44:0117(11)CA - - HQ, Air Force, Washington, DC and 375th Combat Support Group, Scott AFB, IL and NAGE Local R7-23 - - 1992 FLRAdec CA - - v44 p117

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[ v44 p117 ]
44:0117(11)CA
The decision of the Authority follows:


44 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

HEADQUARTERS, U.S. AIR FORCE

WASHINGTON, D.C.

AND

375TH COMBAT SUPPORT GROUP

SCOTT AIR FORCE BASE, ILLINOIS

(Respondents)

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R7-23, AFL-CIO, SEIU

(Charging Party/Union)

75-CA-10048

DECISION AND ORDER

February 27, 1992

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the exceptions.

The complaint alleges that Respondent Headquarters, U.S. Air Force (HQ USAF) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by directing Respondent 375th Combat Support Group, Scott Air Force Base (Scott AFB) to issue notices of proposed furlough to employees. The complaint further alleges that Respondent Scott AFB violated section 7116(a)(1) and (5) of the Statute by issuing the notices of proposed furlough without providing the Union with adequate notice and an opportunity to negotiate over the impact and implementation of the notices.

The Judge concluded that the portions of the complaint alleging that Respondent HQ USAF violated the Statute were barred by section 7118(a)(4) of the Statute and dismissed them. The Judge further concluded that Respondent Scott AFB did not violate the Statute by issuing the notices of proposed furlough to bargaining unit employees because the notices did not effect a change in conditions of employment.

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 hearing and find that no prejudicial error was committed. We affirm the rulings. We find, however, contrary to the Judge, that Respondent HQ USAF violated the Statute, as alleged in the complaint. We further find, for reasons which differ from those of the Judge, that Respondent Scott AFB did not violate the Statute.

II. Background

The Union is the exclusive representative of two bargaining units of employees assigned to Respondent Scott AFB. Respondent Scott AFB is a subordinate level activity of Respondent HQ USAF.

On August 20, 1990, the Office of Management and Budget issued a report indicating that the President would be required under the Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act of 1985, as amended, to issue an initial sequestration order to withhold funds beginning October 1, 1990. Following the issuance of the report, Respondent HQ USAF "was hoping that a budget resolution could be reached or at least that a continuing resolution could be reached." Respondents' Post-Hearing Brief at 5. Respondent HQ USAF "was also reviewing other sources for the anticipated budget sequester." Id.

When the President vetoed the Congressional Budget Act on September 14, 1990, Respondent HQ USAF "decided that resolution was not likely and that notices of proposed furlough were necessary." Id. at 5. Accordingly, on September 14, Respondent HQ USAF directed all subordinate Air Force units to issue notices of proposed furlough to all appropriated fund civilian employees in the Air Force by September 18, 1990. Also on September 14, Respondent Scott AFB informed the acting Union President that management would issue notices of proposed furlough to unit employees on Monday September 17, 1990. The acting Union President informed Respondent Scott AFB that "the Union did not concur with the issuance of the notices." Judge's Decision at 3.

On September 17, Respondent Scott AFB delivered a sample copy of the notice to the acting Union President. The Union President, who had returned from leave, informed Respondent Scott AFB that "the Union did not concur with the issuance of the notices." Id. Respondent Scott AFB distributed the notices of proposed furlough to approximately 3500 Scott AFB employees on September 18, 1990. The furlough mentioned in the notice of proposed furlough did not occur.

On October 16, 1990, the Union filed an unfair labor practice charge alleging that Respondent Scott AFB violated the Statute by issuing furlough letters to unit employees "over the objections of the union and without notice to or negotiations with the union." G.C.'s Exh. 1(a). On March 15, 1991, the Union filed an amended unfair labor practice charge alleging that Respondents HQ USAF and Scott AFB violated section 7116(a)(1) and (5) of the Statute when "on or about September 17 and 18, 1990, the Employer issued notices of proposed furloughs to unit employees without providing the union with prior notice or opportunity to bargain." G.C. Exh. 1(c). The General Counsel issued a complaint alleging that: (1) Respondent HQ USAF violated section 7116(a)(1) and (5) of the Statute by interfering with the bargaining relationship between Respondent Scott AFB and the Union; and (2) Respondent Scott AFB violated section 7116(a)(1) and (5) of the Statute by issuing the notices of proposed furlough without providing the Union with adequate notice and an opportunity to negotiate over the impact and implementation of the notices.

