39:0609(50)CA - - Air Force, 343rd Combat Support Group, Eielson AFB, AK and AFGE Local 1836 - - 1991 FLRAdec CA - - v39 p609

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[ v39 p609 ]
39:0609(50)CA
The decision of the Authority follows:


39 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

343RD COMBAT SUPPORT GROUP

EIELSON AIR FORCE BASE, ALASKA

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1836, AFL-CIO

(Charging Party/ Union)

9-CA-90500

DECISION AND ORDER

February 14, 1991

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 filed by the General Counsel. The Respondent filed an opposition to the General Counsel's exceptions and a cross-exception to the Judge's Decision.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the penalty imposed on unit employees for first-time offenses of the Respondent's seat belt policy without notifying the Union and giving it an opportunity to bargain over the impact and implementation of the change. The Judge concluded that the Respondent did not violate the Statute and recommended that the complaint be dismissed.

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. We find, in agreement with the Judge, that the Respondent did not violate section 7116(a)(1) and (5) of the Statute.

II. Background

In 1983, the Union and the Respondent settled an unfair labor practice charge relating to the Respondent's policy concerning the wearing of seat belts by entering into an agreement that provided that the penalties for failing to wear a seat belt were a 10-day suspension of on-base driving privileges for a first offense, a 30-day suspension for a second offense, and a 6-month suspension for a third offense. In 1986, these penalties were incorporated into the base's local supplement to Air Force Regulation (AFR) 125-14, Eielson AFB Supplement 1. In 1987, the local supplement was amended to incorporate the parties' agreement that: (1) the penalties would be mandatory rather than discretionary; and (2) the Commander would consider mitigating or extenuating circumstances before imposing penalties.

On June 22, 1987, the Respondent's Chief of Civilian Personnel sent a memorandum to the Union President concerning the wearing of seat belts. The memorandum stated, in pertinent part:

Management intends to change the penalty for failure to wear a seat[]belt [while] operating a motor vehicle to revocation of Base driving privileges for thirty (30) days for first offense . . . . This change will be effective 15 July 1987 and any negotiable proposals you care to submit must be received not later than 7 July 1987.

G.C.'s Exh. 5.

In June 1987, the Union requested negotiations over the wearing of seat belts, requested that the change not be implemented until negotiations were concluded, and requested that the Respondent provide information relating to the proposed change. By memorandum dated October 15, 1987, the Respondent provided the Union with the requested information.

On October 30, 1987, the Respondent's Chief of Civilian Personnel met with the Union's president to discuss the new seat belt policy. The Chief of Civilian Personnel presented the Union's president with the following proposed agreement:

Effective immediately, management will impose a 30[-]day suspension of base driving privileges for any civilian employee caught operating a motor vehicle on base if the driver or any passenger is not wearing seat[]belts.

Respondent's Exh. 4.

The Union's president refused to sign the agreement and indicated that the Union wanted "to bargain about the substance of the decision to change the seat belt penalty." Judge's Decision at 3. The parties did not reach any agreement at this meeting and, after the meeting concluded, the Chief of Civilian Personnel wrote the following handwritten note on the proposed agreement:

Presented to [the Union president] at 30 OCT 1987 meeting. She reiterated her position that she wanted formal negotiations, ground rules, etc. to negotiate.

Respondent's Exh. 4.

By letter dated November 4, 1987, to the Chief of Civilian Personnel, the Union's president set forth the Union's position on the Respondent's proposed change in the seat belt policy:

It is the Union's position this is a violation of our previous agreement dated 15 December 1983, which became part of the collective bargaining agreement, which was conditioned on the withdrawal of two ULPs. If you proceed in attempting to change the provisions of this agreement we will file a ULP. However, to protect the Union's interests while the ULP is being considered, we will negotiate in good faith only because we feel we are being forced to do so because of your flagrant violation of the previously agreed to settlement.

G.C.'s Exh. 9.

