39:1381(121)CA - - Ogden Air Logistics Center, Hill AFB, UT and Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Local 1592 - - 1991 FLRAdec CA - - v39 p1381
[ v39 p1381 ]
The decision of the Authority follows:
39 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
March 22, 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 filed by the Respondents to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions.
The complaint alleges that the Respondents violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when Respondents declined the request of the Charging Party to bargain over a regulation entitled "Inspection of Government Provided Property." The Judge found that the Respondents violated the Statute.
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 those rulings. For the following reasons, which differ from those of the Judge, we find that Respondent Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (AFLC) violated the Statute. We further find that Respondent Ogden Air Logistics Center, Hill Air Force Base, Utah (Ogden) did not violate the Statute. We adopt the Judge's findings, conclusions, and recommendations to the extent consistent with this decision.
American Federation of Government Employees, AFL-CIO, (AFGE) is the exclusive representative of a nationwide unit of AFLC employees. AFGE, Council 214 is AFGE's agent, and Local 1592, the Charging Party herein, is an affiliate of the Council. Local 1592 represents the unit employees at Ogden's facility.
A. The Regulation and the Change
The regulation at issue, ALC Regulation 123-4, entitled "Inspection of Government Provided Property," originally was issued in 1979. Paragraph 4 e. reads:
e. If a private lock is damaged when removed in the absence of the employee, it will be replaced with a comparable lock or the owner advised he can present a claim for its value to Claims Division (JAD).
ALJ Decision at 3-4. With a cover letter dated December 21, 1987, Respondent Ogden forwarded to the Union for review an amended version of the regulation, not indicating how the regulation had been changed but asserting that "[t]he only change or addition . . . is . . . a reaffirmation of existing policy . . . ." ALJ Decision at 3. Subsequently, Ogden's agent told the Union that the change involved adding a last sentence to paragraph 4 e., to read:
No replacement or claim is authorized when the employee refuses or otherwise fails to remove the lock after being duly notified of the inspection.
Id. at 4.
By letter dated January 4, 1988, the Union requested bargaining over the regulation and asked that Respondent "remain status quo [sic] until all bargaining is completed . . . ."
Id. The Union also made various proposals, including the following:
4. All inspections of government property will only be done for reasonable cause: if there is a suspected violation of crime or activities, [sic] rules or regulations.
B. Ogden's Refusal to Bargain
Respondent Ogden initially thought the Union wanted to negotiate over its change, or addition, to ALC Regulation 123-4. ALJ Decision at 4. The Union informed the Respondent to the contrary, however, stating that its demand related not to any changes that management had made to the regulation, but rather to proposed mid-term bargaining on an independent proposal of its own initiation. Accordingly, by letter dated January 13, 1988, Ogden informed the Union as follows:
Before we engage in union initiated mid-term bargaining, procedures must be negotiated. As you are aware, the parties are currently negotiating procedures at the command and council level. Therefore, your proposals are returned without action until such time as procedures are in place.
Id. at 5.
By letter dated March 28, 1988, the Union renewed its demand to bargain on the regulation, stated that it had "authority from Council 214 to bargain on this matter" and requested that if Ogden's labor relations officer did not have authority to bargain, the bargaining demand be forwarded to the appropriate office.
On April 19, 1988, Ogden wrote to the Union stating that it failed to understand why the Union would need authority from the Council to bargain on the regulation, and repeating that the proposals had been returned because procedures for union-initiated mid-term bargaining were being negotiated at the command level. Ogden further noted that its earlier letter "did not specifically state but did imply [the Union] could resubmit [its] proposals once the procedures were in place." Id.
Ogden's labor relations officer, Kay Self, testified that she was instructed by AFLC not to enter into negotiations on union-initiated mid-term proposals until procedures, which were then being negotiated, were in place.
