[ v46 p1184 ]
46:1184(109)CA
The decision of the Authority follows:
46 FLRA No. 109
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
and
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
(Respondents)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1592
(Charging Party/Union)
DE-CA-20634
_____
DECISION AND ORDER
January 14, 1993
_____
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1 of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and Respondent Ogden Air Logistics Center, Hill Air Force Base, Utah (Respondent Ogden) filed briefs with the Authority.
The complaint alleges that Respondent Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (Respondent AFLC) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by prohibiting Respondent Ogden from engaging in Union-initiated mid-term negotiations over conditions of employment. The complaint further alleges that Respondent Ogden violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate with the Union over the attire to be worn by certain bargaining unit employees.
For the following reasons, we find that the Respondents violated the Statute, as alleged in the complaint.
II. Facts
In March 1992, Respondent AFLC "prohibited its component activities, including Respondent Ogden, from engaging in mid-term negotiations initiated by the [Union] . . . regarding conditions of employment affecting employees in the bargaining unit" represented by the Union. Stipulation, para. 15. On April 1, 1992, the Union requested to negotiate with Respondent Ogden over the attire to be worn, on-duty, by certain unit employees. By letter of April 13, 1992, and at all relevant times subsequent to that date, Respondent Ogden refused to bargain over the matter requested by the Union.
III. Positions of the Parties
A. Respondents
Respondent Ogden's(1) sole contention is that, based on the court's decision in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA), it has no obligation under the Statute to bargain over Union-initiated mid-term proposals.
B. General Counsel
The General Counsel argues that Respondent Ogden violated section 7116(a)(1) and (5) of the Statute by refusing to "negotiate on a clearly negotiable matter." General Counsel's Brief at 4. According to the General Counsel, the Responents' reliance on SSA v. FLRA is misplaced because the Authority has indicated that it disagrees with, and will not adhere to, the court's decision. The General Counsel also argues that the parties' stipulation clearly establishes that Respondent AFLC unlawfully interfered in the bargaining relationship between Respondent Ogden and the Union by prohibiting Respondent Ogden from bargaining with the Union.
IV. Analysis and Conclusions
As noted, the Respondents' sole argument is that the Authority should adopt and apply the reasoning of the court in SSA v. FLRA to find that unions do not have the right to initiate mid-term bargaining under the Statute. However, as noted by the General Counsel, we respectfully disagree with that decision and adhere to the holding in Internal Revenue Service, 29 FLRA 162 (1987) (IRS), that the duty to bargain in good faith under the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters that are not contained in or covered by the collective bargaining agreement, unless the union has waived its right to bargain about the subject matter involved. See Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 45 FLRA 1290, 1291 (1992); U.S. Patent and Trademark Office, 45 FLRA 1090, 1091 n.2 (1992) petition for review filed sub nom. U.S. Patent and Trademark Office v. FLRA, No. 92-2347 (4th Cir. Oct. 27, 1992). Accordingly, we reject the Respondents' argument.
In this case, Respondent Ogden makes no claim that the Union sought to bargain over a matter that is contained in or covered by the parties' agreement or waived its right to bargain. Moreover, Respondent Ogden does not assert, and it is not apparent, that the matter over which the Union sought to bargain is otherwise nonnegotiable.(2) For example, American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 25 FLRA 1028, 1030-32 (1987) (proposal addressing attire worn by unit employees while on duty held to be negotiable). Therefore, we find that Respondent Ogden violated section 7116(a)(1) and (5) of the Statute when it refused to negotiate with the Union over the attire to be worn on-duty by unit employees in the Vehicle Operations Branch. See Headquarters, 127th Tactical Fighter Wing, Michigan Air National Guard, Selfridge Air National Guard Base, Michigan, 46 FLRA 582 (1992). See also Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 45 FLRA 1290 (1992).
Further, when higher-level management 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. For example, Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 676 (1991). Accordingly, based on the parties' stipulation that Respondent AFLC prohibited Respondent Ogden from engaging in mid-term negotiations initiated by the Union, we conclude that Respondent AFLC unlawfully interfered in the bargaining relationship between Respondent Ogden and the Union in violation of section 7116(a)(1) and (5) of the Statute.
VI. 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:
A. The Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, shall:
1. Cease and desist from:
(a) Taking actions which interfere with the collective bargaining relationship between the American Federation of Government Employees, AFL-CIO, Local 1592 and the Ogden Air Logistics Center, Hill Air Force Base.
(b) 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 actions in order to effectuate the purposes and policies of the Statute:
(a) Post at all of its facilities where bargaining unit employees are located copies of the attached Notice (APPENDIX 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 ensure that these 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, within 30 days from the date of this Order, as to what steps have been taken to comply.
B. The Ogden Air Logistics Center, Hill Air Force Base, Utah, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate with the American Federation of Government of Employees, AFL-CIO, Local 1592 concerning the attire to be worn by unit employees in the Vehicle Operations Branch.
(b) 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, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, Local 1592, concerning the attire to be worn by unit employees in the Vehicle Operations Branch.
(b) Post at all of its facilities where bargaining unit employees are located copies of the attached Notice (APPENDIX 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 Ogden Air Logistics Center, 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 these Notices are not altered, defaced, or covered by any other material.
(c) 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.
APPENDIX 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 NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT take actions which interfere with the collective bargaining relationship between the American Federation of Government Employees, AFL-CIO, Local 1592, and the Ogden Air Logistics Center, Hill Air Force Base, Utah.
WE WILL NOT in any like or related manner interfere with the collective bargaining relationship between the American Federation of Government Employees, AFL-CIO, Local 1592, and the Ogden Air Logistics Center, Hill Air Force Base, Utah.
We WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.
Date: ____________
________________________________
Commander, Air Logistic Command
Wright-Patterson Air Force Base
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, whose address is: 1244 Speer Boulevard, Suite 100 Denver, CO 80204, and whose telephone number is: (303) 844-5224.
APPENDIX 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 NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to meet and negotiate with the American Federation of Government Employees, AFL-CIO, Local 1592, the exclusive representative of certain of our employees concerning the attire to be worn by unit employees in the Vehicle Operations Branch.
We WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.
WE WILL, upon request, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, Local 1592 concerning the attire to be worn by unit employees on the Vehicle Operations Branch.
Date: ____________
________________________________
Commander, Ogden Air Logistics
Center, Hill Air Force Base, Utah
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, whose address is: 1244 Speer Boulevard, Suite 100 Denver, CO 80204, and whose telephone number is: (303) 844-5224.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Respondent AFLC did not file a separate brief.
2. The Union sought bargaining over the "substance, impact and/or implementation[]" of Respondent Ogden's decision to prohibit certain unit employees from wearing shorts while on duty. Stipulation, Exhibit 4. The record does not disclose that the Union offered particular proposals regarding this matter.