The Respondent did not respond to the Union's letter. However, after receiving the letter, the Chief of Civilian Personnel held a meeting with the Base Commander and other management officials on November 6, 1987, during which the status of the changes was discussed. According to the Chief of Civilian Personnel's November 9 memorandum, he explained to the Commander at the meeting that:

[management] might be successful in getting the approval of HQ USAF to declare the length of the penalty non-negotiable. [The Base Commander] asserted that it was not an issue he was willing to negotiate; he directed [the Chief of Civilian Personnel] to break off the negotiation and that the policy has been implemented. [The Base Commander] indicated he would argue in the ULP that management does not negotiate the driving (safty) [sic] requirements.

Respondent's Exh. 5.

On April 14, 1988, the Respondent revised its supplement to AFR 125-14 to reflect the change in its seat belt policy. The revised supplement to AFR 125-14 increased the penalty for a first violation to a 30-day suspension of driving privileges and for a second violation to a 60-day suspension. The Respondent did not send a copy of the revised supplement to the Union.

By memorandum dated April 28, 1989, the Respondent advised the Union that it intended to implement a change, unrelated to the change involved in this case, in traffic regulations at the base. In response to this notice, the Union requested a copy of AFR 125-14. The Respondent provided a copy of AFR 125-14 to the Union and, upon receipt of the regulation, the Union learned for the first time that the penalties for violating the seat belt policy had been changed.

Throughout the parties' discussions over the change in the seat belt policy, the Respondent "mentioned only the change in the penalty for first time violators of the seat belt policy." Judge's Decision at 6. The Respondent never "suggested or notified the Union that the Agency also intended to increase the penalty for second time violators." Id. at 6-7.

III. Administrative Law Judge's Decision

First, the Judge rejected the Respondent's contention that the unfair labor practice charge was untimely filed. The Judge concluded that although the Agency decided to institute the change in November 1987, and reflected the change in the supplement issued on April 14, 1988, the Union did not learn of the implementation of the change until May 1989. The Judge found that, as the June 19, 1989, charge was filed within the 6-month period set forth in section 7118(a)(4)(A) of the Statute, it was timely.

Next, the Judge concluded that the Respondent did not refuse to bargain over the impact and implementation of the change in the penalty for first-time offenders of the seat belt policy. The Judge noted that although it was not disputed that the Respondent was obligated to bargain over the impact and implementation of the change, there was no allegation before him that the Agency was obligated to bargain over the substance of the change. The Judge found, based on the credibility of witnesses who appeared before him, that on October 30, 1987, the Respondent "gave the Union notice that the Agency was going to implement the change of penalty for first time violators." Id. at 5. The Judge "discredit[ed] the testimony of [the Union's witness], who denied any such meeting occurred." Id. at 3. According to the Judge:

[e]ven when Eielson AFB made it clear on October 30, 1987, that it would not bargain about the decision . . . and reiterated that the change would be implemented, the Union repeated its demand to bargain about the substance of the change, which it repeated in its letter of November 4, 1987.

Id. at 5. The Judge stated that as "[a]t no time did the Union ask, or even indicate that it wished, to bargain about the impact and implementation of the change in penalty for first time violators[,]" the Respondent did not refuse to bargain about the impact and implementation of that change. Id.

Finally, the Judge concluded that the complaint did not encompass an allegation that the Respondent violated the Statute by failing to give notice of and bargain over the change in penalty for second offenders. The Judge concluded, instead, that the complaint "concerned itself solely with the change in penalties for first offenses." Id. In the Judge's view:

[a]lthough the charge in the subject case is broad enough to encompass such an allegation, the complaint seems quite specific in referring in paragraph 6(a) to the Agency's June 22, 1987, notification of the change in penalties, which notice only mentioned first offenses, and then in paragraph 6(e) referring to the issuance of the supplement to AFR 125-14 on April 14, 1988 "which included the changes referenced in paragraph 6(a) above."

Id. Accordingly, and noting that the issue of whether the Respondent violated the Statute by changing the penalty for second-time offenders "was not litigated at the hearing[,]" the Judge found no violation of the Statute with respect to the change in the penalty for second offenses of the seat belt policy. Id.

In sum, the Judge concluded that: (1) the Respondent did not violate the Statute by implementing the change in the penalty for first-time offenders of the seat belt policy; and (2) the propriety of the change in the penalty for second-time offenders was not before him. Accordingly, the Judge recommended that the complaint be dismissed in its entirety.

