employee, regardless of whether he is in a unit of exclusive recognition, from exercising grievance or appellate rights established by law or regulation, or from choosing his own representative in a grievance or appellate action, except when the grievance is covered under a negotiated procedure as provided in Section 13;" Sec. 14(a)(5) of the Statute is substantially like Sec. 7(d)(1) of the Executive Order and provides: "(5) The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from-- "(A) being represented by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action; or "(B) exercising grievance or appellate rights established by law, rule, or regulation; except in the case of grievance or appeal procedures negotiated under this chapter." /8/ "(8) to otherwise fail or refuse to comply with any provision of this chapter." /9/ I reject General Counsel's assertion that employees Masby and Jones' attempt to file the group grievance with Respondent's Chief of Labor and Employee Relations on February 7, 1983, constituted a formal discussion within the meaning of Sec. 14(a)(2)(A) for the reason that the record shows that the grievance was not accepted, because as the employees were told: a) it could not be filed under the agency grievance procedure but, because they were bargaining unit employees, must be filed under the procedure in the negotiated agreement; and b) that it must be filed with the Commissary Complex Director at Peterson Field in Colorado Springs. The employees subsequently filed the grievance with the Commissary Complex Director who received it on February 10, 1983. Moreover, the Complaint neither alleges a "formal discussion" on February 7, 1983, nor that the Union was not afforded an opportunity to be represented at any formal discussion. To the contrary, the Complaint (Par. 9) alleges that Mr. Day, the Commissary Complex Director, "On or about February 10, 1983 . . . failed to notify the Union of the filing of the grievance . . . ."