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46 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

375TH COMBAT SUPPORT GROUP

SCOTT AIR FORCE BASE, ILLINOIS

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-23, AFL-CIO, SEIU

(Charging Party/Union)

75-CA-10008

_____

DECISION AND ORDER

November 27, 1992

_____

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 Respondent to the attached decision of the Administration Law Judge. The General Counsel filed cross-exceptions and an opposition to the Respondent's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over certain negotiable conditions of employment. The complaint further alleges that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by implementing changes in smoking and drug testing policies, and asbestos removal procedures at a time when requests for assistance regarding these matters were pending before the Federal Service Impasses Panel (the Panel).

The Judge found that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute, as alleged in the complaint, and that the Respondent violated section 7116(a)(1) and (5) by refusing to bargain over matters involving child care, lateral reassignments, and vacancy announcements. The Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute in connection with implementation of an automated personnel system.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings that 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, and the entire record, we adopt the Judge's findings,⁽¹⁾ conclusions,⁽²⁾ and recommended Order, as modified below.

The General Counsel excepts only to the Judge's recommended Order. We agree with the General Counsel that the Order should be clarified to reflect that: (1) the Respondent is obligated to negotiate in good faith whether or not the Union requests Panel assistance; and (2) the Respondent is required to return to the status quo ante only on request of the Union. We will modify the Order accordingly.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the 375th Combat Support Group, Scott Air Force Base, Illinois, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain with the Union over smoking and drug testing policies, asbestos removal and lateral reassignment procedures, child care, and vacancy announcements.

(b) Failing and refusing to cooperate in impasse proceedings by implementing changes in smoking and drug testing policies and asbestos removal procedures at a time when the Union's request for assistance on these matters is pending before the Federal Service Impasses Panel.

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

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

(a) Upon request of the Union, reinstate the smoking policy in effect at Scott Air Force Base prior to August 15, 1990; the asbestos removal procedures in place prior to August 9, 1990; and rescind the drug testing policy.

(b) Upon request, negotiate in good faith with the Union over negotiable proposals concerning smoking and drug testing policies, asbestos removal and lateral reassignment procedures, child care, and vacancy announcements.

(c) Post at all its facilities where bargaining unit employees represented by the Union 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 Commander, 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 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.

The portion of the complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing an automated personnel system is dismissed.

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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 NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to bargain in good faith with the National Association of Government Employees, Local R7-23, AFL-CIO, SEIU, the exclusive representative of certain of our employees, over smoking and drug testing policies, asbestos removal and lateral reassignment procedures, child care, and vacancy announcements.

WE WILL NOT fail and refuse to cooperate in impasse proceedings by implementing changes in smoking and drug testing policies and asbestos removal procedures at a time when the Union's request for assistance regarding these matters is pending before the Federal Service Impasses Panel.

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 of the National Association of Government Employees, Local R7-23, AFL-CIO, SEIU, reinstate the smoking policy in effect at Scott Air Force Base prior to August 15, 1990; reinstate the asbestos removal procedures in place prior to August 9, 1990; and rescind the drug testing policy.

WE WILL, upon request of the National Association of Government Employees, Local R7-23, AFL-CIO, SEIU, bargain in good faith regarding negotiable proposals concerning smoking and drug testing policies, asbestos removal and lateral reassignment procedures, child care, and vacancy announcements.

__________________________________
(Agency)

Date:__________________ 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 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, CO 80204, and whose telephone number is: (303) 844-5224.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Respondent's arguments that it provided the Union with timely notification of changes in smoking policies and that the Union refused to bargain over them pertain to the Judge's credibility findings, on which the Judge's findings of fact are based. See Judge's Decision at 19 ("Much more believable is the Union's response[] that it was never told of the ground rules change (i.e., that smoking would be banned . . .).") The demeanor of witnesses is an important factor in resolving issues of credibility. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See Antilles Consolidated School System, 39 FLRA 496 (1991).

2. Among other things, the Judge rejected the Respondent's argument that, under section 7116(d) of the Statute, certain aspects of the unfair labor practice complaint were barred by a previous arbitration award. Section 7116(d) provides, as relevant here, that issues which can be raised under a negotiated grievance procedure may, "in the discretion of the aggrieved party," be raised under such procedure or as an unfair labor practice, but may not be raised under both procedures. We agree with the Judge that, as the arbitration award resolved a Respondent-filed grievance, it was not the result of the Union's choice of procedures. Therefore, even if the Union was the aggrieved party in the grievance, the award could not bar resolution of issues in the Union-filed unfair labor practice charge. See Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001, 1003 (1985) ("section 7116(d) attaches when the choice of particular procedures has been made by the aggrieved party regardless of who is formally the filing party."). However, we do not adopt the Judge's statement, in the alternative, that the term "aggrieved party" in section 7116(d) "means only . . . an 'employee' . . . ." Judge's Decision at 17.

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