Respondent HQ USAF filed a motion with the Administrative Law Judge pursuant to §2423.22 of the Authority's Rules and Regulations requesting that the complaint against it be dismissed on the grounds that (1) the amended charge against it was untimely filed; and (2) it was not properly served with a copy of the amended charge.

III. Administrative Law Judge's Decision

A. Motion to Dismiss

At the opening of the hearing, the Judge granted Respondent HQ USAF's motion to dismiss the complaint as to it. The Judge found that the amended charge against Respondent HQ USAF was barred by section 7118(a)(4) because it was filed more than 6 months after the alleged unfair labor practice occurred. In the Judge's view, "any action that was taken by Headquarters which may have constituted an unfair labor practice occurred on September 14, 1990[.]" Transcript at 8-9. The Judge also found that the amended charge did not put Respondent HQ USAF on notice that it might be required to defend itself against an allegation that it committed an independent unfair labor practice. The Judge issued an order dismissing the complaint as to Respondent HQ USAF.

B. Merits

The Judge concluded that Respondent Scott AFB did not violate section 7116(a)(1) and (5) of the Statute by issuing the notices of proposed furlough to bargaining unit employees because, in the Judge's view, the issuance of the notices did not change unit employees' "conditions of employment," as defined in section 7103(a)(14) of the Statute.

The Judge noted the General Counsel's contention that the issuance of the notices of proposed furlough to unit employees changed their working conditions by placing them in a status in which they were subject to being furloughed within 30 days if a decision was later made to implement a furlough. The Judge stated that "there [was] no question but that the change of an employee's status from working and being paid to not working and not being paid [was] a change in conditions of employment, whatever the mechanism for the change." Judge's Decision at 4-5. However, in the Judge's view, the issue in this case was "whether a contemplated change in a condition of employment was or was not actually 'implemented.'" Id. at 5.

The Judge noted that, in Department of the Air Force, Scott Air Force Base, Illinois, 35 FLRA 844 (1990) (Member Armendariz dissenting) (Scott AFB), the Authority rejected the agency's contention that the issuance of RIF notices to unit employees did not constitute implementation of the RIF. The Judge also noted that in Scott AFB, the Authority held that the issuance of RIf notices changed conditions of employment because "the issuance of specific RIF notices identifies particular employees who will be affected by the RIF, subjects those employees to changes in pay status due to lack of work or funds, and requires employees to make decisions which affect significantly their employment in an agency[.]" Judge's Decision at 6 (quoting Scott AFB, 35 FLRA at 854). However, according to the Judge, this case was distinguishable from Scott AFB because:

[t]he employees who received the notice of proposed furlough in the instant case had not by then been subject to a determination that their positions would be affected by a furlough in the event a furlough occurred. Their receipt of the notice did not subject them to any change in pay status during the notice period.

Id. (footnote omitted). In the Judge's view, the notice "naturally caused [employees] concern and made it advisable [for them] to plan for such eventuality," but did not require them "'to make decisions which affect[ed] significantly their employment' in the sense in which the Authority used this phrase in [Scott AFB]." Id. Therefore, the Judge found that the issuance of the notices of proposed furlough to the employees did not constitute a change in their conditions of employment.

