35:0764(82)CA - - Army and Air Force Exchange Service, McClellan Base Exchange, McClellan AFB, CA and AFGE Local 1857 - - 1990 FLRAdec CA - - v35 p764

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35:0764(82)CA
The decision of the Authority follows:


35 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ARMY AND AIR FORCE EXCHANGE SERVICE

McCLELLAN BASE EXCHANGE

McCLELLAN AIR FORCE BASE, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1857

(Charging Party)

9-CA-80257

DECISION AND ORDER

April 27, 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 filed by the Respondent and the General Counsel to the attached Decision and Order of the Administrative Law Judge issued in the above-titled proceeding. The Respondent did not file an opposition to the General Counsel's exceptions, and the General Counsel did not file an opposition to the Respondent's exceptions.

The complaint alleged that the Respondent refused to bargain with the Charging Party concerning ground rules in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to respond to the Charging Party's demand for on-site negotiations at McClellan Air Force Base, California.

Pursuant to section 2423.29 of the Authority's 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. Those rulings are affirmed.

We agree with the Judge's conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute. However, we reach our conclusion for reasons different from those of the Judge.

II. Background

The American Federation of Government Employees (AFGE) is certified as the exclusive representative of a worldwide consolidated unit of Army and Air Force Exchange Service (AAFES) employees. AFGE and AAFES are parties to a Master Agreement which sets forth a procedure for the negotiation of local supplemental agreements in Article 4, section 4. That section provides that "[w]ithin 60 calendar days after the effective date of this Master Agreement, either the Union or Management at the local level may demand bargaining for a Local Supplemental Agreement." Joint Exhibit 1.

AFGE's Business Agent, Anne Mueller, requested bargaining for a supplemental agreement covering the McClellan Air Force Base Exchange and submitted proposals for ground rules. AAFES responded with counterproposals. Subsequently, the personnel manager for McClellan Air Force Base told Mueller that she did not think management would want to meet. Mueller contacted the Federal Mediation and Conciliation Service (FMCS) and informed a mediator that management did not want to meet in person to discuss the ground rules.

As a result of intervention by an FMCS mediator, an AAFES labor relations specialist, John Massey, telephoned Mueller and suggested that they attempt to negotiate by mail. Mueller insisted on face-to-face negotiations. Massey agreed to meet at McClellan, saying that he would be alone and that he expected bargaining would be concluded in 2 days.

Mueller and Massey agreed to meet at McClellan Air Force Base on August 13, 1987. However, Mueller was unable to meet with Massey on the 13th due to an illness. When the parties met the next day, Mueller was accompanied by another negotiator. Massey stated that Mueller agreed to negotiate alone and having another negotiator conflicted with their agreement. Mueller explained that she was not authorized to negotiate alone. Massey refused to negotiate alone and said that "'we're just going to have to do this through the mail or by some other means, because AAFES is not going to pay for me to come back to negotiate the ground rules.'" Judge's Decision at 4.

In the following months, the Charging Party initiated two unsuccessful attempts to negotiate using conference calls in which an FMCS mediator was to participate. Id. On February 9, 1988, the Union made a written demand on the manager of the McClellan Air Force Base Exchange for bargaining "specifying face-to-face negotiations at McClellan Air Force Base." Id. The McClellan Exchange Manager referred this demand to Massey and notified the Union of the referral on February 18, 1988. G.C. Exhibit 5.

The Charging Party filed an unfair labor practice charge on March 18, 1988, alleging that the Respondent refused to arrange meetings to discuss ground rules for the Local Supplemental Agreement. That charge was amended on April 27, 1988, to allege that Massey had failed and refused to meet with the Union since February 18, 1988. On June 20, 1988, a complaint issued. The complaint alleged that "[s]ince on or about February 18, 1988, and continuing to date, Respondent has failed and refused to bargain with the Union regarding ground rules for a Local Supplemental Agreement to the Master Agreement between Army and Air Force Exchange Service and American Federation of Government Employees, AFL-CIO." G.C. Exhibit 1(e). Massey responded to the Union's demand in July 1988 after the complaint issued.

