[ v17 p469 ]
17:0469(74)CA
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 . . . ."