39:1409(122)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 p1409

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[ v39 p1409 ]
The decision of the Authority follows:

39 FLRA No. 122












LOCAL 1592

(Charging Party)



March 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondents did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when Respondent Ogden Air Logistics Center, Hill Air Force Base (Ogden) refused to bargain with the Charging Party on the procedures for the selection of employees for the mobility team at Hill Air Force Base.

The General Counsel filed exceptions to the Judge's Decision. The Respondents did not file 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. The rulings are hereby affirmed. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with our decision.

II. Facts

Air Force Logistics Command (AFLC) headquarters are located at Wright-Patterson Air Force Base, Ohio. The nationwide unit of AFLC employees includes employees at several centers, including employees who work at Ogden.

The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of the nationwide unit. AFGE Council 214 (Council 214) is the AFGE's agent for unit employees in the AFLC. Local 1592 is an affiliate of Council 214. The President of Local 1592 is William S. Shoell, who also serves as Executive Vice-President of Council 214.

The AFLC and Council 214 are parties to a master labor agreement (MLA). Section 33.02 of the MLA deals with command-level negotiations, that is, negotiations at the level of exclusive recognition. Section 33.02 c. of the MLA states: "[t]he parties may mutually agree to delegate responsibility for negotiations to subordinate activities and local Union officials." Section 33.03 addresses negotiations at the activity level and specifically incorporates the provisions of Section 33.02 c.

Article 34 of the MLA provides for local supplements to the MLA. However, only one supplemental agreement may be negotiated by each subordinate AFLC activity. Local 1592 and Ogden had negotiated a memorandum of understanding which was in effect from February 15, 1980 until August 5, 1987. The memorandum was replaced by a local supplemental agreement effective August 6, 1987.

The MLA addresses mid-term bargaining at both the command and activity levels. However, when the MLA was negotiated, the parties contemplated mid-term bargaining only with respect to management-initiated changes, and, by its terms, the MLA addresses only management-initiated changes.

At each AFLC activity, a mobility team is formed to move personnel and equipment of tenant organizations overseas or bring them back from overseas assignments. The mobility teams participate in exercises which are conducted about every 6 weeks. The advantage of serving on a mobility team is the opportunity to perform totally different work and earn overtime pay.

Neither the MLA nor the local supplemental agreement addresses mobility teams. Ordinarily, volunteers staff the mobility teams. In June 1987, two unit employees who had not volunteered notified Local 1592 of their displeasure at being designated to serve on a mobility team. On July 2, 1987, the Acting President of Local 1592 asked Ogden for information on the procedures used to select mobility team members. On July 21, 1987, Ogden briefed Local 1592 on the procedures used.

On July 23, 1987, Local 1592 President Shoell wrote Ogden, demanding to bargain mid-term "on the selection and appointment of individuals to the mobility team." Judge's Decision at 5. In the same letter, Shoell stated "Local 1592 feels that there needs to be a procedure set up in regards to selecting employees when there are not enough volunteers available to be assigned to mobility and other such exercises." Id.

Ogden responded on July 28, 1987, stating that the mobility team "selection process has remained unchanged since its inception many years ago. Therefore, there is no 'change in conditions of employment' regarding this issue . . . . [and] bargaining on this subject is inappropriate." Id.

In November 1987, AFLC and Council 214 exchanged proposals at the national level on Union-initiated mid-term bargaining procedures. On November 23, 1987, Council 214 filed an unfair labor practice charge alleging that AFLC was refusing to bargain over mid-term bargaining procedures, and on, March 18, 1988, filed another unfair labor practice charge alleging that AFLC was delaying bargaining on other subjects until the mid-term bargaining procedures were finalized. The General Counsel issued complaints as to both matters, and the Authority found that AFLC had committed the unfair labor practices alleged. See 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 36 FLRA 912 (1990) (Wright-Patterson II). In Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA No. 121 (1991) (Wright-Patterson III), the Authority found that Respondent AFLC committed an unfair labor practice by interfering with the bargaining relationship between Ogden and AFGE, the exclusive representative of its employees, by instructing Ogden to refuse to bargain on a mid-term proposal until mid-term bargaining procedures were finalized.

III. The Judge's Decision

The Judge placed the events of this case in the chronological context of the development of precedents applicable to the issues in this case. Prior to 1987, the Authority had held that management was not obligated to negotiate over union-initiated mid-term bargaining proposals, except where changes in conditions of employment were sought by management or where the parties had agreed to reopen the agreement. In National Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987), the court overturned Authority precedent regarding mid-term bargaining. The court set aside the Authority's decisions and remanded the case to the Authority for a revised decision.

In the Authority's decision on remand, Internal Revenue Service, 29 FLRA 162 (1987), the Authority concluded that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the agreement and were not clearly and unmistakably waived by the union during negotiation of the agreement. Internal Revenue Service was issued after Local 1592's demand to bargain and Ogden's subsequent declination.

