[ v20 p248 ]
20:0248(32)CA
The decision of the Authority follows:
20 FLRA No. 32
DEPARTMENT OF DEFENSE, ARMY AND AIR
FORCE EXCHANGE SERVICE
FORT EUSTIS EXCHANGE
FORT EUSTIS, VIRGINIA
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-114
Charging Party
Case Nos. 4-CA-40138; 4-CA-40202
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint in Case No.
4-CA-40202, and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. No exceptions were filed
to the Judge's Decision in Case No. 4-CA-20202. The Judge further found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint in Case No. 4-CA-40138, and
recommended dismissal of that complaint. Thereafter, the General
Counsel filed exceptions to the Judge's Decision in Case No. 4-CA-40138.
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, /1/ and recommended Order. Noting
particularly the absence of exceptions with respect thereto, the
Authority adopts the Judge's Decision that the Respondent had engaged in
certain unfair labor practices alleged in the complaint in Case No.
4-CA-40202.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered in Case No. 4-CA-40202 that the Department of Defense,
Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis,
Virginia shall:
1. Cease and desist from:
(a) Denying non-AAFES employee representatives of the National
Association of Government Employees access to the Fort Eustis Exchange
facilities absent permission from management, and denying official time
to local officers of the National Association of Government Employees,
Local R4-114, the exclusive representative of its employees, to
represent employees located outside their assigned area, or otherwise
changing established past practices affecting working conditions of
employees without first notifying the National Association of Government
Employees, Local R4-114, and affording such exclusive representative an
opportunity to bargain concerning such matters.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with the National Association of
Government Employees, Local R4-114, the exclusive representative of its
employees, with respect to any proposed change in the access to Fort
Eustis facilities afforded to non-AAFES employee representatives of the
National Association of Government Employees, the use of official time
by local officers of the National Association of Government Employees,
Local R4-114, to represent employees outside of assigned areas, or any
other established term or condition of employment.
(b) Post at its facilities at the Fort Eustis Exchange 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 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 ensure 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.
IT IS FURTHER ORDERED that the complaint in Case No. 4-CA-40138 be,
and it hereby is, dismissed.
Issued, Washington, D.C., September 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 deny non-AAFES employee representatives of the National
Association of Government Employees access to the Fort Eustis Exchange
facilities absent permission from management, or deny official time to
local officers of the National Association of Government Employees,
Local R4-114, the exclusive representative of our employees, to
represent employees located outside of their assigned areas, or
otherwise change established past practices affecting working conditions
of employees without first notifying the National Association of
Government Employees, Local R4-114, and affording such exclusive
representative an opportunity to bargain concerning such matters.
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, upon request, negotiate with the National Association of
Government Employees, Local 4-114, the exclusive representative of our
employees, with respect to any proposed change in the access to Fort
Eustis facilities afforded to non-AAFES employee representatives of the
National Association of Government Employees, the use of official time
by local officers of the National Association of Government Employees,
Local R4-114, to represent employees outside of assigned areas, or any
other established term or condition of employment.
(Activity)
Dated: By: (Signature) (Title)
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, Federal Labor Relations Authority, Region IV, whose address
is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta,
Georgia, 30309, and whose telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Pamela B. Jackson, Esquire
Richard S. Jones, Esquire
For the General Counsel
Irene Jackson, Esquire
For the Respondent
James Fleming
George L. Reaves, Jr.
For the Charging Party
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq., as a result of
a consolidated unfair labor practice complaint filed on March 29, 1984,
by the Regional Director, Region IV, Federal Labor Relations Authority
(FLRA). The complaint alleges that the Department of Defense, Army and
Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia
(Respondent) (1) violated Section 7116(a)(4) by reducing the hours of
employment of certain employees and conducting a reduction-in-force
because the employees provided information and/or gave testimony in
proceedings before the FLRA; (2) violated Section 7116(a)(2) by
reassigning Susan Moody and reducing her hours because she engaged in
activities on behalf of the National Association of Government
Employees, Local R4-114 (the Union); and (3) violated Section
7116(a)(1) and (5) by unilaterally changing conditions of employment
concerning access to the facilities by visiting National Association of
Government Employees (NAGE) representatives, and representation by local
Union officers of employees at worksites other than their own.
A hearing was held on May 31 and June 1, 1984 in Norfolk, Virginia.
All parties were afforded full opportunity to be heard, to examine
witnesses and to introduce evidence. Briefs were filed. Upon the
entire record, including my observations of the witnesses and their
demeanor, I make the following findings, conclusions and
recommendations:
Case No. 4-CA-40138
The Army and Air Force Exchange Service (AAFES), a subdivision of the
Department of Defense, is a nonappropriated fund activity which must
generate its own revenues. Out of these revenues, it pays its personnel
costs and other overhead expenses. The remainder of its revenues is
returned to the Army and Air Force for use as welfare and recreation
funds and is also used for new construction of AAFES facilities.
The AAFES mission is to sell merchandise and services to military
members and their dependents and other authorized patrons. Through its
Fort Eustis Exchange, it sells department store merchandise and also
operates food and service facilities. John Birmingham, the Fort Eustis
Exchange Manager, supervises the operation of the Fort Eustis main
store, several satellite stores, two service stations, vending machines,
concessionaires and a food branch which includes a snack bar (cafeteria
line), deli, hot dog kiosk, theater concession and a mobile food
operation. This case involves the snack bar.
