35:0217(26)CA - - Air Force, Air Force Logistics Command, Sacremento Air Logistics Center, McClellan AFB, CA and AFGE Local 1857 - - 1990 FLRAdec CA - - v35 p217

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[ v35 p217 ]
35:0217(26)CA
The decision of the Authority follows:


35 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

SACRAMENTO AIR LOGISTICS CENTER

MCCLELLAN AIR FORCE BASE, CALIFORNIA

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1857

AFL-CIO

(Charging Party/Union)

9-CA-70399

DECISION AND ORDER

March 23, 1990

Before Chairman McKee and Members Talkin and Armendariz.

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 in the above-entitled proceeding. The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by changing the conditions of employment of bargaining unit employees when it relocated its Indirect Materials Section from one building to another without providing the Union with prior notice and an opportunity to bargain over the impact and implementation of the change. The Judge found that the Respondent committed the unfair labor practices alleged in the complaint.(1)

The General Counsel and the Respondent filed exceptions to the Judge's decision. The Respondent filed an opposition to the General Counsel's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order as modified below.

II. Background and Administrative Law Judge's Decision

In July 1987, the Respondent moved the Indirect Materials Section of its Communications and Electronics Division, Directorate of Maintenance, from Building 640 to Building 616. The relocation of the Indirect Materials Section affected three supply clerks. The conditions existing in Building 640, where the three clerks performed their duties before July 1987, differed from those in Building 616. Those differences, set out more fully in the Judge's decision, include the following: (1) Building 640 is a regular insulated building, while Building 616 is a huge metal shed with no insulation; (2) Building 616 leaks when it rains, while Building 640 does not; (3) during the winter months, Building 616 is much colder than Building 640, while during the summer, Building 616 is much hotter than Building 640; and (4) Building 616 is noisier and has poorer lighting than Building 640. Judge's Decision at 4-5.

The Judge found that the Respondent relocated the Indirect Materials Section without providing the Union with prior notice and an opportunity to bargain over the impact and implementation of the change. The Judge concluded that the relocation was more than a de minimis change in the conditions of employment of bargaining unit employees and that, therefore, the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with prior notice and an opportunity to bargain over the impact and implementation of the change.

As part of his remedial order, the Judge recommended that the Notice notifying the employees of the actions to be taken by the Respondent be signed by a "senior official" of the Respondent.

III. Positions of the Parties

The Respondent excepts to the Judge's finding that it violated the Statute. The Respondent argues that the relocation of employees from Building 640 to Building 616 constituted a change in employees' conditions of employment that was so "trifling" that the Respondent should not have been found obligated to bargain as to its impact and implementation. Respondent's Exceptions at 1.

The General Counsel excepts only to the Judge's requirement that the Notice be signed by an unspecified "senior official." The General Counsel contends that the Notice should be signed by the Commanding Officer of the Respondent's Sacramento Air Logistics Center in order to promote "the remedial power of a Notice by assuring the unit employees who read the Notice . . . that the Respondent is aware of its responsibility to meet its statutory obligations." General Counsel's Exceptions at 1-2. The Respondent contends that there is no reason to modify the Judge's decision to have a "senior official" sign the Notice because, unlike in Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 32 FLRA 277 (1988) (Ogden Air Logistics Center), relied on by the General Counsel, the employees affected in this case are in one small unit and the failure to bargain was not committed by an officer having base-wide authority.

IV. Analysis

We agree with the Judge, based on his credibility resolutions and for the reasons stated in his decision, that the Respondent's relocation of employees was a change in the employees' conditions of employment which gave rise to a duty to bargain.(2) Therefore, we find that by failing to notify the Union prior to the change and afford it an opportunity to bargain over the impact and implementation of the change, the Respondent violated section 7116(a)(1) and (5) of the Statute.

We agree with the General Counsel that the Judge's recommended remedy with respect to the Notice should be modified. The remedial purposes of the Statute are best effectuated if notices are signed by designated officials, as determined by the Authority, rather than by a "senior official" to be determined by a respondent. The Authority consistently requires notices to be signed by specific individuals rather than leaving the decision as to who will sign a notice to a respondent. See, for example, Department of Health and Human Services, Region I, (Boston, Massachusetts), 33 FLRA 43 (1988); and Department of the Navy, Naval Plant Representative Office, Sikorsky Aircraft (Stratford, CT), 32 FLRA 675 (1988), where the Authority modified the recommended orders of Administrative Law Judges to require that the notices be signed by a specific agency official rather than by a "senior official."

