U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio (Respondent) and International Association of Firefighters, Local F-88 (Charging Party) and U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio Respondent and International Association of Firefighters, Local F-88 Charging Party

[ v56 p706 ]

56 FLRA No. 118

U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
(Respondent)

and

INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL F-88
(Charging Party)

CH-CA-70577

_____

DECISION AND ORDER

September 26, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the decision of the Administrative Law Judge on remand by the Authority in U.S. Department of Air Force, Air Force Material Command, Wright-Patterson Air Force Base, Ohio and International Association of Fire Fighters, Local F-88, 55 FLRA 968 (1999) (Air Force). The General Counsel filed an opposition to the exceptions. [n1] 

      The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (Statute) when it terminated the practice of permitting employees to smoke inside the fire stations at Wright-Patterson Air Force Base (WPAFB) without affording the Union an opportunity to negotiate.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilateral terminating the practice of smoking inside the Respondent's fire stations without affording the Union an opportunity to negotiate the change.

      Before the Judge, the Respondent defended its unilateral termination of the disputed practice on several grounds, including that the Charging Party did not orally request to bargain and that, in any event, the Charging Party was required to make a written request to bargain. The Judge rejected the Respondent's defenses, finding, among other things, that the Charging Party made a valid, oral request to bargain, and that it would have been futile for the Charging Party to make a written bargaining request because the Respondent clearly stated that it was unwilling to bargain.

      We find that a preponderance of the evidence supports the Judge's finding that the Charging Party made a valid, oral request to bargain. In addition, the Respondent does not except to the Judge's finding that it would have been futile to make a written request to bargain. As such, any exception to this finding is waived. See 5 C.F.R. § 2423.40(d). As the Charging Party orally requested to bargain, and as it would have been futile to submit a written request to bargain, we conclude, in agreement with the Judge, that the Respondent violated section 7116(a)(1) and (5) by unilaterally terminating the disputed smoking practice. [n2] 

      However, we modify the Judge's recommended order. In this regard, the refusal to bargain occurred at Wright-Patterson Air Force Base and there is no indication that any official other than at the installation level was in any way responsible for the violation. Further, the General Counsel requested that the notice be signed by the Base Commander and the Judge did not provide any reason why he disregarded this request and, instead, ordered that the notice be signed by the Commander, Air Force Material Command. Under these circumstances, we grant the Agency's request that the proposed order be modified to provide that the notice be signed by the Base Commander, Wright-Patterson Air Force Base. [n3]  [ v56 p707 ]

II.     Order

      Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, shall:

      1.     Cease and desist from:

           (a)     Unilaterally implementing changes in unit employees' conditions of employment, including changes in the practice of smoking inside fire stations without providing the International Association of Firefighters, Local F-88, with prior notice and the opportunity to bargain to the extent required by law.

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

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

           (a)     Notify the International Association of Firefighters, Local F-88, in advance of any proposed changes in conditions of employment and provide the International Association of Firefighters, Local F-88, with prior notice and the opportunity to bargain to the extent required by law.

           (b)     Reinstate the practice of permitting employees to smoke in previously designated areas inside the fire stations.

           (c)     Post at its facilities where bargaining unit employees represented by the International Association of Firefighters, Local F-88, 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 Base Commander, Wright-Patterson Air Force Base, Ohio, 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 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT unilaterally implement changes in unit employees' conditions of employment, including changes in the practice of smoking inside fire stations without providing the International Association of Firefighters, Local F- 88, with prior notice and the opportunity to bargain to the extent required by law.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Statute.

WE WILL notify the International Association of Firefighters, Local F-88, in advance of any proposed changes in conditions of employment and provide the International Association of Firefighters, Local F-88, with prior notice and the opportunity to bargain to the extent required by law.

WE WILL reinstate the practice of permitting employees to smoke in previously designated areas inside the fire stations.

      ________________________
(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 its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe Street, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312) 353-6306. [ v56 p708 ]


Office of Administrative Law Judges

U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent

and

INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL F-88
Charging Party

Case No. CH-CA-70577
(55 FLRA No. 159)

Warren A. Buckler, Jr.
For the Respondent

Greg A. Weddle, Esquire
Susan L. Kane, Esquire
For the General Counsel

Before:     Eli Nash, Jr.
Administrative Law Judge

DECISION AND ORDER ON REMAND

      On September 30, 1999, the Authority remanded the instant matter to the undersigned "to determine whether the Union made a valid request to bargain and, if it did, whether the Respondent improperly failed to bargain with the Union." The Authority also determined that since the General Counsel's position in the case is that "the parties established a practice of informal bargaining, inconsistent with the contract" it would be relevant in evaluating Respondent's defense that the Union had not made a written request to bargain, to address whether a contract interpretation issue similar to that found in U.S. Department of Housing and Urban Development, Rocky Mountain Area, Denver, Colorado, 55 FLRA 571, 572 n.5 (1999)(HUD) might apply in this case.

