25:0661(54)CO - AFGE Local 2924 (Air Force, Davis-Monthan AFB, Tucson, AZ) and A. Elayne Severson -- 1987 FLRAdec CO



[ v25 p661 ]
25:0661(54)CO
The decision of the Authority follows:


 25 FLRA No. 54
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 2924, AFL-CIO 
 (UNITED STATES AIR FORCE, 
 DAVIS-MONTHAN AIR FORCE BASE, 
 TUCSON, ARIZONA)
 Respondent
 
 and
 
 A. Elayne Severson, 
 An Individual
 Charging Party
 
                                            Case No. 8-CO-50011
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached decision in this
 case finding that the Respondent had engaged in the unfair labor
 practices alleged in the complaint and recommending that the Respondent
 be ordered to cease and desist from those practices and take certain
 affirmative action.  The Respondent filed exceptions and the Charging
 Party filed a cross-exception to the Judge's decision.  The Charging
 Party and the General Counsel filed oppositions to the Respondent's
 exceptions, and the Respondent filed an opposition to the Charging
 Party's cross-exception.
 
    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), we have reviewed the rulings that the Judge made
 at the hearing, and we find that no prejudicial error was committed.
 The rulings are affirmed.  Upon consideration of the Judge's decision,
 the exceptions to that decision, the oppositions to exceptions, and the
 entire record, we adopt the Judge's findings, conclusions, and
 recommended order with a slightly modified notice.
 
                                   ORDER
 
    The American Federation of Government Employees, AFL-CIO, Local 2924
 shall:
 
    1.  Cease and desist from refusing and/or failing to bargain in good
 faith with the Davis-Monthan Air Force Base, Tucson, Arizona, by
 refusing to execute a written document embodying the terms of a
 negotiated collective bargaining agreement agreed to on or about March
 27, 1984.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request execute a written document embodying the terms of a
 negotiated collective bargaining agreement agreed to on or about March
 27, 1984, with the Davis-Monthan Air Force Base, Tucson, Arizona.
 
    (b) Post at all its locations within the Davis-Monthan Air Force
 Base, Tucson, Arizona, 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 the President of Local 2924 and
 shall be posted and maintained by him 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 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 VIII in writing,
 within 30 days from the date of this Order, as to what steps have been
 taken to comply.
 
    Issued, Washington, D.C., February 12, 1987.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
  NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES AS ORDERED BY THE
 FEDERAL
 LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE PURPOSES OF
 THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR
 MEMBERS AND
 OTHER EMPLOYEES THAT:
 
    WE WILL NOT refuse to negotiate in good faith with the Davis-Monthan
 Air Force Base, Tucson, Arizona, by refusing to execute a written
 document embodying the terms of a negotiated collective bargaining
 agreement agreed to on or about March 27, 1984.
 
    WE WILL upon request, execute a written document embodying the terms
 of a negotiated collective bargaining agreement agreed to on about March
 27, 1984, with the Davis-Monthan Air Force Base, Tucson, Arizona.
                                       (Labor Organization)
 
    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 VIII,
 whose address is:  350 South Figuora St., 10th Floor, Los Angeles,
 California 90071 and whose telephone is:  (213) 894-3805.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 8-CO-50011
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 LOCAL 2924, AFL-CIO (UNITED STATES AIR FORCE, 
 DAVIS-MONTHAN AIR FORCE BASE, TUCSON, ARIZONA)
    Respondent
 
                                    and
 
 A. ELAYNE SEVERSON, An Individual
    Charging Party
 
    Deborah S. Wagner, Esquire For the General Counsel
 
    Major Charles Beckenhauer For the Charging Party
 
    Stanley Lubin, Esquire For the Respondent
 
    Before:  BURTON S. STERNBURG Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to a charge filed on January 31, 1985, by A. Elayne
 Severson, Chief, Labor and Employee Management Relations Section,
 Davis-Monthan Air Force Base, Tucson, Arizona (hereinafter referred to
 as Ms. Severson or Charging Party), a Complaint and Notice of Hearing
 was issued on November 26, 1985, by the Regional Director for Region
 VIII, Federal Labor Relations Authority, Los Angeles, California.  The
 Complaint alleges that the American Federation of Government Employees,
 Local 2924, AFL-CIO (hereinafter referred to as the Respondent or the
 Union), violated Sections 7116(b) (5) and (8) of the Federal Service
 Labor-Management Relations Statute, (hereinafter referred to as the
 Statute), by virtue of its action in refusing to execute a written
 document embodying the agreed upon terms of a collective bargaining
 agreement.
 