We also agree with the General Counsel that the designated official who should sign the notice in this case is the Respondent's Commanding Officer. Requiring the Commanding Officer to sign the Notice effectuates the remedial purpose of the Notice by signifying that the Respondent acknowledges its obligations under the Statute and intends to comply with those obligations. For this reason, the Authority's remedial orders consistently require Commanding Officers to sign the notices. See, for example, 22nd Combat Support Group (SAC), March Air Force Base, California, 27 FLRA 279 (1987); and U.S. Department of Defense, Department of the Air Force, Air Force Logistics Center, Tinker Air Force Base, Oklahoma, 25 FLRA 914 (1987).

We reject the Respondent's contention that Ogden Air Logistics Center provides no support for requiring the Commanding Officer to sign the Notice in this case. In Ogden Air Logistics Center, the Administrative Law Judge recommended that the notice be signed by "the Director of the Directorate of Distribution or a comparable official, or his designee[.]" Id. at 299. The Authority modified that recommended order by requiring the notice to be signed by the Commanding Officer of the Ogden Air Logistics Center. Id. at 280-82.

In modifying the order, the Authority noted that: (1) the allegations in the complaint were based on actions by the respondent's Labor Relations Officer and not on actions by personnel in the Directorate of Distribution; (2) the issue in the case involved a matter in which employees throughout the bargaining unit were likely to have an interest; (3) the geographic location stated in the complaint was the entire air logistics center, not just one section of the center; and (4) where unfair labor practices have involved a subordinate organizational element of an air logistics center, the Authority has directed that the notice be signed by the Commanding Officer of that air logistics center rather than by the management official in charge of the subordinate organizational element.

Similarly, in this case, the issue (the unilateral relocation of bargaining unit members) is one in which employees throughout the bargaining unit are likely to have an interest; the geographic location stated in the complaint was the entire Sacramento Air Logistics Center, not just one section of the Center; and the unfair labor practices involved a subordinate organizational element of the Center. In light of these circumstances and our discussion above concerning the purposes served by remedial notices, we do not believe that the fact that the failure to bargain in this case may have been the responsibility of someone other than the base Labor Relations Officer warrants a departure from the Authority's consistent practice with respect to the signing of remedial notices.

Accordingly, we will modify the Judge's recommended Order to require that the Notice be signed by the Commanding Officer of the Sacramento Air Logistics Center.(3)

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, shall:

1. Cease and desist from:

(a) Failing and refusing to negotiate in good faith with the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of its employees, concerning procedures and appropriate arrangements for employees adversely affected by the relocation of its Indirect Materials Section and the work area of unit employees.

(b) Relocating its unit employees without first notifying the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of its employees, and affording it the opportunity to negotiate concerning procedures and appropriate arrangements for employees adversely affected by such relocation of unit employees.

(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 Federal Service Labor-Management Relations Statute:

(a) Upon request, negotiate in good faith with the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of its employees, concerning procedures and appropriate arrangements for employees adversely affected by the relocation of its Indirect Materials Section and the work area of unit employees.

(b) Notify the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of its employees, of any intention to relocate its unit employees, and afford it the opportunity to negotiate concerning procedures and appropriate arrangements for employees adversely affected by such relocation of unit employees.

(c) Post at its facilities at the Air Force Logistics Command, McClellan Air Force Base, California, 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 Commanding Officer of the Sacramento Air Logistics Center, McClellan Air Force Base, California, 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, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.



NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to negotiate in good faith with the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of our employees, concerning procedures and appropriate arrangements for employees adversely affected by the relocation of our Indirect Materials Section and the work area of unit employees.

WE WILL NOT relocate our unit employees without first notifying the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of our employees, and affording it the opportunity to negotiate concerning procedures and appropriate arrangements for employees adversely affected by such relocation of unit employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, negotiate in good faith with the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of our employees, concerning procedures and appropriate arrangements for employees adversely affected by the relocation of our Indirect Materials Section and the work area of unit employees.

WE WILL notify the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of our employees, of any intention to relocate unit employees, and afford it the opportunity to negotiate concerning procedures and appropriate arrangements for employees adversely affected by such relocation of unit employees.

________________________
(Agency or Activity)

Dated:_______ By:___________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Judge inadvertently stated that the Respondent violated section 7114(a)(1) and (5) of the Statute rather than section 7116(a)(1) and (5).

2. The Respondent claims that the Judge's decision is based on "the grossly exaggerated, hyperbolic testimony" of the General Counsel's witnesses. Respondent's Exceptions at 3. To the extent that the Respondent is challenging the credibility findings made by the Judge, we note that the demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 34 FLRA 506 (1990).

3. </