C. Related Cases Involving the Parties Herein
The Authority has decided two cases involving the same or related parties that turned on whether AFLC was acting in good faith in refusing to bargain about mid-term proposals initiated by Council 214, allegedly because AFLC was waiting for completion of bargaining over ground rules for mid-term negotiations. U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524 (1990) (Wright-Patterson I), and U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 912 (1990) (Wright-Patterson II).(1)
Both cases involved bargaining between the Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (Respondent AFLC herein) and AFGE Council 214, of which the Union is a constituent local, about mid-term bargaining procedures, or ground rules. Both arose contemporaneously with the instant case. Thus, union-initiated mid-term proposals in Wright-Patterson I were made on October 15 and November 3, 1987, and Respondent AFLC responded on November 6, 1987, with proposals for procedures by which to conduct the bargaining. AFLC returned the union's proposals and declined to bargain on the union-initiated substantive proposals until the ground rules were in place.(2) In Wright-Patterson II, the union made mid-term proposals in December 1987, and on December 24, 1987, AFLC again returned the union's proposals and refused to participate in mid-term bargaining on union-initiated proposals until ground rules were in place.(3) It was clear that the respondent in Wright-Patterson II, AFLC was basing its refusal to bargain on the same proposals on ground rules that it had made in Wright-Patterson I.(4)
In both cases, the Authority concluded that the refusal to bargain was not in good faith, finding that, among other things, the content of the ground rules proposals indicated a desire to "delay, or avoid, the bargaining process." Wright-Patterson II, 36 FLRA at 917, quoting Wright-Patterson I, 36 FLRA at 533. Accordingly, the Authority found in both cases that AFLC's refusal to bargain over the mid-term proposals violated section 7116(a)(1) and (5) of the Statute.
The bargaining demand in the instant case was made on January 4, 1988, and Respondent Ogden declined to bargain on January 13, because it claimed "the parties are currently negotiating procedures at the command and council level." ALJ Decision at 5. Clearly, the procedures being considered were the same as those proposed by Respondent AFLC on November 6, 1987, in Wright-Patterson I and cited as the basis for Respondent AFLC's refusal to bargain on December 24, 1987, in Wright-Patterson II.(5)
III. Administrative Law Judge's Decision
The Judge found, despite the assertions of both parties to the contrary, that the Union's proposal regarding inspection of government property was made in response to the change in the regulation proposed by Ogden and that the Union's demand to bargain was not a Union-initiated mid-term bargaining request. Therefore, he concluded that the Respondents had an obligation to bargain over the proposal at issue here. In view of that conclusion, the Judge found that the refusal to bargain violated section 7116(a)(1) and (5) of the Statute.
The Judge found that AFLC violated the Statute by instructing Ogden not to enter into mid-term negotiations until procedures were in place. Although the Judge acknowledged the reluctance of the Authority to find a violation against an activity that acts ministerially and without discretion, he found that, in the circumstances, Ogden, as well as AFLC, violated the Statute. He based this conclusion on the fact that Ogden acquiesced in the Union's assertion that the proposals were initiated by the Union, although Ogden initially had concluded that the proposals were in response to Ogden's changes in the regulation.
The Judge stated that if it should be determined that the Union's proposal was not related to Ogden's change in the regulation, but rather was a Union-initiated mid-term bargaining proposal, he would find no violation "for the reasons fully set forth" in his decision in Wright-Patterson IV. ALJ Decision at 8.(6)
IV. Positions of the Parties
In their exceptions, the Respondents argue that the Judge improperly changed the complaint and decided the case on an issue that was not recognized by the parties when he found that the proposal was not Union-initiated, but rather was a response to Ogden's change. Therefore, they ask that the Judge be reversed, or that the case be reopened and remanded to the Judge to be heard on the basis of the issues as he perceived them.
The Respondents also except to the Judge's findings that Ogden acquiesced in the Union's assertion that its proposals were Union-initiated bargaining and that the order of the AFLC was a contributing cause of the refusal to bargain, and to the Judge's recommendation that Ogden be held liable for any violations of the Statute.
The General Counsel contends that the complaint is broad enough to encompass the violation found. Although the basis of the violation was other than that originally advanced, the General Counsel argues that there is no requirement that the Judge or the Authority limit consideration of a case strictly to those theories and issues addressed by the parties.
Also, the General Counsel disputes the Respondents' contention that the record should be reopened to give them sufficient opportunity to develop the record in connection with the allegations as viewed by the Judge. In support of that position, the General Counsel notes that there is no showing that the Respondents were prejudiced by the conduct of the hearing.
In addition to opposing the Respondents' exceptions, the General Counsel also addresses the Judge's "alternate" holding that there would be no violation if it were later determined, contrary to the Judge's finding, that the proposal was Union-initiated. The General Counsel argues that neither the present case nor the record in Wright-Patterson IV supports the Judge's conclusion, based on his interpretation of the MLA, that AFGE waived its right to initiate mid-term bargaining.