      The facts in this case are set out fully in the recommended decision. I rely on those facts in considering the matter on remand.

Conclusions

      The record does not support Respondent's defense that the Union's failure to make a written request to bargain relieved it of the obligation to bargain. The Authority noted in HUD that in certain circumstances it would not foreclose the possibility of finding that local management could establish a binding practice contrary to the terms of a nationwide agreement. HUD, 55 FLRA at 572 n.5. This may be such a case. Here, the facts show that Wilcoxon was encouraged by local management officials to bargain informally with the Union. Thus, the parties, for years, bargained certain fire station matters in an informal manner. Such bargaining rarely, if ever, required a written request by the Union to initiate bargaining. As discussed more fully hereafter, the parties in this case established a binding practice of informal negotiations without written requests to bargain.

      In Internal Revenue Service, Washington, DC, 47 FLRA 1091, 1103 (1993)(IRS) "when a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permitted its actions alleged to constitute an unfair labor practice, the Authority, including its administrative law judges, will determine the meaning of the parties' collective bargaining agreement and will resolve the unfair labor practice complaint accordingly." However, in IRS the Authority went on to say:

[O]nce the General Counsel makes a prima facie showing that a respondent's actions would constitute a violation of a statutory right, the respondent may rebut the General Counsel's showing of a prima facie case. This may be done by establishing by a preponderance of the evidence that the parties' collective bargaining agreement allowed the respondent's actions. . . Furthermore, in determining the meaning of the collective bargaining agreement, the administrative law judge should consider, as necessary, any alleged past practices relevant to the interpretation of the agreement. 47 FLRA at 1110-11.

      Thus, a respondent must prove by a preponderance of the evidence that its action was allowed by the collective bargaining agreement and the evidence must be considered in light of any practice the parties might have and in this case, the prior history.

1.     The Parties Disregarded Any Contractual Requirement for Written Bargaining Demands by Verbally Negotiating Changes in Conditions of Employment Over an Extended Period of Time

      The record reveals that Darrell Wilcoxon became Fire Chief in November 1990, that Chief Wilcoxon was encouraged by Respondent to have an "open door policy." It is undisputed that during Wilcoxon's tenure, ninety percent of the parties' negotiations were conducted orally and informally. Furthermore, it is clear that Brian Normile, Respondent's Labor Relations Officer, knew of this practice before he sent the June 18, 1997, letter announcing the termination of the fire station [ v56 p709 ] smoking practice. Thus, Normile was aware of the practice when Johnson voiced the Union's opposition to the change and when Johnson asked Normile if fire station smoking could continue during periods of inclement weather and when Johnson told him that the Union was willing to negotiate a change in the location of smoking in the fire stations. In any event, Normile was certainly aware of the practice of oral negotiations on the day Respondent terminated fire station smoking. Chief Jimmy McKay was also aware of the past practice of verbal negotiations. In a meeting between McKay and Richard Pence, McKay disclosed that he "like[d] to have things in writing, and that [the parties] would pursue more like official procedures as opposed to a more indirect, open policy that [McKay] understood that Chief Wilcoxon had."

      As previously noted, the parties established a practice of bargaining matters orally without regard to the language of Article 12, Section 5, a modification to the terms of the contract which became a past practice. U.S. Patent and Trademark Office, 39 FLRA 1477, 1482-83 (1991). Accordingly, it is found that Respondent failed to prove by a preponderance of the evidence its affirmative defense that the Union's failure to submit a written as opposed to verbal bargaining demand resulted in a waiver of the Union's bargaining rights in this matter.

      Finally, since Respondent clearly informed the Union that it was unwilling to bargain the decision to end the smoking practice at the fire stations, it is found that Respondent cannot now rely on the Union's failure to submit a written demand to bargain since it would have been futile. In this regard, it appears that whether the Union requested bargaining in writing or orally would have made no difference. Blue Grass Army Depot, Richmond, Kentucky, 50 FLRA 643, 653 (1995).