The Judge concluded that the subject of selection of mobility team members was not covered by any of the applicable collective bargaining agreements. The Judge also found that there was no evidence that AFGE had waived its right to negotiate over this subject.

However, the Judge noted that Local 1592 might be precluded from mid-term bargaining on any issue. Judge's Decision at 6-7. The Judge stated that in consolidated bargaining units, such as the unit here which represents multiple AFLC activities, the agency may refuse to bargain with a local union unless the parties have agreed to permit supplemental negotiations at the activity level. The Judge found that, in this case, the parties had agreed that only a single supplemental agreement would be negotiated at the activity level, and that a supplemental agreement had already been negotiated between Ogden and Local 1592. The Judge also found that the parties had agreed in Section 33.02 c. to permit local negotiations only by mutual agreement of Council 214 and the AFLC.

The Judge stated that "[q]uite probably the reason that the MLA makes no reference to Union initiated proposals for changes in conditions of employment is that, at the time the MLA was negotiated . . ., agencies were not obligated to bargain, mid-term, on union initiated changes in conditions of employment." Id. at 9. The Judge noted that obligations to bargain are governed by the state of the law at the time a case is decided.

The Judge determined that Ogden was not obligated to bargain on the mobility team mid-term proposal initiated by Local 1592 because the parties' MLA limits local negotiations to a single supplemental agreement, which had already been completed. The Judge found that further negotiations at the activity level could occur only by mutual agreement of Council 214 and AFLC. The Judge found that although Council 214 may have delegated authority to Shoell to negotiate mid-term, that delegation was not communicated to management. According to the Judge, nothing in the record showed that AFLC had delegated authority to Ogden for mid-term negotiations. The Judge concluded that "since there was no mutual agreement of the Parties for local bargaining, Ogden was under no obligation to bargain with the Union [Local 1592]." Id. at 10 (footnote omitted).

The Judge found that Council 214 could have initiated mid-term negotiations on mobility team selections, but did not do so. The Judge stated that the effect of the Authority's decision in Internal Revenue Service was to amend the parties' MLA, by operation of law, to permit Union-initiated mid-term bargaining requests but that Internal Revenue Service had no effect on that portion of the parties' MLA which governs the manner in which negotiations are to be conducted. The Judge found that interpreted in this manner, AFGE's right to initiate mid-term bargaining is protected; that is, AFGE could have Council 214 request mid-term bargaining with AFLC or could suggest that both the Council and AFLC mutually delegate bargaining authorization to a lower level.

The Judge also determined that Ogden's failure to cite a contract defense when initially responding to Local 1592's request for mid-term bargaining on mobility team selection did not bar the later assertion of the defense. The Judge stated that when Ogden initially refused to bargain, its position was fully in accord with Authority precedent and the parties' agreements. The Judge found that AFGE was not prejudiced by Ogden's failure to cite a contract defense because AFGE could still have initiated mid-term bargaining on mobility team selection through Council 214. The Judge noted that after the Authority's issuance of Internal Revenue Service, AFGE could have renewed the mid-term bargaining request, but did not do so. Finally, the Judge determined that the AFGE did not rely to its detriment on Ogden's failure to assert its contract defense.

The Judge concluded that while there was no dispute that Ogden refused to bargain with Local 1592 over mid-term proposals on mobility team selection, the refusal did not violate section 7116(a)(1) and (5) of the Statute. The Judge recommended that the complaint be dismissed.

IV. The General Counsel's Exceptions

The General Counsel excepts to the Judge's determinations that: (a) the request to bargain was made at the activity level; (b) "Local 1592, by negotiating one supplemental agreement, ha[d] waived its right to initiate further mid-term bargaining proposals"; and (c) Ogden was not barred from raising the contract defense. Exceptions at 3-4.

A. The Request to Bargain

The General Counsel excepts to the Judge's finding that Shoell initiated the mid-term bargaining request as Local 1592 President, and not as Executive Vice-President of Council 214. The exceptions state:

Although the request to bargain was made on Local 1592 letterhead, Shoell could have made the request on Council 214 letterhead. The type of letterhead on which the request was made is irrelev[a]nt; Counsel for the General Counsel concedes that Shoell made the request at the Local level, but contends he made that request in his capacity as Executive Vice-President of the Council as well as President of Local 1592.

Exceptions at 3. The General Counsel also excepts to the Judge's failure to find that Shoell's position as Executive Vice-President of Council 214 gave him authority to initiate mid-term bargaining at either the command or activity level.

B. The MLA

The General Counsel states that a waiver of a statutory right must be clear and unmistakable. The General Counsel contends that because the Judge did not consider any evidence concerning the interpretation of the pertinent MLA language, such as bargaining history or past practice, no finding of waiver may be made. The General Counsel asserts that the Judge made a unilateral interpretation of the MLA. The General Counsel argues that if the Judge believed that the MLA language was clear and unambiguous and, therefore, could determine its meaning, the Judge's rationale is "totally illogical." Exceptions at 4.