    A hearing was held in the captioned matter on February 27, 1986, in
 Tucson, Arizona.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The respective representatives
 of the General Counsel, Respondent and Charging Party submitted post
 hearing briefs on April 24, 1986, which have been duly considered.  /1/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive representative of three separate units of
 employees serviced by the Central Civilian Personnel Office,
 Davis-Monthan Air Force Base, Tucson, Arizona.  The Union and the Air
 Force Base had executed a collective bargaining contract in October
 1980, which was applicable to the three units of employees represented
 by the Union.  Inasmuch as the collective bargaining contract was due to
 expire in October 1983, the parties in the summer of 1983 commenced
 preparations for the negotiation of a new collective bargaining
 agreement.  On July 15, 1983, Mr. Michael Coiro, then President of AFGE
 Local 2924, and Ms. Severson signed off on the gound rules for the
 negotiations which provided in pertinent part as follows:
 
          IV Maintenance of Records:  As agreement is reached on an
       article each spokesman will initial the other spokesman's copy to
       signify tentative agreement to accept a proposal.  Any tentative
       agreement to accept a proposal shall be binding only upon the
       acceptance of the final agreement.  The Employer agrees to provide
       the Union with a typewritten copy of agreed upon Articles.  A
       Master copy of each proposal agreed upon will be initialed by both
       spokes-persons and maintained by the Employer.  /2/
 
    The parties exchanged proposals on August 13, 1983 and bargaining
 thereon commenced in September, 1983.  By the end of September the
 parties had reached agreement on all but eight Articles.  As each
 article was agreed upon the parties in accordance with the ground rules
 would affix their respective initials to their own and the other side's
 copy of the article.  The initials would be that of the person acting as
 chief spokesman.  At all times Ms. Severson was the chief spokesman for
 management, while Mr. Coiro and Mr. Margosian individually acted at
 different times as the chief spokesman for the Local Union.
 
    In December 1983, the parties met with a Federal mediator for
 purposes of working out an agreement on the eight remaining proposals.
 By December 22, 1983 the parties with the help of the mediator initialed
 off on five of the eight remaining proposals.  /3/ Included among the
 provisions of the contract agreed to on December 22, 1983 were Article
 26 Union Representation and Official Time and Article 27 Grievance
 Procedure.  It is these latter two provisions which are the basis of the
 instant dispute between the parties.  /4/
 
    On February 7, 1984, Ms. Severson met with Mr. Margosian for purposes
 of proofreading those sections of the proposed contract upon which
 agreement had been reached and to number such provisions in order to
 prepare a table of contents.
 
    According to Mr. Margosian on February 7, 1984, he was not presented
 with copies of the two disputed provisions dealing with the grievance
 procedure and union representation.  Further according to Margosian,
 upon inquiring about same, Ms. Severson informed him that management was
 having trouble with its word processor and that her secretary was out on
 sick leave.  Ms. Severson testified, contrary to Mr. Margosian, that
 copies of the two disputed provisions were given to Mr. Margosian that
 day and points to Mr. Margosian's initials deleting "Section 8" from the
 official time provision.  Mr. Margosian acknowledges that the initials
 are his, but claims that he affixed them to the document on December 22,
 1983.  However, as noted above it was Mr. Coiro who appears to have been
 the chief spokesman for the Union that day as his initials appear on the
 face of the document approving same.  There was no evidence in the
 record showing that it was customary for anyone other than the Union's
 chief spokesman for the day to sign off for the Union.
 
    Subsequently, in the latter part of March 1984, the parties, with the
 help of the Federal Service Impasse Panel reached agreement on the
 remaining three provisions of the proposed contract.
 