2.     The Collective Bargaining Agreement Did Not Prevent the Development of Inconsistent Practices Which Affect their Bargaining Obligations

      In the opinion of the undersigned, Respondent did not prove by a preponderance of the evidence as an affirmative defense that Article 34, Section 4: "any waiver or breach of any condition of this CLA by either party shall not constitute a precedent in the future enforcement of any or all terms and conditions herein," excused its actions in this case. Under present case law Respondent has the burden of proving that this provision allowed it to unilaterally terminate fire station smoking. IRS, 47 FLRA at 1110-11. Judge Etelson considered this exact clause in Naval Submarine Base, Groton, Connecticut, Case No. 1-CA-10082, ALJDR No. 99 (1991), and noted that there is a distinction between the possible effect of this clause in a proceeding based on the contract, and a waiver of the statutory obligation to bargain a change in past practice. Respondent presented no evidence in this regard, making it appropriate to draw an adverse inference that there was no evidence available to support such a defense. See United States Department of Justice, Immigration and Naturalization Service, 51 FLRA 914, 926 (1996).

3.     Even Without the Inconsistent Practice of Verbal Negotiations, the Collective Bargaining Agreement Does Not Require that the Union Submit a Written Request to Bargain in Order to Avoid Unilateral Action

      Even absent the seven year past practice of verbal negotiations, the parties' collective bargaining agreement specifies the circumstances under which the Union would waive its right to bargain over a change. Article 12, Section 5(e) states, in pertinent part:

Failure of the Union to request negotiations within the time limits shall constitute a non-request for negotiations and the Employer may implement its change(s).

      Consequently, under the collective bargaining agreement, absent a timely request, the Union would waive its right to bargain. Although the contract elsewhere states that the request to bargain will be in writing, the particular provision releasing Respondent from its bargaining obligation requires only that the Union's request be timely. It is not only an arguable interpretation, but a more reasonable interpretation of the parties' contract, that a verbal request to bargain might breach the contract, but not waive the Union's statutory right to bargain. Furthermore, it is unreasonable to interpret this clause as applying when Respondent, as in this case, did not recognize that it had any duty to bargain about the decision to make the change.

      Respondent offered no evidence of prior unilateral actions taken by it based on the Union's failure to submit a written request to bargain and thereby, failed to meet its burden of proof. Based on an undisputed seven year practice of verbal negotiations, there certainly must have been some evidence to support such a defense. Respondent's failure to elicit any evidence on this point leads to the inference that the bargaining history and application would not support Respondent's actions.

      Based on all the foregoing, it is found and concluded that the Union made a valid request to bargain and Respondent failed to bargain by terminating the practice of fire station smoking without providing the Union the opportunity to negotiate the change. Therefore, Respondent violated section 7116(a)(1) and (5) of the Statute. [ v56 p710 ]

ORDER

      Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Statute, the U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, shall:

      1.     Cease and desist from:

           (a)     Unilaterally implementing changes in unit employees' conditions of employment, including changes in the practice of smoking inside fire stations without providing the International Association of Firefighters, Local F-88, with prior notice and the opportunity to bargain to the extent required by law.

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

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

           (a)     Notify the International Association of Firefighters, Local F-88, in advance of any proposed changes in conditions of employment and provide the International Association of Firefighters, Local F-88, with prior notice and the opportunity to bargain to the extent required by law.

           (b)     Reinstate the practice of permitting employees to smoke in previously designated areas inside the fire stations.

           (c)     Post at its facilities where bargaining unit employees represented by the International Association of Firefighters, Local F-88, 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, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 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 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Chicago Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, January 28, 2000.

      ________________________
ELI NASH, JR.
Administrative Law Judge


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER of THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally implement changes in unit employees' conditions of employment, including changes in the practice of smoking inside fire stations without providing the International Association of Firefighters, Local F- 88, with prior notice and the opportunity to bargain to the extent required by law.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Statute.

WE WILL notify the International Association of Firefighters, Local F-88, in advance of any proposed changes in conditions of employment and provide the International Association of Firefighters, Local F-88, with prior notice and the opportunity to bargain to the extent required by law.

WE WILL reinstate the practice of permitting employees to smoke in previously designated areas inside the fire stations .

      _______________________
(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 its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe Street, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312)353-6306



Footnote # 1 for 56 FLRA No. 118

   The Respondent also submitted a request to file a reply brief to the General Counsel's opposition along with the reply brief. Under section 2423.40(c) of the Authority's Regulations, "[r]eply briefs shall not be filed absent prior permission of the Authority." As the Respondent did not receive prior permission, and has not otherwise provided a basis for consideration of its reply brief, its request is denied. In addition, because the record is sufficient to resolve the exceptions, we deny the Respondent's requests that the complaint be remanded to the Judge for further evidence.


Footnote # 2 for 56 FLRA No. 118

   In