The General Counsel states that at the time the MLA was negotiated, "Federal unions had no right to initiate mid-term bargaining." Id. The General Counsel relies on precedent in which "the Authority has repeatedly ruled that it is difficult if not impossible to anticipatorily waive a right that does not presently exist." Id. at 5. The General Counsel also distinguishes Authority precedent in which a "zipper clause" is present. The General Counsel argues that a clear and unmistakable waiver could not exist and that the Judge has "read into" the language of the agreement a particular meaning "without the assistance of evidence" and has made an independent interpretation. Id. at 8.

The General Counsel alleges that the Judge erred by concluding that Ogden was not obligated to bargain on the mid-term proposal initiated by Local 1592 because, as the Judge found, the parties' MLA: (a) specifically limits local union-initiated mid-term negotiations to a single supplemental agreement, which Local 1592 had already negotiated and which waives Local 1592's right to initiate further mid-term bargaining; and (b) permits local negotiations only by mutual agreement of Council 214 and the AFLC. The General Counsel also asserts that the Judge erred by concluding that Ogden's failure to initially assert the contract defense in its refusal to bargain did not bar that defense.

The General Counsel asserts that the Judge's interpretation of the parties' MLA "destroys the bargaining equality the Authority sought to establish in its Internal Revenue Service decision." Id. at 6. The General Counsel contends that the Judge incorrectly interpreted and applied the plain wording of the parties' MLA. The General Counsel argues that under the Judge's interpretation, the AFLC may make changes during the life of the agreement, but Local 1592 cannot initiate proposed changes. The General Counsel contends that, in his dual capacity as Local 1592 President and Executive Vice-President of Council 214, Shoell has power delegated to him to bargain on behalf of Council 214. The General Counsel argues that if AFLC chooses not to delegate its authority to Ogden to negotiate, "it should be required to recognize Local 1592 as Council 214's properly designated representative, and should be required to bargain with the Local." Id. at 9. The General Counsel asserts that the MLA "should not prevent Local 1592, as the Council's properly designated representative, from being able to bargain with 'somebody' over the mobility teams." Id.

The General Counsel argues that the Authority precedent relied on by the Judge regarding bargaining at the level of recognition was decided prior to Internal Revenue Service. The General Counsel states that there have been no Authority decisions issued subsequent to Internal Revenue Service which apply the Authority's precedent on bargaining at the level of recognition to mid-term bargaining situations.

C. The Failure to Raise a Contract Defense

The General Counsel asserts that either Ogden or AFLC was obligated to bargain with Local 1592. According to the General Counsel, when Local 1592 submitted the mobility team mid-term bargaining request, Ogden should have informed Shoell that it did not have the authority to bargain, so that Shoell "could have made the request to bargain at the Council level." Exceptions at 11. The General Counsel argues that "the Local was obviously prejudiced by [Ogden's] failure to raise the contract defense." Id. The General Counsel contends that Ogden's failure to raise the contract defense precluded Shoell from bringing the mobility team issue to the command level. The General Counsel argues that Local 1592 had no reason to believe that a renewed request at the command level would receive a more favorable response.

The General Counsel contends, in agreement with the Judge, that the contract defense is "vulnerable." Id. at 12. However, the General Counsel disputes the Judge's application of law. Because Internal Revenue Service had been issued prior to the Judge's decision, the General Counsel argues that it is controlling. Id. The General Counsel disagrees with the Judge's finding that Ogden's refusal to bargain was not in violation of the Statute because the MLA language discussed above precluded Local 1592 from initiating mid-term bargaining. The General Counsel contends that "the Judge was incorrect in ruling that [the] contract language prevented the Local from initiating bargaining." Id.

V. Analysis and Conclusions

The Authority discussed bargaining obligations within a consolidated bargaining unit in Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981). The Authority held that

the mutual obligation to bargain as articulated in the Statute exists only at that level of exclusive recognition with respect to conditions of employment which affect any employees within the unit; a contrary result would render consolidation meaningless. In other words, once a labor organization is certified as the exclusive representative for a consolidated unit, as here, a new bargaining obligation is created in lieu of such obligations which previously existed regarding smaller units now included in the consolidated unit.

6 FLRA at 204 (footnote omitted). See Department of Defense Dependents Schools and Overseas Education Association, 12 FLRA 52, 53 (1983).

We conclude that the request to bargain over mobility team assignments was made to Ogden by Local 1592. Local 1592 is an affiliate of Council 214, which is the agent of AFGE, the exclusive representative.

In this consolidated bargaining unit, therefore, to be effective, a request to bargain must have been made by AFGE, or by its agent, Coun