29:0566(51)CA - Lowry AFB, Denver, CO and AFGE Local 1974 -- 1987 FLRAdec CA
[ v29 p566 ]
The decision of the Authority follows:
29 FLRA No. 51 LOWRY AIR FORCE BASE, DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1974 Charging Party Case No. 7-CA-60431
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge. The General Counsel filed exceptions to the decision and the Respondent filed an opposition to those exceptions. The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by changing the class of telephone service provided to the Union without bargaining with the Union over the change. For the reasons stated below, we remand this case to the Judge.
Since 1971, the Union has been provided with office space at the Respondent's facility and the use of free telephone service. According to the uncontested testimony of the Union president, the Union had been provided with class A1A service since 1971 (class A1A service permits the user to place calls on and off the facility and also provides access to autovon lines with long distance capability). The Judge specifically found that the Union had been provided with class A1A service since 1981. He based his determination on the Respondent's line record card, which lists the class of service and the date of installation for all telephone lines at the facility. The current line record card for the union's extension indicated that the extension had been [PAGE] assigned in May 1974 and that at least since 1981, the date of the card, the Union had been provided class A1A service. During these years, the Union's office space was relocated on a number of occasions. The Judge found in this respect that the Respondent always made arrangements for the transfer of the Union's telephone service. The Union retained its class A1A telephone service until May 15, 1986, when its service was reduced to class C (on base access only) by order of the Respondent's Deputy Base Commander.
At a meeting on May 1, 1986, the Respondent informed the Union of its intention to terminate the Union's class A1A service. By letter dated May 1, the Union demanded to negotiate over the change and requested that it retain its class A1A service until completion of negotiations. By letter dated May 6, the Respondent notified the Union that effective May 15, 1986, the Union's class A1A service would be terminated because under Air Force regulations the Union did not qualify for such service. By letter dated May 6, the Union again demanded negotiations and a meeting was scheduled for May 13 for the purpose of allowing the Union to present proposals on the termination of its class A1A service.
At the May 13 meeting the Union submitted proposals for retaining its existing service and adding additional service, but advised that it was open to counterproposals. Management did not submit any counterproposals and stated its position that under Air Force regulation the Union was not entitled to its current telephone service and the matter was not negotiable. The meeting ended with no resolution of the issue. After the meeting, the Union made an unsuccessful attempt to contact the Federal Mediation and Conciliation Service.
On or about May 15, 1986, the Union filed a grievance over the reduction in telephone service. The grievance was returned by the Respondent without any action being taken on the merits with the explanation that it was filed with the wrong person. The charge in this case was filed on June 2, 1986.
III. Administrative Law Judge's Decision
The Judge dismissed the complaint. He found that responsible management representatives were not aware of the fact that the Union possessed class AIA telephone service. Because he found no practice had become established, the Judge concluded that the telephone service "had not ripened into a condition of employment" over which the Respondent was obligated to bargain prior to making any changes. [ v29 p2 ]
IV. Positions of the Parties
A. The General Counsel
In its exceptions, the General Counsel contends that the Judge erred by failing to find that the Respondent was aware that for an extended period of time, the Union had class A1A service and by failing to find that a past practice existed for such service. Specifically, the General Counsel maintains that when the-circumstances of this case are taken together, a preponderance of the evidence establishes a past practice. The General Counsel maintains that knowledge may be based on routinely maintained records. Thus, the General Counsel argues that the knowledge of the information contained in the Respondent's line record card, evidencing that at least since 1981, the Union possessed class A1A service, must be imputed to the Respondent. The General Counsel further argues that together with the uncontested testimony of the union president, the evidence indicates that the service dates back to 1971. The General Counsel notes that there was no direct evidence of knowledge on the part of management of the Union's class of service when management arranged transfers. Nevertheless, the General Counsel maintains that the fact that the Union office was relocated on a number of occasions and that each time management authorized the transfer of the existing class A1A service to the new location makes it more likely than not that responsible management officials knew of the Union's class A1A telephone service for a substantial period of time.
