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30 FLRA No. 12

DEPARTMENT OF THE ARMY HEADQUARTERS
PRESIDIO OF SAN FRANCISCO

                   Respondent

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1457, AFL-CIO

                   Charging Party

Case No. 9-CA-60127

ORDER REMANDING CASE

I. Statement of the Case

This unfair labor practice is before the Authority on exceptions to the attached decision of the Administrative Law Judge. The Respondent filed exceptions to the decision and the General Counsel filed cross-exceptions and an opposition to the Respondent's 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 unilaterally changing the amount of official time the Union president was allowed for representational duties. The Respondent also filed a motion to remand the case to the Judge to reopen the hearing for the purpose of considering new evidence on whether the complaint is barred by section 7116(d) of the Statute. The General Counsel filed an opposition to the motion. For the reasons stated below, we remand this case to the Judge on that question.

II. Background and Administrative Law Judge's Decision

A. Background

After the hearing closed, but prior to the time for filing of briefs, the Respondent moved that the record be reopened to receive a copy of an amended grievance form or alternatively that the Judge take notice of the amended grievance. The Respondent alleged that the amended grievance filed on January 1, 1986, constituted a bar to this [PAGE] proceeding because the charge in this case was filed on February 3, 1986. The General Counsel filed an opposition.

B. Administrative Law Judge's Decision

The Judge ruled that there was already record evidence concerning the filing of the grievance. Therefore, for completeness of the record, he found it to be appropriate to admit further evidence concerning the exact nature of the grievance in order to allow for a suitable determination of whether the matter was properly before the Authority. He also ruled that the admission of the evidence was not prejudicial to the General Counsel and deemed it unnecessary to grant the General Counsel's request to rebut the document.

After reviewing the amended grievance form, the Judge determined that the amended grievance was not a bar to the complaint. Specifically, he found that the complaint was not barred because the basic issues raised in the complaint differed from those raised in the grievance filed by the Union president in his individual capacity. In so finding the Judge stated that "it appears unlikely that an arbitrator would ever reach the question of whether a statutory right was involved." Decision at 9.

On the issue of whether the Respondent violated the Statute, the Judge concluded that the Respondent had violated section 7116(a)(1) and (5) as alleged and recommended that the Respondent be ordered to cease and desist and take certain corrective action.

III. Positions of the Parties on the Motion for Remand

In support of its motion to remand, the Respondent has submitted portions of the transcript of the arbitration hearing on the amended grievance and a copy of the arbitrator's opinion and decision on the grievance. On the basis of the transcript and arbitrator's award, the Respondent argues that contrary to the statement of the Judge, the arbitrator considered the same statutory issues raised by the complaint and decided by the Judge. Consequently, the Respondent contends that the hearing must be reopened to consider the question of whether the complaint is barred by section 7116(d) in view of the arbitrator's award.

The General Counsel opposes the motion, but requests that if the motion were granted, the remand be limited to the question of whether the complaint is barred. [ v30 p2 ]

IV. Analysis

The Authority has previously held that section 7116(d) only precludes duplicate filings of an issue actually raised in the grievance and unfair labor practices forums and does not extend to an issue which the aggrieved party could have, but did not, raise in the earlier-selected forum. Immigration and Naturalization Service, U.S. Department of Justice and American Federation of Government Employees, Local 40, 18 FLRA 412 (1985). The Respondent's motion to remand renews its contention that the Authority lacks jurisdiction in this matter because the earlier-filed grievance raised the same issues subsequently raised in this unfair labor practice proceeding. In support of this contention, the Respondent has submitted the arbitrator's award in the grievance which sets forth the issues that the Respondent and the Charging Party mutually agreed to submit for decision to the arbitrator in the grievance proceeding. This new evidence was not available at the time the Judge made his determination on the issue. In our view, the arbitrator's award presents and reopens the question concerning the Authority's jurisdiction and therefore must be addressed. See, for example, Lowry Air Force Base, Denver, Colorado, 29 FLRA No. 51 (1987); Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA 475 (1986).

V. Conclusions

We grant the Respondent's motion and remand this case to the Judge to develop a full record and to make appropriate findings and determinations on whether the complaint is barred under section 7116(d). If the Judge determines that the complaint is barred in part, he should recommend appropriate remedial action if any. The parties' right to file exceptions to any portion of the Judge's decision on remand is preserved. [ v30 p3 ]

This case is remanded to the Judge for appropriate action.