The Judge also considered, and rejected, the General Counsel's contentions that the Union was entitled to an opportunity to bargain over the content of the furlough notice and the amount of official time available to employees to prepare a response to the notice. The Judge determined that the content of the notice was negotiable and that "a union may, in anticipation of the possibility of a future RIF-producing development, compel an agency to negotiate in advance over contract language to cover the contents of a RIF notice necessitated by such future event." Id. at 7. However, according to the Judge, until such an agreement was reached, "agencies were free to draft notices unilaterally in the absence of specific proof that their issuance changed conditions of employment." Id. Regarding the General Counsel's contention that the Union is entitled to negotiate over the amount of official time available to employees to prepare a response to the notice, the Judge concluded that whether official time for such preparation is negotiable must be determined in a negotiability appeal.

IV. General Counsel's Exceptions

A. Motion to Dismiss

The General Counsel asserts that the Judge incorrectly ruled that the first amended charge was untimely filed under 5 U.S.C. § 7118(a)(4). The General Counsel argues that Respondent HQ USAF's involvement in the matter did not end on September 14, but "continued throughout the issuance of the Notices themselves on September 18th." G.C.'s Exceptions at 14. Consequently, the General Counsel maintains that the first amended charge, filed on March 15, 1990, was filed within the 6-month time limit set forth in 5 U.S.C. § 7118(a)(4). The General Counsel also contends that the first amended charge put Respondent HQ USAF on notice that it would be required to defend itself against an independent unfair labor practice and that Respondent HQ USAF "had a full and adequate opportunity to prepare its defense prior to the hearing and to address the allegations in the [c]omplaint." Id. at 22.

Alternatively, the General Counsel argues that the 6-month time limit for the filing of the charge must be tolled under 5 U.S.C. 7118(a)(4)(B)(i)(ii) because: (1) the parties stipulated that "the Union did not become aware until early March 1991 of Headquarter['s] involvement in the decision to expedite issuance of the Notices[]"; and (2) Respondent Scott AFB "owed a duty to the Union to explain the reasons it allowed Headquarters to control its side of the bargaining relationship." Id. at 17 (emphasis omitted).

B. Merits

The General Counsel contends that the Judge erred in concluding that issuance of the notices of proposed furlough did not change conditions of employment of unit employees. The General Counsel argues, in this regard, that the notices of proposed furlough concern "conditions of employment" under the test set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles).

The General Counsel also argues that the issuance of the notices of proposed furlough changed conditions of employment because the notice initiates the furlough procedure. The General Counsel notes that 5 C.F.R. § 752.401 provides that "employees cannot legally be furloughed" prior to the receipt of the 30-day advance notice. G.C.'s Exceptions at 9 (emphasis omitted). The General Counsel disputes the Judge's finding that "the employees who received the notice of proposed furlough had not by then been subject to a determination that their positions would be affected by a furlough in the event one occurred." Id. The General Counsel contends that "[t]he notice clearly informs the employees that they have been targeted for furlough." Id.

The General Counsel also excepts to the Judge's failure to find that Respondent HQ USAF interfered in the bargaining relationship between the Respondent Scott AFB and the Union. According to the General Counsel, Respondent HQ USAF violated section 7116(a)(1) and (5) of the Statute when it directed all subordinate units to issue notices of proposed furlough to employees by September 18.

V. Respondents' Opposition

The Respondents contend that the Judge properly concluded that the proposed notices of furlough did not constitute a change in conditions of employment. The Respondents argue that Scott AFB is distinguishable from this case because Scott AFB dealt with a RIF notice and the facts in this case "reveal the possibility of a furlough, no final decision of any actual furlough having been made." Respondents' Opposition at 4 (emphasis in original). According to the Respondents, "[a]s opposed to the furlough notice and its accompanying possibility of further action, the RIF notice results when the Agency has already determined the employees who will be affected by the action." Id. at 5.

The Respondents also contend that the Judge properly granted Respondent HQ USAF's motion to dismiss the complaint as to it.

VI. Analysis and Conclusions

A. Timeliness of Charge Against Respondent HQ USAF

Section 7118(a)(4)(A) of the Statute provides, in pertinent part:

[N]o complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.