The General Counsel also contends that the telephone service is a condition of employment over which the Respondent had an obligation under the Statute to bargain with the Union prior to changing and that the Respondent had not fulfilled its statutory bargaining obligation prior to changing the Union's class of telephone service. The General Counsel seeks a status quo ante remedy.
B. The Respondent
The Respondent contends that the documentary evidence submitted by the General Counsel does not support, by a preponderance of the evidence, a finding that &responsible management officials' knew and condoned the Union's access to class A1A telephone service in its office. In this regard, it contends that the existence of the line record card does not establish that responsible management officials knew the class of service the Union possessed since the form was maintained in a separate building and such forms are not [ v29 p3 ] normally inventoried or reviewed on a regular basis. It maintains that the General Counsel offered no other documentation showing that any responsible management official authorized or had knowledge of the class of telephone service the Union possessed. With respect to the telephone service being transferred because of office moves, the Respondent submits that the General Counsel fails to provide any evidence to support its claim that management knew it was authorizing the transfer of a particular type of telephone service to the new office locations.
Assuming that a past practice existed, the Respondent argues that it satisfied its statutory bargaining obligation prior to the implementation of the change in service. The Respondent contends that the parties had bargained in good faith to impasse at the May 13, 1986 meeting and that the Union had the opportunity prior to implementation to invoke the services of the Federal Service Impasses Panel, but failed to do so.
For the reasons which follow, we are remanding this case to the Judge. In order that this case can be appropriately resolved on remand, we are specifically addressing the following questions which are presented by this case.
A. Whether the complaint is barred by section 7116(d)
It is uncontested that the Union on or about May 15, 1986, filed a grievance over the reduction in telephone service. The grievance was returned by the Respondent without any action being taken on the merits with the explanation that it was filed with the wrong person. Subsequently, the charge in this case was filed on June 2, 1986. Although the Judge noted these facts, he did not address whether the complaint in this case is barred under the provisions of section 7116(d) of the Statute. 1 by the [ v29 p4 ] grievance. Because this issue was presented to the Judge by the evidence and raises a question concerning the Authority's jurisdiction, it must be addressed. See, for example, Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA No. 6 (1986). Consequently, we will remand this case to the Judge to develop a full record on this issue and to make the appropriate findings and determinations on whether the complaint is barred.
B. Whether a past practice is established
We find that the General Counsel has established that the Respondent had knowledge of the fact that for an extended period of time, the Union possessed class A1A telephone service in its office. There is no evidence or allegation that this service was not initially authorized. We will impute knowledge on the part of management of the information contained in the line record card that at least beginning in 1981, and likely dating back to 1971, that the Union possessed class A1A service until it was terminated. Taken together with the fact that management officials authorized and arranged for the transfer of the Union's class A1A service during the numerous office relocations, we find contrary to the Judge that in May 1986, an established practice existed for providing the Union class A1A telephone service.
C. Whether the Respondent was obligated to bargain under the Statute before changing the established practice
In recommending that the complaint be dismissed, the Judge found that the class of telephone service that the Union had been provided "had not ripened into a condition of employment over which the Respondent was obligated to bargain before making changes." A matter does not become a condition of employment through established past practice. Instead, an independent analysis of whether a matter is a condition of employment at the time a dispute arises is necessary. Department of the Treasury, Internal Revenue Service (Washington, D.C.), 27 FLRA No. 45 (1987). If a matter is [ v29 p5 ] a condition of employment within the meaning of section 7103(a)(14) of the Statute and, therefore, is within the duty to bargain, it must be determined what the bargaining obligation of an agency is under the circumstances.