Issued, Washington, D.C., November 12, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 p4 ]

DEPARTMENT OF THE ARMY

HEADQUARTERS,  PRESIDIO OF
SAN FRANCISCO

               Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1457, AFL-CIO

               Charging Party

Case No.: 9-CA-60127

Roselyn B. Rosenfeld, Esq.
         For the Respondent

Timothy Sheils, Esq.
         For the General Counsel

Lawrence L. Laughlin
         For the Charging Party

Before: ELI NASH, JR.
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7101 et seq., (herein called the Statute). It was instituted by the Regional Director of Region IX based upon an unfair labor practice charge filed on February 3, 1986 and amended on March 7, 1986, by the American Federation of Government Employees, Local 1457, AFL - CIO (herein called the Union) against the Department of the Army Headquarters, Presidio of San Francisco (herein called the Respondent). The Complaint alleged that Respondent violated section 7116(a)(1) and (5) of the Statute by a unilateral change in the past practice of allowing 100 percent use of official time by the Union President. [PAGE]

Respondent's Answer denied the commission of any unfair labor practices.

A hearing was held before the undersigned in San Francisco, California, at which time the parties were represented by counsel and afforded full opportunity to adduce evidence and to call, examine, and cross-examine witnesses and to argue orally. Timely briefs were filed by the Respondent and the General Counsel and have been duly considered.

Upon consideration of the entire record in this case, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendation.

Findings of Fact

1. At all times material herein, the Union has been the certified exclusive representative of Respondent's approximate 336 employees. Also, the Union, at all times material has been the certified representative of approximately 485 employees of several tenant organizations connected with Respondent including the Letterman Army Medical Center, Letterman Army Institute of Research and the 91st Division Training.

2. At all times material herein, Lawrence L. Laughlin, employed by Respondent as a carpenter has been the Union's president. The record disclosed that from the beginning of his presidential term Laughlin worked full-time on behalf of the Union. From approximately March 1981, Laughlin worked regular eight-hour days in the Union office, rather than working his customary job in Respondent's carpentry shop. The parties stipulated that Laughlin worked no more than 30 days at the carpentry shop from July 1981 to May 12, 1986, at which time he was relieved of his duties by Respondent. In fact, other than for two separate one week voluntary details at the carpentry shop in 1984, Laughlin only worked in the carpentry shop for about six days between March 1981 and December 1985.

3. Whether or not it was appropriate, Laughlin directed the Union as a one-man operation. Laughlin handled all grievances, classification appeals, MSPB actions and EEO complaints. He met with an average of eight employees daily to discuss problems. Also, Laughlin negotiated the parties' last collective bargaining agreement, was responsible for offering Union input in any proposed changes in working [ v30 p2 ] conditions, and attended various agency meetings as the Union representative.

4. At the beginning of his presidency in 1981, Laughlin followed a procedure of meeting with his supervisor, either Guido Scotto or Art Garcia, each morning to explain what his Union activities were for the day. After about three months of this procedure, Laughlin began reporting to the carpentry shop at the beginning of the work day and then leaving for the Union office without any discussion with supervision.

5. In addition to the reporting requirements, Laughlin was required to turn in Official Time Reports (herein called OTRs) to his supervisors which reflected the amount of time he was spending working on Union activities. The procedure regarding the OTRs changed several times during the course of Laughlin's tenure. At first, Laughlin turned the forms in to Respondent's Employee Relations Office through his supervisor. Initially Laughlin provided the OTR form daily, but later he began to turn them in once, a few at a time. Finally, while he submitted an OTR form for each day, he began to turn them in only once every two or three weeks.

6. The parties executed a collective bargaining agreement on July 23, 1982, which included an "official time" provision, Article XI. Article XI allowed the Union a total of 2570 hours of annual official time. With respect to the president's use of official time the agreement states that, "The 2570 hours consists of 1200 hours for the President's use."