    On April 3 or 4, 1984, Management sent the Local Union a final typed
 draft of the new contract.  Several days later on April 6, 1984, Ms.
 Severson met with Mr. Margosian for purposes of proofreading the draft.
 At such time, Mr. Margosian took the position that the draft did not
 reflect what the Union had agreed to on December 22, 1983.
 
    Thus, according to Mr. Margosian Section 7 of Article 26 entitled
 Union Representation and Official Time should read:
 
          Section 7.  The Employer agrees that the Union representatives
       if otherwise in duty status shall be granted official time for the
       purpose of receiving information, orientation briefing, or
       training relating to matters which are of mutual concern to the
       Employer and the Union.
 
    Instead, the draft contract contained the word "may" in place of
 "shall".
 
    With respect to the draft grievance procedure, Mr. Margosian took
 position that the Union never agreed to exclusion "w", which reads as
 follows:
 
          This grievance procedure will not be used for any of the
       following:
 
          (w) 5 U.S.C. 4303 and 5 U.S.C. 7512, except removals.  /5/
 
    Subsequently, on April 20, 1984, Ms. Severson sent a letter to the
 Union wherein she proposed a contract signing ceremony be held on May 1,
 1984.  The Union declined to participate in such a ceremony and filed an
 unfair labor practice charge with Region VIII alleging, among other
 things, that the Air Force Base had changed the wording of the two
 disputed proposals from the language that had been agreed to on December
 22, 1983.  The charge was dismissed by the Region on July 31, 1984.  The
 Union then filed an appeal.  On November 13, 1984, the Regional
 Director's dismissal was upheld.
 
    Thereafter, the Air Force Base renewed its request to the Union that
 a date be set for the contract signing ceremony.  The Union responded by
 requesting a meeting for purposes of resuming collective bargaining
 negotiations for a new contract.  The Air Force Base, taking the
 position that a collective bargaining contract had been agreed to,
 proceeded to file the charge underlying the instant complaint.
 
    With regard to the two provisions in dispute, both Mr. Margosian and
 Mr. Coiro acknowledged that their respective initials appear on the
 documents that encompass the disputed proposals.  However, as noted
 above, they take the position that they never agreed to the disputed
 provisions in the form presented to them for final signature.
 
    According to Mr. Margosian he never saw a copy of the disputed
 provisions until April 3, 1984, when he was sent a final draft of the
 new contract.  When he met with Ms. Severson on April 6, 1984, for
 purposes of proofreading the draft contract the only thing that he had
 to compare the draft with was his memory.  Thus, he testified that there
 "were a lot of articles that we did not get from Ms. Severson and that
 was probably error on our part, was an oversight . . ."
 
    Mr. Coiro testified that on December 15 and 22, 1983, when the two
 disputed provisions were discussed the table was scattered with
 documents and he had a working copy.  However, he cannot remember
 whether he asked Ms. Severson to sign his copy which was the usual
 practice.  Although he denies that the two disputed provisions reflect
 the union position, he does not "recollect" whether "may" rather than
 "shall" appeared in Section 7 of the Union Representation and Official
 Time article and whether section "w" was in the Grievance Procedure.
 
    According to Ms. Severson the initialed documents were not changed by
 her between the time they were initialed and the time they were shown to
 Mr. Margosian.  Further according to Ms. Severson the Union was very
 concerned about being able to grieve removals and the final grievance
 procedure allowed the Union to grieve removals.  Additionally the Union
 was given additional hours for Union representation and training.  Thus,
 according to Ms. Severson, it was a package deal.  Mr. Coiro
 substantiates Ms. Severson's testimony that the Air Force was attempting
 to make a package deal to break the impasse on the two articles.
 However, the package fell through when the Air Force failed to give 500
 hours for training.
 
    Mr. Margosian, who was not the chief spokesman on December 22, 1983,
 when the Union signed off on the two disputed articles, testified that
 the Union wanted a broad grievance procedure and never would have agreed
 to the exclusion in section "w" of the grievance procedure in return for
 approximately 100 additional hours for union training.
 