When a condition of employment has become established for particular bargaining unit employees by past practice, changes may not be made by the agency without bargaining as required by the Statute. In this case, we find that the Union's use of the Respondent's telephone system is a negotiable condition of employment. American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Accordingly we find that the provision of class A1A telephone service to the Union concerns a condition of employment that had become established by past practice. Consequently, the Respondent could not change this condition of employment without bargaining as required by the Statute.
D. Whether the Respondent bargained as required by the Statute
Because the Judge determined that there was no obligation to bargain over terminating the Union's class A1A telephone service, he did not make any findings or determinations with regard to the Respondent's affirmative defense that it had bargained as required before terminating the Union's Class A1A service.
We have determined that the Union's class A1A telephone service could not be terminated without bargaining. Accordingly, we remand this case to the Judge to make appropriate findings and determinations on whether the complaint is barred. If the Judge determines that the complaint is not barred, the Judge on remand must make appropriate findings and determinations with respect to whether the Respondent bargained as required by the Statute before terminating the Union's class A1A service. [ v29 p6 ]
This case is remanded to the Judge for appropriate action.
Issued, Washington, D.C.,September 30, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v29 p7 ]
LOWRY AIR FORCE BASE DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1974 Charging Party Case No. 7-CA-60431 Matthew Jarvinen, Esquire For the General Counsel Major Michael W. Johnston, Esquire Mr. Louis Rotman For the Respondent Before: BURTON S. STERNBURG Administrative Law Judge
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 June 2, 1986, by Local 1974, American Federation of Government Employees, AFL - CIO, (hereinafter called the Union or Local 1974), a Complaint and Notice of Hearing was issued on August 28, 1986, by the Regional Director for Region VII, Federal Labor Relations Authority, Denver, Colorado. The Complaint alleges that Lowry Air Force Base, Denver, Colorado, (hereinafter called the Respondent), violated Sections 7116(a)(1) and (5) of the [PAGE] Federal Service Labor - Management Relations Statute, (hereinafter called the Statute), by changing the class of telephone service supplied to the Union's office, located on Lowry Air Force Base, without bargaining with the Union with respect to the substance, impact and implementation of the change.
A hearing was held in the captioned matter on October 21, 1986, in Denver, Colorado. 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 General Counsel and tile Respondent submitted post hearing briefs on December 8 and 5, 1986, respectively, which have been duly considered. 2
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, which is the certified exclusive representative of a unit of non-professional employees working at Respondent's Lowry Air Force Base, has been a party to a number of collective bargaining contracts with the Respondent. Although, the Union and the Respondent executed collective bargaining contracts in 1970, 1973, 1976, 1979 and 1982, only the 1976 contract addresses the Union's use of telephones. 3
According to Mr. Darryl Case, who has been president of Local 1974 since 1970, the only reason for the inclusion of language dealing with telephones in the 1976 contract was [ v29 p2 ] the fact that such contract was also applicable to Local 2040, AFGE, another local on the Base, and Local 1974 did not want to jeopardize its telephone service which appeared to be different from the telephone service enjoyed by Local 2040. 4 Mr. Case further testified that the Union has had a Class A1A telephone since 1971 when the Union was first given an office for its use at Lowry Air Force Base. Mr. Case played no part in the negotiations leading up to the installation of the telephones. 5 According to Mr. Case, the Union received Autovon capability prior to negotiations for the 1973 contract. Autovon capability allows the user of an A1A telephone to make long distance calls in addition to calls outside the base.
Since 1971, when the Union first was given office space on the Base, it has been required to relocate its office on a number of occasions. Thus, the record establishes that in 1976 the Union moved its office from Building 358 to Rooms B57 and B58 in Building 349. In 1977 the Union's office was moved to Room B3 in Building 349. The office was again moved in 1984 to Room B106 in Building 349. According to Mr. Case, at the time of this latter described move, Colonel Ellis, who at the time was Deputy Base Commander, cut work orders to have the Union's class A1A telephone service with Autovon moved to Room B106 in Building 349. 6 Further, according to Mr. Case, with respect to the prior moves, Respondent always made the arrangements for the transfer of the Union's telephone service.
