17:0823(111)CA - DOD, Air Force, Armament Division, AFSC, Eglin AFB, FL and AFGE Local 1817 -- 1985 FLRAdec CA



[ v17 p823 ]
17:0823(111)CA
The decision of the Authority follows:


 17 FLRA No. 111
 
 DEPARTMENT OF DEFENSE 
 DEPARTMENT OF THE AIR FORCE 
 ARMAMENT DIVISION, AFSC 
 EGLIN AIR FORCE BASE, FLORIDA 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1817 
 Charging Party
 
                                            Case No. 4-CA-20117
 
                            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 in its entirety.  Thereafter, the
 General Counsel filed exceptions to the Judge's Decision and the
 Respondent 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-20117 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 8, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Major Wade B. Morrison
    For the Respondent
 
    Thomas H. Newberry
    For the Charging Party
 
    Regina N. Kane, Esq.
    For the General Counsel
 
    Before:  FRANCIS E. DOWD, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101, et seq.  It was instituted by the Regional Director of the
 Fourth Region of the Federal Labor Relations Authority by the issuance
 of a Complaint and Notice of Hearing dated February 23, 1983.  The
 Complaint was issued following an investigation of an unfair labor
 practice charge filed on December 19, 1981, by American Federation of
 Government Employees, AFL-CIO, Local 1897, herein referred to as AFGE,
 Union or Charging Party.
 
    The Complaint alleges that Department of Defense, Department of the
 Air Force, Armament Division, AFSC, Eglin Air Force Base, herein called
 Respondent or Employer, has violated sections 7116(a)(1) and (6) of the
 Statute by refusing to comply with a Decision and Order of the Federal
 Service Impasses Panel, herein FSIP.  Respondent denies any violation of
 the Statute.
 
    A hearing was held at Eglin Air Force Base, Florida on March 6, 1984,
 at which the parties were represented by counsel and afforded full
 opportunity to adduce evidence and call, examine, and cross-examine
 witnesses and argue orally.  Briefs filed by Respondent and the General
 Counsel have been duly considered.
 
    Upon consideration of the entire record in this case, including my
 evaluation of the testimony and evidence presented at the hearing, and
 from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                             Findings of Fact
 
    1.  Respondent is an agency within the meaning of section 7103(a)(3)
 of the Statute.  Douglas M. Johnson is a supervisor and/or a management
 official within the meaning of section 7103(a)(10) and (11) of the
 Statute and an agent of Respondent.
 
    2.  The Union is a labor organization within the meaning of section
 7103(a)(6) of the Statute and, since on or about April 14, 1975, has
 been and is the exclusive representative of an appropriate unit of
 employees at Eglin Fir Force Base.  A collective bargaining agreement
 signed March 6, 1975 and approved April 14, 1975 had, by its terms
 (Article 30), a duration of three years from the date it was signed.
 (G.C. Exh. No. 23).  On August 26, 1981, the terms of the agreement were
 extended until the effective date of any new Memorandum of Agreement
 (G.C. Exh. No. 2).
 
    3.  Air Force Regulations 215-11 (G.C. Exh. No. 3) directs that
 Noncommissioned Officer's (NCO) Clubs will be membership clubs and that
 membership checks will be conducted periodically to enforce membership
 rules.  Respondent admits that lax enforcement of this regulation during
 the noon meal by club management resulted in a practice prior to January
 1981, whereby nonmembers were permitted to eat their noon meal at the
 club.
 
    4.  Included among the nonmembers using the club during the noon meal
 were bargaining unit employees represented by AFGE, the Charging Party
 herein, as well as employees in another unit represented by National
 Federation of Federal Employees, Local 1940, herein NFFE.
 
    5.  In January 1981, club management announced that it planned to
 begin strict enforcement of its membership rules by increasing the
 frequency of membership checks.  In response, NFFE, on January 12, 1981,
 requested to bargain about the impact and implementation of the change.
 The following day, the Charging Party, also submitted a similar request
 to bargain.  The Charging Party's proposal was "that the decision to
 require all eligible Unit Employees to join and pay dues at the NCO and
 Officers' Clubs for the privilege of using the facility during the lunch
 hour be suspended until an adequate facility, namely the proposed Base
 Exchange Restaurant, be completed which will provide Unit Employees an
 alternative to being forced to become members of said Clubs just to be
 able to have a suitable place to eat lunch on base".  Discussions ensued
 between management and the unions, with the sticking point being how
 long management would allow non-members to eat lunch in the clubs
 without being members or meeting membership criteria (R. Exh. 2-10, G.C.
 Exh. 5).
 