John Birmingham became the Fort Eustis Exchange Manager on August 1,
1983. His immediate supervisor is Albert Jones, who became General
Manager for the Tidewater Area Exchange (TDAX) on June 17, 1983. The
TDAX is composed of all AAFES facilities at Fort Eustis, Virginia;
Langley Air Force Base, Virginia; Fort Lee, Virginia; Fort Storey,
Virginia; and Fort Pickett, Virginia.
The Fort Eustis Exchange is one of 13 local units in a consolidated
collective bargaining unit represented by NAGE since October 26, 1982.
(Jt. 1). Local R4-114 has represented these employees for many years.
AAFES headquarters in Dallas, Texas, created a Labor Relations Section
in July 1982, when three unions, including NAGE, gained consolidated
bargaining rights.
Union activity in Respondent's food branch accelerated after a March
1983 arbitration decision involving an attempted search of the purse of
Susan Moody, the Union President, in connection with a running dispute
over whether she and other food employees were bringing food to work and
cooking their meals, or were in fact using Respondent's food. Moody
said she filed about fifty grievances between May 1983 and May 1984.
The Union filed four unfair labor practice charges involving food branch
employees in May, July and August of 1983 (as well as a March charge
involving a jewelry salesperson); one alleged discrimination against
Moody because of Union activity. One of the cases was eventually
settled, but three went to hearing in the week of October 4, 1983. Food
branch employees Moody, Janice Harrell, Lillian Wright, Alma Jones,
Louis Jones, and Doris Nazareth testified at the hearings. In addition,
Veda Hunter and Lillian Fox gave affidavits to a FLRA agent during the
investigation of the charges. At the heart of this case is the fact
that seven of these eight were adversely affected in the so-called RIF
(all but Louis Jones). It should be noted that the RIF also hurt
employees Michelle Evans and Calvin Fritz who were not involved in the
FLRA proceedings, and two of the three first-line supervisors.
Upon assuming their positions at the Fort Eustis AAFES, Birmingham
and Jones reviewed the overall operations and allegedly focused on three
low-profit areas: the cafeteria line, the book store and the service
station. Between September 12 and October 11, 1983, Birmingham and Fort
Eustis Food Activity Manager Robert Stiles conducted hourly surveys of
the cafeteria line to determine customer count, number of sales and
dollar value (GC 5). In addition, Birmingham and Jones reviewed food
branch operating statements, which are monthly breakdowns of sales,
expenses, gross profits and net profits for the entire food branch (GC
14) and food data accumulation work sheets, which break down revenue by
food branch component (GC 13).
The customer and sales count surveys conducted by Birmingham and
Stiles included 19 employees within the cafeteria line in formulating
labor costs, although eleven of those employees also worked in other
food branch components at times. The food branch does not account for
personnel costs nor allocations of supplies and merchandise for
individual components. Further complicating the financial record is
Respondent's position statement submitted to the FLRA during
investigation of this matter, and introduced into this record by the
General Counsel, which lists its monthly profit or loss for the
cafeteria line from February 1981 to January 1984 (GC 15). /2/
Effective September 26, 1983, Major General Lilley ordered the
various training authorities at Fort Eustis to keep their troops
involved in training activities from 7 a.m. to 11:30 a.m. and, thus, to
keep them away from the PX, commissary, etc. Birmingham allegedly
discovered General Lilley's order after a drop-off in the cafeteria
line's morning business prompted him to inquire as to the reason for the
drop-off. He did not receive written notice concerning this order until
approximately a month before trial, but he called personnel on General
Lilley's staff concerning this matter sometime in early October, 1983.
Birmingham was advised that the order had been in effect since
September 26, 1983, and that the order would be enforced by roving
courtesy patrols. The courtesy patrols were required to take the name
of any soldier found at the PX or other non-training area between the
hours of 7:00 a.m. and 11:30 a.m. and report it to higher command.
Birmingham and employees had, in fact, observed courtesy patrols in the
snack bar. Discussions with Lilley's staff did not change Lilley's
order. The other food service operations were not impacted. The deli
and hot dog kiosk suffered no noticeable effect because their customers
had always been lunch-time customers. The theater concessions operated
only in the evening. Likewise, the mobile sales were not affected
because the mobile units were allowed into the troop training areas and
the troops were allowed to purchase from them throughout the day.
Prior to the RIF, the cafeteria line's operational hours were 6:30
a.m. - 5:30 p.m., Monday - Friday and 9:30 a.m. - 4:30 p.m., Saturday
and Sunday (GC 12). In a letter sent on or about October 13, 1983,
Birmingham requested Command concurrence from General Lilley on his
plans to reduce cafeteria line operating hours to 10:30 a.m. - 2:30
p.m., Monday - Saturday, with Sunday closings (GC 12). /3/ Respondent
always requests local Command concurrence on any change of hours because
of the effect on the troops, although its regulations give the AAFES
General Manager authority to determine the hours of operation of AAFES
facilities. In a letter dated November 8, 1983, Respondent reiterated
its request for new hours, modifying its proposed schedule to 9:30 a.m.
- 3:00 p.m., Monday - Friday and 10:00 a.m. - 2:00 p.m. on Saturday (R
3). Sometime in late November 1983, Colonel Parrish notified Birmingham
that Command would approve the proposed hours if the cafeteria line
remained open on Sunday from 10:00 a.m. to 2 p.m. (R 4).
Stiles prepared a proposed work schedule and staffing pattern dated
October 1983 and approved on December 7 and 8, 1983, which identified
the minimum number of positions necessary to operate the cafeteria line
under the proposed operational hours. (R 8).