The Union retained its existing free telephone service until on or about May 15, 1986, when such service was reduced from Class A1A with Autovon to Class C upon orders from Colonel Edward Huber. As noted above, it is this reduction in the union's telephone service which is the subject of the instant complaint. [ v29 p3 ]
Colonel Huber, who became the Deputy Base Commander and chief negotiator for management at Lowry Air Force Base in July 1985, learned for the first time that the Union had Autovon on its telephone in April 1986, when he was discussing a number of grievances with the Union and was informed at that time that the Union had talked with its headquarters in Washington, D.C. on Autovon. At the time, Colonel Huber, who also chaired a committee on base communications, said nothing to Mr. Case but made a note of the information for purposes of checking out the telephone situation at a later date. Further, according to Colonel Huber, during this time frame he and his committee were in the process of evaluating all Class A telephones for purposes of having the users justify the use of same, since the base was reaching its "saturation point" with respect to availability of such service.
Not having any information, whatsoever, as to the Union's authorization for the A1A telephone service with Autovon, or for that matter any telephone service, Colonel Huber contacted Colonel Stevens, the Squadron Commander, about the matter. Colonel Stevens informed him that the Union was not authorized to use Autovon. In response to Colonel Huber's request for a reference on the matter, Colonel Stevens had a copy of Air Force Regulation 700-8 sent to Colonel Huber. Section 2-39 of the Regulations reads as follows:
2-39. Telephone service for Government Employee Labor Unions.
There will be no charge for services requested by a nonprofit organization performing a function related to or furthering an objective of the Federal Government or in the interest of public Health or welfare. The installation commander will determine which labor unions meet this definition. Labor union which do not fit this definition will pay Class B-2 rates for telephone service. Long-distance telephone service is authorized but only on a reimbursable basis. Access to AUTOVON is not authorized.
On May 1, 1986, Mr. Case and Colonel Huber held a meeting to discuss another relocation of the Union's office space. Near the end of the meeting Colonel Huber indicated for the first time that management was planning to take away the Union's Class A telephone service and the reasons therefore, i.e. the Base Commander's determination that [ v29 p4 ] under the AFR 700-8, the Union did not qualify for such service. In this latter connection Colonel Huber testified that he advised Mr. Case that he would be terminating the Union's Class A1A telephone service with Autovon, thereby leaving the Union with only Class C service. The Union was further informed that it would have to get its own commercial telephone lines.
That afternoon, Mr. Case addressed a letter to Colonel Huber wherein the Union demanded to negotiate over the substance, impact and manner of implementation of the proposed discontinuance of the Union's existing telephone service. Additionally, the Union requested the Respondent to continue the Union's telephone service until completion of negotiations. On May 6, 1986, Colonel Huber, after consultation with Ms. Cheryl Lepard, Chief of Respondent's Labor and Employee - Management Relations Section, sent a letter to Mr. Case advising, that effective May 15, 1986, "government telephone service will no longer be provided within your offices. Current Air Force regulations require that you obtain and pay for commercial telephone service when available."
By letter dated May 6, 1986, the Union, which referenced its earlier May 1, 1986 letter, demanded negotiations and threatened to file an unfair labor practice over the change if negotiations were not conducted. Subsequently, by letter dated May 12, addressed to the Union, Colonel Huber scheduled a meeting for May 13, 1986, for purposes of allowing the Union to present proposals on the pending termination of the Union's telephone service as well as the relocation of the Union's office space.