    6.  Following impasse NFFE requested FSIP assistance by letter dated
 March 9, 1981 (G.C. Exh. 6).  By letter dated March 19, 1981, AFGE also
 requested FSIP assistance (G.C. Exh. 7).  AFGE's request for FSIP
 assistance was virtually identical with that submitted 10 days earlier
 by NFFE.  AFGE advised the Panel in its March 19, 1981 submission that
 "the dispute is over when the change will be implemented." The "change"
 was further set forth as being that previously, "unit members had access
 on base to hot, cafeteria-style noontime meals through the facilities of
 the Eglin Officers' and Noncommissioned Officers' (NCO) Clubs" and that
 they were allowed access "without restriction in that employees using
 these facilities were not required to be either members or bona fide
 guests of members of these clubs." They further stated that one of their
 primary concerns was that "many of the unit members of are not eligible
 to join the NCO Club because of their GS and WB grade level.  For these
 employees, the change effectively bars them from the noontime service
 even if they are willing to pay the monthly membership fee" (G.C. Exh.
 7).  By letter dated April 2, 1981, FSIP directed NFFE and management to
 submit their respective positions and proposals by April 13, 1981 and
 their rebuttal briefs by April 20, 1981 (G.C. Exh. 8).  NFFE's proposal
 was that "management reinstate the long standing past practice, recently
 discontinued, which allowed unit members to eat lunch at the Eglin
 Noncommissioned Officers' (NCO) Club without condition of membership in
 the club.  Such a club is to remain open and provide adequate feeding
 facilities to all unit members regardless of their club membership
 status or eligibility until such time as an adequate appropriated fund
 cafetaria is made available to our unit members" (G.C. Exh. 9).
 Additionally, NFFE attached its March 9, 1981 submission as further
 explanation of its position.  As noted above, that document advised FSIP
 that "the dispute is over when the change will be implemented" and
 identified the change as no longer permitting bargaining unit employees
 to eat lunch at the clubs irrespective of their membership status (G.C.
 Exh. 9).  Both parties later submitted rebuttal briefs in accordance
 with FSIP's direction, further arguing the merits of their positions
 (Resp. Exh. 12 and 13).  On April 23, 1981, FSIP notified AFGE and
 management that their previously submitted statements of position (G.C.
 Exh. 7 for AFGE;  G.C. Exh. 10 for management) would constitute their
 initial submission and that rebuttal briefs were to be submitted by May
 1, 1981.  Both parties submitted rebuttal briefs (G.C. Exh. 12 and 13).
 
    7.  Thereafter, FSIP joined the two cases and issued a decision on
 June 9, 1981, ordering that the unions' (plural) proposal be adopted
 (G.C. Exh. 14).  In its decision, FSIP stated that the issue before it
 was whether implementation of the Employers's decision concerning unit
 employees' lunchtime use of the NCO Club should be suspended until a new
 cafeteria was built and in service.  /1/ In its decision, FSIP set forth
 the "parties" proposals as follows:
 
          Both Unions propose that the decision to close the NCO Club to
       nonmembers be rescinded and implementation deferred until a new
       cafeteria has been opened (which is scheduled to take place in
       October 1982).  The Employer proposes that membership requirements
       remain in effect for both clubs.
 
 In its conclusion, FSIP stated as follows:
 
          Having considered the arguments and evidence, we conclude that
       the current eating arrangements, as reflected in the Employer's
       proposal, are unfair to those employees not eligible to join the
       NCO Club.  In addition, the Employer has not shown any compelling
       reasons why the past practice must be changed at this time.  The
       Union's proposal, on the other hand, would not preclude the
       Employer from acting but would merely delay implementation of its
       decision with regard to NCO Club privileges until the cafeteria is
       in service.  For all of these reasons, the Union's proposal
       provides a more reasonable basis for the resolution of this
       dispute.
 
    8.  On July 10, 1981, management sent a letter to each union
 specifying how it intended to comply with FSIP's order (G.C. Exh. 15,
 Resp. Exh. 11).  Specifically, the Respondent proposed to grant
 temporary civilian membership privileges to any member of the Union's
 bargaining unit who was not currently eligible for membership (grades
 GS-10 or equivalent and above).  Further, Respondent proposed that each
 individual who applied for temporary membership would be issued an
 identification card and would be assured the normal membership fee of
 four dollars per month.  NFFE concurred with the proposed action (Resp.
 Exh. 11), while AFGE rejected it G.C. Exh. 16).  On July 22, 1981,
 management asked FSIP to clarify its Decision and Order (G.C. Exh. 17).
 By supplemental decision dated September 18, 1981, FSIP stated that
 management's proposed action did not comply with its earlier decision
 (G.C. Exh. 19).  FSIP also advised the Respondent that "unless the
 parties agree otherwise-- as the Employer and Local 1940 have done-- the
 specific language of the Panel's Order is binding on the parties during
 the term of the agreement pursuant to Section 7119(c)(5)(c) of the . . .
 Statute . . . ."
 