It proposed to abolish two of three supervisory positions, to reduce
the grade and hours of the HPP-8 Cook (Harrell), to abolish the HPP-5
full-time Cook position (Moody) and the HPP-4 part time Cook position
(Evans) and to reduce the hours of all regular full time and regular
part time employees, except for the Hot Dog Kiosk (where hours were to
be increased) and the Mobile Unit, which was unaffected (Witness Louis
Jones). After review by Albert Jones, it was sent to the TDAX Personnel
Manager, Catherine Vader, who prepared a RIF roster dated October 31,
1983, as required by AAFES regulations (R 12). The RIF roster was used
to determine which of the food service employees would occupy the
remaining available positions in the food branch. Based on the
regulatory formula contained in Exchange Service Manual ("ESM") 15-8,
each employee whose position had been affected by the new branch
staffing patterns was assigned a RIF score. Those with the highest
score in each position (job title and grade) and each category
(according to number of hours worked) were given first consideration for
available positions for which they were qualified, including vacant
positions throughout the Fort Eustis Exchange which were listed on R.
Ex. 13. Vader submitted the RIF roster for review by Albert Jones,
Walter Bender, Operations Specialist/Personnel for the Capitol Exchange
Region (CPER), and Michael Sexton, Chief of Personnel for CPER.
On November 17, 1983, apparently before Command rejected the proposed
Sunday closing, Moody received official notice that cafeteria line hours
would be cut, that all Snack Bar employees would lose four hours per
week and some employees "including cooks" would be RIFed due to a
"substantial drop in sales" of which the training policy was a
"significant" cause (GC 6). In a request for bargaining dated November
30, 1983 Moody requested that the Union be provided with records and
data used by Respondent to substantiate the RIF. (GC 7).
By letter of December 14, 1983 Albert Jones informed Moody that two
cook positions, held by Moody and Michelle Evans, would be abolished;
Wright would be downgraded from a Grade 8 cook to a Grade 6 cook, with a
cut in hours; full-time positions held by Harrell, Nazareth, Alma Jones
and Hunter would be reduced in hours from 40 to 36; and part-time
positions held by Fox and Calvin Fritz would be reduced in hours from
approximately 34 or 36 to 24 (GC 8; R 14) /4/ All affected employees
worked in the cafeteria line area, except for Fritz, who performed
administrative duties for all the components (R 5). Comparison of
Respondent's July and October 1983 staffing patterns and schedules
indicates that four part-time food-service workers in the cafeteria line
area, Lias, Porter, Smith and Hawkins, were to have their hours cut, but
Jones' letter shows they were unaffected by Respondent's action (R 5).
As finally implemented, the RIF caused no layoffs. Moody was
transferred to the warehouse at the same grade, but at a substantial cut
in hours. Evans was cut to an HPP-2 Food Service Worker. Supervisor
Lawson quit and supervisor Carter was transferred to Ft. Langley at an
apparently higher grade but with substantially reduced hours. As to
Wright's reduction in grade, Respondent contended that it took
long-overdue action based upon the fact that she no longer cooked enough
food "from scratch" to support her HPP-8 position. This point was not
disputed.
One final point on the RIF: it was not unprecedented. According to
Operations Clerk and Shop Steward Harrell, there had been a RIF in the
1970's. Also of interest is her testimony, in contradiction of General
Counsel's claim that it is incredible that a RIF decision would be based
on a one-month customer count and survey of sales, that "usually a
customer analysis goes on for one month prior to reduction in force."
This indicates there have been several, at least, in her experience.
The parties met and negotiated over impact and implementation on
December 20, 1983, and the Union was given a copy of the customer and
sales count surveys conducted by Stiles and Birmingham (GC 5).
Respondent implemented the schedule changes and RIF in January 1984.
The daily customer count and sales record (broken into one-half hour
segments) prepared by Stiles and furnished to the Union in justification
of the proposed RIF and reduction in hours is a very difficult document
to deal with. Aside from the fact that it does not attempt to remove
labor costs which support other components in addition to the "line
area" it was attempting to measure, and that costs of supplies are
ignored, it is not clear how "direct operating profit" or "profit-loss"
are calculated. Although records were kept for the period from
September 12 to October 11, the analysis which purports to show a loss
of 16.33% between 6:30 a.m. and 10:00 a.m., and of 28.60% between 3:00
p.m. and 5:30 p.m. is in fact limited to the week of September 26 to
October 2, the first week affected by the troop restriction.
On the other hand, General Counsel's analysis of GC-5 (Brief page
15), confined to the hours of the claimed adverse impact of the troop
restriction, shows that average daily sales during those hours fell by
12% after the restriction was imposed. /5/
According to Moody, she was told, probably in September 1983, by
Delores Wallace, her first-line supervisor, that Frances Parry, Food
Activity Manager at Langley Air Force Base, told Wallace, "Talk to Ms.
Moody and tell her to be careful because management is out to get her at
any cost." Lillian Wright, Moody's sister, testified that she overheard
Moody tell Wallace, in a conversation in which Parry's name was
mentioned, that she (Moody) knew that management was out to get her,
placing the conversation after Parry left Ft. Eustis, in February, March
or even earlier in 1983. Parry said that while on temporary assignment
as a replacement for Food Manager Stiles at Fort Eustis, between
November 1982 and February 1983 she noticed Moody's absence one day and
merely admonished Wallace that she was responsible for Moody's absences
and should carefully oversee and control Moody's use of official time
for Union business and have Moody report such absences to her. She also
told supervisors Wallace and Carter, in a discussion about possibly
promoting Lawson, a cook, that she knew they were friends of Moody, but
that they should be careful about relaying such information to Moody -
their loyalty was to management.