V. Analysis and Conclusions
Contrary to the Judge, we conclude that the proposal was initiated by the Union. There is a duty to bargain over union-initiated mid-term bargaining proposals over matters not addressed in the parties' agreement unless the union has waived the right. Internal Revenue Service, 29 FLRA 162 (1987) (IRS). Contrary to the Judge's alternative disposition of this case, we find that AFGE did not waive Local 1592's right and that there was a duty to bargain on the proposals. Finally, we conclude that the responsibility to bargain resided only with AFLC. Ogden's refusal to bargain was ordered by AFLC, and Ogden was left with no discretion to bargain over the mid-term proposal. Accordingly, we will dismiss the complaint against Ogden.
A. The Proposal Was Union-Initiated
On December 21, 1987, Ogden sent for Union review an amended version of ALC Regulation 123-4 to William S. Shoell, president of Local 1592. The Judge gave no weight to Shoell's testimony that the Union's subsequent bargaining demand did not relate to any changes which management had made to the regulation, "[i]n view of Mr. Shoell's self-serving insistence that the Union's proposals were union initiated[.]" ALJ Decision at 7 n.5. Nevertheless, it is uncontroverted that (1) on January 8, Shoell informed Ogden's labor relations officer that the proposal was Union-initiated and not a response to management's regulation change; and (2) from that time, Ogden treated the proposal as Union-initiated mid-term bargaining.
Moreover, we note Shoell's explanation that he decided to make the proposal because "[a]fter reading paragraph one where . . .management could do an inspection for any reason they wanted to at any time, I had a problem with that. . . . I thought there should be a reasonable cause." Tr. 21.(7) In our view, this testimony demonstrates the plausibility of a finding that the Union was in fact initiating bargaining on ALC Regulation 123-4 in general. Indeed, the Judge conceded that "[t]he Union's proposal about 'reasonable cause', . . . does, certainly, directly relate to '. . . subject to inspection for any reason . . .' of Paragraph 1[.]" However, the Judge then states:
[that the proposal] could also directly relate to "refuses or otherwise fails to remove [of paragraph 4 e.]," i.e., unless the employee for "reasonable cause" refuses, etc. In any event, even if the Union's "reasonable cause" proposal were deemed to relate solely to Paragraph 1, . . . as part of the same Base Regulation, the Union's proposal related to the change which Ogden sought to make . . . .
ALJ Decision at 7-8.
We do not agree. If it could be established that the proposal in fact related only to a part of the regulation that had not been changed by Ogden, we would not find that the proposal related to that change. In other words, if the Union's "reasonable cause" proposal related solely to Paragraph 1, the proposal would clearly be a Union-initiated effort to change a condition of employment. On the other hand, if it could be shown that the Union proposal only related to the part of paragraph 4 e. that Ogden had changed, it would be a response to Ogden's change. Despite the Judge's analysis, we conclude that either interpretation is reasonable.
Therefore, based on the foregoing, we conclude that it cannot be clearly demonstrated from its wording whether Union proposal 4 related to and was an attempt to bargain over management's proposed change in the regulation, or whether it was a Union-initiated proposal unrelated to the change proposed by management.
In our view, given the ambiguity in the language of the proposal, the fact that the Union characterized its proposal as a new proposal unrelated to management's change is entitled to considerable weight. Where the request could logically fit either description, the Union could expect its description to be relied upon, and Ogden could, and did, rely on the Union's assertion in these circumstances. Accordingly, as there is a reasonable basis for finding the proposal to be a new proposal as asserted by the Union and Ogden relied on that assertion, we conclude that the proposal resulted from union-initiated mid-term bargaining.
B. AFGE Did Not Waive Local 1592's Right to Bargain over Its Mid-term Proposal
In view of our determination that the proposal was a Union-initiated request for mid-term bargaining, there was an obligation to bargain unless AFGE had waived Local 1592's right. IRS. Under these circumstances, the Judge stated that he would nevertheless find no violation for the reasons set forth in his decision in Wright-Patterson IV. We find, however, that the Judge's analysis in that case is inapposite. The sole reason that Ogden here refused to bargain was its insistence that it wait until the procedures for mid-term bargaining were in place. The Respondents did not raise the negotiated agreement as a bar, or argue that Local 1592 needed to have a delegation of authority from the Council, or that such delegation had to be agreed upon by the Council and AFLC under the terms of the parties' MLA, as was done in Wright-Patterson IV. In fact, in this case, after Ogden had refused to bargain, Shoell renewed the demand and stated that he had authority from the Council to bargain on the matter, and asked Ogden's representative to forward the request to the proper office if she were not the person with authority to bargain on behalf of management. The representative answered, "I . . . fail to see why you would need the authority from Council 214 to bargain on [the regulation]." ALJ Decision at 5. Clearly, the parties were not basing their actions on the language of the MLA as interpreted by the Judge. Accordingly, we conclude that the Judge's decision in Wright-Patterson IV is not relevant here.