At the May 13, 1986, meeting which lasted approximately forty minutes, the Union submitted its proposals which called for the retention of its existing service plus the addition of access to FTS, WATS and a Facsimile System. The Union, which admittedly would have settled for its existing service, advised the Respondent representatives that it was always open to counterproposals. Management, which did not submit any counterproposals, made it clear that it was not interested in discussing any additional communication services for the Union, then entered a discussion of the Union's current service and the applicability of AFR 700-8 thereon. Respondent took the position that AFR 700-8 made it clear that the Union was not entitled to its current telephone service and, accordingly, the matter in their opinion was not negotiable. According to Colonel Huber he had scheduled the meeting in hopes that the Union could have [ v29 p5 ] established that it had been authorized the existing telephone service by some responsible management representative. When no such evidence was forthcoming, Respondent made it clear that they considered the Class A telephone service with Autovon to be non-negotiable. The meeting ended with the Union threatening to file an unfair labor practice unless Respondent agreed not to terminate the Union's existing telephone service as scheduled on May 15, 1986.
According to Mr. Case, following the meeting he unsuccessfully attempted to contact the Federal Mediation and Conciliation Service. 7 However, prior to making contact and filing the necessary papers for the assistance from FMCS, the Union's telephone service was reduced on May 15 1986, as scheduled, from Class A with Autovon to Class C. 8 The change in service was accomplished by changing approximately three wires to a different terminal block inside the Respondent's telephone plant.
On or about May 15, 1986, the Union filed a grievance over the reduction in telephone service. However, inasmuch as the grievance was filed with the wrong person, the grievance was returned without any action being taken thereon. There is no contention by Respondent that the grievance serves as a bar to the instant proceeding.
The record further reveals that the Respondent maintains a Form 121 which is known as a "line record card" for each telephone number on the Lowry Air Force Base telephone exchange. The line record card lists on the front side the class of service, the date of installation of such service, the location of the service and the user of the service. [ v29 p6 ]
The back side of the line record card lists the service record for the telephone, including any repairs of replacement. The line record cards are retained until such time as the space on the back of the card is filled up. At such time, the information on the front of the line record card is transferred to a new line record card and the old card is destroyed. The current line record card for extension 4450, assigned to the Union, indicates that the Union was assigned extension 4450 in May 1974. It further reveals that since 1981, the date of the recent card, the Union had Class A1A with Autovon capacity on extension 4450. The card, however, does not indicate what type of service the Union had prior to 1981 or what authority had approved the service. Finally, the line record card indicates that the service on extension 4450 was reduced to Class C service, on orders from the Base Commander, effective May 14, 1986.
The line record cards are kept inside Respondent's telephone plant. According to the uncontroverted testimony of Major Gordon Jantz, Commander of the 1987th Communication Squadron, who is responsible for Lowry Air Force Base telephone communications, there is no requirement that the line record cards be periodically inventoried.
Further, according to Major Jantz, in order to obtain a Class A1A telephone today on the base, a Form 3215 would have to be submitted to his organization. His organization would then process the request through the Information Systems Requirements Board for approval and validation. Both Major Jantz and Colonel Huber are presently members of the Board. According to Major Jantz, back in 1974, the Board was not in existence and approval for telephone service were made at the "Wire Branch Chief level, which would have been a Master Sergeant or a Senior Master Sergeant". Major Jantz acknowledged that he has no personal knowledge of the methods utilized in 1974 for securing telephone service and that his testimony was predicated on what he had been told by others.
Colonel Huber, Mr. Charles Carroll, who was the Labor Relations officer from August 1975 to March 1977, and Ms. Cheryl Lepard who was the Labor Relations Officer from April 1977 to December 1979 and Chief of Labor and Employee/ Management Relations from December 1979 to the present, all denied having knowledge, prior to May 1, 1986, that the Union possessed a class A1A telephone with Autovon in its office on the base. [ v29 p7 ]
With respect to the reference in the 1976 collective bargaining agreement to the union's telephone service, Mr. Case testified that the word "local" in Article 33, Section D, was a reference to the Local Union. Mr. Carroll, who was a member of the management negotiating team disputed this interpretation pointing out that the preamble to the agreement makes it clear that Local 1974 would "hereinafter be referred to as the 'Unions' or the 'Union'." Thus, according to Mr. Carroll the reference to "local" refers to an area as opposed to Local 1974.