III. Administrative Law Judge's Decision

The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute. The Judge noted that there was no dispute between the parties that the Respondent had a duty to bargain with the Charging Party over the ground rules. Judge's Decision at 2. The Judge stated that bargaining includes "an irreducible core of preliminary matters which must be considered to be a mandatory starting point for all negotiations." Id. at 6. The Judge found that the Respondent's duty under section 7114(b)(3) "to meet at reasonable times and convenient places as frequently as may be necessary" is part of that core. Id. at 5-6.

The Judge also found that Respondent's duty to "meet at reasonable times" obligated the Respondent "to accede to the Union's demand for face-to-face bargaining at McClellan." Id. The Judge noted that "[t]he National Labor Relations Board has held that 'to meet at reasonable times' requires face-to-face meetings." Id. at 7 (citations omitted). The Judge also noted that there is "the strong tradition of face-to-face negotiations for all stages of collective bargaining." Id. The Judge concluded that Respondent had made "no showing that would warrant relief from the usual requirement, which in this case means face-to-face bargaining at McClellan Air Force Base." Id. at 8.

The Judge also stated that the parties' previously unsuccessful attempt to negotiate at McClellan was not an excuse for failing to make another attempt. The Judge recognized that the cost of negotiating at McClellan Air Force Base fell more heavily on the Respondent, but he noted that "AAFES has chosen to use Massey as its negotiator instead of a local official." Id. The Judge concluded that "AAFES' months-long failure to respond to the Union's demand for on-site negotiations at McClellan constituted a refusal to negotiate in violation of Section 7116(a)(1) and (5) of the Statute[.]" Id. at 8.

IV. Exceptions

A. The Respondent's Exceptions

The Respondent maintains that "[t]he obligation of an agency or activity to engage in face-to-face bargaining is not an issue in the matter before the Administrative Law Judge." Respondent's Exceptions at 2. The Respondent notes that it did not, and does not now, assert that there is no requirement for face-to-face bargaining under the Statute. The Respondent argues that the issue is whether the location of bargaining for a local supplemental agreement is negotiable. Id.

The Respondent asserts that the Judge determined that the location of bargaining for a local supplemental agreement is nonnegotiable when he found that the location of bargaining should be McClellan. The Respondent asserts that the Authority should overrule the Judge's decision on the basis that "the location of bargaining is a negotiable matter and not amenable to a rule of law." Id. at 3.

Respondent also asserts that the Judge's conclusion that "'[s]ince the negotiations [were for a local supplemental agreement] there has never been a question of negotiating elsewhere[,]'" constitutes an unreasonable interpretation of the record. Id. at 3-4. The Respondent argues that "[t]he very fact that the Activity representative raised the issue of the locality of the next meeting, is itself a 'question of negotiating elsewhere.'" Id. at 4.

B. The General Counsel's Exception

The General Counsel excepts only to the Judge's "recommendation that the Notice to All Employees be signed by an authorized representative rather than the McClellan Exchange Manager." General Counsel's Exceptions. The General Counsel asserts that "the parties have no guidance regarding who would be 'an authorized representative' and could disagree regarding who should sign the Notice, possibly leading to further litigation." General Counsel's Supporting Brief at 3-4. The General Counsel contends that the Notice should be signed by the Exchange Manager, the highest level management official at McClellan Base Exchange, and requests the Authority to modify the Judge's recommended order accordingly.

V. Analysis and Conclusion

For the following reasons, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to respond to the Charging Party's demand on February 9, 1988, to bargain over ground rules for negotiation of a local supplemental agreement.

Article 4, section 4 of the parties' master agreement provides for bargaining for local supplemental agreements. The Union requested bargaining pursuant to this provision and the parties agreed to meet on August 13, 1987. Negotiations did not take place on that date, however, and several subsequent attempts to discuss bargaining arrangements were unsuccessful. On February 9, 1988, the Union made another demand, by letter, for bargaining. The Union stated, in relevant part:

The Union hereby demands to bargain on the Local Supplement Ground Rules. There are several issues which remain in dispute, and the Union finds unreasonable the six months which have passed since we last met to negotiate this matter.

The Union's position on the forum in which we negotiate the Ground Rules remains unchanged--we refuse to negotiate telephonically or through the mail.

G.C. Exhibit 4. On February 18, 1988, the Exchange Manager informed the Union that he had referred the Union's letter to the Agency's bargaining representative.