C. The Refusal to Bargain Pending Completion of Ground Rules Negotiations Was Not Made in Good Faith
As detailed above in section II C., the ground rules proposals that were raised by Ogden in this case as the basis for its refusal to bargain on the Union's mid-term proposals were the subject of analysis in Wright-Patterson I and II. We concluded in those cases that the refusal to bargain was not in good faith, finding, among other things, that the content of the ground rules proposals indicated a desire to "delay, or avoid, the bargaining process." Wright-Patterson II, 36 FLRA at 917, quoting Wright-Patterson I, 36 FLRA at 533. We reach the same conclusion here.
We note in addition that the timing of the events in Wright-Patterson I and II is so close to the events here that it lends further support to our finding of bad faith. The refusals to bargain over Council 214's proposals in Wright-Patterson I and II occurred on November 6 and December 24, 1987, respectively; the request to bargain in this case was on January 4, 1988, and the refusal occurred on January 13, 1988. Thus, three times in a period of 2 months AFLC, or Ogden at AFLC's request, refused to meet its obligation to bargain over union-initiated mid-term proposals. And each refusal was based on the insistence that the parties must first agree upon ground rules, which, as found by the Authority, were designed to delay or avoid the bargaining process.
D. Respondent AFLC Violated the Statute; the Complaint Against Respondent Ogden Will Be Dismissed
It is undisputed that AFLC directed Ogden not to bargain about union-initiated mid-term proposals until ground rules were in place. As we have found that this refusal was a failure to bargain in good faith, we find that AFLC interfered with the bargaining relationship between Ogden and the exclusive representative of its employees, AFGE, and thereby violated section 7116(a)(1) and (5) of the Statute.
Although the Judge found that Ogden was instructed by AFLC not to enter into Union-initiated mid-term negotiations until procedures were in place, ALJ Decision at 8, he nevertheless found that Ogden did not act without discretion. He reached this conclusion because "it was Ogden who acquiesced with the Union's assertion that its proposals were Union initiated mid-term bargaining proposals, although Ogden had initially reached a contrary conclusion." Id. at 9 (emphasis in original). In the Judge's view, Ogden had the discretion to decide that the proposal was Union-initiated and when it exercised that discretion, it violated the Statute, because otherwise, it would have been free to bargain over the Union's proposal as a response to its own change in the regulation.
It is unnecessary to pass on the merits of the Judge's analysis in view of our conclusion that the proposal was initiated by the Union. The orders of AFLC left Ogden with no discretion to bargain over Union-initiated mid-term proposals until ground rules were in place. Consequently, Ogden's refusal to bargain was merely a ministerial act, and we shall dismiss the complaint as to Ogden. Departments of the Army and the Air Force National Guard Bureau and Montana Air National Guard, 10 FLRA 553, 556 (1982), rev'd on other grounds sub nom. Montana Air National Guard v. FLRA, 703 F.2d 577 (9th Cir. 1984).
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, we order that Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Directing Ogden Air Logistics Center, Hill Air Force Base, Utah (Ogden) to fail or refuse to bargain with American Federation of Government Employees, AFL-CIO, Local 1592, an affiliate of the agent of the exclusive representative of its employees, concerning the Union's mid-term bargaining proposal on "reasonable cause" for inspections under Regulation ALC Regulation 123-4.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Inform Ogden and the Union, in writing, that Ogden is free to negotiate with the Union concerning the Union's mid-term bargaining proposal on "reasonable cause" for inspections under ALC Regulation 123-4.
(b) Upon request, direct Ogden to bargain, to the extent consistent with applicable law, rule and regulation, with American Federation of Government Employees, AFL-CIO, Local 1592, an affiliate of the agent of the exclusive representative of its employees, concerning the Union's mid-term bargaining proposal on "reasonable cause" for inspections under ALC Regulation 123-4.