    9.  By letter dated October 22, 1981, management advised AFGE that it
 intended to comply with FSIP's Order by waiving its NCO Club membership
 eligibility and dues requirements for the noon meal until the Base
 Exchange cafeteria opened.  It further proposed to issue "lunch cards"
 to facilitate entry of non-members eligible to eat lunch pursuant to
 FSIP's Order.  A one-time administrative fee of $1.00 was to be charged
 for the lunch card (G.C. Exh. 20).  By letter dated October 26, 1981,
 AFGE advised management that its proposed action was unacceptable in
 that "it imposes changes in the Past Practice" and it failed to provide
 for three separate notices in the Eglin Bulletin (G.C. Exh. 21).
 Neither party sought a determination from FSIP as to whether
 Respondent's proposal constituted compliance.  However, on November 18,
 1981, Respondent notified the union that it was dropping the $1.00
 administrative fee requirement and would publish the notice in three
 issues of the Eglin Bulletin (G.C. Exh. 22).  The lunch passes (Resp.
 Exh. 14(b)) were issued to AFGE employees as they entered the NCO Club
 for lunch, or were issued during business hours in the Club's
 administrative office.  They were issued for an indefinite period and
 were used to facilitate identification of those entitled to eat lunch at
 the NCO Club pursuant to FSIP's Order.  Issuance of the passes usually
 took less than a minute.  No administrative fee was ever charged for one
 of these passes.
 
                     Discussion and Conclusions of Law
 
    Section 7116(a)(1) of the Statute makes it an unfair labor practice
 for an agency to "interfere with, restrain, or coerce" any employee in
 the exercise of that employee's rights under that Statute.  Section
 7116(a)(6) makes it an unfair labor practice for any agency to fail or
 refuse to cooperate in impasse procedures and decisions of the FSIP.  It
 is well established that a refusal to comply with a final order of the
 FSIP constitutes a violation of Sections 7116(a)(1) and (6) of the
 Statute.  Michigan Army National Guard, Lansing, Michigan, 11 FLRA No. 4
 (1983);  Florida National Guard, 9 FLRA No. 41 (1982);  National Guard
 Bureau, Marine Air National Guard, Augusta, Maine, 10 FLRA No. 101
 (1982).
 
    The FSIP Decision and Order which is the subject of this controversy
 was dated June 19, 1981.  As noted above, FSIP ordered Respondent to
 adopt the Union proposal which FSIP itself characterized as follows:  ".
 . . that the decision to close the NCO Club to nonmembers be rescinded
 and implementation be deferred until a new cafeteria has been opened . .
 . ." My review of the FSIP decision and record upon which it was based
 /2/ leads me to conclude that the focus of FSIP's concern was the fact
 that Respondent's proposed change would effectively bar some AFGE (and
 NFFE) unit members from eating at the NCO Club as in the past.  Thus,
 FSIP specifically noted that the Employer's proposal was "unfair to
 those employees not eligible to join the NCO Club".  I find nothing in
 FSIP's decision to indicate any concern-- one way or the other-- with
 the right of Respondent to enforce its regulations with respect to
 persons other than AFGE (and NFFE) unit members who were being adversely
 affected by the decision to institute more frequent membership checks
 and thereby exclude nonmembers.  With a record showing that a new
 cafeteria was scheduled for completion in October 1982, about 16 months
 later, FSIP simply observed no compelling reason for Respondent to
 change its "past practice." FSIP's unfortunate use of the term "past
 practice" has apparently caused the General Counsel to misinterpret
 FSIP's decision as requiring Respondent not to change the status quo as
 existed prior thereto.  Thus, the General Counsel contends that
 Respondents "went beyond the parameters of the June 9, 1981 FSIP
 Decision and Order, as clarified on September 18, 1981, by imposing
 conditions other than what has been the established past practice . . .
 ." Further, the General Counsel contends that the issuance of yellow
 cards or lunch passes to AFGE unit members does not by any "stretch of
 the imagination" constitute compliance with the "strict terms" of FSIP's
 decision.
 
