20:0248(32)CA - DOD, Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia -- 1985 FLRAdec CA
[ v20 p248 ]
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."