(c) Post at its facilities at Ogden Air Logistics Center, Hill Air Force Base, Utah, where bargaining unit employees represented by American Federation of Government Employees, AFL-CIO, Local 1592 are located, 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, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including 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, Denver Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
It is further ordered that the complaint in this case against Ogden Air Logistics Center, Hill Air Force Base, Utah be dismissed.
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT direct Ogden Air Logistics Center, Hill Air Force Base, Utah (Ogden) to fail or refuse to bargain with American Federation of Government Employees, AFL-CIO, Local 1592, an affiliate of the agent of the exclusive representative of our employees, concerning the Union's mid-term bargaining proposal on "reasonable cause" for inspections under ALC Regulation 123-4.
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 Statute.
WE WILL inform Ogden and the Union, in writing, that Ogden is free to negotiate with the Union concerning the Union's mid-term bargaining proposal on "reasonable cause" for inspections under ALC Regulation 123-4.
WE WILL, upon request, direct Ogden to bargain to the extent consistent with law, rule and regulation, with American Federation of Government Employees, AFL-CIO, Local 1592, an affiliate of the agent of the exclusive representative of our employees, concerning the Union's mid-term bargaining proposal on "reasonable cause" for inspections under ALC Regulation 123-4.
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, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204, and whose telephone number is: (303) 844-2774.
(If blank, the decision does not have footnotes.)
1. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA No. 122 (Wright-Patterson IV), issued this date, involves the same parties as in the instant case and similar issues.
2. These ground rules proposals are set out in the Appendix to Wright-Patterson I, 36 FLRA at 538-39.
3. Mid-term proposals in Wright-Patterson IV were made on July 23, 1987, and Ogden refused to bargain on July 28, 1987, citing a contract defense. As noted, in the instant case mid-term proposals were made on January 4, 1988, and Respondent Ogden refused to bargain on January 13, 1988.
4. In Wright-Patterson II, AFLC's answer to Council 214's request read as follows:
Before we engage in union initiated mid-term bargaining, procedures will have to be negotiated. As you know, the parties are currently engaged in such negotiations. Your proposals are therefore returned without action until such time as procedures for union initiated mid-term bargaining are in place.
36 FLRA at 914.
5. At the hearing in the instant case on September 14, 1988, the Respondents' witness referred to ground rules proposals that it said were then before the Federal Service Impasses Panel (the Panel). We recognize that those proposals differ in some respects from the proposals at issue in Wright-Patterson I and II. Nonetheless, we conclude that Respondent Ogden was referring to the same ground rules proposals on January 13, 1988, that Respondent AFLC had proposed on November 6, 1987, (see Wright-Patterson I, 36 FLRA at 525), and relied on for its refusal to bargain on December 24, 1987, (see Wright-Patterson II, 36 FLRA at 914). We draw this conclusion based on the close timing between the events in the three cases as well as the following additional factors. The language in Ogden's January 13, 1988, letter was strikingly similar to the letter delivered to Council 214 one month earlier in Wright-Patterson II. Where the December letter had referred to ground rules negotiations between "the parties," however, the letter in this case referred to negotiations "at the command and council level," a clear reference to the parties and the negotiations at issue in the earlier cases. Finally, the record in Wright-Patterson II indicated that at the time of the hearing in that case, in August 1988, the ground rules dispute remained unresolved before the Panel. 36 FLRA at 916. There is no indication that the ground rules proposals referred to in this case were the subject of a separate filing before the Panel. Thus, any differences between the proposals referred to in the hearing in this case and the proposals at issue in the earlier cases must have been the result of changes made while the dispute was pending at the Panel.
6. The parties in Wright-Patterson IV were the same as here. They were subject to a master labor agreement (MLA), which appears to be the same agreement in effect and applicable to the parties in the instant case. A mid-term bargaining proposal was made by the Union on July 23, 1987, and Ogden refused to bargain on this proposal on July 28. Thereafter, as established in Wright-Patterson I, on or about November 6, 1987, AFLC, at the national level, submitted proposals on union-initiated mid-term bargaining. On November 13, Council 214 submitted counterproposals and later requested the assistance of the Federal Mediation and Conciliation Service.
In Wright-Patterson IV, the Judge concluded that, by the terms of the negotiated agreement