Wallace was not called, and no explanation was offered for her
absence. An adverse inference should be drawn from Respondent's failure
to present its supervisor. But that is complicated here by the fact
that Respondent did call Parry, whose denial of the statement Moody
attributed to her through Wallace's statement struck me as entirely
credible, and by the further fact that Moody's credibility gave me
problems. The statement recounted by Moody is a rather significant
threat to a Union president, one which, if not indelibly etched on her
mind, ought at least to be properly placed in time. She perhaps
conveniently placed it in September 1983, within a few weeks of the
initial decision to abolish her job. Yet Parry's 90-day detail to Ft.
Eustis ended in February and Wright placed the conversation at about
that time, approximately seven months before the incident recalled by
Moody. There is no indication in this record that Moody was engaged in
any activity, back in late 1982 or early 1983 which would have earned
the enmity of Respondent except for the dispute over the question
whether cafeteria employees were bringing their own food to work and
cooking it for their meals, or were in fact consuming Respondent's food.
This resulted in a grievance over the attempt to search her purse. The
50 grievances Moody claims she filed occurred during the 12 months
beginning in May 1983. The trial of 16 FLRA No. 93 in October 1983,
which in large measure underlies the Section 7116(a)(4) allegations
herein (and in which Moody was not credited where her testimony
conflicted with that of others) led to a finding that the record up
until then was barren of any evidence that Respondent was hostile to the
Union or to Moody. /6/ Given these considerations, I credit Parry's
denial.
At one of the unfair labor practice hearings in October 1983, Clara
Carter, then a supervisor, testified for Respondent. According to James
Fleming, a National Representative for NAGE, Carter failed to
corroborate one of Respondent's other witnesses and her testimony, in
general, was "confused." During Carter's testimony, Fleming observed
Catherine Vader write the word "separate" on the bottom of a pad and
show it to Streeter, after which they both smiled. Vader was asked
whether, during the earlier FLRA hearings, she "had a communication with
Mr. Streeter regarding whether or not Mrs. Carter would be retained as
an employee." She credibly responded "No, I don't know what you are
talking about." As I believe Fleming saw what he thought was the word
"separate" (albeit upside down), and I draw an adverse inference from
the failure to recall Streeter to speak to the point, I conclude that
the note described by Fleming was passed. Recognizing the amusement
provoked by Carter's testimony, and by the note, I conclude that the
note left no lasting impression upon Vader, i.e. not one evoked by
reference to a communication about retaining Carter.
On or about October 13, 1983, George Reaves, a National
Representative for NAGE, and Streeter were at Respondent's headquarters
resolving the Fort Eustis unfair labor practice charge involving the
practice of some of the food branch employees, including Moody, who
cooked and consumed sausage and eggs they claimed they brought to work.
Respondent's position was that the employees were using AAFES sausage
and eggs. According to Reaves, after the matter was resolved, Streeter
made disparaging remarks concerning Moody's veracity, trustworthiness
and reliability. Streeter further indicated that Moody was using the
Union to get around AAFES rules and regulations, that he "could not
condone" her actions, and "that he had means of dealing with employees
that were . . . 'troublemakers'". As an example, Streeter allegedly
stated that AAFES had filed grievances against a union in the West, and
had taken the cases to arbitration in order to cause that union
financial hardship.
Streeter denies making any threats against Moody or the Union. He
testified that he called Moody an "aggressive" Union official, but that
all comments on the subject were made in a joking manner, including "We
know how to handle you guys", "We'll file grievances", and "We'll hit
you in the pocketbook" I credit Reaves. While I find the conversation
puzzling, in that no real context is provided for the disparagement or
Streeter's belief that Moody was using the Union to get around AAFES
regulations in a manner that he "could not condone", I conclude that he
called her a "troublemaker" and said that he had means for dealing with
such employees.
Catherine Vader, Streeter and Stiles were involved in the October
1983 unfair labor practice hearings, whereas Birmingham and Albert Jones
were not.
Case No. 4-CA-40202
Prior to Respondent's change in policy, a NAGE representative
visiting Fort Eustis Exchange would upon arrival contact Moody, who
would secure permission from her supervisor to conduct Union business.
On January 19, 1984, Fleming was at Fort Eustis investigating the charge
in the instant case. Birmingham informed him that, thereafter, visiting
NAGE representatives must get his permission to enter the facility and
must be accompanied by a management official during meetings with
employees. /7/ He explained that Moody was neglecting to get permission
to meet with the representatives. Fleming asked Birmingham to submit
the new policy in writing so that the Union could request negotiations,
but Respondent never complied.
Birmingham called Streeter later that day and explained the problem
he had discussed with Fleming. He further stated that Moody was doing
all the Union work because Union representatives were not restricting
their activities to the areas they were authorized to represent,
generally their immediate work area. The procedure followed was that
the employee would get permission from his supervisor to see the Union
official of his choice and if the Union official was not busy, he would
meet with the employee. Similarly, if a Union official wanted to meet
with an employee not located in his immediate work area, he would get
permission from his supervisor and visit the employee at the employee's
work site.
Streeter called Daniel Hurd, a National Representative for NAGE, and
asserted that the parties' collective bargaining agreement supported
Respondent's new policy on visitation procedure for non-employee NAGE
officials. /8/ He stated that Union officials employed at the Fort
Eustis Exchange were not getting permission to meet with the National
Representatives and that a higher level management official ought to
have control over the employees' whereabouts. Streeter testified that
he and Hurd agreed to have visiting NAGE officials secure permission
from Birmingham. By letter of January 19, 1984, Streeter confirmed this
alleged agreement (GC 9). Hurd received the letter on January 23, 1984
and immediately responded in writing that no agreement had been reached
(GC 10). Streeter testified that in a subsequent conversation on
January 25, 1984, he proposed that the Food Manager, rather than
Birmingham, grant permission, and Hurd consented to the arrangement.