    I do not interpret FSIP's decision in the same manner as the General
 Counsel.  I conclude that FSIP's use of the term "past practice" was
 only intended to refer to the practice of not enforcing the requirement
 of membership.  The vice of Respondent's original proposed compliance
 was that it was requiring temporary membership, in contrast to the past,
 and even though eligibility requirements were waived.  I believe this is
 why FSIP rejected Respondent's proposal.  Respondent's second proposed
 compliance involving a $1.00 administrative fee was rejected by AFGE,
 not implemented by Respondent, not appealed to FSIP, and not
 specifically referred to in the charge or the complaint.  In these
 circumstances, I find it unnecessary to speculate on whether imposition
 of $1.00 administrative fee, even if implemented by Respondent, would
 have constituted compliance.  /3/ Respondent's third proposal-- the only
 one really implemented for all practical purposes-- was the issuance of
 yellow cards or lunch passes, which cost nothing.  While it is true that
 these were not required before, I do not find that this requirement was
 barred by FSIP's decisions.  To conclude that FSIP intended to bar any
 change, especially one as trivial as this one, is to read too much into
 FSIP's decisions.  To also conclude that FSIP intended to bar the
 Respondent from enforcing its regulations vis-a-vis persons other than
 AFGE unit employees, is to presume that FSIP's jurisdiction over the
 instant dispute extends to the conditions of employment of persons who
 are not members of AFGE's appropriate unit (See Resp. brief pp. 9-11).
 In the circumstances of this case, I am reluctant to conclude that
 compliance with FSIP's decision required Respondent to do anything more
 than rescind their proposed decision requiring membership in the NCO
 Club and continue to permit AFGE unit members to use the Club at the
 noon meal, until the new cafeteria was completed.  The issuance of
 yellow lunch cards does not constitute a "restriction", as suggested by
 the General Counsel, because it neither prevents an AFGE unit member
 from eating at the Club nor does it result in any out-of-pocket costs.
 /4/ Rather, the issuance of yellow cards or passes to AFGE unit members
 merely served as a simple and expeditious method of identifying them as
 persons who are permitted to eat at the club notwithstanding their
 nonmembership.  As a result, only persons with membership cards or
 yellow lunch cards could eat at the club and all others could be
 excluded.  I find that this was a reasonable accommodation on
 Respondent's part and constituted compliance with FSIP's decision.  /5/
 Accordingly, I do not find a violation of Section 7116(a)(1) and (6) of
 the Statute and it is recommended that the Authority issue the
 following:
 
                                   ORDER
 
    That the Complaint in Case No. 4-CA-20117 be, and it hereby is,
 dismissed.  /6/
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
 Dated:  July 12, 1984
         Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The parties stipulated at the hearing that the cafeteria
 contemplated in FSIPS decision has been built and is in service.
 
 
    /2/ In my opinion, I need only review the same record FSIP had before
 it so that I can decide what FSIP intended by its decision which I am
 being asked to interpret.  I do not believe it is necessary for me, in
 the circumstances of this case, to go outside that record in order to
 determine what the past practice was prior to the dispute which went to
 FSIP for decision.  For this reason, I believe that all I need to know
 is what FSIP thought the past practice was on the basis of the
 submissions of the parties to FSIP.  Accordingly, the testimony of
 General Counsel's witnesses as to "past practice" was irrelevant;  a
 hearing was not necessary;  and this record should have been stipulated,
 either to me or directly to the Authority.  The testimony of General
 Counsel's witnesses was not only irrelevant, but it was not helpful in
 resolving the issues posed herein.
 
 
    /3/ Respondent's first and second proposed compliance were not
 alleged in the charge but even if they were so alleged, I would find
 that neither were implemented after their rejection by AFGE.  Moreover,
 FSIP itself already ruled on the first proposal when it issued its
 clarification decision-- a decision which was obviously necessary.
 
 
    /4/ The General Counsel has not established by a preponderance of the
 evidence that the Union ever proposed to Respondent, as alleged in
 paragraph 7(d) of the complaint "in substance that the past practice of
 permitting unlimited and unrestricted access to the noncommissioned
 officers' club without the use of passes or imposition of fees be
 continued until the completion of the construction of a Base Exchange
 restaurant."
 
 
    /5/ In view of my decision in this basis, I find it unnecessary to
 pass upon Respondent's other defense that FSIP's decision is only
 binding on the parties during the term of a collective bargaining
 agreement unless the parties agree otherwise.  The parties stipulated
 that there was no agreement in force at the time FSIP issued its
 decision, there being a hiatus between the expiration date of March 6,
 1981 and a Memorandum of Agreement dated August 26, 1981.
 
 
    /6/ I am constrained to note that the Union could itself have sought
 clarification from FSIP on the issue of the yellow lunch passes instead
 of