7. Despite the collective bargaining agreement's apparent limitation on the president's use of official time, Respondent's enforcement of the provision was minimal. Although, on September 22, 1982, John Sergeant, a labor relations specialist wrote Laughlin stating "the Union President is authorized 100 hours per month under the new agreement. I look forward to reviewing your August 1982 time report to insure that we are on track", Laughlin continued to work an eight hour day for the Union. it appears that Respondent's next effort to limit Laughlin's use of official time occurred more than two years later when on January 18, 1985, Laughlin received a letter from Thomas Edgerton, Director of Engineering and Housing stating that the president was limited to "1200 hours". Laughlin, however, continued full-time usage until sometime around November 22, 1985.

8. According to Respondent around April 1985, it began to intensify its effort to limit Laughlin's use of official [ v30 p3 ] time. The increased effort apparently resulted from a new management team which "brought new ideas and a fresh resolution to improve the efficiency and cost-effectiveness of the organization wherever possible." According to Mark Leu, "we started trying to get (t)his thing squared away as far as time reports and missing reports and so on." Therefore, during this period Respondent apparently began a "campaign" to require Laughlin to maintain and turn in accurate records of his use of official time, and to notify him of its desire to limit his use of official time to the "1200" hours stated in the collective bargaining agreement.

9. Between May 1985 and November 22, 1985 Laughlin met with Respondent's representative John Sergeant on many occasions, usually in Sergeant's office, but some times in Laughlin's office. According to Sergeant, the "1200" hour cap was acknowledged by Laughlin; Sergeant proposed methods for reduction of official time by Laughlin including putting Laughlin on the Union payroll, hiring a part-time business agent or delegating more work to other Union officials. It is assumed that Respondent felt this was notice of its time limitation to Laughlin.

10. Correspondence beginning April 22, 1985 confirms that Respondent began efforts to limit Lauglin's use of official time. However, none of the correspondence seems to be directed specifically at the "1200" hour cap. In fact it appears that the letters of April 22, 1985, August 28, 1985 and September 9, 1985 voiced Respondent's objection but, concerned use of official time to "represent non-bargaining unit employees" and had nothing to do with the "1200" hour cap. Similarly, a May 20, 1985 letter from John Sergeant stated generally that he expected "all employee union officials to be in full compliance with Article XI." Like-wise, an August 28, 1985 letter from John Sergeant alluding only to "all Union officials" are in full compliance with Article XI. Finally, the subject of a November 13, 1985 report concerns missing OTRs. Thus, none of the above correspondence clearly signaled Laughlin, in my opinion, that Respondent was overly interested in the "1200" hour cap or desired to bargain about the "1200" hour cap.

11. On November 22, 1985, Supervisor Garcia handed Laughlin a memorandum which, in part, stated:

2. Article XI, Section 13, states that you will be authorized no more than 1200 hours of official time each calendar year. Your usage of 1485 hours as of 9 November 1985 exceeds this amount. [ v30 p4 ]

3. Effective 25 November 1985, you are, therefore, directed to either report for work or to request appropriate leave. If you do not report for work and are not on approved leave, you will be carried on an absent without approved leave (AWOL) status.

Thus, for the first time, Respondent clearly expressed concern for what it apparently viewed as a misuse of such time by Laughlin. Laughlin immediately called the Union's district vice president, Walt Peters, and sought his advice. Laughlin then called Sergeant and complained that this change had occurred without bargaining. Sergeant told Laughlin that a full-time president was not justified and, after Laughlin threatened to file an unfair labor practice charge, Sergeant signaled Respondent's inflexibility on the issue by answering that the unit represented by the Union was not appropriate for exclusive recognition and that Respondent would not change its position. The following month, Laughlin telephoned Sergeant three more times, unsuccessfully attempting to convince Respondent to negotiate over the change.

12. In February and March 1986, months after the change had been implemented and Laughlin had been placed in non-pay AWOL status, Laughlin met with Sergeant and Mark Leu, Respondent's chief of management employee relations. Laughlin, who had not received any pay since November 25, 1985, agreed to work 16 hours each week if Respondent agreed to remove the AWOL and allow the Union vice-president greater access to the management employee relations office. However, at the March meeting Respondent attempted to set a rigid schedule as to which 16 hours Laughlin would work each week. Laughlin could not agree to this and the tenuous settlement fell apart. The parties had no more negotiations.