Hurd denies ever reaching an agreement with Streeter. Based upon my
observation of the witnesses' demeanor, I credit Hurd's testimony where
it conflicts with that of Streeter.
On or about January 26, 1984, Moody and Lillian Boyd, Union
Vice-President and Chief Steward, were told by William Moore, Food
Manager, and Birmingham that they could no longer meet with bargaining
unit employees outside of their assigned area. Moody had met with
visiting NAGE representatives on the average three times per month, and
with employees outside of her work area as often as once or twice a day.
Discussion and Conclusions of Law
Case No. 4-CA-40138
The General Counsel's case is essentially built upon four factors:
the timing of the RIF decision, approximately a week after unfair labor
practice hearings; the high proportion of employees who participated in
those hearings and were affected by the RIF; the claimed inadequacy of
the business records relied upon to justify the cutback; and three
statements alleged to be indicative of a disposition to punish those who
are actively pro-Union or who dare to exercise their rights to
participate in Authority proceedings.
As participation in Authority proceedings is urged as the reason for
most of the alleged discrimination, a brief description of those cases
is in order. Three hearings were held. Case No. 4-CA-30293, tried on
October 3, 1983, involved an alleged violation of the Weingarten rights
of a sales clerk suspected of involvement in theft at the Ft. Eustis
jewelry store. The Administrative Law Judge recommended dismissal of
the complaint (OALJ 84-28), finding that her Weingarten rights had been
respected. That employee, who received a verbal reprimand, is not
involved in this case, nor was any witness in that proceeding affected
by this RIF.
On October 4, a second case went to trial. It involved a reprimand
of Union President Moody for refusing to execute a standards of conduct
form. The witnesses called by the General Counsel, in addition to
Moody, were steward Janice Harrell, steward Lillian Wright and Alma
Jones. All four were adversely affected by the RIF. In addition, all
three HPP-4 Food Activity foremen (supervisors) were called by
Respondent. The jobs of Clara Carter and Lois Lee Lawson were to be
abolished also. However, Lawson quit and Carter received a transfer to
Langley Air Force Base as an HPP-5 Cook, with a substantial cut in
hours. As previously set forth, General Counsel attempts to explain
away these apparently innocent hostages to Respondent's purpose of
ridding itself of those who testify against it, by pointing out that
Carter in fact gave testimony which did not help Respondent's defense,
and that she was marked for extinction when Vader passed to Streeter the
note with the word "separate." As noted, the witness to this event, NAGE
National Representative Fleming, testified the Carter's testimony
"became rather comical at times because of the way she was getting
confused . . . (and when Vader wrote the word and showed it to Streeter)
. . . they both smiled at the writing of the words." Some examination of
that case (16 FLRA No. 93) seems necessary in the circumstances.
The General Counsel's theory of violation was that President Moody
was singled out by Food Manager Stiles for imposition of a requirement
that she execute a new (modified) Standards of Conduct Review
Certificate and was reprimanded because she engaged in the protected
activity of insisting upon her right to seek the advice of the Union
before signing the new form. Union stewards Harrell and Wright
testified that they were called upon to sign the old form, /9/ as was
Alma Jones. Carter, quite significantly, testified that she asked Moody
to sign an old form and that Moody refused, thus fully supporting
Respondent's defense that Moody insubordinately refused to sign either
form. In this respect supervisor Carter was credited over Moody's
denial. However, in another respect, which concerned a meeting between
Stiles and Moody, Carter's testimony was not helpful to Respondent. She
claimed not to be present although the other two agreed that she was,
during certain parts of the conversation. The presiding Judge found her
testimony "valueless" for purposes of reconciling the differing versions
of Moody and Stiles, and expressed his impression that she was
withholding information. Her testimony about that meeting, and how it
began, is indeed (in a sense) comical in its repeated inconsistencies,
and one can understand how it may have provoked smiles. In any event,
the Judge, noting his difficulty in crediting Moody when her testimony
conflicted with that of other witnesses and that the record before him
was barren of any evidence of hostility towards the Union or Moody,
found that Moody was both obstinate and recalcitrant in her persistent
refusal to sign either form, and that such insubordination was the sole
reason for the reprimand. In sum, he found that, while Carter appeared
to be evasive when it came to getting Moody into too much trouble, she
did truthfully testify that she had asked Moody to sign the old form.
She thus provided very valuable evidence in support of Respondent's
defense as well as being unhelpful in resolving the conflicts between
Stiles and Moody.
The third case, tried on October 5, involved the unlawful
discontinuance of a policy of providing employees with free beverages
(Case No. 4-CA-30400, OALJ 84-65). Moody, Wright, Alma Jones, D.
Nazareth and Louis Jones testified for the General Counsel that
Respondent had supplied such beverages for many years. Food Manager
Stiles agreed that he had found such a practice when he arrived, and had
reported this variation from his prior AAFES experience to higher
management. In due course he was instructed to end the practice on the
basis of agency regulations which were found not to constitute a
defense. Moody, Wright, A. Jones and Nazareth were hurt in the RIF. L.
Jones was not.
To recapitulate, six food service employees testified: President
Moody, Steward Harrell, Steward Wright, A. Jones, D. Nazareth and L.