    With respect to article and/or section IV of the ground rules
 concerning initialing off on agreed to provisions and the statement that
 any agreement so initialed shall be tentative until acceptance of the
 final agreement, both Mr. Margosian and Mr. Coiro testified that such
 provision was initiated by the Air Force Base since they wanted it made
 clear that any agreed to provision of the contract would not be
 effective until agreement had been reached on the entire contract.
 Again, according to Mr. Coiro and Mr. Margosian's testimony, until the
 Union actually signed off on a formal final contract, it was at liberty
 to change any provision despite the fact that it had previously
 initialed off on every provision.  According to the Union
 representatives the provision was for purposes of allowing them to
 proofread the contract.  They further testified that proofreading had
 been discussed with the Air Force Base in discussions concerning the
 ground rules.  Finally, the Union representatives testified that any
 agreement was subject to ratification by the Union's Executive Board, a
 fact that they, admittedly, did not convey to Ms. Severson, the Air
 Force Base's chief negotiator.
 
                        Discussion and Conclusions
 
    All parties acknowledge that resolution of the instant controversy
 turns for the most part on a credibility determination.  Thus, the
 General Counsel and Charging Party would credit Ms. Severson's testimony
 that the Union signed off on the two disputed provisions on December 22,
 1983, and that there was no change in the wording of the provisions in
 the final draft of the collective bargaining agreement submitted to the
 Union on April 6, 1984.  In such circumstances, the Union was obligated
 under the Statute to sign the final agreement and its refusal to do same
 violated Sections 7116(b)(5) and (8) of the Statute.  Contrary to the
 Union's contention, they would find no defense for the Union's action in
 the ground rules.  According to the General Counsel and the Charging
 Party, the ground rules, particularly Section IV Maintenance of Records,
 merely provides that any agreement on any single provision will be
 tentative until such time as agreement is reached on all the provisions
 of the contract.  Once agreement is reached on the entire collective
 bargaining contract the Union is obligated to sign same.  Finally, with
 regard to the Union's belated defense predicated upon the absence of
 ratification from the Executive Board, the General Counsel and Charging
 Party point out that the Union representatives, admittedly, did not
 inform the Air Force Base representatives of such requirement prior to
 reaching final agreement on the collective bargaining contract.
 
    The Union on the other hand takes the position that Mr. Coiro and Mr.
 Margosian's testimony to the effect that the two disputed provisions
 contained in the draft submitted to the Union on April 6, 1984, were
 different from what Mr. Coiro had agreed to on December 22, 1983, should
 be credited.  In such circumstances, they were under no obligation to
 sign the draft since it did not represent what they had agreed to.
 Further, the Union takes the position that the ground rules provide that
 either party may renege on any provision of the contract prior to the
 time they actually sign a final contract.  Inasmuch as the Union had not
 signed off on the final contract, it was at liberty to refuse to sign
 until such time as changes were made in the disputed provisions.
 Lastly, it appears to be the Union's position that since there is an
 argument over the correct interpretation of the ground rules the proper
 procedure would be to dismiss the complaint and settle the matter
 through the grievance and arbitration machinery.
 
    Based upon a thorough analysis of the documentary evidence, the
 testimony of the respective witnesses for the various parties, and
 particularly my observation of the witnesses and their demeanor, I
 credit Ms. Severson's testimony that there was no alteration,
 whatsoever, of the documents dealing with the "grievance procedure" and
 "union representation and official time" which were initialed off on by
 Mr. Coiro and Ms. Severson on December 22, 1983.  In such circumstances,
 I find that as of April 6, 1984, the parties had reached agreement on
 every provision of the collective bargaining contract under negotiation.
  Accordingly, absent some provision to the contrary in the ground rules,
 the Union was obligated by Section 7114(b)(5) of the Statute to sign a
 document embodying the terms of agreement.  American Federation of
 Government Employees, AFL-CIO, Local 3732, 16 FLRA 318.
 
    To the extent that the union takes the position that the ground
 rules, particularly Section IV Maintenance of Records, allows it, the
 Union, to renege on any or all provisions agreed to prior to the actual
 signing of a final contract embodying the agreed upon terms of the
 collective bargaining agreement, I find such position to be untenable.
 Thus, despite Mr. Coiro and Mr. Margosian's respective testimony
 supporting such an interpretation of Section IV Maintenance of Records,
 I note that other parts of their testimony establish that such provision
 in the ground rules was proposed by the Air Force Base to rectify a
 situation which arose during mid-term negotiations under the expiring
 contract.  Thus, according to their testimony Section IV was
 incorporated into the ground rules in order to make it clear that there
 would be no piecemeal implementation of the contract provisions and that
 any agreement on any particular provision of the collective bargaining
 contract would be tentative and unenforceable until such time as a
 complete and final agreement was reached on all provisions of the
 collective bargaining agreement.
 