The record in this case reveals that on October 16, 1990, the Union filed a charge alleging that Respondent Scott AFB violated the Statute because "[o]n or about September 17 and 18 and days following, the Employer issued furlough letter to unit employees." G.C.'s Exh. 1(a). On March 15, 1991, the Union filed the first amended charge, which added Respondent HQ USAF as a party in the case, and which alleged that the Respondents violated section 7116(a)(1) and (5) of the Statute when "[o]n or about September 17 and 18, 1990, the Employer issued notices of proposed furloughs to unit employees without providing the union prior notice or opportunity to bargain." G.C. Exh. 1(c). The complaint alleges that Respondent HQ USAF violated section 7116(a)(1) and (5) of the Statute when:

[o]n or about September 14, 1990, HQ USAF directed Scott AFB to issue Notices of Proposed Furlough to employees no later than September 18, 1990.

G.C.'s Exhibit 1(d) at 2.

Based on its plain wording, we conclude that the first amended charge put Respondent HQ USAF on notice that it was being charged with a violation of the Statute in connection with Respondent Scott AFB's issuance of notices of proposed furlough to unit employees on September 18, 1990. We also conclude that Respondent HQ USAF may properly be charged with violating the Statute on September 18, 1990, when Respondent Scott AFB carried out Respondent HQ USAF's directive to issue the notices. Therefore, we find that the March 15, 1990, charge against Respondent HQ USAF was timely filed under section 7118(a)(4)(A) of the Statute and we will consider the merits of the complaint against this Respondent.

B. The Issuance of the Notices of Proposed Furlough Changed Conditions of Employment

It is clear from applicable law and regulation that: (1) before an agency can furlough an employee for 30 days or less, the agency must issue the employee a written notice of proposed furlough; and (2) employees who have received such notices can be furloughed immediately after the expiration of the 30-day notice period.(2) Therefore, the issuance of the notices of proposed furlough constitutes a step necessary to furlough employees and, in fact, places employees in a status in which they can be furloughed. In this regard, the notices of proposed furlough issued to employees in this case are similar to the RIF notices issued to employees in Scott AFB. Both notices changed affected employees' conditions of employment by placing the employees in a status in which they "became subject to actions to which they had not been subject prior to the issuance of the notices." Scott AFB, 35 FLRA at 854. Therefore, consistent with Scott AFB, we find that the issuance of notices of proposed furlough to unit employees in this case changed the employees' conditions of employment.

C. Respondent Scott AFB was Obligated to Negotiate With the Union Before Issuing the Notices of Proposed Furlough

The notices of proposed furlough changed unit employees' conditions of employment. Prior to implementation of a change in conditions of employment of unit employees, an agency must provide a union with adequate notice of the proposed change and an opportunity to bargain over those aspects of the change that are negotiable. See, for example, U.S. Department of the Army Lexington-Blue Grass Army Depot Lexington, Kentucky, 38 FLRA 647, 661 (1990). The notice provided by an agency must be provided sufficiently in advance of the contemplated change in order that a union will have a reasonable opportunity to prepare for and request bargaining. See Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base Ohio, 41 FLRA 690, 698 (1991).

1. Respondent HQ USAF

When management at a higher level in an agency directs or requires management at a subordinate level to act in a manner that is inconsistent with the subordinate level's bargaining obligations under the Statute, the higher level entity violates section 7116(a)(1) and (5) of the Statute. See, for example, Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 676 (1991); U.S. Department of Health and Human Services, Public Health Service and Centers for Disease Control, National Institute for Occupational Safety and Health, Appalachian Laboratory for Occupational Safety and Health, 39 FLRA 1306, 1316 (1991) (PHS, CDC). See generally Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA 875 (1986).