13. After receiving the November 22, 1985 memorandum, Laughlin continued to work full-time on behalf of the Union even after Respondent had placed him on AWOL. In March 1986, Respondent suspended Laughlin for two weeks and, on May 12, 1986, the Respondent removed Laughlin from its employment because he continued to work full-time for the Union.

Conclusions

A. Whether a past practice existed.

The record reveals that Union President Laughlin, over a prolonged period, openly worked as a full-time president [ v30 p5 ] with Respondent's knowledge despite contractual provisions which seemingly specifically limited his use of official time. The record also discloses that Respondent was or should have been aware of Laughlin's undisguised use of official time to serve full time as Union President. Consequently, Respondent's failure to enforce the contractual provision relating to official time allowed the practice of usage by Laughlin to become a working condition which could not be unilaterally changed without first notifying and bargaining with the Union. United States Department of the Treasury, Internal Revenue Service, and United States Department of the Treasury, Internal Revenue Service, Houston, District, 20 FLRA 51 (1985).

Respondent's analysis of the case is that the existing contract provision prohibits establishment of a past practice concerning use of official time. However, the Authority has already made it clear that a past practice can modify a contract provision. See Department of Defense, Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginina, 20 FLRA 248, 267-268 (1985); Internal Revenue Service and Brookhaven Service Center, 6 FLRA 713 1981; Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982); see also Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 19 FLRA 1054, 1075 (1985). The past practice in this case, which was relied on over a period of several years undoubtably was the actual practice being following and therefore, modified the contractual official time provisions. Since the provision concerning Laughlin's use of time was modified by the past practice neither the General Counsel's argument that the agreement was not in conflict with the practice or the argument that what ever legal effect existed, "died" with the expiration of the agreement on July 23, 1985, need not be considered.

B. Whether a waiver or question of contract interpretation exists.

Respondent also argues that whether the Union President is allowed 1200 hours or 100 per cent of his time for official time is a matter of contract interpretation. The General Counsel asserts only that under Social Security Administration, 13 FLRA 112 (1983), official time is negotiable as to substance and does not address the above argument. It is my opinion that Respondent is mistaken. The issue of official time is one of jurisdiction i.e. whether the Authority will accept or decline to consider the matter. The Authority has always held that where a statutory right [ v30 p6 ] is involved the contract article relied on must contain a clear and unmistakable waiver, or the contractual language must clearly show that the exclusive representative intended to give up a right granted by the Statute. Social Security Administration, 13 FLRA 409 (1983); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981); see also Internal Revenue Service, Omaha District Office, 4 A/SLMR 493 (1974). Article XI, in my opinion, when read in its entirety, does not lend itself totally to the interpretation urged by Respondent. Accordingly, my view is that a clear and unmistakable waiver has not been established by Respondent.

Section 7131 grants employees representing an exclusive representative authorized official time to perform representational functions during which time the employee would otherwise be in duty status. Where an agency seeks to place limitations on those rights whether established by practice or contract, my view, as already expressed, is that the Authority would not reject jurisdiction because what is involved is clearly a statutory right. The Authority has already indicated that questions involving its jurisdiction to entertain a case must be addressed. See Portsmouth Naval Shipyard and Department of the Navy, 23 FLRA 475 (1986). Since the Authority would reserve its right to exclusively rule on the application of a statutory right, any contention by a respondent that a waiver occurred or that the matter should be subject to interpretation by an arbitrator must be rejected. For this reason Respondent's use of Pearl Harbor Naval Shipyard, 8-CA-753 (1982) and FAA, Farmington, Maine, 5-CA-46 (1982) both non-precedential cases misses the point for in neither of those cases is a statutory right, which would require different analysis, involved. Both are, therefore, distinguishable from the instant case and do not aid in its resolution.