Jones. All but L. Jones, who drove a mobile unit which was not affected
by the restriction on troops, were adversely affected by the RIF. In
addition, employees Veda Hunter and Lillian Fox, who gave statements to
FLRA but did not testify, were adversely affected. Thus seven of the
eight employees who participated in Authority proceedings were adversely
affected, or seven of nine if we count the Weingarten, case.
Countervailingly, Cook Michelle Evans was downgraded, and Custodial
Worker Calvin Fritz had his hours reduced the same as Fox's, although he
did not testify, and two of the three food supervisors (who testified
for Respondent) were slated for job abolishment. Thus, six unit
employees testified, of whom five were hurt. Two who did not testify
were hurt, and two of three low level supervisors (who were called to
testify for management) were also hurt. Originally, four jobs were to
be abolished: two serving line cooks and two supervisors. As it worked
out no jobs were lost, but Moody was transferred and suffered a cut in
hours from 40 to 22 per week, Evans was reduced from HPP-4 Cook to a
HPP-2 food service worker and lost about ten hours a week and Carter was
transferred to Langley at a higher grade but substantially fewer hours.
Steward Wright was reduced from HPP-8 to HPP-6 and lost 4 hours per
week. As originally conceived, the RIF centered on the serving line
cooks and supervision, and would have eliminated the jobs of President
Moody and Michelle Evans and of supervisors Lawson and Carter. Even
accepting the General Counsel's contention that Carter had become
persona non grata because of her testimony, two of the four people whose
positions were marked for elimination had not offended Respondent by
testifying against it, and a finding of discrimination premised in part
on the ratio of participants to nonparticipants would involve a
corollary finding that Evans and Lawson were innocents to be sacrificed
in order to mask Respondent's motive. Viewed from the perspective of
actual severity of impact, two participants were hard-hit (Moody and
Harrell) as opposed to two nonparticipants (Evans and Carter) and
arguably a third-- Lawson. Again, the inference from a finding of
discrimination is that Respondent was willing to severely harm its
loyalists on a one-for-one basis in order to silence its enemies.
The General Counsel also contends that the timing of Resondent's
action is circumstantial evidence of discriminatory motive. Birmingham
first requested Command concurrence on a proposed schedule change on
October 13, 1983, approximately 9 days after the hearings. The process
did not begin directly after the hearings, however, nor did the FLRA
proceedings. Birmingham and Stiles began conducting customer and sales
surveys for the cafeteria line on September 12, 1983. Thus, this is not
a case of employee participation in Authority proceedings immediately
followed by retribution. While preparation for the unfair labor
practice hearings was surely underway by September 1983, and Union
activity had accelerated in general over the summer, I am not persuaded
that the simultaneity of the events is significant. The timing of
Respondent's efforts to improve its operations is also sensibly
explained as a consequence of Birmingham's arrival in August and Albert
Jones' arrival in June.
A third factor relied upon to show a discriminatory purpose for the
"RIF" is the claim that Respondent's business records do not support the
professed need to retrench, and that the asserted reason is thus a
pretext.
As noted, the records and calculations of GC 5 were provided to the
Union to establish that a "substantial drop in sales" had occurred, and
that a "significant factor in the drop . . . was the restriction by
Command of troop access to the snack bar during early morning hours."
(GC 6). It is a centerpiece of the General Counsel's case that the
records do not support that claim, but rather show that the troop
restriction had "little, if any, impact" on sales, and that the
inference should therefore be drawn in the light of all the evidence
that other, unlawful, reasons must explain Respondent's action. The
drop in sales hardly appears to support Mr. Birmingham's statement that
the troop restriction "totally reduced our breakfast sales, which were
very substantial", but it cannot be said that a drop in the range of 8
to 12% in sales is insubstantial, or that the restriction on troops was
not a significant factor in that drop, as General Counsel argues.
While I regard GC-5 as tending to support Respondent rather than the
General Counsel, the brevity of the period covered, the indecipherable
analysis, and the sales counts themselves render it far from conclusive.
GC 13 and 14 are, as Respondent notes, unhelpful because they do not
focus on the "line area" of the snack bar in any probative way. Given
the quality of the evidence relied upon by counsel, I turn to GC 15,
discussed in footnote 1, which was ignored by counsel. It purports to
be hand-culled evidence of continual losses in the snack bar (here used,
as throughout this record, in a confusing and ambiguous way to denote
the line area), taken from a computerized record system, and in the
record at the instance of General Counsel without limitation as to
purpose. As noted, I think it is appropriate to receive it as probative
evidence on the issue whether Respondent had reason to cut or eliminate
its line area losses. It demonstrates such a need existed, /10/ and had
existed for a long time, presenting the question whether Respondent was
finally motivated to address the problem by the arrival of new
management, by the Union or other protected activity of its employees,
or by a mixture of the two.
Given this evidence of losses, I cannot conclude that Respondent was
not faced with the need to cut back on staff and hours, and given the
losses in the morning the need to focus on cooks and cafeteria line
employees appears to have been justified. While the evidence presented
in GC 15 was developed after-the-fact, and in response to the charge,
and the General Counsel attempts to confine Respondent to the reasons
advanced to the Union in GC 6, I would not come to a different result,
were Respondent so limited, in the absence of clear and convincing
evidence of hostility to the Union and to its employees who use the
Authority's process. There is no direct evidence of the latter at all.
