45:1290(130)CA - - Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE, Council 214 - - 1992 FLRAdec CA - - v45 p1290

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[ v45 p1290 ]
45:1290(130)CA
The decision of the Authority follows:


FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AIR FORCE LOGISTICS COMMAND

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 214, AFL-CIO

(Charging Party/Union)

5-CA-10535

5-CA-10754

DECISION AND ORDER

September 29, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The Respondent excepts to the Judge's determination in Case No. 5-CA-10754 that the Respondent's refusal to negotiate over midterm bargaining proposals submitted by the Union concerning an Air Force Logistics Command-wide safety shoe purchase program violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute).

With regard to Case No. 5-CA-10754, 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. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we agree with the Judge that the Respondent violated section 7116(a)(1) and (5) of the Statute in Case No. 5-CA-10754.*/

The Respondent argues that the Authority should apply the reasoning of the court in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) to find that unions do not have the right to initiate midterm bargaining under the Statute, and, therefore, it had no obligation to bargain over the Union's proposals in this case. We respectfully disagree with the court's decision in that case and adhere to the Authority's holding in Internal Revenue Service, 29 FLRA 162 (1987) 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, unless during the negotiation of the agreement the union clearly and unmistakably waived its right to bargain about the subject matter involved. See U.S. Patent and Trademark Office, 45 FLRA No. 110 (1992). Further, we note that although the Respondent cites Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992), the Respondent has not demonstrated how that decision is relevant to the instant case. Accordingly, we conclude that the Respondent committed the unfair labor practices alleged in Case No. 5-CA-10754.

II. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Air Force Logistics Command, Wright- Patterson Air Force Base, Ohio, shall:

1. Cease and desist from:

(a) Unilaterally terminating the Commercial Safety Shoe Purchase Option program for civilian employees at Kelly Air Force Base without first affording American Federation of Government Employees, Council 214, AFL-CIO (Council 214), the exclusive representative of those employees, the opportunity to negotiate with respect to any proposed changes in such program.

(b) Refusing to meet and negotiate with Council 214 over midterm initiation of a Command-wide safety shoe purchase option program.

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

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

(a) Upon request, reestablish the Commercial Safety Shoe Purchase Option program for civilian employees represented by Council 214 at Kelly Air Force Base, and afford Council 214 the opportunity to negotiate with respect to any proposed changes in such program.

(b) Negotiate in good faith with Council 214 about midterm initiation of a Command-wide safety shoe purchase option program.

(c) Post at Kelly Air Force Base copies of the attached Notice "A" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander of the Air Force Logistics Command, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Post at all of its facilities where bargaining unit employees are located copies of the attached Notice "B" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander of the Air Force Logistics Command, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Chicago Regional Office, Federal Labor Relations Authority, Chicago, Illinois, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

NOTICE "A"

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 unilaterally terminate the Commercial Safety Shoe Purchase Option program for civilian employees at Kelly Air Force Base without first affording American Federation of Government Employees, Council 214, AFL-CIO (Council 214), the exclusive representative of those employees, the opportunity to negotiate with respect to any proposed changes in such program.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, reestablish the Commercial Safety Shoe Purchase Option program for civilian employees represented by Council 214 at Kelly Air Force Base, and will afford Council 214 the opportunity to negotiate with respect to any proposed changes in such program.

(Agency)

Dated: By:

(Signature) (Title)

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 of the Federal Labor Relations Authority, Chicago Regional Office, whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL 60604, and whose telephone number is: (312) 353-6306.

NOTICE "B"

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 refuse to meet and negotiate with American Federation of Government Employees, Council 214, AFL-CIO (Council 214), the exclusive representative of affected employees, over midterm initiation of a Command-wide safety shoe purchase option program.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL negotiate in good faith with Council 214 about midterm initiation of a Command-wide safety shoe purchase option program.

(Agency)

Dated: By:

(Signature) (Title)

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 of the Federal Labor Relations Authority, Chicago Regional Office, whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL 60604, and whose telephone number is: (312) 353-6306.