C. Whether section 7116(d)(4) is a bar to the instant proceeding.

Respondent also alleges that an amended grievance filed on January 1, 1986, which was not placed in evidence at the hearing, constitutes a bar to these proceedings. In reviewing the record, it was found that evidence of a grievance having been filed in the matter was presented. After the hearing closed, but prior to the time for filing of briefs, Respondent on July 3, 1986, moved that the record be reopened to receive a copy of an amended grievance form in Case No. 85-35, or alternatively that under Federal Rule of Evidence 201(d) the undersigned take judicial notice of the amended [ v30 p7 ] grievance. Respondent noted that the amended grievance was filed, prior to the February 3, 1986 unfair labor practice charge in this case. Thereafter, on July 14, 1986 the General Counsel filed an opposition to Respondent's motion stating the inappropriateness on Respondent's request since the amended grievance was not "newly discovered or unavailable" at the time of the hearing. On that same date, the General Counsel moved to postpone the filing of briefs. While the undersigned denied the motion to postpone filing of briefs, no ruling was made on Respondent's request to reopen the record, at that time. 1 For completeness of the record, and since there is record evidence concerning the filing of the grievance, it is deemed appropriate to admit further evidence concerning the exact nature of the grievance in order to allow for a suitable determination of whether the matter is properly before the Authority. See Portsmouth Naval Shipyard and Department of the Navy, supra. Case law is clear that where a grievance raises questions other than those involved within the context of an unfair labor practice complaint, it does not bar the complaint under section 7116(d) of the Statute. Aerospace Guidance and Meterology Center, Newark, Ohio, 4 FLRA 512 (1980). Furthermore, where a respondent is attempting to support an affirmative defense that section 7116(d) applies, it must provide sufficient evidence to show that the issues raised in the unfair labor practice complaint were raised under the grievance procedure. Social Security Administration, Office of Program Operations and Field Operations, Sutter District Office, San Francisco, California, 5 FLRA 504 (1981). Here Respondent requested that the record be reopened to receive an amended grievance form or alternatively to take judicial notice of its existence to meet those requirements. In reopening the record, it is my view that since a jurisdictional question is involved, the reopening to receive the amended grievance form is essential to developing a complete record. Furthermore, review of the amended grievance and the requested disposition convinces the undersigned that its admission is not prejudicial to the General Counsel. Consequently, it is deemed unnecessary to grant the General Counsel's request to rebut the document. In my opinion the Authority, where as here, both a statutory right and a jurisdictional question are involved, would not rely on an arbitrator to make a decision as to whether or not that statutory right had been violated. [ v30 p8 ]

In granting Respondent's motion to reopen the record and consider the amended grievance, I find that although the grievance was filed prior to the unfair labor practice charge herein, it does not require application of the section 7116(d) bar. Department of Defense Dependents Schools, Pacific Region, 17 FLRA 100 (1985). As already noted, the amended grievance involves a jurisdictional matter which can ultimately be decided only by the Authority. See Portsmouth Naval Shipyard and Department of the Navy, supra. Moreover, the thrust of the amended grievance concerns denial of falsification of records concerning use of official time. The main concern of the unfair labor practice charge, on the other hand, is the purported change in a past practice established over the preceding three or more years. In those circumstances, it appears unlikely that an arbitrator would ever reach the question of whether a statutory right was involved. In reviewing the amended grievance, it is clear that its concern is primarily with the results of an "erroneous CID report." it deals with falsification and recordation of official time by Laughlin. The amended grievance, however, does not specifically deal with refusal to negotiate on statutory rights in derogation of section 7131 and section 7116(a)(1) and (5) of the Statute.

The statutory rights involved are institutional in that they run directly to the Union not to an individual. Thus, the complaint involves rights of the Union to negotiate concerning official time while the amended grievance involves only the individual rights of Laughlin. Therefore, it is found that the complaint in this case is not barred by the provisions of section 7116(d) of the Statute since the basic issues raised in the complaint differ from those raised in the earlier amended grievance filed by Laughlin in an individual capacity. Moreover, the rights involved are jurisdictional which in my opinion the Authority would not ordinarily defer to an arbitrator.

D. Whether Respondent violated section 7116(a)(1) and (5) of the Statute by unilateral y limiting, by means of discipline, the Union President to 1200 hours of official time.

It is well settled that before an agency implements a change in working conditions affecting unit employees it is required to first provide adequate notice of the proposed change to the employees' exclusive representative and afford it a meaningful opportunity to bargain. See General Services Administration, 15 FLRA 22, 24 (1984); U.S. Customs Service, [ v30 p9 ] Region IV, Miami, Florida, 19 FLRA 304 (1985); U.S. Army Reserve Components Personnel and Administration Center, 19 FLRA 290 (1985). The General Counsel claims that Respondent provided the Union no notice whatsoever before implementation herein and thereby violated the Statute.