Rather it must be inferred from the disproportionate impact of the
cut-back on such employees. But an at least equally valid inference, or
assumption, on this record, is that business reasons called for the line
area to be trimmed, and that Respondent did not cut back its operations
and sacrifice employees who did it no harm in order to punish those who
testified or gave affidavits and in order to "silence" others who
cooperated in Authority proceedings. Aside from the timing of, and
selection for inclusion in, the so-called RIF, this record is free of
any conduct or expression by Respondent indicative of a disposition to
unlawfully discharge employees who participate in Authority proceedings.
Given such circumstances, and the demonstrated business losses, I
cannot conclude that there exists a preponderance of evidence in support
of the proposition that Respondent engineered its "RIF" to rid itself of
employees who gave evidence or testified against it.
For largely similar reasons, I do not find that Moody was transferred
and her hours cut because of her role as a Union activist. Here there
is somewhat more evidence for such a finding, as Streeter betrayed a
hostility to Moody, regarding her as one who used the Union to avoid
regulations, as well as an untruthful and untrustworthy person. While
it is not clear what particular conduct Streeter had in mind, the
subject of the case they were settling suggests that it had to do with
the alleged consumption of Respondent's food. Streeter said he had ways
of dealing with people like Moody, but the only indication of such a
method recounted by Reaves was a threat to file costly grievances, a
threat to the Union as an institution rather than to Moody. Thus, while
Streeter's remarks may be viewed as threatening to Moody as a Union
activist, they are not so clearly threatening as to persuade me that
Respondent would not have reached her in a reorganization which impacted
with particular severity on its cooks (and its supervisors). In sum, I
conclude that the evidence will not support a finding that Respondent
concocted a RIF in order to rid itself of the Union President as well as
all other employees who testified or, so far as we know, were prepared
to testify, on behalf of the General Counsel. I therefore recommend
that the allegations of Section 7116(a)(2) and (4) violations be
dismissed.
Having found and concluded that Respondent did not violate the
Statute as alleged, I recommend that the FLRA issue the following order
pursuant to 5 C.F.R. 2423.29(c):
ORDER
ORDERED, that the Complaint in Case No. 4-CA-40138 is dismissed.
Case No. 4-CA-40202
It is well established that parties may establish terms and
conditions of employment by practice, or other form of tacit or informal
agreement, which may not be altered by either party in the absence of
agreement or impasse following good faith bargaining. Past practices
generally include all conditions of conditions of employment not
specifically covered in the parties' collective bargaining agreement,
which are followed by both parties, or followed by one party and not
challenged by the other over a period of time. Past practices may also
include the actual practice being followed, regardless of the
contractual agreement. Internal Revenue Service and Brookhaven Service
Center, 6 FLRA No. 127, 6 FLRA 713(1981); see also Social Security
Administration, Mid-America Service Center, Kansas City, Missouri, 9
FLRA No. 33, 9 FLRA 229(1982).
In the instant case, Birmingham announced to Fleming the change in
policy concerning non-AAFES employee NAGE representatives' access to the
Fort Eustis facilities, without notifying the Union or affording it an
opportunity to bargain. Similarly, Birmingham and Moore informed Moody
and Boyd about the change in policy concerning representation by local
Union officials of employees outside of assigned areas, without
bargaining over the change. Although the parties' collective bargaining
agreement arguably supports Respondent's new policies, Respondent has
always acquiesced in the former practices and was obligated to notify
the Union and bargain over the changes in conditions of employment.
Respondent contends that the General Counsel failed to prove that
Streeter and Hurd did not reach an agreement as to the change in policy
concerning visiting NAGE representatives. The General Counsel's only
burden, however, is to prove that Respondent unilaterally changed a
condition of employment without affording the Union an opportunity to
bargain. If Respondent asserts agreement between the parties as a
defense, it must bear the burden of proof. I find that there was no
such agreement. In addition, Respondent instituted the policy before
Streeter spoke with Hurd; thus, Respondent cannot assert its good faith
belief that an agreement had been reached as a defense.
Respondent also contends that its changes in policy have not
substantially affected the employees and, therefore, it is not obligated
to bargain. U.S. Government Printing Office, 13 FLRA No. 39, 13 FLRA
203(1983), cited in support of this position, is inapposite in that it
involves a management right under Section 7106 of the Statute, rather
than a condition of employment which may be substantively bargained.
/11/
Accordingly, Respondent has violated Section 7116(a)(1) and (5) of
the Statute by failing and refusing to negotiate in good faith with the
Union over the changes in conditions of employment. Based on the
foregoing findings and conclusions, it is recommended that the FLRA
issue the following Order:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the Department of Defense, Army and Air Force
Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia shall:
1. Cease and desist from:
(a) Denying non-AAFES employee representatives of the National
Association of Government Employees access to the Fort Eustis
Exchange facilities absent permission from management, and denying
official time to local officers of the National Association of
Government Employees, Local R4-114, to represent employees located
outside of their assigned areas, or otherwise changing established
past practices affecting working conditions of employees without
first notifying the National Association of Government Employees,
Local R4-114, the exclusive bargaining representative of its
employees, and affording such representative an opportunity to
meet and confer on such matters to the extent consonant with law
and regulation.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
under the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with the National Association of
Government Employees, Local R4-114, with respect to any proposed
change in the access to Fort Eustis facilities afforded to
non-AAFES employee representatives of the National Association of
Government Employees, the use of official time by local officers
of the National Association of Government Employees, Local R4-114,
to represent employees outside of assigned areas, or any other
established term or condition of employment.
(b) Post at its facilities at the Fort Eustis Exchange 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 and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all 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) Notify the Regional Director, Region IV, Federal Labor
Relations Authority, in writing within 30 days as to what steps
have been taken to comply herewith.