The Respondent's bargaining representative did not respond to the Union's request until July 1988. Judge's Decision at 4. Between February 18, 1988, and July 1988, therefore, the Respondent took no action on the Union's demand to resume bargaining.

It is clear that the parties disagreed about the method/place of bargaining over ground rules for a supplemental agreement. It is clear also that the Union reiterated its refusal to negotiate by phone or through the mail in its February 9 letter. In our view, however, the existence of a dispute as to these matters does not justify the Respondent's failure to respond at all to the Union's request to bargain for over 4 months.

We note, in this regard, the Respondent's assertion that the dispute over the method/place of negotiations could be resolved "through further negotiations assisted by [m]ediation, and, if necessary, [i]mpasse proceedings or arbitration of the terms of the collective bargaining agreement." Respondent's Exceptions at 3. We agree that these options existed. The Respondent, however, made no attempts to implement any of these options. Instead, the Respondent did not respond to the Union's request to bargain for over 4 months.

In our view, the statutory obligation to bargain includes, at a minimum, the requirement that a party respond to a bargaining request. Compare U.S. Naval Supply Center, San Diego, California, 26 FLRA 324 (1987) (agency's obligation to provide information under section 7114(b)(4) of the Statute requires agency to respond to request for information even if the response is that the information sought does not exist). Stated simply, the parties' disagreement could not be resolved without discussion between their representatives. We conclude, therefore, that by failing to respond to the Union's bargaining demand of February 9, 1988, for over 4 months, the Respondent failed to meet its obligation to bargain and violated section 7116(a)(1) and (5) of the Statute.

In reaching our decision that the Respondent failed to bargain in good faith, we do not decide whether face-to-face bargaining is required under the meaning of section 7114(b)(3) of the Statute. The General Counsel did not allege in the complaint that the Respondent violated section 7116(a)(1) and (5) by refusing to meet face-to-face. Rather, the General Counsel asserted that from February 18, 1988, to the date of the complaint, the Respondent failed to bargain with the Union. General Counsel's Exhibit 1(e). In addition, in deciding that the Respondent violated section 7116(a)(1) and (5), we find it unnecessary to consider, and have not considered, the Respondent's conduct prior to February 18, 1988.

Finally, the General Counsel excepts to the Judge's Order that the Notice to All Employees be signed by "an authorized representative" and asserts that the McClellan Exchange Manager should sign the Notice. We agree and will modify the Judge's recommended Order and Notice accordingly. In our view, the remedial purposes of the Statute are best effectuated if a Notice is signed by an official designated by the Authority than by one to be determined by a respondent. See, for example, Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 217 (1990) (Authority ordered that the Notice be signed by the Commanding Officer of the Sacramento Air Logistics Center, McClellan Air Force Base, California rather than by a senior official); U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 34 FLRA 247 (1990) (Authority ordered that the Notice be signed by the Commanding Officer of the Lexington-Blue Grass Army Depot, Lexington, Kentucky rather than by a designee).

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Army and Air Force Exchange Service, McClellan Base Exchange, McClellan Air Force Base, California shall:

1. Cease and desist from:

(a) Refusing to bargain over ground rules proposed by the American Federation of Government Employees, Local 1857, AFL-CIO, concerning the negotiation of a Local Supplemental Agreement to the Master Agreement between the Army and Air Force Exchange Service and the American Federation of Government Employees, Local 1857, AFL-CIO.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request, bargain in good faith with the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of its employee, over ground rules for a Local Supplemental Agreement.

(b) Post at its Sacramento, California, facilities 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 Exchange Manager of the McClellan Air Force Base Exchange, 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.

(c) 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 herewith.



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 refuse, upon request, to negotiate with the American Federation of Government Employees, Local 1857, AFL-CIO, (AFGE) regarding ground rules for a local Supplemental Agreement to the Master Agreement between the Army and Air Force Exchange Service and the American Federation of Government Employees, AFL-CIO.

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 Federal Service Labor-Management Relations Statute.

WE WILL, upon request of AFGE, negotiate in good faith with AFGE regarding ground rules for a Local Supplemental Agreement to the Master Agreement between the Army and Air Force Exchange Service and the American Federation of Government Employees, Local 1857, AFL-CIO.

_______________________
(Activity)

Dated:______________ By:__________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be alt