Neither the testimony nor documentary evidence offered by Respondent persuades me that sufficient notification was given to the Union prior to the change on November 22, 1985. The Authority has held that in order for notice to be statutorily sufficient it must be "specific and clear enough to provide adequate notice to the Union." Department of the Army, Harry Diamond Laboratories, Adelphi Maryland, 9 FLRA 575 (1982). The testimony of John Sergeant did not meet those standards. For the most part, the conversations related by Sergeant are spread out over a several month period of time and concerned recordation of time and whether Laughlin would be allowed to represent non-bargaining unit employees rather than addressing any specific limitations on Laughlin's use of time. If indeed Respondent appraised Laughlin of its concern, it did not register nor based on the memoranda of these meetings should it reasonably have been expected to do so. Further, these conversations were apparently preserved by written communications which demonstrated that Respondent was concerned with recordation and representation of non-unit employees rather than with the "1200" hour cap. Since more than 20 meetings occurred during the span of time referred to by Respondent, I agree with the General Counsel that given Respondent's propensity to write letters and memoranda established by stipulations in this case, it is reasonable to assume that if Respondent really had such an interest about the "1200" hour cap and expressed it to Laughlin, so as to constitute notice, that at least once, that concern would have been reduced to writing.

The memoranda submitted as evidence in this case are thus too broad and general to supply the specific and clear notice required by the Statute. As already noted, the memoranda basically concerns compliance with reporting procedures, official time to attend training sessions, official time to negotiate on behalf of non-bargaining unit employees and are consistently silent on Laughlin's use of official time beyond the "1200" hour cap. Accordingly, it is found that Respondent, through the above memoranda and meetings, did not provide the Union notice of its desire to change the "1200" hour cap on Laughlin's official time. Moreover, the advice given on November 22, 1985 that the change was to occur on November 25, 1985 does not qualify in this matter as requisite notice needed to allow the Union time and the opportunity to engage in meaningful bargaining. [ v30 p10 ] U.S. Department of Agriculture, Plant Protection and Quarantine, Animal and Plant Health Inspection Service, 17 FLRA 281 (1985), U.S. Government Printing Office, 13 FLRA 203 (1983). Accordingly, it is found that Respondent failed to provide notice prior to its change of the established past practice in this case.

Based on all of the foregoing, it is found and concluded that Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing a change in conditions of employment by requiring the Union President who had used 100 per cent official time, to limit that use of time to 1200 hours annually without providing the Union with adequate notice and an opportunity to bargain concerning the change and its impact and implementation.

The Remedy

Having found that Respondent committed certain violations of the Statute, it is necessary to recommend a remedy which will effectuate the purposes and policies of the Statute. In addition to a status quo ante remedy, a make whole remedy including backpay is deemed appropriate here. There is no dispute that Laughlin, the Union President was placed on AWOL, suspended and finally removed as a direct result of Respondent's unilateral change in an established past practice. The November 22, 1985 memorandum clearly connected the subsequent discipline to the change. In addition, at the March 4, 1986 meeting, Sergeant established a connection between the AWOL and subsequent discipline to Laughlin's continued use of 100 per cent official time, when he attempted to force a settlement on Laughlin. In an earlier cited case, Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, supra, the agency had unilaterally changed a past practice of allowing union officials to use official time without first telling their supervisors. As a result of the change, two union officers who had failed to comply with the new procedure had been placed on AWOL. There the Authority required that the remedy include backpay for the time spent on AWOL stating as follows:

With regard to the Judge's recommended remedy to make whole employees Hawpe and White for the periods of time on May 15 and September 2, 1980, respectively, when they were placed on AWOL status while performing representational duties, the Authority has held such a remedy appropriate under the Back Pay Act, 5 U.S.C. 5596, when "but for" an unjustified or [ v30 p11 ] unwarranted personnel action the employee would not have suffered a loss or reduction in pay, allowances, or differentials. Department of the Air Force, Air Force Systems Command, Electronic Systems Division, 14 FLRA 390 1984. It is clear that under the practice which existed before the Respondent unilaterally changed the method of allowing Union officers to use official time while performing representational duties, Hawpe and White advised the Respondent when they were going to utilize official time, and the request was never challenged. The unilateral change in that established practice required Hawpe and White to request official time and the Respondent to approve or deny the request. When such requests were rejected and Hawpe and White attempted to utilize official time nonetheless, they were placed on AWOL status and thereby suffered a reduction in pay. Thus, "but for" the Respondent's unlawful unilateral change in the established practice concerning use of official time for representational duties performed by employees on behalf of the exclusive representative, such loss or reduction in pay would not have been suffered, and the Authority therefore adopts the Judge's recommended make whole remedy.