    Moreover to adopt the interpretation of the ground rules urged by the
 Union would effectively negate Section 7114(b)(5) of the Statute and
 forever deprive the Air Force Base of its right to request execution of
 a written document embodying the final agreement.  While it is true that
 a statutory right may be waived, such waiver must be clear and
 unmistakable, which is hardly the case herein.  Scott Air Force Base, 5
 FLRA 9;  Internal Revenue Service, Midwest Regional Office, 16 FLRA 141.
 
    Finally, although not urged by the Union in its post hearing brief, I
 find that inasmuch as prior approval by the Union's Executive Board of
 the contract was not announced prior to agreement on the contract the
 Union's policy of ratification provides no defense to the Union's action
 in failing to sign the agreed upon contract.
 
    In view of the above conclusions and findings, I further find that
 the Respondent Union violated Sections 7116(b)(5) and (8) of the Statute
 by refusing to sign a written document embodying the agreed to
 collective bargaining contract.  Accordingly, it is recommended that the
 Federal Labor Relations Authority issue the following Order designed to
 effectuate the purposes and policies of the Statute.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the American Federation of Government Employees, AFL-CIO, Local
 2924 shall:
 
    1.  Cease and desist from:
 
          (a) Refusing and/or failing to bargain in good faith with the
       Davis-Monthan Air Force Base, Tucson, Arizona by refusing to
       execute a written document embodying the terms of a negotiated
       collective bargaining agreement agreed to on or about March 27,
       1984.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request execute a written document embodying the terms
       of a negotiated collective bargaining agreement agreed to on or
       about March 27, 1984, with the Davis-Monthan Air Force Base,
       Tucson, Arizona.
 
          (b) Post at all its locations within the Davis-Monthan Air
       Force Base, Tucson, Arizona, copies of the attached notice marked
       "Appendix" on forms to be furnished by the Federal Labor Relations
       Authority.  Upon receipt of such forms they shall be signed by the
       president of Local 2924, and shall be posted and maintained by him
       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 said 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 for Region VIII, in
       writing, within 30 days from the date of this Order, as to what
       steps have been taken to comply herewith.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  August 6, 1986
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In the absence of any objection, the respective Motions to
 Correct Transcript filed by the General Counsel and Counsel for the
 Charging Party are hereby granted.
 
    (2) The record indicates that the aforementioned language was
 different from management's original proposal in that it provides that
 the tentative agreements initialed off by both parties will not be
 binding until agreement is reached on the entire contract.  According to
 Mr. Michael Coiro one of the mainstays of the Union's bargaining
 committee, the language was changed because management was concerned
 about a Union attempt to implement an agreement on a piecemeal basis
 during mid-term bargaining the previous year.  Thus, it appears that
 management wanted to make sure that any agreed upon provision would not
 be implemented prior to agreement on the entire contract.  Mr. Coiro was
 president of the Local Union until sometime in March 1985 when he became
 a supervisor.  Mr. Margosian, who was vice president, then replaced him
 as president of the Local Union.
 
    (3) Mr. Coiro initialed the documents containing the agreed upon
 provisions on behalf of the Union.
 
    (4) The negotiations leading up to these disputed provisions will be
 discussed infra.
 
    (5) 5 U.S.C. 7512 concerns unacceptable work performance and 5 U.S.C.
 7512 concerns adverse actions, such as down grades, transfers, RIFs,
 suspensions for more than 15 days and removals.
 
 
 
 
 
                                 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 SERVICES LABOR-MANAGEMENT RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to negotiate in good faith with the Davis-Monthan
 Air Force Base, Tucson, Arizona by refusing to execute a written
 document embodying the terms of a negotiated collective bargaining
 agreement agreed to on or about March 27, 1984.
 
    WE WILL upon request execute a written document embodying t