IV. General Counsel's Exceptions

The General Counsel does not except to the Judge's conclusion that the Respondent did not violate the Statute by implementing the change in the penalty for first-time offenders of the seat belt policy. The General Counsel notes that although "the [Judge's] determination regarding the credibility of the two witnesses was incorrect, the record does not allow challenging the [Judge's] decision, which is based in part on the witnesses' demeanor." General Counsel's Exceptions at 8.

The General Counsel excepts only to the Judge's conclusion that the complaint did not encompass issues relating to the change in the penalty for second-time offenders. The General Counsel contends that it was not required to plead a separate violation for the change in the penalty for second-time offenders because the complaint alleged a single violation: "that the issuance of the Supplement without adequate notice or opportunity to bargain violated section 7116(a)(1) and (5) of the Statute." Id. at 5. The General Counsel argues that "all changes in the new supplement were encompassed by this single violation." Id.

Further, the General Counsel disputes the Judge's statement that the issue of whether the Respondent violated the Statute by changing the penalty for second-time offenders was not litigated at the hearing. The General Counsel contends that evidence concerning the changes in penalties for both first and second-time offenders was presented at the hearing. The General Counsel argues that as it is clear that the Respondent never notified the Union of the change in penalties for second-time offenders, the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing that change.

V. Respondent's Opposition and Cross-Exception

In its opposition to the General Counsel's exceptions, the Respondent argues that, as found by the Judge, it fulfilled its obligation to bargain on the impact and implementation of the change. The Respondent maintains that, as the Union failed to offer any impact and implementation proposals, its implementation of the change in the penalty for first-time offenders did not violate the Statute.

In its cross-exception, the Respondent maintains that the unfair labor practice charge was not timely filed. The Respondent argues that although the Union was notified of the intended change on June 22, 1987, and October 30, 1987, the Union "waited 13 and 1/2 months to file a charge after the change went into effect." Id. at 5.

VI. Analysis and Conclusions

A. The Charge was Timely Filed

We reject the Respondent's assertion that the unfair labor practice charge, filed on June 19, 1989, was untimely. It is clear, and not disputed by the Respondent, that the Union was not provided with a copy of AFR 125-14 and was not otherwise informed that the regulation had been modified to include the changed penalties until May 1989, when it received a copy of the regulation as a result of a request made in connection with an unrelated matter. Therefore, we agree with the Judge, for the reasons stated by the Judge, that the unfair labor practice charge was timely filed within the 6-month period set forth in section 7118(a)(4)(A) of the Statute.

B. The Penalty For Second-Time Offenders

As noted previously, no exceptions were filed to the Judge's conclusion that the Respondent did not violate the Statute by implementing the change in the penalty for first-time offenders of the seat belt policy. We will not, therefore, address that issue further.

With respect to the change regarding second-time offenders, we conclude, in agreement with the Judge, that the complaint did not encompass that issue. We note, at the outset, that as the sole purpose of a complaint is to put the respondent on notice of the basis of the charges against it, we do not judge the sufficiency of a complaint based on rigid pleading requirements. See U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494 (1990) (HCFA) and cases cited therein. As such, where both parties understand the subject of a dispute and present evidence relevant to the issue, a mere ambiguity in the language of the complaint does not remove the issue from being encompassed by the complaint. Id.

In this case, we conclude that the complaint did not put the Respondent on notice that it was charged with violating the Statute by implementing the change relating to second-time offenders. We note three things.

First, paragraph 6(a) of the complaint states that on or about June 22, 1987, the Respondent "notified the Union of its intention to change the penalties for failure to wear a seat belt while operating a motor vehicle." (Emphasis added.) This paragraph quite clearly refers to a change in more than one penalty and could, therefore, be read to encompass the changes for both first and second-time offenders. It is undisputed, however, that the Respondent's June 22 notice encompassed the change for first-time offenders only. In fact, the Respondent never "suggested or notified the Union that the [Respondent] also intended to increase the penalty for second[-]time violators." Judge's Decision at 6-7. As paragraph 6(a) clearly relates to the Respondent's notice, and as that notice clearly did not encompass the change for second-time offenders, we conclude that paragraph 6(a) does not encompass that change.