Discussion and Conclusions
The General Counsel takes the position that the record evidence supports a finding that the Union's use of class A1A telephone service with AUTOVON was a past practice, known and authorized by the Respondent, which had ripened into a condition of employment. In such circumstances, the Respondent was under an obligation to bargain with the Union prior to making any change in the Union's telephone service. Further, according to the General Counsel, inasmuch as the evidence indicates that the Respondent failed to bargain in good faith with the Union prior to implementing the change in the Union's telephone service, Respondent committed a violation of Sections 7116(a)(1) and (5) of the Statute. Alternatively, the General Counsel argues that even if it is concluded that the Respondent did bargain to impasse with the Union, Respondent's action in implementing the change in the Union's telephone service without allowing the Union sufficient time to invoke the services of the FMCS and/or the Impasses Panel was violative of Sections 7116(a)(1) and (5) of the Statute.
The Respondent, on the other hand, takes the position that the General Counsel has not established by a preponderance of the evidence that the use of Class A1A telephone service with Autovon by the Union was a past practice which had ripened into a condition of employment over which Respondent was under an obligation to bargain with the Union prior to effecting a change in such services. Further, according to the Respondent, even if a contrary conclusion is reached, the record evidence supports the conclusion that the Respondent, in any event, bargained in good faith with the Union, and only effected the change after the parties reached impasse. In such circumstances the Respondent contends that it did not violate the Statute and that the Complaint should be dismissed in its entirety. [ v29 p8 ]
The parties are in agreement that in order for a past practice to ripen into a condition of employment over which management must bargain prior to effecting a change therein it must be shown that the practice existed for a considerable period of time and was known and condoned by responsible management officials. 9 However, as noted above, they disagree as to what the record establishes with respect to Respondents knowledge of the existence of the Class A1A telephone with Autovon in the Union's office on Lowry Air Force Base.
Based on Mr. Case's uncontested testimony concerning the telephone equipment possessed by the Union in its base office since 1971 and the existing "line record card" for extension 4450 I find that the Union, at least since 1981, possessed a Class A1A telephone with Autovon in its on base office.
In view of the foregoing finding, we must now determine whether or not responsible management representatives were aware of the fact that the Union possessed Class A1A telephone service with Autovon in its on base union office. In this regard both the record testimony and documentary exhibits presented by the General Counsel in support of its position that the Respondent was aware of the fact that the Union possessed such telephone service leaves a lot to be desired. Mr. Case's testimony in support of such a finding is predicated upon hearsay and speculation rather than actual knowledge. Thus, with respect to the circumstances surrounding the initial installation of the Class A1A telephone service he admits that the arrangements or agreement for the installation of the A1A service was handled by Mr. Hammermeister, his predecessor as union president. Moreover, as noted by Respondent's counsel in his post hearing brief, Mr. Case does not indicate how he became aware of the agreement to install the telephone or who the person was that the agreement was made with.
Similarly, although Mr. Case testified that the Union's office was moved several times since 1971 and always had its two telephones, i.e. Class A1A and Class C, transferred without any difficulty, his testimony is, except in one instance, devoid of any direct knowledge of the person or [ v29 p9 ] persons who authorized the transfer of the telephone service at the time of the respective moves. The exception concerns the movement of the Union's office in 1984. According, to Mr. Case, although Colonel Ellis handled the move which included the transfer of the telephones to the new location he did not know who initiated the telephone transfer. Thus, even if it is assumed that Colonel Ellis authorized or initiated the transfer of the telephones, such assumption does not necessarily establish that he was aware of the service assigned to the respective telephones. This is particularly true in light of the uncontroverted testimony of Major Jantz, the current Communications Officer, to the effect that the line record cards for the telephones on the base were not periodically inventoried.