The record establishes that, as early as August 20, 1990, Respondent HQ USAF was aware of possible furloughs of unit employees beginning on October 15, 1990. Transcript at 108. At that time, Respondent HQ USAF was also aware that notices of proposed furlough had to be issued to employees by September 18, 1990 to meet the minimum 30 days' advance notice required by 5 U.S.C § 7513. Id. 102-03. The record reflects that Respondent HQ USAF was "hoping" that it would not be necessary to issue notices of proposed furlough to employees. Respondents Post-Hearing Brief at 5. However, the record also reflects that Respondent HQ USAF "elected not to send out notices of furlough early on because [it] felt that [it] could take the money from other areas[]" to cover the civilian payroll for a period of time. Transcript at 111.

In our view, the timing of Respondent HQ USAF's directive precluded Respondent Scott AFB from fulfilling its statutory duty to give the Union adequate advance notice of an impending change and a reasonable opportunity to bargain before implementation of the change. Although Respondent HQ USAF was aware in August of possible furloughs, it "elected" to wait until Friday, September 14, to direct its subordinate activities to issue notices of proposed furlough by Tuesday, September 18. Id. at 111. Moreover, Respondent HQ USAF makes no assertion that it could not have provided notice earlier. By its actions, Respondent HQ USAF directed its subordinate activity to act at a time which prevented the subordinate activity from complying with its obligations under the Statute and, thereby, unlawfully interfered in the bargaining relationship between Respondent Scott AFB and the Union. See PHS, CDC, 39 FLRA at 1316. We conclude, in these circumstances, that Respondent HQ USAF violated section 7116(a)(1) and (5) of the Statute.

2. Respondent Scott AFB

Where a subordinate level activity merely carries out higher level instructions and acts ministerially and without discretion in the matter, the Authority will not find that the subordinate level activity violated the Statute by its actions. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1381, 1392 (1991); U.S. Department of the Interior, Washington, D.C. and U.S. Department of the Interior, National Park Service, Western Regional Office, San Francisco, California, 37 FLRA 804, 805 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of the Interior, Washington, D.C., Nos. 90-70517, 90-70542 (9th Cir. Oct. 3, 1990).

It is undisputed that on Friday, September 14, 1990, Respondent Scott AFB was directed by Respondent HQ USAF to issue notices of proposed furlough by Tuesday, September 18, 1990. There is no argument, or basis on which to conclude, that Respondent Scott AFB could or should have provided the Union with notice and an opportunity to bargain over the furlough notices prior to receiving direction from Respondent HQ USAF on September 14. In these circumstances, we conclude that Respondent HQ USAF's directive deprived Respondent Scott AFB of its discretion to provide the Union with adequate notice of, and an opportunity to bargain over, the issuance of the proposed furlough notices and that it would not effectuate the purposes and policies of the Statute to find that Respondent Scott AFB violated the Statute when it implemented the directive. Accordingly, we will dismiss the complaint against Respondent Scott AFB.

VII. Summary

Respondent HQ USAF violated section 7116(a)(1) and (5) of the Statute by unlawfully interfering with Respondent Scott AFB's collective bargaining relationship with the Union. Respondent Scott AFB did not violate the Statute because the actions of Respondent HQ USAF prevented Respondent Scott AFB from complying with its obligations under the Statute.

VIII. Remedy

As a remedy, the General Counsel requests that the notice to all employees be posted at Scott Air Force Base, Illinois, and Headquarters, U.S. Air Force, Washington, D.C. In the circumstances of this case, we find that the remedy requested by the General Counsel is appropriate and will effectuate the purposes and policies of the Statute.

IX. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Headquarters, U.S. Air Force, Washington D.C., shall:

1. Cease and desist from:

(a) Interfering with the collective bargaining relationship between the National Association of Government Employees, Local R7-23 and the 375th Combat Support Group, Scott Air Force Base, Illinois, by taking actions which prevent the 375th Combat Support Group from complying with its obligations under the Statute.

(b) 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 actions in order to effectuate the purposes and policies of the Statute:

(a) Post at its HQ USAF Washington D.C. facilities and the facilities at Scott Air Base, Illinois, where bargaining unit employees represented by the National Association of Government Employees, Local R7-23 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 Secretary of the Air Force and they 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.

(b) 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, wit