(s) JOHN H. FENTON
JOHN H. FENTON
Chief Administrative Law Judge
Dated: March 19, 1985
Washington, DC
APPENDIX
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
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT deny non-AAFES employee representatives of the National
Association of Government Employees access to the Fort Eustis Exchange
facilities absent permission from management, deny official time to
local officers of the National Association of Government Employees,
Local R4-114, to represent employees located outside of their assigned
areas, nor otherwise change established past practices affecting working
conditions of employees without first notifying the National Association
of Government Employees, Local R4-114, the exclusive bargaining
representative of its employees, and affording such representative an
opportunity to meet and confer on such matters to the extent consonant
with law and regulation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate with the National Association of
Government Employees, Local R4-114, with respect to any proposed change
in the access to Fort Eustis facilities afforded to non-AAFES employee
representatives of the National Association of Government Employees, the
use of official time by local officers of the National Association of
Government Employees, Local R4-114, to represent employees outside of
assigned areas, or any other established term or condition of
employment.
(Agency or Activity)
Dated: By: (Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 4,
whose address is: 1776 Peachtree Street, NW., Suite 501, North Wing,
Atlanta, GA 30309, and whose telephone number is: (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel excepted to certain credibility findings made
by the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
/2/ That statement indicates a loss of $3,448 ($287 per month) for
the eleven months covered in 1980, a loss of $36,680 ($3,057 per month)
in 1982, and a loss of $81,254 ($6,771 per month) in 1983. Thus losses
had allegedly grown 24 fold in three years. Only 11 of the 35 months
were profitable, and October 1983 (RIF decision time) was the thirteenth
consecutive monthly loss. It posted the largest loss of the entire
period but for August 1982. If found to have probative value GC-15
would have devastating consequences for the General Counsel's view that
Respondent was not suffering constant losses, but has merely engaged in
"creative accounting" to give that unfounded appearance and to mask its
motive for a cut in its capacity to do business. The claimed losses are
of course hearsay of the most self-serving kind, as they are not regular
business entries, but were allegedly culled by hand from
computer-generated records which focus on the entire Food Branch, so as
to isolate the Snack Bar from the four other components of the Branch.
The statement would ordinarily be inadmissible in the absence of the
regular business records from which it is taken and the testimony of the
person who manually separated from Respondent's computerized records
system the data which would allegedly produce the results here achieved.
That test has not of course been met here, as the General Counsel
introduced them without objection and without indicating that their
purpose was limited in any way. Neither side has made a real effort to
address this document's purpose or probative value. A party
"introducing documentary proof upon an issue vouches for its accuracy so
far as that issue is concurred, and is, as a rule, bound by its
recitals." American Jurisprudence, Vol. 29, Section 840, Snell Isle,
Inc. v. IRS, 90 F.2d 481. I conclude it is appropriate to give this
evidence weight.
/3/ The letter, obviously based on records and calculations contained
in GC 5, asserted that during the time of the survey (September 12 to
October 11) the hours from 2:30 p.m. to 5:30 p.m. were losing money,
that the restriction on troops was producing a similar, though smaller
loss between 6:30 a.m. and 10:30 a.m., and that Sunday was a loser
except on payday weekends. Only the hours from 10:30 a.m. to 2:30 p.m.
were said to yield a profit.
/4/ Respondent contends that the October 1983 staffing patterns and
the RIF roster in evidence indicate that additional cafeteria line
employees sustained loss of hours (RBr 25 and R Reply Br. 3-4).
Inasmuch as Jones' letter to Moody was written after these documents,
and was intended to notify the Union of the adverse impact of the
schedule change on its bargaining unit members, I find that Jones' list
of affected employees is exhaustive. Further, Respondent introduced
into evidence advance and final notices of adverse action sent to all
entitled employees. No employees other than those listed in Jones'
letter received such notice (R 14(a)-(j)).
/5/ My calculations indicate that those figures require correction to
show receipt of $102 rather than $418 on September 18, and $707 rather
than "no record" for September 22, as well as the inclusion of September
26. As modified, the decline in sales drops to 8%.
/6/ There, in fact, appears to have been no claim that direct
evidence of animosity even existed. It was to be inferred from
allegedly disparate treatment accorded Moody.
/7/ The consolidated complaint issued by the General Counsel does not
allege as a violation of the Statute Respondent's policy requiring
management officials to be present at meetings between NAGE
representatives and bargaining unit employees. Since the General
Counsel has made no timely motion to amend the complaint and
Respondent's counsel did not brief this issue, it would be unfair to
Respondent to adjudicate this issue. Library of Congress, 15 FLRA No.
128, 15 FLRA 589(1984).
/8/ Article 8, Section 7 of the parties' collective bargaining
agreement reads:
Authorized non-employee representatives of the Union will be
allowed to visit the activity at reasonable times for the purpose
of meeting with officials of the Employer and the Union, subject
to applicable security regulations.
/9/ Harrell, after being presented with a new form by Stiles, and
expressing a preference to sign the old form, was allowed to do so.
/10/ As indicated earlier, it showed continual and accelerating
losses from 1981 to January 1984. It is worth noting at this point that
these losses included $4,752 in August of 1983, $8,750 in September and
$11,846 in October.
/11/ The FLRA disavowed the substantial impact test for impact and
implementation bargaining in Internal Revenue Service (District Region,
National Office Unit), 13 FLRA No. 61, 13 FLRA 366(1983), but in
Department of Health and Human Services, Social Security Administration,
Chicago, Illinois, 15 FLRA No. 174, 15 FLRA 922, 924(1984), stated that
no duty to bargain arises where the impact is "no more than de minimis."