Finally, Mr. Case's testimony concerning the various collective bargaining contracts executed since 1971 and the reference to telephones therein, or the absence of any reference to telephones therein, again, in most instances is nothing more than heresay. With respect to the 1976 contract, which Mr. Case acknowledges was not negotiated by him but rather a Mr. Bull, I credit the testimony of Mr. Carroll, who at the time was a labor relations officer on the Respondent's negotiating team, that the reference in Article 33, Section D of the 1976 contract to allowing the use of telephones by Union representative to make "local" calls refers telephone calls within the immediate area and is not a reference to Local 1974. In reaching this conclusion, I note that the preamble to the collective bargaining contract makes it clear that Local 1974 thereafter will be referred to in the contract not as the local but as the "Union." Further, I credit Mr. Carroll's testimony that he did not know at the time that the Union had Autovon on its telephone and that there had been no discussion during the negotiations of the Union's access to Autovon.
Accordingly, inasmuch as the record evidence fails to establish that Respondent's representatives had been aware that the Union possessed Class A1A telephone service with Autovon, I find that the use of such telephone service by the Union had not ripened into a condition of employment over which the Respondent was obligated to bargain prior to making any changes therein. 10 [ v29 p10 ]
In such circumstances, since Respondent was privileged to make changes in the Class A1A telephone service with Autovon without bargaining with the Union, it is hereby concluded that Respondents actions in this respect were not violative of Sections 7116(a)(1) and (5) of the Statute.
In view of the foregoing conclusions, it is hereby recommended that the Complaint be dismissed in its entirety.
BURTON S. STERNBURG Administrative Law Judge Dated: February 12, 1987 Washington, D.C.
[ v29 p11 ]
Footnote 1 Section 7116(d) of the Statute pertinently provides: (I)issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.
Footnote 2 In the absence of any objection General Counsel's Motion to Correct Transcript, should be: and hereby is, granted.
Footnote 3 Article 33, Section D of the 1976 contract reads as follows: Union representatives will be permitted to use Government telephones for local use when necessary in conducting appropriate labor-management relations activities as covered by this agreement.
Footnote 4 The parties contentions concerning the meaning of Article 33, Section D of the 1976 contract will be discussed infra.
Footnote 5 According to Mr. Case the Union was also given a Class C telephone in 1971, which enables a user to make on base calls.
Footnote 6 On cross-examination Mr. Case acknowledged that he did not know who had initiated the telephone transfer.
Footnote 7 According to Case, he had never been able to obtain assistance from FMCS without first submitting a written application for assistance. Ms. Lepard testified that although she had not personally sought assistance from FMCS, she had been told by a mediator that he would immediately aid in a problem because he had been assured by a Union representative that a written application for assistance would be forthcoming.
Footnote 8 Colonel Huber testified that he would have removed the telephone service from the Union office even if the Union had filed a request for assistance with the FMCS or the Federal Service Impasses Panel.
Footnote 9 U.S. Department of Interior, Bureau of Reclamation, 20 FLRA 587; Department of Defense, Army Air Force Exchange Service, Fort Eustis, Virginia, 20 FLRA 248.
Footnote 10 In order to reach a contrary conclusion an assumption must be made that since the Union had A1A telephone service with Autovon for many years Respondent should have known about it. However, the test is not what the Respondent should have known, but rather what it did know. Inasmuch, as noted above, the telephones on the Air Force Base were not inventoried and since the telephones possessing the various classes of service have not been shown to have any distinctive physical characteristics which would distinguish one class of service from another, I do not believe that such an assumption is in order. Moreover, with regard to the transfer of the telephones in connection with the numerous relocations of the union office, the record is devoid of any written authorizations for the transfer of the telephone service. Thus, we are left in the dark with respect to who authorized the telephone transfers and whether such authorizations, be they written or oral, merely authorized the transfer of the existing telephone service or specifically described the telephones by class of service, etc.