Likewise, the "but for" test is satisfied in the instant case and Laughlin should be made whole for Respondent's decision to disregard its statutory bargaining obligation. 2 See also Department of the Treasury, U.S. Customs Service and U.S. Customs Service, Region IX, Chicago, Illinois, 25 FLRA 161 (1987).

According, it is recommended that the Authority adopt the following: 3 [ v30 p12 ]

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Department of the Army, Headquarters, Presidio of San Francisco, shall:

1. Cease and desist from:

(a) Unilaterally instituting changes in an established practice with respect to the use of 100 per cent official time by the Union President engaged in representational duties on behalf of the exclusive representative without providing notice to, and upon request bargaining with, American Federation of Government Employees, Local 1457, AFL - CIO, the exclusive representative of its employees, or any other exclusive representative.

(b) Removing employee Lawrence L. Laughlin as a result of unilaterally instituted changes with respect to the use of 100 per cent official time to engage in representational duties by the Union President.

(c) 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, meet and negotiate with the American Federation of Government Employees, Local 1457, AFL - CIO, the exclusive representative of its employees, with regard to any changes in established practices concerning the use of 100 per cent official time by the Union President to engage in representational duties on behalf of the exclusive representative.

(b) Reinstate and make whole employee Lawrence L. Laughlin in accordance with the Back Pay Act, 5 U.S.C. 5596 (Supp. III [ v30 p13 ] 1979) for any loss of pay or other benefits he suffered on or about November 22, 1985 to date when he was placed on AWOL status and subsequently dismissed while performing representational duties on behalf of the exclusive representative, American Federation of Government Employees, Local 1457, AFL - CIO.

(c) Post at its Department of the Army Headquarters, Presidio of San Francisco facility, 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 Commander, or a designee, 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 ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

ELI NASH, JR.
Administrative Law Judge

Dated: May 28, 1987
       Washington, D.C.

[ v30 p14 ]

                             APPENDIX A
                       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 unilaterally institute changes in an established practice with respect to the use of 100 per cent official time by the Union President engaged in representational duties on behalf of the exclusive representative without providing notice to, and upon request bargaining with, American Federation of Government Employees, Local 1457, AFL - CIO, the exclusive representative of our employees, or any other exclusive representative.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Statute.

WE WILL NOT remove employee Lawrence L. Laughlin as a result of unilaterally instituted changes with respect to the use of 100 per cent official time to engage in representational duties by the Union President.

WE WILL, upon request, meet and negotiate with the American Federation of Government Employees, Local 1457, AFL - CIO, the exclusive representative of our employees, with regard to any changes in established practices concerning the use of 100 per cent official time by the Union President to engage in representational duties on behalf of the exclusive representative, and the implementation of any such changes, at the Presidio of San Francisco facility.

WE WILL reinstate and make whole employee Lawrence L. Laughlin in accordance with the Back Pay Act, 5 U.S.C. 5596 (Supp. III 1979) for any loss of pay or other benefits he suffered on or about November 22, 1985 to date when he was placed on AWOL status and subsequently dismissed [PAGE] while performing representational duties on behalf of the exclusive representative, American Federation of Government Employees, Local 1457, AFL - CIO.

                              ___________________________
                                 (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 IX, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 995-5000. [ v30 p2 ]

FOOTNOTES

Footnote 1 The General Counsel's Motion to Strike Portions of Respondent's Brief, dated July 29, 1986, is denied.

Footnote 2 In addition to the discussions above, the unrebutted testimony of Laughlin proves that following the AWOL, he continued to work full-time for the Union, with no pay, until, after his removal, he was forced to take an occasional odd-job to feed his family.

Footnote 3 The General Counsel's uncontested motion to correct transcript is granted and attached.

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