Second, the remaining subparagraphs in paragraph 6 all relate to the Respondent's notice and to the parties' bargaining in connection with that notice. In particular, paragraph 6(e) states that the Respondent issued the change to AFR 125-14 "which included the changes referenced in subparagraph 6(a) above." Similarly, paragraph 6(g) states that the Respondent "implemented the change described in subparagraph 6(e)" without providing the Union with notice and an opportunity to bargain. The complaint concludes that "[b]y the acts and conduct described in subparagraph[s] 6(e) and (g) . . . ," the Respondent violated the Statute.

Subparagraphs (e) and (g) refer both to "changes" and "the change." Nevertheless, both subparagraphs relate to the Respondent's June 22 notice. That notice did not encompass the change concerning second-time offenders, and, as noted above, the parties never discussed or negotiated over the change concerning second-time offenders. In these circumstances, we conclude that the use of the term "changes" in subparagraph(e) is not sufficient to include the change concerning second-time offenders within the scope of the complaint.

Third and finally, our interpretation of the complaint is buttressed by arguments and evidence presented by the General Counsel at the unfair labor practice hearing. Specifically, in his opening statement, the General Counsel's representative stated, in pertinent part:

When the union looked [the regulation] over, they realized back in 1988 they had been sandbagged, that the Air Force had changed the penalties, they had back in April of '88 issued a new change to their local regulations that increased the penalties from 10 days, 30 days and 60 days to a first time offender getting a 30-day suspension of driving privileges. That was the first the union knew of it.

Once they realized that, they filed this charge. That's our case.

Transcript of Proceedings (Tr.) at 10. Moreover, although the Union's president testified at the hearing that the new regulation encompassed changes in penalties for first- and second-time offenders (Tr. at 33), no other testimony or evidence was presented concerning the change as it related to second offenses.

Consistent with our reading of the complaint, the General Counsel's opening statement, and the record as a whole, we conclude that the complaint charged the Respondent with violating the Statute by implementing the change in the penalty for first-time offenders only. The complaint does not specify any change other than that contained in the Respondent's June 22 notice, that change related solely to first offenses, and the General Counsel's representative stated at the hearing that the case was about that change.

Moreover, even if the complaint were construed to be ambiguous, there is no indication that both parties understood the subject of the dispute as encompassing the change for second offenses and presented evidence relevant to that issue. Compare HCFA, 35 FLRA at 494 (although the complaint alleged a violation of a wrong section of the Statute, it was clear that the parties were fully aware of the alleged misconduct and fully addressed the issue). In these circumstances, we agree with the Judge that the Respondent was not put on notice that it was being charged with violations regarding any other changes. Therefore, we will adopt the Judge's recommended Order and dismiss the complaint in its entirety. Our action here should not be construed as an endorsement of any Agency action that may have violated the Statute, however.

VII. Order

The complaint is dismissed.

Dissenting Opinion of Member Talkin.

In my view, the complaint is sufficiently broad to encompass an allegation that the Respondent violated the Statute by implementing a change in the penalty for second-time offenders of the seat belt policy.

The charge in this case alleges:

Management implemented a change to the seat belt policy by issuing Change 2 to Base Supplement 1 to AFR 125-14, dated 14 Apr 88, changing the penalty for failure to wear available restraint devices without notifying the Union and affording it an opportunity to bargain.

Base Supplement 1 to AFR 125-14 provides penalties for first, second and third offenses of the Base seat belt policy. Therefore, the charge, which refers to the Respondent's change in the penalty set forth in that agreement, is clearly broad enough to encompass an allegation regarding penalties for second offenses, and the Judge so found. ALJ Decision at 7. In this respect, the Respondent had notice that it was being charged with a failure to give the Union proper notice and an opportunity to bargain about any changes it had made in the revised supplement to AFR 125-14.

In my view, the complaint also provided the Respondent with sufficient notice of the allegations with which it was charged. Admittedly, paragraph 6(a) of the complaint, by referring only to the Respondent's action of June 22, 1987, is confined to the change concerning first offenses. However, paragraph 6(e) expressly refers to the Respondent's conduct of April 14, 1988, on which date the Respondent issued the revised supplement, which contained changes in the penalties for both first and second offenses. Although paragraph 6(e) alleges that the revised supplement "included the changes referenced in subparagraph 6(a) above[,]" I do not read that lang